Transfer Of Probe To CBI: Prima Facie Threshold, Exceptional Conditions, & Self-Imposed Limitations

In another recent case, the Supreme Court set aside the ruling by the Allahabad High Court for a CBI inquiry into alleged irregularities in the recruitment process for the Uttar Pradesh Legislative Council and Assembly secretariats, citing that "the prima facie threshold required for passing a direction for the CBI investigation was not satisfied".

What Determines Transfer Of Case? 

The CBI is regulated through the Central statute of the Delhi Special Police Establishment Act (SPEA), 1946. While the general jurisdiction of the CBI extends across any Union Territory, the Central government may, by order, extend its jurisdiction in a State. However, Section 6 of the Act states that the powers of investigation of offences specified in a notification (under section 3) cannot be exercised "without the consent of the government of that State". 

The SPEA was enacted exercising powers conferred by the Government of India Act, 1935 (Entry 39 of List 1, Seventh Schedule). The said entry was replaced by Entry 80 of List 1 of the Seventh Schedule to the Constitution of India which empowers the Parliament to legislate on ‘extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as enable the police to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated.

Since Entry 2 of List II of the Constitution of India confers exclusive jurisdiction to the States in matters relating to the police, the consent of a State is essential for the investigation of a cognisable offence by another agency. For instance, the case relating to the unnatural death of actor Sushant Singh Rajput was transferred to the CBI by the Jharkhand Police only after the State Government gave its consent for such a transfer.

When Can SC Or HCs Transfer Cases To CBI?

The Constitutional courts, i.e., the Supreme Court of India and High Courts, have the power of judicial review and to direct CBI to take up the investigation within the jurisdiction of the State under Article 32 and 226 of the Constitution, respectively. 

The Five-Judge Bench judgment of the Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights (2010) is a landmark judgment on the subject. The Supreme Court held that constitutional courts are fully empowered to direct the CBI for investigation, and the restrictions under the Act of 1946 do not apply to them. The Court said that ‘there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute’. Section 6 of the Act cannot be read as a restriction on the powers of the constitutional courts, it said.

However, the Court observed that the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The CBI investigation should not be directed in a routine manner or just because some allegations have been made against the local police. The Court held that ‘this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights’.

In another case, the Supreme Court held that such an order should be made only ‘after considering the material on record, and only when it comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency.

(The writer is a retired IPS officer. Views are personal.)