Circumstances Under Which CBI Enquiry Be Initiated

This Research Paper is written by Parinay Gupta, a Fifth Year B.A LL.B (Hons.) Student at Amity Law School, Delhi.

Abstract

With the recent controversy regarding high-profile celebrity’s alleged suicide, the public is demanding a CBI investigation almost every time a new lead emerges. The question remains whether the initiation of a CBI inquiry is really that simple? A lot of people from the common masses are approaching the courts while many others are expecting the Home Ministry of the State and Centre to step in and transfer the investigation to CBI. Amidst all this, there seems to be a lot of confusion with regards to the procedure of investigation by CBI and how they work.

Introduction

The Central Bureau of Investigation (CBI, herein) is the primary investigating agency of India that has received an extensive jurisdiction in order to examine the breach of central laws that are being enforced by the Government of India, any inter-state case of organised crime, or international level cases.^[1] The agency is typically known to investigate several cases of corruption, special crimes, economic crimes and other high-profile cases.^[2] In the exercise of such power, the CBI is considered beyond the scope of the Right to Information Act.^[3]

Scope of CBI Investigation

CBI has, over the years, become a multidisciplinary investigation agency. Currently, it has three divisions for investigation of crime as laid down below: –

Anti-Corruption Division – created to investigate cases against public officials and the employees of Union Government, any Public Sector Undertakings, Bodies or Corporations controlled or owned by the Central Government. It has a presence in almost all the States of India and is the largest division of the CBI.
Economic Offences Division– created to investigate crimes relating to Cyber Crime, Bank Frauds and Fake Indian Currency Notes that have implications on an inter-state, national or international level as well as other major financial scams and serious economic frauds.
Special Crimes Division – created to investigate extraordinary, grave and organized crime as per the Indian Penal Code and other related laws such as fake currency, drug and human trafficking, adulteration of drugs, poaching of wild life, food products and organized crime on the request of State Governments or by the direction of the Supreme Court and High Courts.

The Central Government notifies the laws under which CBI can carry out investigation of crime as laid down under Section 3 of the Delhi Special Police Establishment Act, 1946 (DSPE, herein).^{^[4]}

Jurisdiction of CBI

The DSPE Act, 1946 is where the CBI gets its legal powers to investigate crime from. The superintendence of CBI lies with the Central Vigilance Commission (CVC, herein) when the investigation is related to offences under the Prevention of Corruption Act, 1988^{^[5]} and for other offences, the superintendentency lies with the Department of Personnel & Training (DOPT, herein).

The jurisdiction of CBI stretches over the Union Territories as per the DSPE Act, 1946. The Central Government however, may extend the jurisdiction of CBI to any State, as per Sec. 5 of DSPE Act. The consent of the respective State Governments is required for the powers vested with the Central Government to be exercised as per Section 6 of DSPE Act.^{^[6]}

Furthermore, as held in the Supreme Court case of K. Chandrasekhar v. State of Kerala^{^[7]}, once the permission has been given by the relevant government, such consent cannot not be revoked.

Understanding the Jurisdiction of CBI: –

State Police organizations, who have the original jurisdiction, can investigate any form of crime.^[8] The CBI only gets effective jurisdiction by way of notifications issued by various State Governments which give “general consent” and then, are further notified by DOPT under Section 5 and 6 of DSPE Act respectively.
All the State Governments have notified General Consent in relation to the cases falling under Anti-Corruption Division, and in such a scenario, CBI doesn’t need the permission of State Government. Therefore, in such cases, CBI can conduct an investigation on the basis of a complaint or Suo Motu.
Other than this, when State Governments transfer specific cases in view of their political sensitivity, those attracting large media attention, etc. then CBI can also take up the investigations, when the State Governments issue a specific case-wise notification to transfer the case already registered from the State Police to the CBI after getting consent from the Central Government.
Other than the cases where CBI can take up Suo Motu investigation, the Supreme Court of India, through its writ jurisdiction, can also direct the CBI to conduct investigation or in a case which is already being investigated by the local police to redirect investigation to the CBI so that fair and impartial investigation is ensured.

In the Supreme Court case of State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others^{^[9]}, it was held by the court that aside from the legal restrictions laid down in the DSPE Act, the High Court has the power to direct any case to be investigated to the CBI, as per Article 226 and the Supreme Court under Article 32, even without the consent of State and Central Governments, in order to ensure a fair and unbiased investigation.

Power of Magistrate in CBI Investigation

Upon reading Section 2(h) of the Code of Criminal Procedure (CRPC, herein)^{^[10]}, we can understand that an investigation consists of all the proceedings led by the police or any person or institution legally sanctioned by the Magistrate in this regard and not the Magistrate himself, with the objective of collecting evidence. Furthermore, Section 156(3) of CRPC^{^[11]}, has laid down that the Magistrate can direct an investigation or inquiry by a police officer who is in charge of a police station that falls within the jurisdiction of his court. It can be argued that this provision gives power to the Magistrate to direct the investigation to CBI.

In the Supreme Court case of CBI v. State of Rajasthan^{^[12]}, the court held that Section 156 uses two terms “officer in charge of a police station” and “police station” and these terms have been given distinct meanings in the Section 2(o) and 2(s) respectively.

The main duty for handling an investigation of crimes in cognizable offences lies with the police officer. The Supreme Court further decided that the authority under Section 156(3) permits a Magistrate to only order such officers in-charge of the police station to inspect any cognizable offence that Magistrate has jurisdiction for. Hence, a Magistrate cannot order CBI to take over an investigation while exercising his authority under Section 156(3) of the Code of Criminal Procedure.

Likewise, in the Supreme Court case of CBI v. State of Gujarat^{^[13]}, the court reaffirmed the interpretation of provision that the power of the Magistrate cannot be extended under Section 156(3) of the CRPC. outside of being able to direct the police officer to carry out the investigation and no such order can be given to CBI.

Power of Courts to order CBI Investigation

In the Supreme Court case of Disha v. State of Gujarat and Ors.^[14], after having considered various judgments of previous Supreme Court benches, mainly, in Vineet Narain and Ors. v. Union of India and Anr.,^[15] Union of India v. Sushil Kumar Modi,^[16] Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union of India,^[17] Rubabbuddin Sheikh v. State of Gujarat and Ors.,^[18] and Ashok Kumar Todi v. Kishwar Jahan and Ors.,^[19] it was held that the court can redirect the case to the CBI only if it is convinced that the accused is a influential and important person or is in the state authorities such as higher positioned police officers are a party to the case and that the investigation has not been handled properly or that the investigation had been carried out in a biased manner.

In the Supreme Court case of Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr.^[20], this court having relied on various previous cases and its judgments such as the Supreme Court case of Common Cause, A Registered Society v. Union of India and Ors.^[21], and decided that before ordering the CBI to investigate, the court must have concluded after the completion of the pleadings and materials and evidence placed on record that a prima facie case can be made out against the person who has been accused. The court cannot order the CBI to investigate if they are not convinced as to whether a person has done the alleged offence or not.

Conclusion

It should be kept in mind that the local Police of States and UTs have the main responsibility by law to be approached for registration of crimes that are of routine and general nature. This does not mean that the police should be handling serious offences but it only means that the CBI should only step for specialised or economic offences and not have their time wasted with such generic crimes unless absolutely necessary.

When it comes to the problem of whether a direction can be issued to CBI to conduct an investigation, it is impossible to set out rigid guidelines to control and supervise such an exercise. It will not be correct on the part of courts to order a CBI investigation based on allegations levied on the police or so frequently that it becomes a routine. Otherwise, the CBI would be overwhelmed with cases every day simply because the local police and the courts did not want to handle the cases and they will lose their status as a specialised agency as well as their credibility to handle specialised and economic offences.

[1] http://www.cbi.gov.in/history.php

[2] http://www.cbi.gov.in/aboutus/cbiroles.php

[3]https://www.ndtv.com/india-news/central-information-commission-slams-cbis-proposed-exemption-from-rti-460188

[4] http://www.cbi.gov.in/aboutus/dspe.php

[5] http://www.cbi.gov.in/rt_infoact/pcact.pdf

[6] http://www.nja.nic.in/Concluded_Programmes/2018-19/P-1125_PPTs/2.CBI%20investigation.pdf

[7] JT 1998(3) SC 612

[8] Section 156 of Code of Criminal Procedure

[9] (2010) 3 SCC 571

[10] https://indiankanoon.org/doc/1067480/

[11] https://indiankanoon.org/doc/1291024/

[12] (2001) 3 SCC 333: 2001 Cri LJ 968: AIR 2001 SC 668.