Denial of consent can’t stall ongoing probes

The high drama over the CBI’s move to question Kolkata Police Commissioner on Sunday in the chit fund scam cases raises questions about the agency’s jurisdiction in a State which has already withdrawn “general consent” for its investigations . The CBI has been investigating the Saradha scam after the Supreme Court transferred the case to it in the Subrata Chattoraj versus Union of India judgment on May 9, 2014. Prospective effect The withdrawal of general consent to the CBI to exercise jurisdiction within its territory applies prospectively in Andhra Pradesh and West Bengal, both of which withdrew consent last year. In the latter, the then Left Front government gave the consent in 1989. But the withdrawal of consent would not have retrospective effect. The Supreme Court clarifies the position of law in Kazi Lhendup Dorji vs CBI , a reported decision of 1994. The court reasoned that the State government’s withdrawal should not be allowed to stall a pending case. The withdrawal of general consent means CBI officers lose police powers under the Criminal Procedure Code in the State concerned and for registering a case. “The case should be allowed to reach its logical conclusion… notwithstanding the withdrawal of consent during pendency of investigation,” the court had held in the Dorji case. The Dorji case had dealt with a notification issued by the Sikkim government withdrawing consent to the CBI to probe a corruption case against the then Chief Minister. In 1961, the Supreme Court in the Major E.G. Barsay judgment held that “no member of the Establishment (CBI) can exercise powers and jurisdiction in any area in a State without the consent of the government of that State”. The act of withdrawal of consent can be judicially reviewed. Besides, withdrawal of consent is no bar for a court to order a CBI probe.

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