This article is written by Chitransha Mishra

So, CBI has again partaken in the investigation of what is currently the most sensational scam in India and Sheena Bora’s murder case. Yes, the scam I am talking about is VYAPAM. Why is it that we always need to call this badass when our local police fail? Why is it that this agency always works on the most talked about cases in the country? How did this agency come into existence? I am sure we didn’t just look at America’s FBI and think “Okay, they’re cool. We definitely need something like this in our country too and it must rhyme.” But most importantly, are they really entitled to interfere in the matters that are not of national interest? Are they permitted to investigate the matters that only concern private parties? Can we, as sufferer s or victims, call them to investigate upon our issues? If yes, how? And what functions do they take up that makes them so special? I think, as a citizen of this country, this is something that each of us should know. For, ignorance isn’t always bliss.

How was CBI created

Let us first discuss what made our country even consider forming such an investigative agency. This takes us back to the time of the Second World War. The Special Police Establishment was formed during the World War II when a huge amount of funds were being used in the war and there emerged astronomic potential of corruption between the officers dealing with the supplies. This gave room for doubts and made the government of India pass an Executive Order in 1941 to form Special Police Establishment under the DIG in the department of war. But, not surprisingly, the corruption and bribery did not see an end and neither did the need for the central government agency to investigate such cases. Therefore, The Delhi Special Police Establishment Act came into force in 1946. The superintendence of SPE was transferred to the Home Department and its functions were broadened to cover all the Departments of the Government of India. It exercised its power over the union territories and could be extended to the states with the consent of the concerned states. The SPE was then put under the charge of the Director of Intelligence Bureau. It was in 1948 that a post of Inspector-General of Police, SPE was created and the agency was placed under his charge. The mighty CBI was named on 1-4-1963 by the Home Ministry of the Government of India (See, Resolution No. 4/31/61-T/MHA). This was done to broaden the concerning fields of investigation like the breach of the Central fiscal laws, frauds in Government Departments and PSUs and other serious crimes. In 1987, two divisions were created in the CBI known as Anti-Corruption Division and Special Crimes division. Due to the enormous workload related to bank frauds and economic offences, a separate Economic Offences wing was created in 1994. Since then, the CBI has three investigation divisions, namely, Anti- Corruption Division, Special Crimes division and Economic Offences Division. So, that’s how the present day CBI came into existence and this is what the agency is in a nutshell.

How does the CBI function

Now, let us move on to how it works; its functionalities and proceedings. They all start with one thing—Complaint. The complaints may come by any means and should shed some light on corruption, malpractices or misconduct on the part of public servant(s). Complaints can come from various sources, be it an administrative authority, intelligence gathered by the CBI and by Police authorities and the complaints received by them, Departmental inspections and stock verification surveys, annual property returns, scrutiny of transactions reported under the conducted rules, routine audit of accounts, audit reports of accounts of government, PSUs and other corporate bodies, reports of parliamentary committees, Public accounts Committee and the Committee on the PUs, Proceedings of the two houses of Parliament. Complaints can be in writing or verbal. Even the news that appears in newspapers or any other media can be considered as a complaint. The Central Vigilance Commission established under the CVC Act, 2003 has been exclusively empowered with the superintendence over the functioning of CBI especially in connection to the offences performed under the Prevention of Corruption Act, 1988 with respect to certain categories of officers mentioned. It is the designated agency of the government to receive such complaints.

Any action that is to be taken upon the complaints depends upon the nature of the complaint. Depending on their nature, it may be ordered for the departmental investigation, it may be ordered to file or drop the complaint without further query, and matter may be handed over to the CBI if the cases are of grave nature.

Three wings of CBI

(I)  GOW (General Offences Wing): It looks after cases involving allegations under the Prevention of Corruption Act, 1988, possessing assets more than what your income allows, allegations involving inquiring from the non-official persons or examination of non-governmental records, cases of complicated nature involving questions of law and facts. This department is also entitled to initiate criminal proceedings in certain cases.

(ii)  EOW (Economic Offences Wing): It deals with cases that include violation of various economic/ fiscal laws. Bank frauds, financial frauds, and import-export and foreign exchange violations, large-scale smuggling may be included in economic crimes.

(iii) CCIC (Cyber Crimes investigation cell): This wing started functioning smoothly in 2005 and it investigates cybercrimes for they have been increasing day by day and sometimes the nature of such crimes is extremely serious thereby demanding some specialised attention.

The complaints registered are usually transferred to these divisions based on the nature of such complaint.

In fact, they’ve even started investigating the crimes of conventional nature. This includes murder, terrorism, kidnapping etc. This also includes special crimes of sensational homicides, crimes committed by the mafias and the underworld etc.

Can you demand CBI investigation into a matter about which you care?

Now we consider the question previously posed in this article. Are we or are we not entitled to call them for investigation in our personal matters. If yes, how? This takes us back to 2001. On 4^th January, 2001, Abdul Rahman Mondal, along with many workers of a political party had been staying at several party camps set up by their party at Garbeta in Midnapore district of the State of West Bengal. Some of the workers and Abdul decided to go to their homes from one such camp. When they reached Abdul’s house, some men, 50 or 60 in number, attacked them with firearms and explosives, which resulted in many casualties. Abdul managed to escape from the place of occurrence of the heinous attack, hid himself, and witnessed the whole event from where he was hiding. He lodged a written complaint in Garbeta Police Station on 4^th January, 2001 itself but the FIR was registered only on 5^th January, 2001. On 8^th January, Director General of Police, West Bengal ordered CID (Crime Investigation Department) to take over the investigation of the case. A writ petition was filed in High Court of Judicature at Calcutta by the Committee for Protection of Democratic Rights, West Bengal stating that, although 11 persons died that night and 3 months have passed since the incident, yet, except 2 persons, no other person name in the FIR has been arrested and that no serious attempts have been made to identify the victims. In fact, till that time, the police have not been able to find out if the missing persons are dead or alive. They alleged that the police was influenced by the ruling party of the state and were hence compromising with the proper investigation. Their demand was to transfer the case to the Central Bureau of Investigation, an independent agency.

The High Court, after hearing the facts stated above, decided that it had a strong reservation about the state police regarding the impartiality and fairness of the investigation and also, considering the seriousness of the matter, it should be handed over to the CBI. State, aggrieved by the decision of the High Court, asked for special leave to appeal before this Court.  The leave was granted in September, 2001. When the matter came up to a two-judge Bench on 8^th November, 2001, it was of the opinion that the matter is of great importance to the public and shall be placed before the Chief Justice of India for the passing of reasonable orders and thereby directing the matter to be placed before a much larger bench. When the matter came before a three-judge bench headed by the Hon’ble Chief Justice of India, they decided to place the matters of this nature before a Constitution Bench.  The state counsel appearing on behalf of West Bengal asserted that there is a complete restriction on parliament’s legislative power in ratifying any law allowing police of one state to investigate an offence committed in the other state, without the permission of that state. He also suggested that separation of power between the three organs of the state requires each one of these organs to margin themselves within the areas entrusted to it by the Constitution and not act against the violation or opposite to the spirit of the Constitution. He also pressed that if the parliament was to pass a law that allows police of one state to investigate in the area of other state without its consent, such a law would be invalid. So, the federal structure demanded that the Constitution not be disturbed by doing any such thing. CBI, being an outsider and formed under the DPSE to investigate in the matters related to Delhi and the Union States is considered as a police of another state. Long story short, The Solicitor General of India appearing on behalf of the union government tried to convince the Bench that rights stated under the Constitution are not valid when they are directly in contradiction with a person’s fundamentals rights. Hearing both parties, the Bench came to the following conclusions.

• The fundamental rights, stated in part III of the Constitution, are intrinsic and cannot be eliminated by any constitutional and statutory allocation. Any law that abridges or abrogates such rights will infringe the basic structure dogma.
• According to Article 21, the state has a duty to impose the human rights of a citizen providing for fair and unbiased investigation against any person accused of a cognizable offence, including its own officers.
• A regulation by the High Court, in employ of its jurisdiction under the Article 226 of the Constitution, to the CBI to investigate a cognizable offence stated to have committed under the territory of a state without the consent of that state will neither hit upon the federal structure of the constitute nor will it violate the concept of separation of the powers. The Courts and High Courts have not only the power but an obligation to protect the fundamental rights devotedly.
• When the DPSE act itself provides that it can investigate in the issues of another state when subjected to its consent, the court can also exercise its constitutional power of judicial review to direct it to take up the investigation within the jurisdiction of the state. The power of Article 226 of the Constitution cannot be overshadowed by Section 6 of DPSE Act. Also, the power of judicial review in no way infringes the federal structure of the state.

Considering these conclusions, it is established that we can call CBI for investigation in our personal matter when the state police fails to be competent. But we cannot call them for our petty matters and just on the basis of doubt or because we are not impressed by the way our local police are investigating.

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