“Let’s order investigation by CBI. Time for handing over the investigation to CBI.”
These lines are often heard among masses and appear on daily basis in every major print and electronic media. The recent alleged suicide of Bollywood actor and encounter of a famous goon has once again brought CBI into limelight. Some people are approaching court while some other are writing to the Home Ministry of the State and Centre to hand over the investigation to CBI. In short there is huge amount of confusion with regard to investigation by CBI and to be very straight law students and practitioners remaining ignorant of what is the procedure of CBI investigation is not a bliss.
This article is not an analytical piece rather it tries to provide an answer to frequently asked questions regarding CBI Investigation such as when can CBI suo motu take up a case or in what cases CBI Investigation and by whom it can be ordered and what are the cases where consent of appropriate government is required.
Before moving forward let’s have a quick glance on the history of CBI.
History of CBI
During the period of World War II, a Special Police Establishment (SPE) was constituted in 1941 in the Department of War of the British India to enquire into allegations of bribery and corruption in the war related procurements. Later on it was formalized as an agency of the Government of India to investigate into allegations of corruption in various wings of the Government of India by enacting the Delhi Special Police Establishment (DSPE) Act, 1946.[i] In 1963, the Central Bureau of Investigation (CBI) was established by the Government of India with a view to investigate serious crimes related to Defence of India, corruption in high places, serious fraud, cheating and embezzlement and social crime, particularly of hoarding, black-marketing and profiteering in essential commodities, having all-India and inter-state ramifications.
CBI derives its legal powers to investigate crime from the DSPE Act, 1946. The superintendence of CBI related to investigation of offences under the Prevention of Corruption Act, 1988[ii] lies with the Central Vigilance Commission (CVC) and in other matters with the Department of Personnel & Training (DOPT) in the Ministry of Personnel, Pension & Grievances of the Government of India.
Range of CBI Investigation
CBI has grown into a multidisciplinary investigation agency over a period of time. Today it has the following three divisions for investigation of crime:-
- Anti-Corruption Division – for investigation of cases under the Prevention of Corruption Act, 1988 against Public officials and the employees of Central Government, Public Sector Undertakings, Corporations or Bodies owned or controlled by the Government of India. It is the largest division having presence almost in all the States of India.
- Economic Offences Division – for investigation of major financial scams and serious economic frauds, including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime having inter-state, national or international ramifications.
- Special Crimes Division – for investigation of serious, sensational and organized crime under the Indian Penal Code and other laws such as drug and human trafficking, fake currency, poaching of wild life, adulteration of drugs and food products, organized crime on the requests of State Governments or on the orders of the Supreme Court and High Courts.
The laws under which CBI can investigate Crime are notified by the Central Government under Section 3 of the DSPE Act.[iii]
Jurisdiction of CBI- Inherent and Conferred
As per Delhi Special Police Establishment Act, 1946, the jurisdiction of CBI stretches over the Union Territories. However, as per Sec. 5 of DSPE Act, the Central Government may extend the jurisdiction of CBI to any State. The powers vested with the Central Government shall have to be exercised with the consent of the respective State Governments (Sec.6 of DSPE Act). [iv]
To understand the jurisdiction of CBI, the following points are to be considered:
A) Any crime can be investigated by the State Police organizations which have the original jurisdiction.[v] CBI merely gets operative jurisdiction by way of “General Consent” notifications issued by various State Governments and subsequently further notified by DoP&T, Government of India under section 6 and 5 of DSPE Act respectively. With regard to the cases falling under Anti-Corruption Division all the State Governments have notified General Consent and for these cases CBI doesn’t require consent of State Government anymore on case to case basis even though the employees of Central Government or its agencies are working in the territory of a State. State Government public servants in general do not come under the jurisdiction of CBI. (Basically cases where CBI on a complaint or suo motu can conduct investigation)
B) Apart from this, CBI can also take up the investigations when State Governments transfer specific cases in view of their political sensitivity, those attracting large media attention, etc. by issuing Specific Case wise notification to transfer the already registered case from State Police Organization to CBI with the consent of Government of India. (Here CBI can conduct investigation only when concerned State transfers the case to it with the consent of Central Government)
C) The Constitutional Courts like Hon’ble High Courts and Hon’ble Supreme Court under its Constitutional Powers provided under Article 226 and 32 respectively can also direct CBI to take up investigation afresh or by way of transferring cases from the State Police organizations. (Apart from the cases where CBI can suo motu take up investigation the Superior Courts of Justice under its Writ Jurisdiction can also order CBI Investigation or transfer the case which is already being investigated by the local police to CBI so as to ensure fair and impartial investigation and to instil public confidence)
The Constitutional Bench (five Judges) judgment of the Hon’ble Supreme Court in the case of State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal and others[vi], held that notwithstanding the statutory restrictions in the Delhi Special Police Establishment Act, the High Court under Article 226 and the Supreme Court under Article 32, can direct any matter to be investigated by CBI for fair and impartial enquiry without the consent of state and central government.
Whether Magistrate can order Investigation by CBI
First of all we need to look into Section 2(h) of CrPC[vii], which says investigation includes all the proceedings conducted under CrPC by a Police Officer or a person authorized by the magistrate in this behalf (not Magistrate himself) for the purpose of collection of evidence and Section 156(3) of CrPC[viii], which provides that Magistrate can order investigation by an officer in charge of Police Station within the local limits of his court. This is the section which is used by Magistrate to order further investigation as well as in those cases where police don’t register a FIR. It is often argued among laymen that this provision gives power to Magistrate to order investigation by CBI.
In the case of CBI v. State of Rajasthan[ix], the Supreme Court held that Section 156 uses two expressions “Police station” and “Officer in charge of a police station” and these two expressions have been given separate definitions in the Code in Section 2(o) and 2(s) respectively. A place or post declared by the Government as police station, must have a police officer in charge of it and if he, for any reason, is absent in the station house, the officer who is in the next junior rank present in the police station, shall perform the function as officer in charge of that police station. The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. The Supreme Court further held that the power under Section 156(3) empowers a Magistrate ‘only’ to direct such officer in charge of the police station to investigate any cognizable case over which such Magistrate has jurisdiction and not beyond that. Thus, a Magistrate cannot direct CBI to conduct investigation in exercise of his powers under Section 156(3) of the Criminal Procedure Code.
Similarly, in the case of CBI v. State of Gujarat[x], the Supreme Court reiterated the above principle that magisterial power cannot be stretched under Section 156(3) of the Cr.P.C. beyond directing the officer in charge of a police station to conduct the investigation and no such direction can be given to CBI.
Conclusion
Despite wide powers conferred by Article 32 and 226 of the Constitution on Superior Courts and powers provided to Central and State Government under Section 5 and 6 of DSPE Act, it should be kept in mind that local Police in the States and UTs has the statutory right and should be approached for registration of crimes of general and routine nature. This does not mean that they should not be approached for registration of serious offences. It is only meant to say that CBI should not be approached for general and routine nature of Economic and Special offences.
The Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise.[xi] In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
[i] http://www.cbi.gov.in/aboutus/dspe.php
[ii] http://www.cbi.gov.in/rt_infoact/pcact.pdf
[iii] http://www.cbi.gov.in/aboutus/dspe.php
[iv] http://www.nja.nic.in/Concluded_Programmes/2018-19/P-1125_PPTs/2.CBI%20investigation.pdf
[v] Section 156 of CrPC.
[vi] (2010) 3 SCC 571.
[vii] https://indiankanoon.org/doc/1067480/
[viii] https://indiankanoon.org/doc/1291024/
[ix] (2001) 3 SCC 333: 2001 Cri LJ 968: AIR 2001 SC 668.
[x] (2007) 6 SCC 156: AIR 2007 SC 2522.
[xi] Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. Vs. Sahngoo Ram Arya & Anr., [(2002) 5 SCC 521].