Both CBI and WB Government on sticky, legal wicket in the Rajeev Kumar case

Solicitor General Tushar informed the Supreme Court that Kolkata Police had fiddled with the investigation into the Saradha chit fund scam. He is now expected to produce the evidence and explain why the CBI waited for five years before raising the issue.

In July last year the CBI had complained to the Supreme Court that the state government was not cooperating with it. And the apex court had directed them to reach out the Calcutta High Court in future in case of non-cooperation. There is nothing to suggest it did.

West Bengal CM Mamata Banerjee on the other hand maintains that CBI landing up at the residence of the Calcutta Police Commissioner Rajeev Kumar on a Sunday evening, had transgressed constitutional and legal boundaries .

K Ragothaman, the CBI's former chief investigating officer, believes the Bureau is at fault in going to the police commissioner's office without a warrant, as he told Rediff.com in an interview, but the issue is way more complex than that.

Did the CBI have the legal wherewithal to question Kumar in light of the West Bengal government’s November 2018 decision to withdraw permission to the agency in probing cases in the state (which the Left Front government had granted in 1989)

Police and public order are ‘State Subjects’ in the Constitution, ie, state governments run police forces in their respective states and the Centre cannot interfere. The CBI, however, is an agency that was created by the DSPE Act, a Central law. As a result, it can only operate in any other state if it has the consent of the relevant state government, according to Section 6 of the Delhi Special Police Establishment Act, the law that governs the functioning of the CBI.

In the Major E.G.Barsay case of 1961, the Supreme Court upheld Section 6, ruling that no member of the CBI can exercise powers and jurisdiction in any area in a state without the consent of the respective state government. In the same case, the court held that the issue of withdrawal of consent by states can judicially be reviewed. Besides, withdrawal of consent is no bar for a court to order a CBI probe.

The CBI has been investigating the Saradha scam after the Supreme Court transferred the case to it in the Subrata Chattoraj versus Union of India judgment on May 9, 2014. In that case, the court, led by a bench of former CJI T.S. Thakur, had held without casting any aspersions on the capability of the West Bengal police, that Saradha case allegations, which transcended different state boundaries, required a probe by the central agency.

Prospective effect of Withdrawal of Consent

The withdrawal of general consent to the CBI to exercise jurisdiction within its territory applies prospectively in Andhra Pradesh and West Bengal, both of which withdrew consent last year and not retrospectively. This was clarified by the apex court in the Kazi Lhendup Dorji case in 1994.

The court’s reasoning was that the State government’s withdrawal should not be allowed to stall a pending case, especially one in which the apex court had directed a probe.

The withdrawal of general consent means CBI officers lose police powers under the Criminal Procedure Code in the State concerned and for registering a case. “The case should be allowed to reach its logical conclusion… notwithstanding the withdrawal of consent during pendency of investigation,” the court had held in that case.

The Dorji case had dealt with a notification issued by the Sikkim government withdrawing consent to the CBI to probe a corruption case against the then Chief Minister.

In another Supreme Court judgment in 2010 in State of West Bengal vs Committee for Protection of Democratic Rights, West Bengal, a Constitution Bench of the apex court had considered whether it was a violation of the federal structure of the Constitution for a high court or the SC to order an investigation by the CBI without the consent of a state government.

This was rejected on the basis that such an order would be under the constitutional courts’ power of judicial review, which cannot be restricted by any legislation. As a result, the requirement of state governments to consent to a CBI investigation under Section 6 of the DSPE Act does not apply when the Supreme Court or a high court transfers an investigation to the CBI.

Interestingly, current Attorney-General KK Venugopal had represented the State of West Bengal in that case, arguing that Section 6 of the DSPE Act meant a state government’s consent was necessary, even when the higher judiciary ordered the case to be transferred.

Rajeev Kumar’s case

In the present case, the CBI team of 40 officers had gone to question Kumar without a search warrant but armed with a notice under Section 160 of the CrPC.

Chief Minister Mamata Banerjee and a Trinamool Congress leader Derek O’Brien have publicly stated that the CBI officers who turned up at Rajeev Kumar’s house did not have a warrant to do so. Abhishek Manu Singhvi has claimed that the CBI only had a notice under Section 160 of the Code of Criminal Procedure with them when they went to Kumar’s house. A notice under this section is a document requiring a person to attend an investigation, issued by an investigatory authority. Kumar reportedly failed to respond to these notices.

There are only limited conditions in which an investigating officer can enter a person’s home without a warrant, for example if any undue delay would make it impossible to recover the relevant evidence under Section 165 of the CrPC. Unless the CBI can show such grounds, the lack of a warrant may be one of the key grounds on which the West Bengal government will be able to defend the actions of the Calcutta Police.

These procedural safeguards would apply even if it is true that Kumar has not been meeting with the CBI when asked. Instead of turning up at his house without a warrant, the CBI could have just approached the courts, obtained an arrest and search warrant, and been in a much better position.

Interim Director of the CBI Nageshwara Rao has argued in a press conference that the CBI had the powers to search and seize under Sections 156(1) and 100 of the CrPC, but these apply only in case of exigencies. In the present case, the CBI has not been able to prove that such an emergency situation exists.

In steps the Calcutta High Court

Senior Advocate Indira Jaising weighed in by saying that notices to Kumar and other officers were illegal and void because they had been stayed by the Calcutta High Court in December. On 6 December 2018, in an Order, Justice Shivakant Prasad held in CRR 2456 of 2018 that the notices issued under Section 160 were “not legal, valid and sufficient under law.”

“By no stretch of imagination did it mean that the CBI has the power to make the raid at the office of the Kolkata Police Commissioner in relation to the investigation, when the high court is seized of the matter and has passed an order keeping in abeyance the CBI summons to the Kolkata Police in relation to the investigation.”, she has said.