WB Coal Scam Probe-'CBI Cannot March Army Into State To Investigate Offence In Supersession Of State Police': Mukul Rohatgi Tells SC

The Single Judge Bench of the High Court had ruled that the probe beyond the Railway areas (in the State of West Bengal), shall be conducted by the CBI only subject to specific consent being granted by appropriate authorities of the State of West Bengal . In an appeal preferred by CBI, a Division Bench of the High Court stayed the Single Judge's order and allowed CBI to investigate the case without any hindrance. The case pertains to illegal mining and transportation of coal through Railways in connivance with officers of the Eastern Coalfield Limited, Railways, C.I.S.F. and some other private persons including the writ petitioner (Anup Majee).

He indicated the relevant clause of the Letters Patent of the Chartered High Courts- 'No appeal from High Court exercising original jurisdiction' - which stipulates that there shall be no appeal to the High Courts at Madras, Bombay and Bengal from any sentence or order passed or made in any criminal trial before the Court of original criminal jurisdiction which may be constituted by one or more Judges of the said High Court.

"'Criminal trial before the Court of original criminal jurisdiction' would go together. But does this phrase qualify 'sentence or order...' or 'made...'? ", asked Justice Chandrachud.

"We have to bifurcate the provision. The first part says that no appeal would be maintainable. The second specifies the cases to which the first part is to apply. But we don't know the procedural law of that time...", noted Justice Khanna.

He indicated 2017 decision of the top court in Ram Kishan Fauji's case, where it was held that an intra-court appeal cannot be filed before a division bench of the high court if a single judge has passed the order in a criminal case. "The contention that solely because a writ petition is filed to quash an investigation it would have room for intra-court appeal, and if a petition is filed under inherent jurisdiction under Section 482 CrPC, there would be no space for an intra-court appeal, would create an anomalous, unacceptable and inconceivable situation. The provision contained in the Letters Patent does not allow or permit such an interpretation," a bench comprising Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar had said.

"Ours is not a borderline case. There is a challenge to the FIR. It involves an exercise of criminal jurisdiction. It is not like the lines of civil and criminal are blurred ", continued Mr. Rohatgi.

"In my case, the FIR by the CBI came to be registered in November, 2020 in relation to coal being stolen from the mining area of ECL (Eastern Coalfields Ltd, the de facto complainant) despite the state having withdrawn its consent to the CBI as far back as in November 2018. The CBI could not enter the forbidden territory. Their action is entirely without jurisdiction. Sections 5 and 6 of the DSPE Act make up the federal scheme of the Constitution- that the Police is a state subject and the Central police authority cannot march their army into the state to investigate an offence in supersession of the state police...otherwise sections 5 and 6 would have been ultra vires the Constitution", submitted Mr. Rohatgi.

The hearing shall resume tomorrow.

SG Tushar Mehta, for the CBI, who was on his legs in another court, was initially not too happy with the hearing commencing anyway- "I would not like to be deprived of the privilege of hearing the other side… But I leave it to Your Lordships, if Your Lordships feel that this matter cannot wait for a day or two… ", he had urged.

"No, it is not like that. It is just that we have to occupy this half hour (before lunch). We have been trying to lay your hands on some matter so that we don't have to rise right now. You can have your junior make notes today. We will give you enough time to argue tomorrow. We will hear you fully", assured Justice Chandrachud