CBI vs Kolkata Police | Can investigating agency probe without consent of government?

In an unprecedented development, a number of CBI officers, who had gone to question Kolkata Police chief Rajeev Kumar in connection with chit fund scam cases, were bundled into police jeeps, whisked to a police station and briefly detained on Sunday, officials said. Amidst escalating tension between West Bengal Chief Minister Mamata Banerjee and the Centre, Loudon Street in central Kolkata witnessed a virtual showdown between the state police and the CBI. Banerjee began a sit-in protest at a city landmark over the CBI's attempt to question the Kolkata Police chief, insisting it stifled the spirit of "Constitution and federalism".

In a dramatic showdown with the Modi government, a furious Banerjee, wrapped in a brown woollen shawl, began a sit-in right in front of the Metro Cinema to protest "insults" she faced at the hands of Prime Minister Narendra Modi and BJP chief Amit Shah, hours after a CBI team that had gone to question Kumar was detained in a rare face-off between the police establishments of the Centre and the state.

A day earlier, the Central Bureau of Investigation (CBI) claimed that Kumar had been "absconding" and "being looked for" in connection with Saradha and Rose Valley ponzi scam cases. As the CBI team landed at the city police chief's residence, a team of Kolkata Police officers rushed to the spot to speak to the CBI officials and tried to enquire if they had the documents required for questioning Kumar. Later on, a small team of CBI officials was taken to Shakespeare Sarani police station for further discussions.

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In 2014, in a major setback to Banerjee-led West Bengal (WB) government, the Supreme Court handed over the multi-crore Saradha scam investigation to the CBI. The court had asked the state agencies to cooperate with the CBI. 

The question is can states opt out of general consent to CBI to conduct corruption probes?

On November 8, the Andhra Pradesh government withdrew the "general consent" accorded to the Central Bureau of Investigation (CBI) to exercise its authority in the state. Following Andhra Pradesh, West Bengal government said it had also withdrawn its consent accorded to the CBI to conduct investigation and raids in the state.

What does this development mean?

It means the CBI has to seek permission from the chief minister of these states on a case-to-case basis. This will also be applicable to big-ticket corruption cases within a state. This means raids in fresh cases will also require consent from the state concerned or else from a high court or the Supreme Court.

What does the law say:

“6. Consent of State Government to exercise of powers and jurisdiction.—Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area>, without the consent of the Government of that State.”

(Section 6 of the Delhi Special Police Establishments Act, 1946)

What it means:

All states (except Delhi and union territories) have the discretion to give their consent to the CBI for a probe in the state.

What was the position till now:

There was a blanket permission from all states to the CBI for corruption probes.

Does that mean that the CBI can no longer probe any case in the two states?

According to The Indian Express, The CBI would still have the power to investigate old cases registered when general consent existed. There is ambiguity on whether the agency can carry out a search in either of the two states in connection with an old case without the consent of the state government. However, there are legal remedies to that as well. The CBI can always get a search warrant from a local court in the state and conduct searches. In case the search requires a surprise element, there is CrPC Section 166, which allows a police officer of one jurisdiction to ask an officer of another to carry out searches on his behalf. And if the first officer feels that the searches by the latter may lead to loss of evidence, the section allows the first officer to conduct searches himself after giving a notice to the latter.