The Supreme Court on Wednesday reserved judgment on the maintainability of original lawsuit filed by West Bengal government challenging the power of Central Bureau of Investigation (CBI) to file FIRs and investigate in its jurisdiction, despite revocation of general consent in 2018. The top court today posed several tough questions to Centre over its claim that CBI is independent and Centre cannot be made party to the case and thus the plea is not maintainable. 


Solicitor General Tushar Mehta appearing for Centre contended that the original suit moved by the West Bengal government is not maintainable as CBI is not under Centre and cannot be subject of an original suit. 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.


The bench of Justices Gavai and Sandeep Mehta heard the matter at length and posed several questions to SG Mehta on Centre's control over CBI.


SG Mehta contended that CBI cannot be said to be "Police force of the Union" and there is no cause of action against the Centre in this case.


"CBI is rightfully not joined (as party) as they are well aware it cannot be. It is a devastating to say CBI is a police force of the Union! CBI is not!" SG Mehta said.


He further said that Centre also constitutes High Courts, but that does not mean the courts are under it. 


He told the court that Centre is only responsible for cadre control through DoPT and does not tell the CBI to register FIRs or take suo motu action. He said the administrative control of CBI is with the Director of CBI not with Centre.


"DoPT does not register the offence for CBI. DoPT is only a cadre controlling authority." Mehta told court.


The bench then asked under whose supervision the Delhi Special Police Establishment (DSPE) falls?


Mehta replied, as far as Prevention of Corruption Act is concerned, it is CVC.


Justice Gavai asked, "like we are under Minsitry of Law and Justice."


SG Mehta replied, No!


The bench then asked "Is CBI under DoPT or Director (CBI)? 


SG Mehta said, "I did not anticipate such a question can arise."


At this the bench replied, "We are entitled to ask the most absurd of questions!" 


Justice Gavai then added, "even our appointment are through Centre. Has to be either DoPT or Ministry of Home Affairs (MHA) for even CBI. Director cannot issue notifications."


SG Mehta quickly replied, "I only meant, I did not anticipate such a question." 


The bench then told SG Mehta that in such vibrant hearings, they are likely to be invigorated and ask queries. 


At the outset of hearing, the Senior Advocate Kapil Sibal told the court that Section 6 of the Delhi Special Police Establishment Act of 1946 is crucial as it requires the prior consent of the State.


"The source of power is the Central government and not the CBI. The power is given by the Central government through a notification...that is the scheme...My (West bengal government) cause of action is against you (Centre) because once I have withdrawn consent, you cannot allow your investigative agency to investigate...this is at the instance of the Central government because under Section 4(2) of the Act, it is controlled by them."


He further argued that the CBI is an investigative agency after the state allows it and the Central government cannot say that they are a law unto themselves and can enter any State after they have withdrawn the consent.


"Is that the scheme of federalism?" Sibal asked. 


These offences will be investigated the state police because I am a jurisdictional police. Noone, can say that the State police cannot investigate the offences of corruption.


"Even in British India, the consent of the governor-general provinces was required..." Sibal said.


In the previous hearing, Senior Advocate Kapil Sibal appearing for the state of West Bengal while making oral submissions before the court 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 said 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.