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Can State Govt Interfere With CBI's Power To Investigate Central Govt. Officials When The Offence Committed In State's Territory? SC To Hear On Sept 7

Mehal Jain
13 July 2021 11:41 AM GMT
Can State Govt Interfere With CBIs Power To Investigate Central Govt. Officials When The Offence Committed In States Territory? SC To Hear On Sept 7
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The Supreme Court on Tuesday posted for final hearing the issue of power of CBI to investigate Central Government officials when offences are committed within a State territory on September 7 at 2 PM.The bench of Justices SK Kaul and Hemant Gupta was hearing an SLP against the March, 2020 decision of the Calcutta High Court holding that the Central Government's power to investigate...

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The Supreme Court on Tuesday posted for final hearing the issue of power of CBI to investigate Central Government officials when offences are committed within a State territory on September 7 at 2 PM.

The bench of Justices SK  Kaul and Hemant Gupta was hearing an SLP against the March, 2020 decision of the Calcutta High Court holding that the Central Government's power to investigate and prosecute its own officials cannot be in any way impeded or interfered by the State even if the offences were committed within the territory of the State. The genesis of the matter before the High Court lay in a complaint filed by the Central Government against the SLP Petitioners with the CBI alleging omissions and commissions, pursuant to which the Superintendent of Police, CBI, ACB, Kolkata registered an FIR on November 19, 2018 under Section 109 of the IPC read with Section 7, 13(2), 13 (1)(b) of the Prevention of Corruption Act, 1988.
The Government of West Bengal issued a Notification dated 16.11.2018 whereby the State has withdrawn the standing consent accorded U/s. 6 of the DSPE Act, 1946 by G.O. dated 02.08.1989 to all the members of the Delhi Special Police Establishment (CBI in this case) to exercise the powers & jurisdiction under the DSPE Act in the State of West Bengal.
The Petitioners had moved an application U/s. 482 of the CrPC challenging the said FIR on the following grounds: i. Permission under Section 6 of the DSPE Act, 1946 having been withdrawn by the State of West Bengal, the CBI cannot investigate the offence; ii. The CBI investigation is, therefore, illegal as it has no jurisdiction to investigate on a subject matter that is within the exclusive jurisdiction of the State Government; iii. Entry 2 of List II of the VIIth Schedule of the Constitution of India confers exclusive Jurisdiction on the State with regard to policing. Such exclusive jurisdiction of a state cannot be encroached upon by the centre on the CBI.
On behalf of the CBI, it was urged that the official communication of the withdrawal of consent under S. 6 of the DSPE Act was received at the office of the CBI by fax on 19.11.2018 at 16:56 hours & the FIR against the petitioner was registered at 16:30 hours on the same date.
The High Court was inclined to accept the submissions of the CBI, on a reading of decisions of the Calcutta and Patna High Courts and the Supreme Court to the effect that the notification which is required to be published in the Official Gazette would come into force only when it served, that since the withdrawal of the consent by the State is after the FIR was registered they could proceed with the investigation, and that an FIR of the CBI is registered not in terms of the CrPC before a police Station but as per the CBI manual and thus, the filing of a complaint with the office of CBI and registration of the FIR at 16:30 hours on 19.11.2018 would fulfil the requirements of Section 154 of the CrPC- "Admittedly the FIR was registered prior to the receipt of the communication from the State Government as regards withdrawal of consent under Section 6. The instant proceedings against the petitioner by the CBI are, therefore, not hit by the withdrawal of consent by the State dated 18th November, 2018", said the High Court.
The High Court also recorded that the state of West Bengal has not expressed any formal objection to any investigation by the Centre against Central Government Officials at any point of time.
Justice Gupta on Tuesday observed that in deciding the instant issue, the Court would examine the September, 2020 judgment of the Apex Court in Union of India and Others v. G.S. Chatha Rice Mills and Another, where a 3-judge bench has observed that the precise time when the gazette is published in the electronic mode is significant for determining the enforceability of the notifications.

Following the terror attack at Pulwama on 14th February 2019, the Government of India published a Notification on 16.02.2019 in exercise of powers under Section 8A(1) of the Customs Tariff Act, 1975. The notification introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. The precise time at which the notification was uploaded on the e-Gazette was 20:46:58 hours.

Allowing a batch of writ petitions, the High Court of Punjab and Haryana held that since the importers, who had imported goods from Pakistan, had presented their bills of entry and completed the process of "self assessment" before the notification enhancing the rate of duty to 200 per cent was issued and uploaded, the enhanced rate of duty was not attracted.

In appeal before the Apex Court, the Centre contended that irrespective of the point of time when a notification has been uploaded or published in the e-Gazette, the rate of duty leviable on imported goods cleared for home consumption is, by a legal fiction, the rate prevalent on the date of the presentation of the bill of entry.

One of the issues considered by the bench of Justices D. Y. Chandrachud, Indu Malhotra and K. M. Joseph was whether the notification that was issued by the Central government under Section 8A(1) at 20:46:58 hours on 16 February 2019 took effect commencing from 0000 hours on that day? Referring to various judgments, General Clauses Act and Information Technology Act, Justice Chandrachud, on behalf of himself and Justice Malhotra, observed:

"With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Notification 5/2019, which is akin to the exercise of delegated legislative power, under the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively, unless authorized by statute. In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February 2019."

Justice Joseph wrote a separate but concurring opinion in which he said that the interpretation based on time of publication is in harmony with a view that accords respect for vested rights.

On Tuesday, ASG Aman Lekhi, for the CBI, told that this judgment is not relevant for his arguments and that his submissions are slightly different from what the Supreme Court has held till now. Senior Advocate Siddharth Luthra, for the state of West Bengal, told the bench that he would be relying on the said judgment.

The bench of Justices Kaul and Gupta granted time to the petitioners, the CBI and the State of West Bengal to file a short synopsis of 3 pages each, factoring in the aforesaid judgment. The matter is now posted to September 7 at 2 PM.

Case Name: Ramesh Chandra Singh & Anr. v. Central Bureau of Investigation 

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