The withdrawal of ‘general consent’ to the CBI by the Uddhav Thackeray-led Maha Vikas Aghadi government is well within the framework of law, according to both senior advocate Ujwal Nikam, who has served as special public prosecutor in several high-profile cases, and former Bombay High Court Judge B G Kolse-Patil.
On Wednesday, the state government had withdrawn the ‘general consent’ given to the CBI in 1989 to probe cases in Maharashtra. The government’s step came in the wake of CBI taking over the TRP case in Uttar Pradesh, and was ostensibly prompted by fears that a similar step might be taken in Maharashtra in connection with the case on ‘TRP scam’ registered by Mumbai Police.
State Home Minister Anil Deshmukh had voiced the state government’s apprehension on Thursday, saying the CBI could act under political pressure.
“The withdrawal of general consent means if the CBI wants to investigate a case or register a case in Maharashtra, it will have to seek prior permission of the state government,” said Nikam.
The CBI was established under the Delhi Police Establishment Act, said Nikam, adding, “Under Section 6 of the Act, the CBI cannot conduct investigation of a case in a particular state or even register an FIR without the permission of the state government. It can’t do so on its own. It will have to take prior permission of the concerned state government,” he said.
Pointing out that the government has not prohibited the CBI from taking over the case, Nikam said, “Though the state government has not prohibited the CBI, it has cancelled the blanket permission given to it. Therefore, from a legal point of view, I think the government decision is within the framework of law and there is nothing illegal about it.”
“If the CBI intends to take over the TRP case, it can do so by seeking prior permission of the state government. If the state government denies permission, the CBI can approach the High Court and Supreme Court. The agency will have to convince the courts that the case involved sovereignty of the nation, or it has a national or global angle to it, and as a national agency it should be allowed to probe the case,” said the senior lawyer.
Deshmukh had, on Thursday, also said that the CBI was an independent and autonomous investigating agency. To this, Nikam said, “I will not comment but would like to point out what the Supreme Court had said. In one of its rulings, the apex court had said that the CBI was a caged parrot and it works as per the directives of its political masters.”
Justice B G Kolse-Patil said the state government has taken the right decision as the Mumbai Police has done an “excellent job” on the TRP scam case. “What has the Mumbai Police done wrong that the CBI has to step in? It was Mumbai Police which exposed the TRP scam. It has arrested eight persons and is doing an excellent job. If the CBI is a national agency, then why didn’t it expose the TRP scam? There is no need for CBI to interfere in the TRP scam case,” he said.
“Whether during the Congress regime or the BJP regime, CBI has worked on the directions of the political party in power. I don’t agree that it is an independent investigating agency. It never was. In the last five years, whichever case it has investigated, including the Gujarat riots case, it has failed to rise to its status as the topmost national agency,” said Justice Kolse-Patil.
He said the ‘general consent’ that was withdrawn was given years ago by the state government. “It is not only Maharashtra but even other states like West Bengal, Rajasthan and Chhattisgarh which have withdrawn general consent given to the CBI,” he said.
The former judge said while the CBI needed prior permission of the state government to take over a case, the National Investigative Agency, which took over the Elgaar Parishad case from the Pune City Police, did not require any prior permission. “NIA can take over the case without permission of the state government as there is a provision in the law for it to do so,” he said
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