Simply Put | A question of due process: CBI raid didn’t cross the line

Should Kejriwal have been informed before his Secretary was raided? Did the agency ‘lie’ about raiding the CMO?

With the raid in progress at the Delhi Secretariat on Tuesday. (Express photo by Ravi Kanojia)

What is the proper procedure for raiding a senior official of the Chief Minister’s Office? Did the CBI follow all laid-down requirements?

To conduct a probe against, or searches at the office of, any bureaucrat of and above the level of joint secretary, the CBI earlier required sanction from the government. Section 6A of the Delhi Special Police Establishment Act (DSPEA) brought in by the last NDA government in 2003 provided for this. This section was struck down in May 2014 by a five-judge Bench of the Supreme Court led by the then Chief Justice of India R M Lodha on the ground that it was “discriminatory”, and “impedes tracking down the corrupt senior bureaucrats”.

The agency now does not require any sanction to probe or search any bureaucrat at any level. It does, however, need a court’s permission to conduct searches at a bureaucrat’s office. The CBI, in this case, had secured a search warrant from a local court after registering an FIR.

That said, the law intends to avoid searches unless absolutely essential. Section 91 of the Code of Criminal Procedure says that if a probe requires a particular document, the agency may send summons to the concerned officer to produce the document. Searches are supposed to be conducted if the officer or department fails to produce it. Since the case pertained to irregularities associated with various departments of the Delhi government spanning a seven-year period, the CBI could have asked for these documents from the Delhi government.

CBI, however, has defended its searches, saying that there was a fear of the relevant files being misplaced.

The CBI has said it acted on the complaint of Ashish Joshi, who was removed as member secretary of the Delhi Dialogue Commission following disagreements with AAP leader Ashish Khetan. Is it usual for the CBI to carry out a raid based on the complaint of a private individual, especially one who has been aggrieved by the raided party?

Registration of an FIR or launch of searches on the basis of a complaint from a private person is not common.

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However, in this case the CBI received Joshi’s complaint from the Delhi Anti-Corruption Branch in July. It then spent five months verifying the allegations in the complaint. According to the CBI, only after it was satisfied that a case could be made out, did it register an FIR against Rajendra Kumar and conduct searches.

Chief Minister Arvind Kejriwal has said that if the CBI had evidence against Rajendra Kumar, they should have shared it with him and allowed him to take action. Was the CBI obliged to inform the CM before going after his Principal Secretary?

The CBI is not obliged under any law to inform the Chief Minister or any minister about the alleged misconduct of a bureaucrat against whom it may be conducting an investigation.

Kejriwal has said that CBI was “lying” that it had searched only Kumar’s office, and that his “own office” was raided and “files of CM office (were) being looked into”. Is this correct?

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It is a question of the letter and spirit of the claims on both sides. A search of the office of Kejriwal’s Secretary virtually means a search of the Chief Minister’s Office, as all files with the Secretary to the CM go through the CM. Thus, Kejriwal is technically right when he says that “files of CM office (were) being looked into”. However, the CBI may or may not have had the same intention that Kejriwal has implied.