State has no omnibus powers under Section 6 DSPE Act to withdraw consent to CBI in all cases: Centre to Supreme Court

The Central government has told the Supreme Court that an order of a State government to withdraw consent for Central Bureau of Investigation (CBI) to probe any case or a sweeping order withdrawing consent in all cases, would amount to an ultra vires exercise of power under Section 6 of the Delhi Special Police Establishment Act (State of West Bengal v. Union of India)..The power of the State government to give consent for an investigation by the CBI, cannot and would not include a right of an omnibus power, to pass over-arching sweeping directions not to grant consent in any case or withdraw the consent already granted, an affidavit filed by the State government said.From the very nature of such power, it can be validly exercised only on a case-to-case basis and for good, sufficient and germane reasons to be recorded by the State government, the Centre submitted.."The statutory power conferred upon the State Government under Section 6 of Delhi Special Police Establishment Act is always coupled with a responsibility to exercise that power on a case-to-case basis with an inbuilt condition of exercising the same in larger public interest and not to shield any accused or purely on political considerations," the affidavit said..The affidavit was filed in response to a suit filed by West Bengal government challenging the Calcutta High Court decision to order a probe by the Central Bureau of Investigation (CBI) into cases of murder and crimes against women that allegedly took place during post-poll violence in the State..The West Bengal government, in its original civil suit under Article 131 of the Constitution (original jurisdiction of Supreme Court with respect to Centre-State disputes), had referred to the provisions of the Delhi Special Police Establishment Act 1946, and said the central agency has been proceeding with investigations and filing FIRs without getting the nod from the State government as mandated under the statute. The State had, therefore, sought a stay of investigation in the FIRs lodged into post-poll violence cases by the CBI in pursuance of the Calcutta High Court order. The plea said that as the general consent given to the central agency by the Trinamool Congress government has been withdrawn, the FIRs lodged cannot be proceeded with.Another case was also highlighted by the State in this regard - the Anup Majee case in which a Central government officer charged for his alleged involvement in a coal scam in West Bengal is being probed by the CBI. .A Bench of Justices Vineet Saran and Aniruddha Bose had on September 28, sought the response of the Centre and other respondents.The Central government in its affidavit has contended that the claim by State of West Bengal that it has the competence to undertake a blanket withdrawal of all powers of investigation from the CBI is without substance..Section 6 of the Delhi Special Police Establishment Act read with Entry 80 of List I which is the source of the power for the State to revoke consent "is not absolute in its terms, the affidavit said."The legislative competence of the Union government with regard to offences in relation to these entries is set out explicitly in Entry 93, which deals with 'offences against laws with respect to any of the matters in this List'. The State List, i.e. List II, contains Entry 64 which deals with 'offences against laws with respect to any of the matters in this List'," it was highlighted.This would mean that offences against laws with respect to List I are beyond the legislative competence of the State, and under Article 162 of the Constitution, the executive power of the state is co-extensive with its legislative power, and 6 shall extend to the matters with respect to which the legislature of the State has power to make laws, the Centre contended."The suit is filed by proceeding on the basis that the power to withhold consent is absolute. This certainly cannot be so.....The result of this discussion is that the CBI is entitled to investigate all offences relatable to the entries in List 1, where laws made under those entries create offences," the affidavit stated. .The Centre also submitted that the question to be decided is whether the State government and its police could investigate offences arising under List I laws if committed within the territory of that State. "If the State Government cannot do so with regard to these matters, surely, Entry 80 of List I of the DSPE Act would have to be read consistently with the other provisions of the Constitution. The consequence would otherwise be that a vacuum would exist under which there is no authority that could investigate those offences under the Central Acts," it was submitted. Hence, the withdrawal of consent by the State Government would have no effect on the offences involved, the government reiterated..The Centre also prayed for the dismissal of the suit by West Bengal government since the suit has not added CBI, an "autonomous" body as a party but added Centre as one. The affidavit said that the autonomy of the CBI is statutorily maintained and cannot be interfered with even by the Central Government in regard to the manner in which the CBI investigates a case."Union of India has not registered any case in the State of West Bengal, nor has it been investigating any case. Yet, as is evident from the prayers extracted above, each and every prayer in the present suit is directed either towards restraining the Union of India from investigating any case or towards quashing cases where the Union of India has allegedly registered FIRs," the Central government submitted..Regarding the post poll cases, the Centre submitted that the issues mentioned in the suit are already adjudicated or are pending before courts and that any order passed either in the application or suit or any decree being issued "would inevitably in conflict with the relief/s granted and / or prayed for in parallel proceedings with regard to the very same subject matter which is the subject matter of the present suit.".Regarding the Anup Majee case, Centre submitted that there are numerous investigations which are being carried out against Central government employees or have either pan-India impact or impact on more than one States for the purpose of conducting investigation into such offences. "It is always desirable and in the larger interest of justice that the central agency conducts the investigation in such cases. In the event of offence being committed by a Central Government employee or an offence having multi-State or pan-India implication, an investigation made by the central agency would not harm or affect the federal structure or take away the right of the State Government to investigate offences within the State’s jurisdiction," the reply said..Centre has maintained that even if the consent is withdrawn within a State by the State Government, the power of the Delhi Special Police Establishment Act to investigate the offences relating to Railway areas continues to apply. "Object of including ‘Railway Areas’ within the jurisdiction of the CBI to investigate upon, was that the Railway Areas are spread across the country, overlapping into the territories of various States and thus, if the CBI was to undertake consent from every State prior to conducting investigation in such cases, it would completely defeat the purpose sought to be achieved by the DSPE Act," the government affidavit said.