The Karnataka Cabinet has decided to withdraw the sanction accorded to the CBI by the previous BJP government to investigate a disproportionate assets case against Deputy CM and state Congress chief DK Shivakumar.
The CBI derives its powers to investigate from the Delhi Special Police Establishment (DSPE) Act, 1946 which grants the CBI power to investigate a case in Delhi, without any permission, since it is part of the Centre. However, in all the states, the CBI needs the consent of the state to investigate any case relating to that state or having jurisdiction of that state.
“The provision of the Central police not being able to investigate in the states without the consent of the states is part of the Constitution which lays down the law and order as a state subject. The Central police cannot investigate or enter the state without the consent of the case since law and order is a state subject and the Centre cannot intervene in law and order matters. The CBI can only investigate with the consent of the state,” former Joint Director in the CBI, Shantonu Sen explains.
The CBI can begin a probe under certain circumstances — if a state government makes a request and the Union government agrees to it, if the Supreme Court or any High Court order the CBI to take up such investigations, or if the state government issues a notification of consent under section 6 of the DSPE Act and the Union government issues notification under section 5 of the DSPE Act for an investigation. The CBI can initiate suo motu investigations only in Union Territories, under section 2 of the DSPE Act.
For the CBI to take up investigation within the boundaries of a state requires prior consent of that state as per section 6 of the DSPE Act. The Union government can authorise the CBI to investigate such a crime in a state but only with the consent of the concerned state government. The Supreme Court and High Courts, however, can order the CBI to investigate such a crime anywhere in the country without the consent of states.
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What happens when a state withdraws general consent
Once a state withdraws general consent, the CBI has to seek permission before it can register a case against a person or an entity based in that state. So now, the CBI has to seek permission from the Maharashtra government if it has to probe anyone residing in Maharashtra.
However, there will be no bar on investigation into cases that are already being probed by the CBI. The CBI cannot file any new FIRs in any new cases.
For example, if an offence has been committed in Delhi and part of it is in Mumbai and if the state government does not allow the CBI to file a case in Maharashtra, the CBI has an option of registering a case in Delhi and then seeking assistance from the Maharashtra police to carry out the investigation in Maharashtra. However, the CBI will not have power or jurisdiction to probe the case in Maharashtra, Sen explains.
“There is another face-saver for the CBI – the courts. Both the High Court and the Supreme Court do not accept this bar and they have said that if we want the CBI to investigate in a state which has no consent, we will give that consent and allow the CBI to investigate. So if the CBI wants to investigate and the petitioner also wants the same, the CBI can always approach the Supreme Court for permission. But after consent is withdrawn, the CBI, of its own, cannot do any investigation on the basis of earlier consents,” he adds.
A version of this article was published before on TNM. This is an edited version.