PROCEDURE TO TRANSFER OF INVESTIGATION FROM STATE POLICE TO CBI
Investigation is the crucial stage of every criminal matter. This is the first stage after the information is received by a police officer about the commission of an offence. The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal procedure, Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in his behalf. The investigation of an offence consists of:
- Proceeding to the spot
- Ascertaining the facts and circumstances of the case.
- Collection of evidences
- Discovery and arrest of the suspect
Section 156 of the Code of Criminal Procedure confers powers on police officer to investigate cognizable cases wherein the police has no authority to investigate non-Cognizable cases and has to obtain warrant under Section 155(2) of the Code. From the language of the sections155 and 156 of CrPC it is evident that the legislature in its wisdom has omitted the term “the commission within the limits of such police station of non-cognizable offence” however police cannot refrain from investigation on a territorial ground.
Central Bureau of Investigation
The term ‘police’ is the subject of the state list under the Seventh Schedule of the Constitution of the India. However, the CBI is an independent premier investigation body of India started in 1963 under DSPE Act. It is the most powerful investigating agency of India. Their jurisdiction isn’t restricted only to the territory of Delhi instead Article 5 and 6 of DSPE Act provide the power to investigate cases occurring in Union Territories or in Territories of other states with the consent of the Union of state government. The point is to be noted that the state government’s consent is mandatory for CBI to do investigation to its jurisdiction. CBI cannot investigate without the state permission which goes with the federal feature which has been held to be the basic structure of the Constitution of India. CBI investigates through three specialized wings. The Anti Corruption Division for corruption cases, The Economic Offences Division for bank or black fund cases and The specific Crime Division to investigate cases of violence such as murder, narcotics or banned circumstances or generally handles cases that get wide media coverage for example recent death case of Sushant Singh Rajput. There are two types of consent given by the state to CBI
- GENERAL CONSENT
- SPECIFIC CONSENT
When state gives general consent to the CBI for probe then it doesn’t need to seek fresh permission for every new case on the other hand specific consent gives it the power to investigate that particular matter only. General consent gives the seamless power to investigate any kind of matter of the state. Consent can be withdrawn by states at any time however it will continue to probe in old cases until specifically taken back by state government. Mizoram, West Bengal, Chhattisgarh, Rajasthan, Maharashtra, Kerala, Jharkhand and Punjab are the states which have withdrawn the general consent. Even if the investigation has been withdrawn by the states the CBI, the independent body may initiate the investigation into the FIR registered with local police after the due consent of the state governments concerned and notification by the central government extending jurisdiction of the officers of CBI to areas in the concerned state. The Supreme Court of India held that state’s post-facto consent to CBI is would not affect the validity of the investigation.
Fertico Marketing and Investmeent Pvt. Ltd. V. CBI (SLP (CRL) no. 760-764 of 2020)
The Supreme Court stated that, by not obtaining prior consent of the State government under section 6 of DOSE Act would not vitiate the investigation unless the illegality in the investigation can be shown about miscarriage of justice by CBI.
Power of Constitutional Courts
The federal structure and the principles of separation of power made permissible for the superior courts to direct transfer of investigation from state police to the CBI. If in terms of Entry 2 of list II of the Seventh Schedule on the one hand and Entry 2A and entry 80 of the list I on the other: an investigation by another agency is permissible subject to grant of consent by the concerned state and there is no reason as to why, in an exceptional cases, court would be precluded from exercising the same powers. Hence, by doing so, Constitutional Court doesn’t violate the principle of separation of power but in such a situation if court fails to grants the relief it would be failing in its constitutional duty.
Section 482 of CrPC gives the inherent power to high court to make order to transfer the investigation to CBI in order to abuse the any process of court and to secure the end of justice. In many judgments by the Supreme Court clearly stated that court have minimum role for interference during the investigation but powers with superior courts are just for the investigation of criminal offense should be conducted keeping in mind the rights of accused to a fair process investigation
Sushil Suri v. C.B.I (2011) 3 CR I.J.2939 (S.C)
That inherent jurisdiction of High under section 482 may be exercised under three circumstances only namely;
- To give effect to an order under CrPC
- To prevent an abuse of the process of court
- To otherwise secure the end of justice
It is trite that power of High Court under section 482 is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously
State Rep by D.S.P., S.B.C.I.D., CHENNAI V. K.V. Rajenderan and others (2009) n1 Cr. I.J 355(S.)
States that the inherent power cannot be exercised to reopen, or alter an order disposing of a petition decided on merits
Besides these inherent power, superior courts are provided with some constitutional powers provided in Article 226 and 32 of the constitution also states the power of the High Court and Supreme Court respectively, to direct the investigation to CBI but such power is to be exercised only sparingly, cautiously and in exceptional situation and order directing CBI is not to be passed as a matter of routine or merely because the party has some allegations against the state police
Mithabhai Pashabhai Patel v. State of Gujarat (SLP (CRL)NO. 6759 O 2008)
In this case it was held that there is difference between further investigation and re investigation. Superior Court in the exercise of its constitutional power could direct state to get the offence further investigated by the CBI however, being forbidden by law, no superior court could ordinarily issue a direction to re investigate the matter.