CBI controversy- legal issues and facts

A brief article on CBI controversy- legal issues and facts related to its creation, administrative set-up, powers, and controversies.

CBI or the Central Bureau of Investigation is the premier investigation agency of the central government which has earned its name for qualitative investigations and publicized cases. CBI traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the then British Government to investigate cases of bribery and corruption in transactions in the War & Supply Department of India during World War II. It was thus purely a central agency with no powers in any of the states. At that time, it was headed by a Superintendent.

Subsequently, The Delhi Special Police Establishment Act (DSPE) was enacted in 1946 for the investigation of the cases related to all government offices and UTs. The arrangement continued even after independence. The central government passed a resolution dated 1/4/1963 and named it as Central Bureau of Investigation (CBI).  Thereafter all central government offices, PSUs as well as nationalized banks were brought within the ambit of the investigations of the Central Bureau of Investigation. Through time, CBI became the national investigative agency taking up various cases of corruption, irregularities in various central government offices as assigned to it. CBI through time acquired a special status and importance by the nature of cases it handled. The powers to assign cases to CBI vests with the central government and High Courts and Supreme Court. At present it is headed by a Director who is a DG level IPS officer, Sh D.P.Kohli was its first Director. CBI controversy- legal issues and facts thus aims to explain the entire issue in detail.

The resolution of the central government vide which CBI was created reads as under:

“No. 4/31/61-T GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS New Delhi, the 1st April, 1963 RESOLUTION The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime. As a first step in that direction, the Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely:

(i) INVESTIGATION AND ANTI-CORRUPTION DIVISION. (DELHI SPECIAL POLICE ESTABLISHMENT).
(ii) TECHNICAL DIVISION.
(iii) CRIME RECORDS AND STATISTICS DIVISION.
(iv) RESEARCH DIVISION.
(v) LEGAL DIVISION & GENERAL DIVISION.
(vi) ADMINISTRATION DIVISION.

The Charter of function of the above-said Divisions will be as given in the Annexure. The assistance of the Central Bureau of Investigation will also be available to the State Police Forces on request for investigating and assisting in the investigation of interstate crime and other difficult criminal cases.

Sd/- (V. VISWANATHAN)

Secretary to the Government of India”

Subsequently, in 1987, CBI constituted two investigation divisions, namely, Anti-Corruption Division and Special Crimes Division, the latter dealing with cases of conventional crime, besides economic offences. The role of CBI also widened. CBI at times became controversial with the assignment of investigation of various other types of crimes to it by various other central government bodies as well as by various High Courts or Supreme Court as CBI was considered to be a more efficient investigator as compared to the state police or any other such agency.

The legal powers and authority of CBI flow out of the DSPE Act 1946, which confers powers, duties, privileges, and liabilities on the Delhi Special Police Establishment (DSPE). The provisions may be extended by the central government subject to the consent of the government of the concerned state.

The staff of CBI above the rank of sub-inspector may be considered officers in charge of police stations and they can assume investigation under the notification by the central government. The picture thus emerges that CBI per se does not involve in the maintenance of law and order of any state and is only an investigating agency to take the following types of investigations:

• Offences against central-government employees, or concerning affairs of the central government and employees of central public-sector undertakings and public-sector banks.
• Investigation of the cases involving the financial interests of the central government.
• Investigation of the breaches of central laws enforceable by the Government of India.
• Investigation of cases involving major fraud or embezzlement; multi-state organised crime.
• Investigation of Multi-agency or international cases.

The creation of CBI and its constitutional mandate was also questioned that under the Constitution of India , it is only a State Legislature, which, in terms of Entry No. 2 of List-II (State List) of the VII th Schedule to the Constitution of India, is competent to legislate on the subject of police and, therefore, the Central Government could not have taken away the power, which so belongs to State legislatures, and create or establish an investigating agency, in the name of CBI.

This argument has been supported by quoting the Constituent Assembly debates, dated 29-08-1949, wherein Dr. BR Ambedkar had clarified that the word ‘investigation’, appearing in Entry 8 of List I (Union List) of the Seventh Schedule, which read, “Central Bureau of Intelligence and Investigation”, would not permit making of an ‘investigation’ into a crime by the Central Government inasmuch as ‘investigation’ would be constitutionally possible only by a police officer under the Cr.P.C. Police being exclusively a State subject and the word ‘investigation’, appearing in Entry 8 of List I (Union List), would, in effect, mean making of merely an ‘enquiry’ and not ‘investigation’ into a crime as is done by a police officer under the Code of Criminal Procedure. The word `investigation’ is, therefore, according to the Constituent Assembly Debates, intended to cover general inquiry for the purpose of finding out what is going on and such an investigation is not an investigation preparatory to the filing of a charge- sheet against an offender, because it is only a police officer, under the Criminal Procedure Code, who can conduct ‘investigation’.

It is however still argued that the DSPE contemplate only the creation of a police force for Delhi which does not automatically extend to all the states unless done by legislation hence the policing powers of CBI are not in accordance with the mandate of Constitution. Supreme Court has the occasion to deal with the issue and held that the power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, would not amount to infringement of either the doctrine of separation of power or the federal structure.

It is also argued that the word “Central Bureau of Investigation” has nowhere been mentioned in the said DSPE hence the CBI does not have any constitutional existence. Assam High Court had gone to the extent of quashing the resolution of the central government which is at present under an interim stay from the Supreme Court and the matter is yet to be decided finally.

The strength and cadre of CBI in its organization is under the administrative control of DOPT and headed by a Director, an IPS (Indian Police Service) officer with a rank of Director General of Police. The director was being selected based on the CVC Act 2003, for a two-year term. Other ranks in the CBI which may be staffed by the IRS ( Indian Revenue Service) officer and the IPS are Special Director, Additional Director, Joint Director, Deputy Inspector General of Police, Senior Superintendent of Police, Superintendent of Police, Additional Superintendent of Police, Deputy Superintendent of Police. Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable, Constable who are recruited through SSC or through deputation from Police, Income Tax Department and Customs Department.

Besides the Director of CBI, there is a Director of Prosecution at CBI who heads the prosecution process of CBI. Going by the statistics of NCRB for the year 2016, we find that a total number of 7186 charge sheets filed by CBI throughout India are pending trial before the courts. In a study undertaken in 2010, it was found that 389 cases were more than 20 years old, 639 cases 15-20 years old, 1217 cases 10-15 years old, 2858 were 5-10 years old broadly. The conviction rate of the cases as filed by CBI is 66.45% for the year 2016 as against the average conviction rate of 47.79%. The total number of 36, 683 persons are facing the trial of CBI cases at the end of 2016. On an average 600-800 cases are investigated and charge sheets filed by CBI for prosecution as per the estimates every year. In 2016, around 1000 persons were convicted whereas 944 were acquitted by the CBI courts.
CBI also has a forensic laboratory to evaluate the forensic evidence and present the same before the courts in support of its case.

After the formation of the NDA government in center and after much hue and cry over the independence of CBI , the government introduced The Delhi Special Police Establishment (Amendment) Bill, 2014 which inter-alia provides for a three member committee to make recommendations to the central government for appointment of the Director of CBI. The committee comprises of the Prime Minister (Chairperson), the Chief Justice of India or a Supreme Court judge nominated by him, and the Leader of Opposition in the Lok Sabha, the bill amended the provision in relation to the Leader of Opposition and stipulates that where there is no Leader of Opposition, the Leader of the single largest Opposition Party in that House would be member of the committee. It also introduced the provision which stipulates that the appointment of a Director would not be invalid on the grounds of any vacancy or absence of a member of the Committee.

It is clear that the process of appointment of Director has been prescribed under the said enactment under Section 4(A) and the terms and conditions of his duties described in Section 4(B) which reads as under:

“4B. Terms and conditions of service of Director.—(1) The Director shall, notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office.
(2) The Director shall not be transferred except with the previous consent of the Committee referred to in sub-section (1) of section 4A.”

A plain and simple reading of the above mandate of law would clearly establish that the Director of CBI is to be appointed in the manner prescribed but does not enjoy any special status w.r.t. his terms of services or his conduct. He being a member of the Indian Police Service is entitled to the protection of Article 311 of the Constitution of India but he can be removed as per the wishes of the central government. He can be made to face enquiry before the CVC or other agencies if required and there is no immunity attached to his post as such. All other staff of CBI can be prosecuted for their delinquency by their cadre controlling departments like the other government servants. There are instances of removal of the Director of CBI earlier. Besides this, CBI also keep a strict vigil on its officials as they are prone to misuse their power and authority and there are number of instances of raids on its own officials.

Earlier its DIG posted at then Madras was caught taking bribe money and convicted, the chief investigating officer of the coal gate scandal was caught taking bribe and sent to jail. The recent raid on its own office and action against its officials can be an attempt to clean the system from within on which much media attention has been made. Fact remains that CBI still maintains its standardized investigation of course most of the high profile cases are assigned to CBI on political considerations for which CBI can not be blamed as it only works as an investigative agency under the frame work of law.