The Centre has informed the Supreme Court that the CBI is entitled to interrogate/investigate individuals who are Central Government employees and it does not need prior consent from the respective State Government before proceeding to investigate its own employee, irrespective of whether the concerned employee is within the territorial jurisdiction of the CBI to investigate upon or not.
The present reply has been filed in response to the original suit filed by the State of West Bengal against the Union of India raising the issue of continuous registration of FIR by the CBI in the state despite the fact that State Government has withdrawn the permission 3 years ago in this regard.
The matter was listed before the division bench of Justice L. Nageswara Rao and Justice B. R. Gavai for hearing on Friday. However, the bench has adjourned the matter till November 16, 2021 and asked the state to file its rejoinder, if they want to along with other additional documents.
The Centre has raised the question about the maintainability of the suit on the basis that it is barred by several provisions of the Code of Civil Procedure and sought its dismissal.
The Centre has submitted that the State of Bengal has not made CBI a party though CBI has registered and investigating the cases. “Union of India has not registered any case in the State of West Bengal, nor has it been investigating any case,” read the affidavit filed by Rahul Singh, Joint Secretary, Department of Personnel and Training, Government of India.
The Union’s submissions
Under Section 8(1)(b) of the DPSE Act, the CVC can give directions to the Delhi Special Police Establishment (i.e, the CBI) for the purpose of discharging the responsibilities entrusted to it. Furthermore, under the proviso to Section 8 (1)(b) “the Commission shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner.” Thus, it is clear 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.
Further, the UOI calls upon the plaintiff i.e. State of West Bengal to produce the procedure followed and the reasons, if any, recorded by the State Government while passing an order dated 16.11.2018 (taking back the permission) which appears to be an omnibus order de hors the effects of any particular case.
Taking about the legal provisions under which the CBI has power to register cases and investigate UOI has submitted that Entries 8, 22 and 80 in List–I of Schedule VII to the Constitution of India, confers the exclusive power to investigate on such subject-matter, upon the CBI as the same falls outside the scope and purview of powers conferred upon the State Government/ its investigation agencies.
Further, Section 6 of the DSPE Act is very important which requires consent of the State Government for exercising powers and jurisdiction under the Act by Special Police Establishment to any area in a State not being Union Territory or Railways. Section 6 of the DSPE Act has been reproduced hereinbelow:
“6. Consent of State Government to exercise of powers and jurisdiction.—Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State.”
However, it may also be noted that the Ministry of Home Affairs vide Resolution dated 1st April, 1963 established the Central Bureau of Investigation (which functions under the aegis of the Delhi Special Police Establishment Act) provided the function of the Central Bureau of Investigation which clearly mandated that, “(1) Cases in which public servants under the control of the Central Government are involved either themselves or along with State Government servants and/or other persons” would be investigated by the Delhi Special Police Establishment. It is submitted that therefore, the present cases are undoubtedly liable to be investigated by the Central Bureau of Investigation.
Furthermore, it is most reverentially submitted that the CBI is entitled to interrogate/ investigate individuals that are Central Government employees. It is specifically stated that the CBI does not need a prior consent from the respective State Government before proceeding to investigate its own employee, irrespective of the fact whether the concerned employee is within the territorial jurisdiction of the CBI to investigate upon or not. That the relevant extract from Kanwal Tanuj supra, is reproduced hereinbelow:
“Indisputably, the registered office of BRBCL is within the jurisdiction of Union Territory of Delhi (National Capital Territory of Delhi) and allegedly the offence has been committed at Delhi, for which reason the Delhi Court will have jurisdiction to take cognizance thereof. To put it differently, the offence in question has been committed outside the State of Bihar. The investigation of the stated offence may incidentally transcend to the territory of State of Bihar because of the acts of commission and omission of the appellant who is resident of that State and employed in connection with the affairs of the State of Bihar. That, however, cannot come in the way of special police force (DSPE) from investigating the offence committed at Delhi and has been so registered by it and is being investigated. Had it been an offence limited to manipulation of official record of the State and involvement of officials of the State of Bihar, it would have been a different matter. It is not the case of the appellant or the State of Bihar that even an offence accomplished at Delhi of defrauding of the Government of India undertaking (having registered office at Delhi) and siphoning of the funds thereof at Delhi can be investigated by the State of Bihar. If the State police has had no jurisdiction to investigate the offence in question, as registered, then, seeking consent of the State in respect of such offence does not arise. Any other approach would render the special provisions of the 1946 Act otiose.”
Lastly, it is submitted by the UOI that where a proceeding is instituted in a court to which provisions of the Code apply, it shall not proceed with the matter in which the matter in issue is also directly and substantially in issue in a previously instituted proceeding between the same parties. It is further required that the Court in which the previous proceeding is pending is competent to grant the relief claimed.
The use of negative expression in Section 10 i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the court in which the subsequent proceeding has been filed is prohibited from proceeding with the trial. The Apex Court in Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 held that the basic purpose and the underlying object of Section 10 of the Code is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject-matter and the same relief. It is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceedings.
The Supreme Court on its previous hearing refused to grant any interim relief in the matter and issued notice to Union of India.