Centre Vs West Bengal: SC Holds Bengal's Suit Against CBI Filing FIRs Despite Withdrawal Of Consent 'Maintainable'

The Supreme Court said that West Bengal's original suit is maintainable against Centre where it objects to CBI registering cases in the state despite the latter withdrawing general consent in Nov 2018.

The Supreme Court said that in our considered opinion, the contentions of the Centre cannot be accepted, and the suit by West Bengal shall proceed as maintainable.

Source : PTI Images

In a big win for Mamata Banerjee government, the Supreme Court on Wednesday held that the suit filed by the State of West Bengal is maintainable against the Centre over the registration of FIRs by Central Bureau of Investigation (CBI) in the state even after the revocation of the State's general consent for the central agency in November 2018.

The Supreme Court said that in our considered opinion, the contentions of the Centre cannot be accepted, and the suit by West Bengal shall proceed as maintainable.

"We clarify that the findings are for the purpose of deciding preliminary objection of maintainability and will have no bearing when the case is decided on merits," the bench said and posted the matter for framing issues in August.

The top court held that the present suit is raising a legal issue whether after the withdrawal of the general consent, the CBI can continue to register FIRs and investigate cases in violation of section 6 of DSPE act.

The bench clarified that the suit will proceed and its present findings are only for the purpose of determining the maintainability and will have no bearing on deciding the suit finally.

The state of West Bengal alleged that the Central Bureau of Investigation (CBI) has been probing cases in the State despite absence of general consent. Solicitor General (SG) Tushar Mehta while appearing for the Centre said that the CBI is an independent body and does not come under the Centre.

SG Mehta had argued that the original suit moved by the West Bengal government against Centre is not maintainable as CBI is not under Centre and cannot be subject of an original suit.

"Instrumentality of State can also not be a defendant. The Union does not register any (CBI) case," Mehta said.

Original suit is filed to invoke original jurisdiction of the Supreme Court. Any conflict arising out of the federal structure, i.e. a case emerging out of a conflict between Centre and state or between two or more states falls under the original jurisdiction of the apex court.

Senior Advocate Kapil Sibal appearing for the state of West Bengal while making oral submissions before the court had earlier said, "What is the CBI? It is an investigating agency, not a statutory authority. It is an investigating arm of the government unlike LIC and other statutes. Like, the Police is not a statutory authority. They are subject to a regulation of a statute."

Statutory authority is an authority governed by a statute/law of the Constitution. Sibal said that consent is necessary before the investigation agency enters a State. On SG Mehta's contention that Centre should not be a party, Sibal said CBI cannot be a party.

"I am not seeking a declaration against the CBI. I am saying that under the federal structure if a State withdraws a consent, the investigating agency cannot enter."

Sibal contended that the Centre takes care of all the supervision of the CBI.

"The superintendence in all other matters vests in the Centre. My learned friend is saying What does the Union got to do with it?"

Sibal further told the court that the CBI cannot say that it will not accept what the Centre says. The proposition of law that CBI is an independent agency should be rejected at the outset, Sibal said.

"In this case, it is only jurisdiction. In November 2018, we withdrew the consent. The declaration is that they cannot investigate." Sibal appeared for the West Bengal government.

Sibal cited the Section 4(2) of The Delhi Special Police Establishment Act, 1946 which he said was at the heart of the matter and reiterated that CBI is not independent.

Section 4(2) says, "save as otherwise provided in sub-section (1), the superintendence of the said police establishment in all other matters shall vest in the Central Government."

He further said that once you give a foothold to CBI in a state, sooner or later the Enforcement Directorate (ED) enters for a predicate offence. "It has huge ramifications on the polity of this country."

Sibal said that we are dealing with a statute that impacts the federal structure of this country. Consent is necessary before you get entry in the State.

"It is an arm of the government. Even the police are the investigative arm of the State government." Sibal had argued.