The CBI vs Police mess: When the wind whispers, the bamboo sways

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The CBI vs Police mess: When the wind whispers, the bamboo sways

The CBI vs Police mess: When the wind whispers, the bamboo sways

Brian Fernandes   ¦    Feb 05, 2019 10:39:36 AM (IST)

The CBI vs Police mess: When the wind whispers, the bamboo sways-1

7 people died, 11 coaches derailed, and more than 50 were injured when the train was running between Jogbani and Anand Vihar Terminal. Railway officials said it was at its full speed when the accident occurred around 3:50am. But it made headlines only briefly. That's the nature of our media, our polity and our politics.

Why? Because the CBI is at war again. This time with the State Police and that is riveting a nation obsessed with its netas and their netagiri.

The West Bengal Government led by its Chief Minister no less, is on dharna against the trampling of its dignity and powers and what they call the federal structure of the constitution after a posse of the CBI descended on the residence of the Police chief of the City Rajeev Kumar to "interview" him regarding the evidence collected in the Saradha Chit fund case when he was the SIT Chief investigating it.

The CBI allege he tampered with it. Members of the CBI were briefly detained for questioning by the police about whether they had followed due process, which was apparently not done, and then released. This sent the CBI scurrying to the Supreme Court alleging contempt.

Today Feb. 5th the Supreme Court will hear an application for direction to the West Bengal Government for Cooperation and contempt petition by the CBI. Solicitor General Tushar Mehta mentioned the matters on Monday morning before Chief Justice Ranjan Gogoi’s court, the Chief Justice indicated it was not that urgent and set the hearing for today. They claimed before the CJI that the Kolkata police who had investigated the case till the SC transferred it to the CBI may tamper with evidence. But the court did not buy it. Here is what the CJI's court said according to the the Quint, “I have gone through your IA and your contempt petition. There is nothing in it. Where is the material showing there is a danger they will destroy evidence? and gave them 24 hours to submit proof of the their claim. That 24 hours ends today.

There is no doubt that the caged parrot has evolved into a caged falcon with claws of steel over the last few years. It probably is more than a mere coincidence, that like in the extraditions from the UAE in the Agustawestland case and the return of the Dubai Princess, the CBI is pushing hard on implicating the West Bengal leadership as the Chief Minister and her party is the fountainhead of opposition unity.

That may be the politics of the confrontation working in the background. But is the WB Government in contempt of court according to the constitutional scheme of things? And is there scope for President's rule to be imposed? The Centre, would be glad to know.

Who's at fault?
Strictly speaking the CBI does not have permission to operate in West Bengal. The Trinamool Congress government had in November 2018 revoked the general authorisation provided to the CBI and other agencies under the Delhi Special Police Establishment Act 1946 (Section 6, DSPE Act). Earlier all the states used to give a blanket general authorisation for this to the CBI that was renewed every few months. Andhra Pradesh and West Bengal withdrew this last November. So the CBI has to get the permission from the state government to operate in the state. Its something that apparently they did not do under the premise that the Supreme Court has mandated them to investigate the Saradha Chit Fund Scam.

On 9 May 2014, the Supreme Court itself had passed a judgment directing the CBI to investigate the Saradha chit fund scam, after concerns had emerged over the operation of the state government-appointed SIT, which was headed by Rajeev Kumar. It said of the investigation, “Needless to say that the State Police Agencies currently investigating the cases shall provide the fullest cooperation to the CBI including assistance in terms of men and material to enable the latter to conduct and complete the investigation expeditiously.” This will be tough to get around even if the the general consent has been withdrawn. Interestingly, vide another Supreme Court judgment in 2010 in State of West Bengal vs Committee for Protection of Democratic Rights, West Bengal a constitution bench of the Supreme Court arrogated to itself the the right to ask the CBI to investigate any case it thought fit without the state government's consent. This they said would not be violative of the ederal structure of the Constitution as it was being done within the ambit of the power of judicial review.

Abhishek Manu Singhvi who is representing the WB Government in the Supreme Court (Ironically it was the Advocate General, KK Venugopal who represented the WB government in the 2010 case) has claimed that the CBI only had a notice under Section 160 of the Code of Criminal Procedure with them when they went to Kumar’s house. A notice under this section is a document requiring a person to attend an investigation, issued by an investigatory authority. Kumar reportedly failed to respond to these notices. Under Section 165 of CrPC they can enter and scout for evidence which was by all reports not being used immediately.

What about President's rule?
The Centre may or may not be contemplating this, given the actions of the Govenrment and the police last night in detaining the CBI officers, which they might interpret to suit their needs as violative of the Constitution under one or more of the conditions for the same prescribed the Court in the SR Bommai case:

Large-scale breakdown of the law and order or public order situation; Gross mismanagement of affairs by a State Government; Corruption or abuse of its power; Danger to national integration or security of the State or aiding or abetting national disintegration or a claim for independent sovereign status and Subversion of the Constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabric.

Its obviously not reached that stage yet. But it may, depending upon what happens in the Court on Tuesday. This confrontation can only get worser and perhaps fiecer. Let's wait and watch while we grieve for our bretheren who lost their lives in the Seemanchal express train accident.