CBI not under control of Union, govt can't supervise its probe: Centre tells SC

New Delhi: The CBI is not under the "control" of the Union and the government can't supervise either the registration of offence by the agency or its investigation, the Centre told the Supreme Court on Thursday.

The Centre's submission assumes significance as the opposition parties have been accusing the government of misusing central probe agencies like the CBI and the Enforcement Directorate (ED) to target its rivals.

The Centre raised preliminary objections before a bench of justices B R Gavai and Sandeep Mehta on the maintainability of a lawsuit filed by the West Bengal government which alleged that the CBI is going ahead with its investigation without securing the prerequisite nod from the state.

However, the West Bengal government countered the Centre's submission and said once a foothold is given to the CBI in a state, the ED enters and this has huge ramification on the polity of the country.

The West Bengal government has filed an original suit in the apex court against the Centre under Article 131 of the Constitution, alleging that the CBI has been filing FIRs and proceeding with its investigation, despite the state having withdrawn the general consent to the federal agency to probe cases within its territorial jurisdiction.

Article 131 deals with the Supreme Court's original jurisdiction in a dispute between the Centre and one or more states.

During the hearing on Thursday, Solicitor General Tushar Mehta, appearing for the Centre, told the bench that Article 131 is "one of the most sacred" jurisdiction conferred upon the apex court and can't be allowed to be misused or abused.

He said the cases referred to in the state's suit have not been filed by the Union of India.

"The Union of India has not registered any case. CBI has done," Mehta said, adding that state has arrayed the Union of India represented by secretary of the Department of Personnel and Training (DoPT) as party in the suit.

"CBI is not under the control of Union of India," he said.

The solicitor general said that cases referred to in the suit include those which were ordered to be registered by the Calcutta High Court.

"The supervision (of CBI) is not with the Union of India. I (Centre) can't supervise either registration of the offence, I can't supervise the investigation and I can't supervise how it would lead to either a closure or a charge sheet or conviction or acquittal," said Mehta, who also referred to the provisions of the Delhi Special Police Establishment (DSPE) Act, 1946.

He said the suit filed by the West Bengal was not maintainable because there was no cause of action against the Union of India.

"This (Article 131) is a very sacred jurisdiction and therefore, the principles which would govern entertaining of the suit or dismissing the suit on the ground of maintainability etc. will have to be examined more rigorously considering that this is a very sacrosanct provision and can't be allowed to be abused or misused," he said.

Mehta said the similar issue and same question is already pending adjudication before the apex court in a special leave petition (SLP) and this fact has been suppressed by the state in the suit.

"This is a suit filed before the highest court of the country and my submission as a constitutional proposition is going to be that the suppression of fact must led to dismissal of the suit only on that ground...," he said.

Senior advocate Kapil Sibal, who appeared for West Bengal, said the CBI is not a statutory authority and it is an investigating agency.

"Why can't it be considered to be a statutory authority," the bench asked.

Sibal said, "It (CBI) is an investigating arm of the government." He referred to the provisions of the DSPE Act, including section 4 which deals with superintendence and administration of special police establishment.

"In the administrative structure of the Union of India, the supervision of the police establishment is with the Department of Personnel and Training," he said.

Sibal said when a question is asked in Parliament about the CBI, it is the minister of state for DoPT who answers it.

Referring to section 6 of the DSPE Act, which deals with consent of state government to exercise of powers and jurisdiction, he said once the state has withdrawn its consent, the CBI can't enter the state and investigate.

"I am saying under the federal structure of this country, once a state has withdrawn consent, no investigating agency can enter into it. This does not apply, for example under the PMLA (Prevention of Money Laundering Act)," he said.

"What is happening is, you give a foot hold to the CBI in the state, the ED enters. Because then there is a predicate offence and the whole exercise is meant for that, to allow the ED to enter. Then the ED starts investigating in the state and this has huge ramification on the polity of this country," Sibal said.

The arguments in the matter remained inconclusive and would continue on May 8.

On November 16, 2018, the West Bengal government withdrew the "general consent" accorded to the Central Bureau of Investigation (CBI) to conduct a probe or carry out raids in the state.