Current status of CBI and implications of proposed CBI Bill, 2010

CURRENT POSITION OF CBIIntroduction The Central Bureau of Investigation (CBI) was established vide Resolution No. 4/31/61-T, dated 1st April, 1963 of the Ministry of Home Affairs, Government of India

The Resolution statesfor the investigation of crimes at present

handled by the Delhi Special Police Establishment

Especially cases under the Defense of India Act

and Rules particularly of hoarding, black

marketing and profiteering in essential commodities, which may have repercussions and ramifications, in several States

LEGAL POWERS Derives from the DSPE Act, 1946

The Delhi Special Police Establishment Act, 1946 Preamble says An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for the extension to other areas of the power and jurisdiction of the members of the said force in regards to the investigation of the said offences.

Section 2 saysconstitution of Delhi Special Police

Establishment for the investigation in any Union Territory of offences notified under Section 3

CBI is Unconstitutional Verdict of GAUHATI HIGH COURT on November 6, 2013 inNavendra Kumar Versus Union of India & Another W. A. No. 119 OF 2008

JUSTICE I A ANSARI and JUSTICE INDIRA SHAH

The High Court's order had come on a petition challenging a CBI charge sheet on a Mahanagar Telephone Nigam employee

Why High court had held CBI unconstitutionalQuestions before the courtI. Whether CBI is a statutory body?II. Whether union government can set up

a police force under Entry 1 and 2 of List 3 of 7th Schedule to the constitution of India ?

III. Whether union government can constitute a police force empowered to investigate crimes by way of executive instructions of union home ministry?

Reasoning of the courtCBI cannot be treated as a police force constituted under the DSPE Act,1946

CBI is neither an organ nor a part of DSPEThe word ‘law’, within the meaning of Article 21, mean legislation and not executive instructions or executive fiat

.

There is no co-relation between the Entry 8 of List I and Entry 2 of List II

Entry 8 of List I does not, in the light of the Constituent Assembly Debates, permit ‘investigation’ of a crime in the manner as is, ordinarily, done by the police; whereas Entry 2 of List II permits enactment of laws relating to police

only State has exclusive power to make laws on ‘police’ by taking recourse to Entry 2 of List II (State List

Current statusThe Centre had moved the top court seeking an

immediate stay on High Court order which it called "erroneous", arguing that the verdict would adversely impact thousands of criminal cases pending across the country.

High Court's order directly impacted about 9,000 trials currently underway and about 1,000 investigations being undertaken by the CBI.

Stay order by Supreme Court"There shall be a stay of operation of impugned judgment of Nov 6, 2013 passed by Gauhati High Court," said a bench of Chief Justice P Sathasivam and Justice Ranjana Desai at an urgent hearing held at the former's residence on Nov 8.

THE CENTRAL BUREAU OF INVESTIGATION BILL, 2010

STATEMENT OF OBJECTS AND REASONS

(CBI) is now governed by the Delhi Special Police Establishment (DSPE) Act, 1946 (No. 25 of 1946)

dates back to the Pre-Independence and Pre-Constitutional era.

requires consent of States to investigate offences in their jurisdictions

States have challenged the powers of the Supreme Court and the High Courts to order investigation by CBI without their consent.

Parliamentary Committees have recommended replacement of DSPE Act by an independent CBI Act

lack of an independent unified Central Government Agency - prevention, detection, investigation and prosecution of offences related to subjects mentioned in the List I of the seventh Schedule

Hence this Act as per provisions of Article 246 of the Constitution

HIGHLIGHTS OF THE BILL

It extends to the whole of India and it applies also -

(a) to citizens of India outside India; (b) to persons in the service of the

Government wherever they may be and (c) to persons on ships and aircrafts

registered in India, wherever they may be.

Constitution of Central Bureau of Investigation Central Government may constitute

for prevention, investigation and prosecution of offences or classes of offences

included in the Schedules annexed to the Act and notified by the C.G

Bureau may compriseDirector, Special/Additional Director, Joint Director, Deputy Director, Assistant Director, Investigation Officer, Grade I, II, and Grade III

such other personnel as may be specified

Superintendence and administration of the Bureau offences alleged to have been committed

under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the Central Vigilance Commission

In all other matters shall vest in the Central Government.

The administration of the Bureau shall vest in the Director

Director is appointed by C.G

Committee for appointment of Director –comprising(a) CVC - Chairperson; (b) Vigilance Commissioners – Members; (c) Secretary to the Government of India in

charge of the Ministry of Home Affairs in the Central Government - Member;

(d) Secretary to the Government of India in charge of the Ministry of Personnel – Member

Shall consider the views of outgoing director

The Committee shall recommend a panel of officers –

(a) on the basis of seniority, integrity and experience in the investigation of anti-corruption cases; and

(b) chosen from amongst belonging to the Indian Police Service constituted under the All India Services Act, 1951 (61 of 1951), for being considered for appointment as the Director.

Terms and conditions of service of the Director continue to hold office for a period of not less than two years

shall not be transferred except with the previous consent of the Committee

Investigation of Scheduled Offences Bureau shall prevent, investigate and prosecute

the offences included in the Schedule I and such other offences as Notified related to matters in the Union List of the 7th Schedule

the offences included in the Schedule II and such other offences related to matters in the Concurrent List of the 7th Schedule of the Constitution of India, in the Union Territories of India.

Extension of powers and jurisdiction of the Bureau to States C.G can by order extend jurisdiction and powers of officers to any area (including Railway areas), in a State, not being Union Territory

for the prevention, investigation and prosecution of offences

Officer need to obtain consent of the State.

Officer of the Bureau to exercise powers of officer in charge of a Police Station

same powers and be subject to the same provisions as the officer in charge of a police station

including the powers and provisions relating to registration, investigation, arrest, search, seizure, and filing of final report in the Court.

Powers of Courts to order investigationThe Supreme Court and the High Courts

shall be competent to directNo subordinate court shall be competent to

direct the Bureau to investigate or enquire into any offence

Modified application of certain provisions of the CodeoSec.162 of CrPC shall not apply in relation to an investigation conducted by an officer of the Bureau

oStatements made to the officers shall be reduced in writing and signatures or thumb impressions, of the person making it shall be obtained

Protection of action taken in good faith No suit, prosecution /other legal proceeding shall lie against officers

except with the previous sanction of the Central Government.

No such requests, shall be entertained after a period of two years

Powers of State Governments not to be affectedState government’s power to investigate and prosecute – not affected

Repeal and Savings (DSPE) Act, 1946 REPEALED ‘Delhi Special Police Establishment’ shall be

replaced by ‘Central Bureau of Investigation’ wherever it occurs in section 8 of CVC Act,2003

In the Prevention of Corruption Act, 1988 (48 of 1988), sub – section (a) of section 17 may be replaced as – ‘in the case of the Central Bureau of Investigation, of an Inspector Grade I & II’.

To conclude….It necessary to have a new comprehensive

act to define the powers and functions of CBI

The proposed Bill contains the provisions to cure the existing drawbacks of CBI

There is proposals to shield CBI from external influences and intrusion to some extent

Minimum tenure to its director is assuredIn matters of investigations relating to

corruption – no interference by the C.G

Suggestionsestablishment of an accountability

commission

Thank you