C.B.I and Consent of States

• 18 Nov 2020

Why in News

Recently, the Supreme Court has held that once a court takes cognisance of a corruption case investigated by the CBI, it cannot be set aside for lack of the State government’s prior consent for the probe against some of the accused, unless it is shown that it has resulted in prejudice.

Key Points

• Background:
  • Two officials of Uttar Pradesh government had earlier contended in the Allahabad High Court that the general consent given by the State government was not enough, and separate consent ought to have been obtained prior to their being investigated.
    • The State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE, in the whole of State of UP for investigation of offences under the Prevention of Corruption Act, 1988.
    • However, in case of public servants under the state governments, prior consent is needed from the state concerned even after the general consent given by the state.
  • The Allahabad High Court noted that the Uttar Pradesh government had granted post facto (after the act is done) consent against the two public servants. This very judgement of Allahabad High Court was challenged in the Supreme Court.
  • Supreme Court’s Stand:
    • It held that if the State had given a general consent to CBI investigation in a corruption case and cognisance had been taken by a court, the case cannot be set aside unless the public servants plead that prejudice has been caused to them on account of non-obtaining of prior consent.
    • Further the judges held that the case cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice.
• Types of Consent Given by state government
  • There are two types of consent for a probe by the CBI. These are: general and specific.
  • When a state gives a general consent (Section 6 of the Delhi Special Police Establishment Act) to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.
  • When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government. If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that state.
  • This hurdle impedes seamless investigation by the CBI. A general consent is given to facilitate that seamless investigation in a case of corruption or violence.
• Issue of Withdrawal of general Consent by States:
  • Recently it has been seen that various states like Andhra Pradesh and West Bengal governments have withdrawn their general consent as a result of tussle between Centre and States.
  • Impact of withdrawal:
    • It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in the states who withdrew their general consent, without getting case-specific consent.
    • In simple terms withdrawal of general consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.
    • It will have no impact on investigation of cases already registered with CBI as old cases were registered when general consent existed.

Delhi Special Police Establishment Act

• The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India.
• The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. Of India during World War II.
• Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt.
• The Delhi Special Police Establishment Act was therefore brought into force in 1946. The CBI's power to investigate cases is derived from this Act.

Source:TH