Can state govt ban the entry of CBI in state?

Subjects “police” and “public order” are State subjects under the Constitution which means that the power to legislate on these issues lies with the State legislatures and not the Parliament.

However, the subjects of criminal law (including “Indian Penal Code” and Prevention of Corruption Act), criminal procedure (including “Criminal Procedure Code”), evidence (including the Evidence Act) are in the Concurrent List in the Seventh Schedule of the Constitution. This implies that while the Parliament and State legislatures, both, have concurrent powers to legislate on these subjects, it is the Parliament whose law dominates the field in view of, and subject to, the provisions of Article 254 of the Constitution.

The power of registering FIR and conducting investigation in an offence has been given to police under the provisions of the Criminal Procedure Code, which has been enacted by the Parliament in exercise of the above power. So, the power to investigate available with the state police is mainly given under the Criminal Procedure Code, which is enacted by the Parliament.

State police forces have been constituted by the respective State Police Acts (such as Maharashtra Police Act for Maharashtra Police] or the Police Act of 1861.

On the other hand, the CBI has been constituted as a special police force under the provisions of the Delhi Special Police Establishment Act, 1946 (it is called, “Delhi Special Police Establishment” or DSPE, under the said Act).

The original power of the CBI is within the jurisdiction of the union territories (such as in Delhi). However, the provisions of the above Act lay down that the power of CBI to conduct investigation can be extended within the jurisdiction of the states also, with the consent of the State Government concerned. This consent can be either general consent (for a category or class of offences, generally, such as for example, corruption cases against central government employees), or a special consent (which is given specially for a specific individual offence).

It is this general consent that has now been withdrawn by the Andhra Pradesh Government from the CBI. This is legally permissible.

This basically implies that CBI will not be legally empowered to register any new FIR (it is called RC or Regular Case in CBI’s terminology) for an offence which has occurred within the jurisdiction of Andhra Pradesh.

West Bengal Government has also withdrawn such general consent given to the CBI.

However, I may clarify that:

(1) A special consent may still be given to the CBI for a specific / individual offence by the Andhra Pradesh Government in future. Of course, Andhra Pradesh Government can again give general consent to CBI for certain class or category of cases.

(2) The Supreme Court and the High Court will still have the power to direct the CBI to conduct an investigation within Andhra Pradesh. And, for this purpose, the consent of the State Government shall NOT be necessary.

(3) If any particular case was already being investigated by the CBI in Andhra Pradesh, then it can continue to investigate such offence even after withdrawal of the general consent. This is in view of an old judgment of the Supreme Court [Kazi Lhendup Dorji v. CBI, 1994 Supp (2) SCC 116].

(4) If the CBI registers an FIR in some other state or union territory (where the offence took place) even in future, and if a part of such investigation is required to be conducted within Andhra Pradesh, then the CBI would still have the power to conduct investigation in such offence within Andhra Pradesh, notwithstanding the withdrawal of the general consent by the State Government. This is in view of the provisions of the Criminal Procedure Code, which allow the investigation of an offence to be continued anywhere in India. In fact, the investigation of an offence can be conducted even outside India through the process of what is known as letter rogatory or letters of request, as laid down in the Criminal Procedure CodeOf course, as I mentioned above, the CBI will not have the power to register a fresh FIR which took place in Andhra Pradesh itself(except without a special consent or without a court order, as mentioned above).

(5) In that sense, there is no ban on entry of the CBI in Andhra Pradesh, as is wrongly mentioned in the media. The ban is only on the registration of a fresh FIR by CBI and investigation thereof, in Andhra Pradesh if the offence has taken place within that state.

(6) Further, a State Government has no authority to take away the powers of ED (Enforcement Directorate) and the Income Tax department and they can still exercise their full powers within Andhra Pradesh.

Thank you!

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