[BREAKING] State's consent under Section 6 of DSPE Act not required for CBI to probe Central govt officers: Calcutta High Court

The Central Bureau of Investigation (CBI) can probe offences under the Prevention of Corruption Act against Central government officers even though the offence has been committed in a State where CBI does not have general consent to operate under the Delhi Special Police Establishment Act, the Calcutta High Court ruled on Wednesday (Vinay Mishra v. CBI)..Central government officers who are offenders under the Prevention of Corruption Act (PC Act) are to be dealt with equally irrespective of the fact that they may be working in different States, single-judge Justice Tirthankar Ghosh held.“As such, the public servants whose office location may be in different States, but are associated with the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government cannot be distinguished and/or discriminated because of the location of their offices being at different States and are to be hauled up for corruption in like and similar manner uniformly throughout the country,” the judgment said..However, the Court clarified that in cases where exclusively the officers belonging to the State government are involved, the fact of the case may demand consent under Section 6 of the DSPE Act.The Court, therefore, rejected the argument by the accused, former TMC leader Vinay Mishra and the State of West Bengal that the CBI was not empowered to register case against the accused under the PC Act since the State government had by way of a notification dated November 16, 2018 withdrawn consent under Section for CBI to operate in the State,The ruling came on a plea by Mishra, challenging the CBI probe against him in relation to a cattle smuggling case at the West Bengal-Bangladesh border involving officers of the Border Security Force and Customs Department as accused.The preliminary enquiry into the incident had started much before 2018 when the consent for CBI to operate was withdrawn by the State. .However, the FIR against Mishra was registered only in September 2020 after the general consent was withdrawn by the State.Counsel appearing for the accused as well as Advocate General Kishore Datta appearing for West Bengal, questioned the jurisdiction of the CBI to investigate within the State of West Bengal after the withdrawal of consent.It was contended on behalf of the petitioner that the fundamentals of federalism do not allow the CBI to investigate the case within the State, under Section 6 of DSPE Act as there is a clear bar and it is only the Supreme Court and the High Court which are entitled to pass orders/directions upon the CBI to investigate without the applicability of Section 6 of the DSPE Act.It was also argued that as per DSPE Act, jurisdiction of CBI is restricted to Union Territory/Railway area and beyond the said limit, they are to take consent of the said State for exercising powers of investigation..The CBI had contended that the officials who are accused in the case belong to Border Security Force and Customs Department. The said officials, it was submitted, are governed by Entry 2A of List I and is under the administrative control of the Ministry of Home and under Sections 5 and 10 of the Border Security Force Act, 1968, the general superintendence, direction and control of the force vests in the Central government which is empowered to dismiss or remove from service any official subject to the provisions of BSF Act. In this regard, the CBI placed reliance on the judgment of the High Court in Ramesh Chandra Singh and Another v. Central Bureau of Investigation. The CBI also adverted to Article 257 of the Constitution to argue that the Union government is entitled to deal with matters with which it has concern and the State government cannot exercise its executive power to impede or prejudice exercise of the executive power of the Union.It was also pointed out that the preliminary enquiry into the case had begun much before the withdrawal of consent and hence FIR can be registered after the withdrawal of consent if material reveal cognizable offences..The Court after considering the rival arguments adverted to the judgment of the Supreme Court in Subramanian Swamy v. Director, CBI in which the top court had said that there cannot be any rational basis which would entitle bureaucrats of Joint Secretary level and above, who are working with the Central Government should be protected under Section 6A of the DSPE Act while the same level of officers who are working in the State will not get such protection, though both classes of these officers are accused of an offence under the PC Act."On an overall assessment of the facts of the present case and the law referred to above, it can be safely stated that the offenders under the Prevention of Corruption Act are to be dealt with equally," the Court held.It also placed reliance on the Ramesh Chandra judgment cited by the CBI."The view of the coordinate Bench of this Court in Ramesh Chandra Singh that the Central Government/CBI’s power to investigate and prosecute its own officials cannot be impeded or interfered by the State assumes importance and is with the spirit of the Indian Constitution," the Court said. The Court also noted that the DSPE Act had been amended to enable the CBI to carry out investigations under the PC Act."The DSPE Act with its amendments have been restructured for facilitating/enabling the CBI to carry out investigations under the P.C. Act and the withdrawal notification dated 16.11.2018 is abrupt, devoid of any reasons and has the effect of shielding corrupt Central Government Officials, thereby, deterring the CBI officers to investigate offences in respect of officers falling within the category of Section 8(2) of the CVC Act, 2003," the Court noted. The Court, therefore, concluded that no illegality has been committed in the ongoing investigation and there is no scope for interference in the continuation of investigation..[Read Judgment]