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PDF Editor FAQ

Is it legal for a Chief Minister to ban the entry of the CBI in his state?

Let me first put the question itself in the correct perspective. Firstly, I would prefer to use the words “State Government” instead of “Chief Minister”. Secondly, the words “ban the entry” may not be the correct words; I’ll explain what the correct words would be.Let me also point out that recently I had created a YouTube video on the issue of Andhra Pradesh Government withdrawing general consent to CBI for investigating offences within that state. This video is available at the link: https://bit.ly/2QhufVkWith this background, let me point out that “police” and “public order” are State subjects under the Constitution [being in the State List in the Seventh Schedule to the Constitution], which means that the power to legislate on these issues lies with the State legislatures and not the Parliament.However, the subjects of criminal law (including “Indian Penal Code” and Prevention of Corruption Act), criminal procedure (including “Criminal Procedure Code”), evidence (including the Evidence Act) are in the Concurrent List in the Seventh Schedule of the Constitution. This implies that while the Parliament and State legislatures, both, have concurrent powers to legislate on these subjects, it is the Parliament whose law dominates the field in view of, and subject to, the provisions of Article 254 of the Constitution.The power of registering FIR and conducting investigation in an offence has been given to police under the provisions of the Criminal Procedure Code, which has been enacted by the Parliament in exercise of the above power. So, the power to investigate available with the state police is mainly given under the Criminal Procedure Code, which is enacted by the Parliament.State police forces have been constituted by the respective State Police Acts (such as Maharashtra Police Act for Maharashtra Police] or the Police Act of 1861.On the other hand, the CBI has been constituted as a special police force under the provisions of the Delhi Special Police Establishment Act, 1946 (it is called, “Delhi Special Police Establishment” or DSPE, under the said Act).The original power of the CBI is within the jurisdiction of the union territories (such as in Delhi). However, the provisions of the above Act lay down that the power of CBI to conduct investigation can be extended within the jurisdiction of the states also, with the consent of the State Government concerned. This consent can be either general consent (for a category or class of offences, generally, such as for example, corruption cases against central government employees), or a special consent (which is given specially for a specific individual offence).It is this general consent that has now been withdrawn by the Andhra Pradesh Government from the CBI. This is legally permissible.This basically implies that CBI will not be legally empowered to register any new FIR (it is called RC or Regular Case in CBI’s terminology) for an offence which has occurred within the jurisdiction of Andhra Pradesh.West Bengal Government has also withdrawn such general consent given to the CBI.However, I may clarify that:(1) A special consent may still be given to the CBI for a specific / individual offence by the Andhra Pradesh Government in future. Of course, Andhra Pradesh Government can again give general consent to CBI for certain class or category of cases.(2) The Supreme Court and the High Court will still have the power to direct the CBI to conduct an investigation within Andhra Pradesh. And, for this purpose, the consent of the State Government shall NOT be necessary.(3) If any particular case was already being investigated by the CBI in Andhra Pradesh, then it can continue to investigate such offence even after withdrawal of the general consent. This is in view of an old judgment of the Supreme Court [Kazi Lhendup Dorji v. CBI, 1994 Supp (2) SCC 116].(4) If the CBI registers an FIR in some other state or union territory (where the offence took place) even in future, and if a part of such investigation is required to be conducted within Andhra Pradesh, then the CBI would still have the power to conduct investigation in such offence within Andhra Pradesh, notwithstanding the withdrawal of the general consent by the State Government. This is in view of the provisions of the Criminal Procedure Code, which allow the investigation of an offence to be continued anywhere in India. In fact, the investigation of an offence can be conducted even outside India through the process of what is known as letter rogatory or letters of request, as laid down in the Criminal Procedure Code. Of course, as I mentioned above, the CBI will not have the power to register a fresh FIR which took place in Andhra Pradesh itself (except without a special consent or without a court order, as mentioned above).(5) In that sense, there is no ban on entry of the CBI in Andhra Pradesh, as is wrongly mentioned in the question. The ban is only on the registration of a fresh FIR by CBI and investigation thereof, in Andhra Pradesh if the offence has taken place within that state.(6) Further, as I have clarified in the said video, a State Government has no authority to take away the powers of ED (Enforcement Directorate) and the Income Tax department and they can still exercise their full powers within Andhra Pradesh.So, this, in brief, is the legal position with regard to the question asked, with certain legal nuances, that I thought need to be clarified.

Which politician irritates you the most?

Her party workers can kill anyone without serious repercussions.She would indirectly not allow BJP MPs to hold rallies in the state.She doesn't let her people become the beneficiaries of National Welfare schemes.She's insecure enough to not participate in important national rankings.Withdraws the general consent needed by CBI to conduct an investigation in the state, so that any future investigation would require prior approval by the state government.Doesn't allow CBI officers to investigate in a mega scam case, and proceeds to get them arrested.Doesn't give consent on the organisation of Rath Yatras in her state.Opposes the deportation of Rohingya Muslims.For her, the Dhulagarh riots where Hindu houses were attacked and shops burnt, was just a small, local incident.Didn't allow the live telecast of Narendra Modi's speech on the 125th anniversary of Swami Vivekananda’s address at the World Parliament of Religions in Chicago, terming it as “saffronization” of the population.Hailing from a city where democracy, secularism and political sanity is falling apart like bridges, she wants to “save” the country from Narendra Modi.Now we have an idea of what “democracy” means to her.God bless Bengal.

Can the CBI probe a case, either suo moto or through the center's directive, even without the consent of the concerned state government?

Firstly, it should be clear that the subjects of Police as well as Public order (which may also cover law and order) are included in the State List in the Seventh Schedule to the Constitution of India. This means that these are State subjects. Therefore, the original jurisdiction to investigate a case is with the State Police controlled by the State Government. But, the CBI is a Central investigating agency.However, in a union territory, these subjects are controlled by Central Government, subject to any specific provision made in the Constitution with regard to a specific union territory, if any. In view of these powers, the Delhi Special Police Establishment Act, 1946 (DSPE Act) which is a Central Act, establishes CBI and has given powers to CBI to investigate certain notified offences (notified under Section 3 of the said Act) within the jurisdiction of union territories, such as Delhi. Please also note that even union territories may have their own regular police forces (for example, Delhi Police). But, CBI has been given concurrent powers to investigate certain notified offences in union territories suo moto.However, the CBI does not have powers to investigate a case within the jurisdiction of a state. But the above Delhi Special Police Establishment Act allows the CBI to investigate offences within the jurisdiction of a state, with the consent of that State Government (which is given under Section 6 of the said Act, following which the Central Government extends powers of CBI for such offences within a state under Section 5 of the said Act).It is noteworthy that such consent can be given by a State Government (under Section 6 of the said Act), either generally for a category of cases or specially in a specific offence. For example, most of the State Governments have given general consent to the CBI to investigate suo moto corruption offences against Central Government servants within their respective state areas. Where such general consent has been given by a State Government for a category of offences (as above) then the CBI can investigate such offence suo moto without any additional or specific consent from the State Government even within the jurisdiction of that state. Perhaps, this power has been referred to in the news report (FirstPost) mentioned by you in your question.However, where there is no general consent given for a particular category of offence, then the CBI cannot investigate that offence within that state without the specific or special consent of that State Government. Let me point out that, generally, no general consent has been given by any state to CBI for investigating murder cases within the jurisdiction of the state (the issue mentioned in the FirstPost news report is a murder case). Therefore, to investigate a murder case, a special or specific consent is needed by the CBI from the State Government to investigate that specific murder case. The procedure for such cases is that the State Government would give its special consent for transfer of case to the CBI (under Section 6 of the said Act), and then the Central Government would issue a notification (in terms of Section 5 of the above Act) extending the power of CBI to investigate that specific offence. Thereafter, the CBI can investigate that offence.This is the correct legal provision with regard to investigations conducted by CBI. I hope it is clear. I am writing it on the basis of my personal experience of having worked in CBI, thereafter having represented CBI in over 150 cases in Supreme Court as an advocate, and also having written a 2200+ pages book on Prevention of Corruption Act and this book also the above DSPE Act (which is the main area of work of CBI, i.e., corruption cases).

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