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Question of Consent

The Telangana government is the latest state to withdraw general consent given to the Central Bureau of Investigation to allow the agency to probe cases. This follows a pattern in several non-BJP ruled states.  

The Telangana government said that the Central Bureau of Investigation (CBI) will have to take the permission of the state government to investigate any case. Under the Delhi Special Police Establishment (DSPE) Act, 1946, general consent of the state government is a must for the CBI to operate in any particular state. The order was issued by principal secretary (home) on August 30. 

The CBI must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state. General consent refers to consent by default in the absence of which the CBI would have to seek the state government’s consent to probe each case.

The Telangana order was issued after the additional advocate general informed the Telangana High Court on October 29 about the withdrawal of consent during arguments in a petition filed by the BJP seeking a CBI probe into an alleged attempt to bribe four TRS MLAs. On October 26, the Cyberabad police arrested three persons from a farmhouse at Moinabad who were preparing a plan to bribe four TRS MLAs. Tandur MLA P Rohith Reddy had tipped off the Cyberabad police who set up cameras and voice recorders to trap the three men discussing deals to pay Rs 50-100 crore to lure TRS MLAs into the BJP. On October 30, an Anti-Corruption Bureau special court judge sent the three accused in the case to 14-day judicial custody. 

In its order, the state government declared: “Consequent to the withdrawal of all previous general consents issued earlier… prior consent of (the) Government of Telangana shall be required to be taken on a case-to-case basis for investigation of any offence or class of offences, under Section 3 of the Delhi Special Police Establishment Act, 1946 by the Delhi Special Police Establishment, in the State of Telangana.”

Investigation can be initiated by the CBI into FIRs registered/filed with local police with the consent of the state government concerned and after due notification by the central government extending powers and jurisdiction of the officers of CBI to areas in the state concerned.

Further, investigation may be initiated by the CBI on the specific directions of a constitutional court. Once general or specific consent is granted under Section 6 of DSPE Act, 1946, by the state government where the case is registered or when the case is entrusted by a constitutional court, the powers and jurisdiction of members of the DSPE (CBI) may extend for investigation as stipulated under Section 5 of DSPE Act.

Telangana Chief Minister K Chandrashekar Rao (KCR) had said on August 31 that all states should withdraw the consent given to the CBI. Addressing a press conference in Patna along with Bihar Chief Minister Nitish Kumar, KCR had alleged that the BJP was misusing all central agencies to target political opponents.

He further said: “The centre is misusing all the central investigating agencies, including the CBI, to target the political rivals of the Bharatiya Janata Party in the country. This should be stopped now and all governments should withdraw the consent given to CBI. After all, police is a state subject.”

Recently, Meghalaya has withdrawn consent to the CBI to investigate cases in the state, becoming the ninth state in the country to have taken the step. Eight other states which had withdrawn consent to the CBI are Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram. The first state to withdraw consent was Mizoram in 2015. 

In November last year, the Supreme Court had expressed concern over a submission by the CBI that since 2018, around 150 requests for sanction to investigate had been pending with the eight state governments who had withdrawn general consent until then.

There are two kinds of consent. One is case-specific and the other is general. Given that the CBI has jurisdiction only over central government departments and employees, it can investigate a case involving state government employees or a violent crime in a given state only after that state government gives its consent. 

The second is general consent which is normally given to help the CBI seamlessly conduct its investigation into cases of corruption against central government employees in the concerned state.

The Calcutta High Court recently ruled in a case of illegal coal mining and cattle smuggling being investigated by the CBI, that the central agency cannot be stopped from probing an employee of the central government in another state. The order was challenged in the Supreme Court. In Vinay Mishra vs the CBI, the Calcutta High Court ruled in July 2021 that corruption cases must be treated equally across the country, and a central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent. The High Court also said that withdrawal of consent would apply in cases where only employees of the state government were involved.

In an order passed on October 11, 2018, Delhi High Court ruled that the CBI could probe anyone in a state that has withdrawn general consent, if the case was not registered in that state. The order came on a case of corruption in Chhattisgarh—the Court said that since the case was registered in Delhi, the CBI did not require prior consent of the Chhattisgarh government. 

—By Adarsh Kumar and India Legal Bureau

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