Explained: Why CBI needs consent, how far the denial will restrict it in Andhra, Bengalhttps://indianexpress.com/article/india/cbi-investigation-consent-andhra-pradesh-west-bengal-5452619/

Explained: Why CBI needs consent, how far the denial will restrict it in Andhra, Bengal

Andhra, Bengal have withdrawn general consent for CBI investigation. Why does CBI need consent, how many states have granted or denied it, how far will the denial restrict CBI in the two states?

Andhra Pradesh, West Bengal bar cbi central bureau of investigation
The CBI headquarters in New Delhi. (Express Photo/Tashi Tobgyal)

On Friday, the Andhra Pradesh and West Bengal governments withdrew “general consent” to the CBI for investigating cases in their respective states. The state governments said they had lost faith in the CBI in the backdrop of its internal turmoil marked by the open war among the agency’s top officers. They have also alleged that the Centre is using the CBI to unfairly target Opposition parties.

What is general consent?

Unlike the National Investigation Agency (NIA), which is governed by its own NIA Act and has jurisdiction across the country, the CBI is governed by the Delhi Special Police Establishment Act that makes consent of a state government mandatory for conducting investigation in that state.

There are two kinds of consent: case-specific and general. Given that the CBI has jurisdiction only over central government departments and employees, it can investigate a case involving state government employees or a violent crime in a given state only after that state government gives its consent.

Read | CBI war spills to state vs Centre: Andhra Pradesh, West Bengal bar the agency

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“General consent” is normally given to help the CBI seamlessly conduct its investigation into cases of corruption against central government employees in the concerned state. Almost all states have given such consent. Otherwise, the CBI would require consent in every case. For example, if it wanted to investigate a bribery charge against a Western Railway clerk in Mumbai, it would have to apply for consent with the Maharashtra government before registering a case against him.

What does withdrawal mean?

It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in these two states without getting case-specific consent. “Withdrawal of 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,” said a former CBI officer who has handled policy.

Under what provision has general consent been withdrawn?

GO (government order) number 176 issued by the Andhra Pradesh Home Department by Principal Secretary A R Anuradha on November 8 states: “In exercise of power conferred by Section 6 of the Delhi Special Police Establishment Act, 1946 (Central Act No 25 of 1946), the government hereby withdraws the general consent accorded in GO No 109 Home (SC.A) Department dated August 3, 2018 to all members of the Delhi Special Police Establishment to exercise the powers and jurisdiction under the said Act in the State of Andhra Pradesh.’’

Read | Day after Andhra, Bengal bar CBI, Jaitley says states don’t have sovereignty in matters of corruption

Section 6 of the Act says, “Nothing contained in Section 5 (which deals with jurisdiction of CBI) shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway, area, without the consent of the Government of that State.”

Does that mean that the CBI can no longer probe any case in the two states?

No. The CBI would still have the power to investigate old cases registered when general consent existed. Also, cases registered anywhere else in the country, but involving people stationed in Andhra Pradesh and West Bengal, would allow CBI’s jurisdiction to extend to these states.

There is ambiguity on whether the agency can carry out a search in either of the two states in connection with an old case without the consent of the state government. However, there are legal remedies to that as well. The CBI can always get a search warrant from a local court in the state and conduct searches. In case the search requires a surprise element, there is CrPC Section 166, which allows a police officer of one jurisdiction to ask an officer of another to carry out searches on his behalf. And if the first officer feels that the searches by the latter may lead to loss of evidence, the section allows the first officer to conduct searches himself after giving a notice to the latter.

What happens in fresh cases?

Withdrawal of consent will only bar the CBI from registering a case within the jurisdiction of Andhra and Bengal. The CBI could still file cases in Delhi and continue to probe people inside the two states.

An October 11, 2018, order of the Delhi High Court makes it clear that the agency can probe anyone in a state that has withdrawn “general consent” if the case is not registered in that state. The order was given with regard to a case of corruption in Chhattisgarh, which also gives consent on a case-to-case basis. The court ordered that the CBI could probe the case without prior consent of the Chhattisgarh government since it was registered in Delhi.

Thus, if a state government believes that the ruling party’s ministers or members could be targeted by CBI on orders of the Centre, and that withdrawal of general consent would protect them, it would be a wrong assumption, experts say. A CBI officer said: “CBI could still register cases in Delhi which would require some part of the offence being connected with Delhi and still arrest and prosecute ministers or MPs. The only people it will protect is small central government employees.”

Is it the first time a state government has withdrawn consent?

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No. Over the years, several states have done so, including Sikkim, Nagaland, Chhattisgarh and Karnataka — which stands out as an example. In 1998, the Janata Dal-led government of J H Patel had withdrawn general consent. In 1999, the S M Krishna-led Congress government took over and did not revoke Patel’s order. The then state Home Minister was Mallikarjun Kharge, current Leader of the Congress in Lok Sabha. “General consent wasn’t renewed for eight long years. The CBI had to virtually close down its office,” said an officer who was in the CBI then. He added that the agency had to seek permission of the state government for every case and every search it conducted on central government employees.