Central Bureau of Investigation: India
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Autonomy
SC’s 2019 verdict
Dhananjay Mahapatra, Don’t interfere with CBI autonomy: SC, January 9, 2019: The Times of India
Five years after CBI earned the ‘caged parrot’ moniker over its then director going to the political executive for vetting a coal scam probe status report meant only for the Supreme Court, the apex court on Tuesday said Parliament always intended to insulate the agency from external influences.
Quashing the Centre’s October 23 order divesting director Alok Verma of all powers, SC warned all authorities to keep away from “interfering in the functioning of the CBI director”. However, it said: “In a situation where such interference may be called for, public interest must be writ large against the backdrop of necessity”. However, it clarified that such a necessity could only be tested by the Selection Committee comprising the PM, Leader of Opposition and CJI or his nominee.
A bench of CJI Ranjan Gogoi and Justices S K Kaul and K M Joseph said the stipulation in the Delhi Special Police Establishment Act that the CBI director cannot be transferred except with the prior consent of the Selection Committee would convey that the panel’s prior consent is mandatory not only for transfer but also for any action amounting to tinkering with the two-year fixed tenure of the CBI chief.
The CJI said if prior consent of the panel was confined only to transfer, such an interpretation would “clearly negate legislative intent” and would make it easy for the government “to effectively disengage the CBI director from functioning by adopting various modes... which may not amount to transfer but would still have the same effect as a transfer from one post to another, namely, cessation of exercise of powers and functions of the earlier post”.
After an in-depth consideration of the development of legislation in the light of SC judgments, the CJI-led bench said: “(It) leaves us with no doubt the clear legislative intent in bringing the aforesaid provisions to the statute book are for the purpose of ensuring complete insulation of the office of the CBI director from all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole.”
SC added that “the head of the institution.. therefore, has to be the role model of independence and integrity, which can only be ensured by freedom from all kinds of control... except to the extent that Parliament may have intended. (That) would require all authorities to keep away from intermingling or interfering in” the chief ’s role.
Limits to autonomy
Deeptiman Tiwary, Sep 21, 2022: The Indian Express
In May 2013, as multiple corruption scandals dogged the UPA government, the Supreme Court made an observation about the Central Bureau of Investigation (CBI) that has stuck to the agency ever since. A Bench headed by Justice R M Lodha described the CBI as “a caged parrot speaking in its master’s voice”.
The observation was made in the context of government interference in the functioning of the CBI in its investigation of the coal blocks allocation cases. The apex court has since criticised the CBI for its “actions and inactions” on several occasions, and flagged fundamental problems with the functioning of the agency.
Doubts over credibility
Delivering the D P Kohli Memorial Lecture at the CBI on April 1 this year, then Chief Justice of India (CJI) N V Ramana lamented that the agency had gone from being the people’s most trusted to the subject of deep public scrutiny.
“When it comes to the CBI, it possessed immense trust of the public in its initial phase. …But with the passage of time, like every other institution of repute, the CBI has also come under deep public scrutiny. Its actions and inactions have raised questions regarding its credibility in some cases,” Justice Ramana had said.
Earlier in 2019, then CJI Ranjan Gogoi had questioned the role of the CBI in “politically sensitive” cases, and said that it reflected “a deep mismatch between institutional aspirations” and “governing politics”. Justice Gogoi was nominated to Rajya Sabha soon after he demitted office as CJI.
Struggle to fix processes
The struggle to free elite law-enforcement agencies such as the CBI and Enforcement Directorate (ED) from the stranglehold of governments and political parties has been ongoing since the 1990s. The landmark 1997 Vineet Narain judgment of the Supreme Court (Vineet Narain & Others vs Union Of India & Anr) dealt with this issue in detail.
The Supreme Court fixed the tenure of the CBI Director at two years, gave statutory status to the Central Vigilance Commission (CVC), and stipulated that a panel headed by the CVC and including top secretaries to the Union government would draw up a panel from which the Director of the ED would be selected.
The Lokpal Act, 2013, laid down that the CBI Director should be chosen, unanimously or by majority vote, by a search committee headed by the Prime Minister and also comprising the Leader of Opposition and the CJI or his representative, from a list of candidates drawn up by the Home Ministry and examined by the Department of Personnel and Training.
Despite these changes, very little has changed, said journalist Vineet Narain, who has long campaigned for the independence of the two agencies.
“The SC judgment and the CVC Act (of 2003) have been progressively diluted by various governments over the years. The advent of Lokpal diluted it even more. The current situation is that central agencies such as CVC, CBI, and ED have become completely defunct. Apart from following instructions from the government, they are doing nothing. And it is happening blatantly. The entire struggle for independence of CBI and ED is being defeated,” Narain told The Indian Express.
Structurally constrained
The CBI has been stymied both by the legal structure within which it functions, and by the changes made by governments in the Rules governing it. Over the years, these have progressively made the agency subservient to the Union government.
To prosecute any MLA, state minister, or MP, the CBI needs sanction from the Speaker of the state Assembly (in case of MLAs) or the Governor (for state ministers). In the case of an MP, sanction is sought from the Speaker of Lok Sabha or Vice Chairman of Rajya Sabha. Since all these sanctioning authorities have links to the ruling dispensation, Opposition parties feel they are unfairly targeted.
In the Narada Sting Operation case, the CBI chargesheeted Firhad Hakim, Subrata Mukherjee, Madan Mitra, and Sovan Chatterjee — all ministers in the TMC-led West Bengal government at the time of the offence — after getting sanction from the Governor. However, other MLAs and MPs have not been chargesheeted, including TMC-turned-BJP leader Suvendu Adhikari, for lack of sanction from the West Bengal Assembly Speaker and Lok Sabha Speaker. Adhikari was an MP when the sting operation was conducted.
In 2012, CBI sought sanction to prosecute former Maharashtra Chief Minister Ashok Chavan in the Adarsh Cooperative Housing case, which was denied in 2013 by then Governor K Sankarnarayanan. In February 2016, after the Narendra Modi government came to power and a new Governor, C Vidyasagar Rao, was appointed, the sanction came through.
The Rajiv Gandhi government, through what is known as the “single directive”, introduced a provision in The Delhi Special Police Establishment (DSPE) Act, 1946, (from which the CBI derives its powers) which barred CBI from investigating officials of joint secretary level and above without permission from the government.
This was struck down by Vineet Narain, but was reintroduced by the Atal Bihari Vajpayee government. After it was struck down again by the Supreme Court in 2014, the Modi government introduced Section 17A into the Prevention of Corruption Act through an amendment. This amendment went far ahead of reintroducing the “single directive”, and barred the CBI from probing any public servant without the consent of the concerned government.
“It’s very clear that the agency has no freedom to probe anyone on its own. It is the government, at the Union or in states, or the court, which will decide who will be investigated,” a CBI official said.
Political tug-of-war
The work of the agency has been further constrained by the increasingly hostile relations between the Centre and the state governments. As many as nine states have withdrawn general consent to the CBI. Most of these are Opposition-ruled states, which have alleged that the CBI is being used by the Centre to target the Opposition. In March this year, Meghalaya, where the BJP is in a coalition government, withdrew general consent.
Since CBI needs consent of a state to probe offences in the state’s jurisdiction, a general consent is given to the agency so that consent is not required for every individual case. Withdrawal of consent means CBI cannot investigate even a central government employee stationed in a state without the consent of the state government.
However, this is not unique to the NDA regime. Throughout the history of the agency, several states — including Sikkim, Nagaland, Chhattisgarh, and Karnataka — have withdrawn general consent. In 1998, the Janata Dal led government led by J H Patel in Karnataka withdrew general consent, a decision that was not revoked by SM Krishna’s Congress government that came to power the following year.
Dangling job carrots
Critics have also pointed to the way in which successive governments have used the lure of post-retirement jobs to make CBI Directors toe their line. Former CBI Director Ashwini Kumar was appointed Governor of Nagaland by the UPA in 2013. Other former CBI chiefs got post-retirement jobs as members of the National Human Rights Commission under the UPA.
The NDA government last year amended the DSPE Act to give the CBI Director a tenure of five years, but added a caveat that after completion of the SC-mandated two-year tenure, the Director would get an extension of tenure each year at the pleasure of the government. Many saw this as dangling a carrot before the Director.
Narain says it is now for the judiciary to step in. “The judiciary has to decide what it wants to do with the hopes of 135 crore Indians for transparency and probity in public life. The court must ensure that the Vineet Narain judgment is implemented in letter and spirit. All the dilutions that have been brought in should be rectified. Any government which dangles carrots before judges in terms of post-retirement appointments is damaging the institution. SC judges also must refuse such offers in the interest of the integrity of the institution,” he said.
CBI investigations: who can order?
HC can order CBI probe
From the archives of The Times of India 2010
HC can order CBI probe: SC
Swati Deshpande | TNN
Mumbai: A five-judge constitution bench of the Supreme Court headed by the Chief Justice K G Balakrishnan, on Wednesday adjudged that the country’s high courts can order a CBI probe into a case without the assent of a state government, while also cautioning that such powers should be used sparingly, and only in matters of national or international importance.
The SC was hearing the West Bengal government’s petition challenging the Calcutta high court order of a CBI probe into the Midnapore firing in which 14 Trinamool Congres workers were killed. The WB government argued that law and order was a state subject and that a CBI probe without the state’s nod would be a ‘‘destruction of the federal character of the Constitution’’. West Bengal was the main petitioner along with some southern states.
But, taking a stand based on the ‘‘higher principle of constitutional law’’, attorney general Goolam Vahanvati argued that the powers of the high courts and the Supreme Court under Articles 226 and 32 were coupled with a strong obligation to prevent injustice in sensitive cases and to protect the fundamental rights of citizens. The SC bench agreed with him, and dismissed the petition. Until now, the CBI conducted probe in any state only with prior consent of the concerned government under the provisions of the Delhi Special Police Establishment Act.
The five-judge Constitution Bench headed by Chief Justice K G Balakrishnan and Justices R V Raveendran, D K Jain, P Sathasivam and J M Panchal agreed unanimously with Vahanvati but said the power must be exercised sparingly in ‘‘exceptional and extraordinary circumstances.’’ Otherwise, the CBI will be flooded with such directions in routine cases, the bench said.
How the CBI takes up cases
Deeptiman Tiwary, March 26, 2022: The Indian Express
How does the CBI take up cases?
Unlike the NIA, CBI cannot take suo motu cognizance of a case in a state — whether in a matter of corruption involving government officials of the Centre and PSU staff, or an incident of violent crime.
In order to take up corruption cases involving central government staff, it either needs general consent (see last question) of the state government, or specific consent on a case-to-case basis. For all other cases, whether involving corruption in the state government or an incident of crime, the state has to request an investigation by the CBI, and the Centre has to agree to the same.
In case the state does not make such a request, the CBI can take over a case based on the orders of the High Court concerned or the Supreme Court.
Can the CBI decline to take up a case for investigation?
After a state makes a request for an inquiry by the CBI, the Centre seeks the opinion of the agency. If the CBI feels that it is not worthwhile for it to expend time and energy on the case, it may decline to take it up. In the past, the CBI has refused to take over cases citing lack of enough personnel to investigate, and saying it is overburdened.
In 2015, the agency had told the Supreme Court that it could not take any more Vyapam scam cases because it did not have enough staff to investigate them.
“CBI is the country’s premier investigation agency, and it is expected to probe complex and sensitive cases. It cannot probe every case that a state is willing to hand over to it,” a CBI officer said.
According to a former CBI officer, in nine out of 10 instances, the Centre seeks the opinion of the agency before accepting or refusing a case.
“In 10% of cases, the Centre directly orders the registering of a case if it suits the ruling dispensation to do so. Once, in a Northeastern state, an additional chief secretary was beaten up and the state government wanted the CBI to investigate. The agency, after a preliminary probe, refused to accept the case on the ground that it was too small an incident for the CBI to get involved, and that the state police were fully capable of carrying out the probe,” the officer said.
What is the CBI’s workload currently?
According to the latest Annual Report of the Central Vigilance Commission, the CBI registered 608 FIRs in 2019 and 589 FIRs in 2020.
In 2020, a total 86 cases related to demands for bribes by public servants for showing favour, and 30 cases for possession of disproportionate assets were registered. Out of 676 cases in the year (including FIRs and Preliminary Enquiries), 107 cases were taken up on the directions of constitutional courts and 39 on requests from state governments/ Union Territories.
There are over 1,300 vacancies in the CBI. As on December 31, 2020, against a sanctioned strength of 7,273, only 5,899 officials were in position, and 1,374 posts were lying vacant.
What is the CBI’s progress on cases?
At the end of 2020, the CBI had 1,117 cases (both FIRs and PEs) pending investigation. In 2019, this number stood at 1,239. During 2020, investigation was finalised in 693 FIRs and 105 PEs. As many as 637 cases were pending for investigation for more than one year as on December 31, 2020.
The conviction rate during the year was 69.83% against 69.19% in 2019.
At the end of 2020, 9,757 cases were pending in various courts.
The conviction rate in corruption cases was slightly lower at 67% in 2020. In 2020, CBI registered 425 cases of corruption involving 565 government officials. It completed investigations in 429 cases (including those from previous years).
In 191 cases, trials were completed, of which 128 ended in conviction.
However, of the 655 people who stood trial in CBI cases during the year, only 260 were convicted — meaning 60% of accused were either acquitted or discharged.
Until December 31, 2020, as many as 6,497 corruption cases were pending trial in various courts. Of these, 5,193 cases (80%) had been pending for more than three years. Almost 2,000 corruption cases are pending trial for more than 10 years.
Controversial cases
Moin Akhtar Qureshi
Neeraj Chauhan, How one case took down three agency directors, October 25, 2018: The Times of India
After a year of squabbling between CBI director Alok Verma and special director Rakesh Asthana, both were sent on leave — and the man at the centre of the controversy once again was Moin Akhtar Qureshi, who was also behind the downfall of two CBI chiefs, A P Singh and Ranjit Sinha.
The millionaire meat exporter from Kanpur faces multiple investigations, ranging from tax evasion to money laundering and corruption. He is also accused of spending large sums through hawala transactions and other modes to oblige government officials, including CBI officers and politicians.
His name first cropped up in 2014, when it was found that he visited then CBI chief Ranjit Sinha’s residence at least 70 times in over 15 months. Hyderabad-based businessman Sathish Babu Sana, who now figures in the fight between Verma and Asthana, reportedly told the Enforcement Directorate (ED) last year that he had paid Rs 1 crore to Qureshi to get bail for his friend in a CBI case through Sinha.
The Supreme Court came down heavily on Sinha for his meeting with accused persons or suspects and he came under the CBI scanner. The allegations against Sinha revived calls for reforming CBI and more oversight in its working. Sinha, who headed the CBI from 2012 to 2014, has repeatedly denied all charges.
Later in 2014, it turned out that Qureshi had exchanged messages with another CBI director, A P Singh, who headed the agency from 2010 to 2012. The income tax department and the ED probed the matter initially and in February last year, the CBI too registered a case against Singh to probe his links with Qureshi. The allegations cost Singh his ‘member’ post in Union Public Service Commission as he had to step down. Singh too has denied all charges against him and says the CBI is yet to even contact him.
The Qureshi probe has now cost Alok Verma his job, as the government on Wednesday divested him of all his powers and duties.Asthana has alleged that Verma took Rs 2 crore bribe from Sana, a suspect, to give relief in the Qureshi case while Verma filed an FIR against Asthana last week alleging that the latter took Rs 3 crore from Sana.
Qureshi rose to become India’s biggest meat exporter after starting a small slaughterhouse in Rampur, UP, in 1993. He established more than 25 companies spreading across sectors including construction and fashion in last 25 years.
Cases against top opposition politicians
Dhananjay Mahapatra, Sep 9, 2019: The Times of India
In the last 10 years, we witnessed the CBI investigating major scams and cases, involving prominent politicians. The agency earned a ‘caged parrot’ epithet from the Supreme Court in May 2013 for allowing the UPA government to vet its probe status report to the SC in the coal scam, in which the government itself was in the dock.
When P Chidambaram was home minister, the SC in Rajendran Chingaravelu vs RK Mishra [2010
(1) SCC 457] case had disapproved the tendency of investigating agencies to subject the accused to media trial by selectively leaking unsubstantiated probe details . It had said, “There is a growing tendency among investigating officers to inform the media, even before completion of investigation, that they have caught a criminal or an offender. Such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed. Premature disclosures or ‘leakage’ to media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law.” Chidambaram must now be experiencing the truth behind these observations as he languishes in judicial custody in the INX Media case.
Sadly, investigating agencies did not abandon their old practice following the SC judgment. In 2010, the CBI took interest in then Gujarat minister of state for home Amit Shah in the Sohrabuddin fake encounter case after the SC transferred the probe from Gujarat police to the central agency.
The CBI arrested Shah on July 25, 2010. On his arrest, Shah had said that charges against him were “fabricated, politically motivated and were on the instructions of the Congress government” at the Centre, which are exactly the same lines now parroted by Chidambaram, his son and big lawyers appearing for him.
Defending the CBI action, Congress spokesperson A M Singhvi had said, “Do you think the CBI is full of a bunch of fools who will risk their entire career by making false allegations and non-existing charges, which are going to be examined by the Supreme Court?”
The Gujarat HC granted bail to Shah on October 29, 2010. The CBI immediately rushed to the SC seeking cancellation of bail. Shah volunteered to stay away from Gujarat. The SC agreed and continued his bail with a caveat that he would mark his attendance before the CBI once every fortnight.
After filing a chargesheet on November 25, 2010, the CBI moved the SC in January 2011 seeking transfer of trial outside Gujarat, preferably to Mumbai. A bench headed by Justice Aftab Alam recorded what the CBI said in its application, “Amit Shah presided over an extortion racket. In his capacity as minister for home, he was in a position to place his henchmen, top ranking policemen at positions where they would sub-serve and safeguard his interest.”
In its September 27, 2012, order, the Justice Alam-headed bench transferred the trial to Mumbai. It rejected the CBI’s plea for cancellation of Shah’s bail with a sarcastic order, “We are not inclined to cancel the bail granted to Amit Shah about two years ago. Had it been an application for grant of bail to Amit Shah, it is hard to say what view the court might have taken.”
However, the SC clarified that whether Shah was to be sent to jail in “judicial custody or granted bail” in the Tulsiram Prajapati fake encounter case would be decided without taking into account grant of bail in the Sohrabuddin case.
The CBI had filed a separate FIR in the Tulsiram Prajapati case after strenuously claiming before the SC that Prajapati’s murder was part and parcel of the Sohrabuddin encounter case. Tee SC rejected it and quashed the separate FIR in Prajapati case. A Mumbai trial court discharged Shah from the Sohrabuddin-Prajapati case in December 2014.
In five years, the tables appear to have turned and the same CBI is now going after then home minister Chidambaram in an alleged corruption case relating to grant of foreign investment clearance to INX Media.
Judges of the SC and HCs take little time to discern merits of commoners’ anticipatory bail petitions. Strangely, when such pre-arrest bail pleas are filed by VIPs, renowned lawyers weave legal complexities, allege violation of right to life and liberty while accusing probe agencies of wreaking political vendetta.
Judicial treatment to anticipatory bail plea of Chidambaram is a classic example of this. A Delhi HC judge heard arguments for anticipatory bail for days and reserved judgment in January while protecting Chidambaram from arrest. He took six months to analyse the arguments and rule that Chidambaram did not deserve protection from arrest.
Senior lawyers moved the SC immediately. It was mentioned for urgent hearing before the CJI, who through court officials suggested mentioning before Justice N V Ramana the next day.
On August 21 morning, Justice Ramana ordered that the petition be placed before the CJI for orders on listing. Hours later, the matter was mentioned again before Justice Ramana, who was informed by court officials that defects in the petition were cured a few minutes before 2 pm and hence could not be listed. In the evening, the CJI ordered it to be listed on August 23. The CBI arrested him on August 21, not without enacting a drama before TV cameras.
The counsel cried foul accusing the SC of not giving importance to Chidambaram’s apprehension of his right to liberty being violated by refusing to hear his plea on August 22. A bench headed by Justice R Banumathi gave more than adequate time to lawyers who argued an anticipatory bail plea for four days. Other bail-seeking litigants would be a lot satisfied if the SC granted them a fraction of the time it spent on Chidambaram’s plea.
Yet, it was the CBI which found itself in the dock. It took a lot of accusations in the SC and outside from Congress, whose government was instrumental in getting it the “caged parrot” moniker.
Regimes will come and go. Political vindictiveness will continue to play out. But investigating agencies would do well to read Joginder Kumar vs State of UP [(1994) 4 SCC 260], in which the SC had said, “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.
“The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations; weighing and balancing the rights, liberties and privileges of single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding what comes first - the criminal or society, the law violator or the abider.”
Directors of CBI
2017-2018/9...: Alok Verma
Appointment of the CBI Chief, Jan 20 2017: The Times of India
Govt appoints Delhi top cop as new CBI chief
Alok Verma Gets PM & CJI's Nod, Kharge Dissents
The government has approved the appointment of Delhi Police commissioner Alok Verma as the new CBI chief in keeping with the recommendation of the selection committee.
The proceedings of the three-member collegium comprising PM Narendra Modi, Chief Justice of India J S Khehar and leader of Congress in Lok Sabha Mallikarjun Kharge, proposed the appointment by a majority decision.
Kharge gave a dissenting note, stating that the selection should be on the basis of both seniority and merit. It is understood that he had pitched for the candidature of R K Dutta, currently special secretary in the home ministry . Kharge reportedly gave his dissent note on selecting Verma citing that he had no experience of having served in CBI and he also had very little vigilance experience.
The PM and the CJI, however, felt that Verma was well suited for the job and his seniority should be taken into account.Verma will assume charge at a time when the agency is being accused by political parties of motivated probes in the context of cases against Trinamool and AAP leaders.
The decision comes ahead of the hearing in Supreme Court on Friday on a plea filed by an NGO challenging the appointment of Rakesh Asthana as acting director of the CBI after the retirement of Anil Sinha.
Official sources said Verma, a1979 batch IPS officer from the Arunachal Pradesh-Goa-Mizoram and Union Territories cadre, has been appointed CBI director for a period of two years by the Appointments Committee of Cabinet from the date he assumes office. Verma, 59, was due to retire from service in July and will now have a fixed tenure of two years. He had worked in various positions in Delhi Police, Andaman-Nicobar Islands, Puducherry , Mizoram and the Intelligence Bureau. Verma, who took charge as Delhi police chief in February last year, is likely to join in a couple of days. The CBI director's post has been lying vacant since Anil Sinha retired in the first week of December. Soon after, Asthana, a 1984 batch IPS officer from Gujarat cadre, was named interim director.
He took charge of Delhi Police from B S Bassi after relinquishing charge as director general of Tihar Jail. Verma, who will be the 27th director of CBI, has not worked in the agency before. Verma takes over at a time when the CBI is probing several crucial cases including the Rs 3,767 crore VVIP chopper scam, in which former IAF chief S P Tyagi was arrested last month. Several defence scandals, the Embraer deal, coal and 2G scams, chit fund cases, Vyapam scam, NRHM scam and non-performing assets of public sector banks are other cases being probed by the agency .
While deciding Verma's name, the collegium had also discussed the names of three other strong contenders R K Dutta, Maharashtra DGP Satish Mathur and ITBP director general Krishna Chaudhary .
Verma's appointment will also leave Delhi police headless and the government will have to soon choose the next commissioner. Two senior IPS officers Dharmendra Kumar and Deepak Misra -are in line for the post.
2019, interim: M Nageswara Rao and SC contempt
Rejects Apology, Fines Him, Legal Adviser ₹1L Each
In yet another blow to the CBI, the Supreme Court convicted its former interim chief, M Nageswara Rao, as well as additional legal adviser Bhasuran S for contempt of court and sentenced them to confinement till the rising of the court, besides imposing a fine of Rs 1 lakh each.
The two had attracted the court’s ire for shifting joint director A K Sharma out of the CBI in disregard of the court order that the latter be retained as in-charge of probe into the Muzaffarpur shelter home rape cases.
Both Rao and Bhasuran were told to “sit in a corner and remain inside till the rising of the court”. They were made to sit at the left-hand side visitors’ gallery of the courtroom and were not allowed to go out even during lunch time from 1-2pm, when the bench had risen.
This is the first time a top officer of the CBI and a legal adviser have been punished for contempt of court. A bench of Chief Justice Ranjan Gogoi and Justice L Nageswara Rao showed no leniency to the contemnors after going through the file noting on relieving Sharma from the CBI in an unusually expeditious manner on January 18 after the Centre decided to promote him as additional director general of the CRPF.
Apology, though stated to be unconditional, isn’t so: SC
In our considered view, the present is a case where contempt has been committed, both by Nageshwar Rao, then in-charge CBI director (now additional director, CBI) and Bhasuran S, additional legal adviser and incharge director of prosecution, CBI. The apology tendered, though stated to be unconditional, is not so. There is a submission/contention that the actions were not wilful, with which contention, we are in total disagreement,” the bench said.
Octogenarian AG K K Venugopal tried hard to get the court to relent, arguing that it was not a case of wilful default and also that the two officers had apologised unconditionally. “To err is human and to forgive is divine,” said the AG.
But the plea failed to mollify the SC’s anger.
The bench said, “For commission of contempt of court, we sentence them till the rising of the court and impose a fine of Rs 1 lakh each on Rao and Bhasuran, to be deposited within a week.”
At around 3.30pm, the AG, accompanied by the two contemnors, made another attempt for leniency by pleading that they were tendering an unconditional apology and be allowed to go. But the CJI-led bench said: “We have sentenced you to sit inside the court till the rising of the bench. Hope you do not want it to be extended till tomorrow.”
Rao and Bhasuran finally walked out of the courtroom at 4.30pm.
A K Sharma, considered close to Verma — the former director who was removed because of the charges facing him — lost the key position of joint director (policy) after Nageshwar Rao took over as the interim director in October.
He got back the coveted perch in January when the SC restored Verma, with the latter reversing all transfers and postings effected under Rao. Sharma could continue at the key station only for two days as a PM-led panel removed Verma and Rao returned as interim director.
The bench found that Rao was aware of the two SC orders in a petition relating to the Muzaffarpur rape cases, directing that Sharma must not be shifted out as he was in charge of the probe. In fact, the examination of documents showed that Rao had raised the issue of the SC bar on shifting Sharma out with Bhasuran and was advised that Sharma, who has been promoted as ADG of CRPF, could be shifted out and the court only had to be informed about it.
Rishi Kumar Shukla, 2019-
From: Neeraj Chauhan, PM, CJI outvote Kharge, pick ex-MP DGP as new CBI chief, February 3, 2019: The Times of India
The Prime Minister Narendra Modi-led selection panel appointed 1983-batch Madhya Pradesh cadre IPS officer Rishi Kumar Shukla as the new CBI director on Saturday by a 2-1 vote, with the Congress’ leader in Lok Sabha giving a note of dissent against the choice of the PM and Chief Justice of India Ranjan Gogoi.
In his note of dissent, Mallikarjun Kharge said the government ignored the need for experience in anti-corruption investigation while picking Shukla, who was last week removed as the MP police chief by the newly-elected Congress government, for the post. In his note, Kharge proposed an alternative panel of Javeed Ahmed, R R Bhatnagar and Sudeep Lakhtakia as probables, claiming that Shukla has “nil” experience in anti-graft probes.
Junior personnel minister Jitendra Singh, however, rebutted the charge saying that the selection was done on the basis of the criteria endorsed by CJI Gogoi. The criteria included “experience of 100 months in investigation”, he added. Shukla has 117 months of experience.
“He (Kharge) wanted to include some officers of his preference in the shortlist of candidates. Whatever is being said by him is totally unfounded and not based on facts. For the selection of the CBI director, very objective criteria was followed,” Singh added. Government sources said the selection panel finalised a list of eight names in its second meeting on Friday and Shukla was among the top choices considering his “seniority”.
Directors investigated by CBI
A P Singh
Neeraj Chauhan, CBI books one of its ex-chiefs for corruption, Feb 21 2017: The Times of India
AP Singh Faces Probe In Moin Qureshi Case
The Central Bureau of Investigation has booked its former director, A P Singh, as an “accused“ under the Prevention of Corruption Act to probe his association with meat exporter Moin Qureshi, allegedly a middleman for senior officers and politicians.
The agency conducted raids at Singh's residence in Defence Colony , the premises of Moin Qureshi and another key accused and Hyderabad-based businessman Pradeep Koneru and others in Delhi, Ghaziabad, Chennai and Hyderabad. It is the first time that CBI has on its own initiated a probe against its ex-director in a corruption case.CBI's probe against another former chief of the agency, Ranjit Sinha, who succeeded Singh, was at the instance of the Supreme Court. Among other things, CBI has based its case against Singh on BlackBerry messages exchanged. Many messages mentioned in the FIR refer to amounts Qureshi allegedly deposited in the accounts of Singh's daughter, Ragini Behrar, who was in London.The alleged exchanges have Qureshi regretting a dip in transfers during what he called a “lean season in meat business“ and Singh's daughter thanking him for making her “so rich“.
In another message allegedly sent by BBM to Qureshi, who was identified by the Enforcement Directorate as a middleman for certain public officials, Singh purportedly asked him to get a packet delivered at 37, Slaidburn St, presumably an address in London. Another BBM message cited in the FIR has Qureshi seeking help for a “family friend“, a former chairman of a public sector bank who was being investigated in agraft case. Singh, in his reply to Qureshi on BBM, said that the chargesheet had already been filed in the case and Qureshi's family friend could get help only from the court.
The exchanges between the two continued after Singh had left CBI and one of the alleged exchanges on BBM show Qureshi trying to help an aviation logistics firm for which he had planned to approach two senior politicians. Singh responded by suggesting that Qureshi approach someone else, a person whose surname matched that of a powerful minister.
A 1974 batch IPS officer, Singh headed the probe agency between November 30, 2010 and November 30, 2012, when the Congress was in power.His tenure saw the arrest of former telecom minister A Raja and several corporate bigwigs in connection with the 2G spectrum allocation scam, former Indian Olympics Association chief Suresh Kalmadi in the 2010 Commonwealth Games scam and the Aarushi-Hemraj murder probe. He was appointed a member of the Union Public Service Commission by the UPA government. However, a tax evasion probe by the income tax department against Qureshi brought out their close links. The probe saw the Modi government putting his appointment in the deep freezer, leading Singh to decline the appointment.
In a report filed in SC in October 2014, on the basis of the I-T department probe, attorney general Mukul Rohatgi had said, “The report reveals an astonishing state of affairs (that is) wholly unbecoming and revealing the shocking conduct of a former CBI director, now a member of the UPSC. He was in regular touch with Qureshi and there were BBM exchanges between them on a daily basis and that too in code language.Many of the messages clearly revealed plans to save the accused in many cases.“
In 2016, Qureshi had managed to leave the country without informing any authority despite having a lookout circular against him. He, however, came back in a few days.
Directors’ terms
Why CBI chief’s tenure is unique
Bharti Jain, October 25, 2018: The Times of India
The sanctity of CBI director’s fixed two-year tenure is unique vis-a-vis other secretary-level posts with its mandate from the Supreme Court. The fixed tenure enjoyed by the cabinet secretary and secretaries of home, defence and foreign as well as directors of Intelligence Bureau and RAW, on the other hand, is governed by executive rules that can be altered by a minister’s order.
Perhaps that is why in the past, governments led by both Congress and BJP have shunted out senior bureaucrats midway through their “fixed” two-year terms.
A senior IAS officer said while the fixed tenure rule was provided for certain posts in All-India Services Rules, they were only executive rules and could be changed with mere approval of the minister.
The cabinet secretary’s post was the first to get a fixed two-year term. The UPA government later included secretaries of home and defence secretary. A former secretary (personnel) said while the fixed two-year term was specified for certain posts, it was silent on early curtailment. “But one can always send a bureaucrat on leave, prevail upon him to resign or opt for early retirement,” said another officer.
General consent for investigating cases in a state
In 2018 and 2019, some states ruled by opposition parties, notably Andhra Pradesh, Bengal and Chhattisgarh, withdrew the ‘general consent’ that had been given to the CBI for investigating cases in their states.
The legal position
CBI can still move court if it wants to probe case in Maha, October 22, 2020: The Times of India
Mumbai/New Delhi:
The Uddhav Thackeray government’s decision to withdraw ‘general consent’ to the CBI means the central agency cannot investigate a case in Maharashtra on its own but will not turn the state into a forbidden territory.
Under the Delhi Special Police Establishment Act which governs the CBI, it is mandatory for the probe agency to secure the consent of state governments for investigating central government employees stationed within their geographical boundaries. State governments readily give the “consent” as otherwise the agency would be required to come rushing to them each time it wants to investigate an employee belonging to the I-T department, customs, railways or a CPSU. ‘General consent’ or ‘prior permission’ spares the CBI and the state governments the hassle of obtaining and giving consent for each case. For cases against state government employees or violent and serious crimes within a state, the CBI, in any case, cannot move in without specific consent of the state government concerned or directives by HCs and Supreme Court. Specific consent, by very definition, is limited to a particular case.
Now that the Maharashtra coalition has chosen to withdraw the ‘general consent’, the CBI will be required to seek consent each time it wants to take action against a Central government employee in Maharashtra — a situation they already face in West Bengal, Rajasthan and Chhattisgarh.
But the order does not turn Maharashtra into a “nogo” territory for CBI which can continue to investigate cases registered before the state government withdrew consent. Withdrawal of consent, if any, by a state can be effected prospectively and not retrospectively. CBI can also probe people based in Maharashtra who are found involved in cases registered in other states.
While it may not be practically possible for the agency to carry out raids and arrests if the state government and police refuse to cooperate, it can overcome the problem by approaching courts. There have been several examples of courts allowing such pleas by the CBI.
Also, while CBI cannot register fresh cases in Maharashtra, it can conduct investigations in the state by getting a case registered in another state where it does not suffer from similar disability. Again, there have been instances of courts ruling in the agency’s favour in such situations.
Still, the order puts CBI in an unviable situation, given the number of central government employees in Maharashtra and Mumbai being the financial capital. The state is home to several public sector undertakings and a base of legions of I-T and customs personnel — something which explains why the agency had to split the state into four zones.
General consent: a backgrounder
Andhra, Bengal have withdrawn general consent for CBI investigation. Why does CBI need consent, how many states have granted or denied it, how far will the denial restrict CBI in the two states?
the Andhra Pradesh and West Bengal governments withdrew “general consent” to the CBI for investigating cases in their respective states. The state governments said they had lost faith in the CBI in the backdrop of its internal turmoil marked by the open war among the agency’s top officers. They have also alleged that the Centre is using the CBI to unfairly target Opposition parties.
What is general consent?
Unlike the National Investigation Agency (NIA), which is governed by its own NIA Act and has jurisdiction across the country, the CBI is governed by the Delhi Special Police Establishment Act that makes consent of a state government mandatory for conducting investigation in that state.
There are two kinds of consent: case-specific and general. Given that the CBI has jurisdiction only over central government departments and employees, it can investigate a case involving state government employees or a violent crime in a given state only after that state government gives its consent.
“General consent” is normally given to help the CBI seamlessly conduct its investigation into cases of corruption against central government employees in the concerned state. Almost all states have given such consent. Otherwise, the CBI would require consent in every case. For example, if it wanted to investigate a bribery charge against a Western Railway clerk in Mumbai, it would have to apply for consent with the Maharashtra government before registering a case against him.
What does withdrawal mean?
It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in these two states without getting case-specific consent. “Withdrawal of consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them,” said a former CBI officer who has handled policy.
Under what provision has general consent been withdrawn?
GO (government order) number 176 issued by the Andhra Pradesh Home Department by Principal Secretary A R Anuradha on November 8 states: “In exercise of power conferred by Section 6 of the Delhi Special Police Establishment Act, 1946 (Central Act No 25 of 1946), the government hereby withdraws the general consent accorded in GO No 109 Home (SC.A) Department dated August 3, 2018 to all members of the Delhi Special Police Establishment to exercise the powers and jurisdiction under the said Act in the State of Andhra Pradesh.’’
Section 6 of the Act says, “Nothing contained in Section 5 (which deals with jurisdiction of CBI) shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway, area, without the consent of the Government of that State.”
Does that mean that the CBI can no longer probe any case in the two states?
No. The CBI would still have the power to investigate old cases registered when general consent existed. Also, cases registered anywhere else in the country, but involving people stationed in Andhra Pradesh and West Bengal, would allow CBI’s jurisdiction to extend to these states.
There is ambiguity on whether the agency can carry out a search in either of the two states in connection with an old case without the consent of the state government. However, there are legal remedies to that as well. The CBI can always get a search warrant from a local court in the state and conduct searches. In case the search requires a surprise element, there is CrPC Section 166, which allows a police officer of one jurisdiction to ask an officer of another to carry out searches on his behalf. And if the first officer feels that the searches by the latter may lead to loss of evidence, the section allows the first officer to conduct searches himself after giving a notice to the latter.
What happens in fresh cases?
Withdrawal of consent will only bar the CBI from registering a case within the jurisdiction of Andhra and Bengal. The CBI could still file cases in Delhi and continue to probe people inside the two states.
An October 11, 2018, order of the Delhi High Court makes it clear that the agency can probe anyone in a state that has withdrawn “general consent” if the case is not registered in that state. The order was given with regard to a case of corruption in Chhattisgarh, which also gives consent on a case-to-case basis. The court ordered that the CBI could probe the case without prior consent of the Chhattisgarh government since it was registered in Delhi.
Thus, if a state government believes that the ruling party’s ministers or members could be targeted by CBI on orders of the Centre, and that withdrawal of general consent would protect them, it would be a wrong assumption, experts say. A CBI officer said: “CBI could still register cases in Delhi which would require some part of the offence being connected with Delhi and still arrest and prosecute ministers or MPs. The only people it will protect is small central government employees.”
Is it the first time a state government has withdrawn consent?
No. Over the years, several states have done so, including Sikkim, Nagaland, Chhattisgarh and Karnataka — which stands out as an example. In 1998, the Janata Dal-led government of J H Patel had withdrawn general consent. In 1999, the S M Krishna-led Congress government took over and did not revoke Patel’s order. The then state Home Minister was Mallikarjun Kharge, current Leader of the Congress in Lok Sabha. “General consent wasn’t renewed for eight long years. The CBI had to virtually close down its office,” said an officer who was in the CBI then. He added that the agency had to seek permission of the state government for every case and every search it conducted on central government employees.
A
Deeptiman Tiwary, November 12, 2021: The Indian Express
The Supreme Court expressed concern over a submission by the CBI that since 2018, around 150 requests for sanction to investigate have been pending with eight state governments that have withdrawn general consent to the agency.
“It is not a desirable position,” a Bench led by Justice S K Kaul observed, and referred the matter to Chief Justice of India N V Ramana.
The CBI had filed the affidavit after the court inquired last month about the bottlenecks it faced, and the steps it had taken to strengthen prosecutions.
What is general consent?
The National Investigation Agency (NIA), which is governed by The NIA Act, 2008, has jurisdiction across the country. But the CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946, and must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.
The consent of the state government can be either case-specific or general.
A “general consent” is normally given by states to help the CBI in seamless investigation of cases of corruption against central government employees in their states. Almost all states have traditionally given such consent, in the absence of which the CBI would have to apply to the state government in every case, and before taking even small actions.
Section 6 of The DSPE Act (“Consent of State Government to exercise of powers and jurisdiction”) says: “Nothing contained in section 5 (“Extension of powers and jurisdiction of special police establishment to other areas”) shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State.”
Which states have withdrawn general consent, and why?
Eight states have currently withdrawn consent to the CBI: Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram. All except Mizoram are ruled by the opposition.
Mizoram in fact, was the first state to withdraw consent in 2015. The state was ruled by the Congress at the time, and Lal Thanhawla was chief minister. In 2018, the Mizo National Front (MNF) under Zoramthanga came to power; however, even though the MNF is an NDA ally, consent to the CBI was not restored.
In November 2018, the West Bengal government led by Mamata Banerjee withdrew the general consent that had been accorded to the CBI by the previous Left Front government back in 1989. West Bengal announced its decision within hours of Andhra Pradesh, then ruled by N Chandrababu Naidu’s TDP, taking a similar decision.
“What Chandrababu Naidu has done is absolutely right. The BJP is using the CBI and other agencies to pursue its own political interests and vendetta,” Banerjee said.
After Naidu’s government was replaced by that of Y S Jagan Mohan Reddy in 2019, however, Andhra Pradesh restored consent.
The Congress government of Bhupesh Baghel in Chhattisgarh withdrew consent in January 2019. Punjab, Maharashtra, Rajasthan, Kerala, and Jharkhand followed in 2020. At the time of withdrawing consent, all states alleged that the central government was using the CBI to unfairly target the opposition.
What does the withdrawal of general consent mean?
It means the CBI will not be able to register any fresh case involving officials of the central government or a private person in the state without the consent of the state government.
“CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them,” a former CBI officer who has handled policy during his time in the agency, said.
Calcutta High Court recently ruled in a case of illegal coal mining and cattle smuggling being investigated by the CBI, that the central agency cannot be stopped from probing an employee of the central government in another state. The order has been challenged in the Supreme Court.
In Vinay Mishra vs the CBI, Calcutta HC ruled in July this year that corruption cases must be treated equally across the country, and a central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent.
The HC also said that withdrawal of consent would apply in cases where only employees of the state government were involved.
The petition had challenged the validity of FIRs registered by the CBI’s Kolkata branch after the withdrawal of consent.
So where does the CBI currently stand in these eight states?
The agency can use the Calcutta HC order to its advantage until it is — if it is — struck down by the Supreme Court. Even otherwise, the withdrawal of consent did not make the CBI defunct in a state — it retained the power to investigate cases that had been registered before consent was withdrawn. Also, a case registered anywhere else in the country, which involved individuals stationed in these states, allowed the CBI’s jurisdiction to extend to these states.
There is ambiguity on whether the CBI can carry out a search in connection with an old case without the consent of the state. But the agency has the option to get a warrant from a local court in the state and conduct the search.
In case the search requires an element of surprise, Section 166 of the Criminal Procedure Code (CrPC) can be used, which allows a police officer of one jurisdiction to ask an officer of another to carry out a search on their behalf.
And should the first officer feel that a search carried out by the latter may lead to loss of evidence, the section allows the first officer to conduct the search himself after giving notice to the latter.
Finally, consent does not apply in cases where someone has been caught red-handed taking a bribe.
But what about fresh cases?
Again, the CBI could use the Calcutta HC order to register a fresh case in any state. Alternatively, it could file a case in Delhi and continue to investigate people inside these states.
In an order passed on October 11, 2018, Delhi High Court ruled that the agency could probe anyone in a state that has withdrawn general consent, if the case was not registered in that state. The order came on a case of corruption in Chhattisgarh — the court said that since the case was registered in Delhi, the CBI did not require prior consent of the Chhattisgarh government.
In sum, avenues remain available to the CBI to proceed even without consent. “The CBI could register cases in Delhi if some part of the offence is connected with Delhi, and still arrest and prosecute individuals in these states,” a CBI officer said.
Have states started denying consent only after the present government came to power in Delhi?
No. States, including Sikkim, Nagaland, Chhattisgarh and Karnataka, have done this throughout the history of the agency. In 1998, the Janata Dal government of Chief Minister J H Patel withdrew general consent to the CBI in Karnataka. The Congress government of S M Krishna, which took over in 1999, did not revoke the previous government’s order. The home minister of Karnataka then was Mallikarjun Kharge, the current Leader of Opposition in Rajya Sabha.
“Consent wasn’t renewed for eight long years. The CBI had to virtually close down its office (in Karnataka),” said an officer who was with the agency at the time. The CBI had to seek the permission of the state government for every case and every search it conducted on central government employees, the officer said.
Political accusations aside, to what extent is the CBI “its master’s voice”?
After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
In 2018, the government pushed through Parliament amendments to Section 17A of the Act, making it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.
Earlier, the Centre had mandated that such permission was required only for officials of the level of joint secretary and higher. The amendments were brought after the Supreme Court struck down the government’s directive.
CBI officers say the 2018 amendment virtually means the agency can investigate only the officers that the government of the day wants investigated. In fact, corruption cases registered by the CBI dropped by over 40 per cent between 2017 and 2019.
Jurisdiction
State government’s consent mandatory in its jurisdictions
November 19, 2020: The Times of India
The Supreme Court has said that the provision making the state government’s consent mandatory for a CBI probe in their respective jurisdictions is in tune with the principle of federalism and the Centre cannot extend the jurisdiction of the agency to a state without its consent.
Referring to Section 5 and 6 of the Delhi Special Police Establishment (DSPE) Act that regulates CBI’s functioning, a bench of Justices A M Khanwilkar and B R Gavai said, “It could thus be seen, that though Section 5 enables the Central Government to extend the powers and jurisdiction of members of the DSPE beyond the Union Territories to a state, the same is not permissible unless, a state grants its consent for such an extension within the area of state concerned under Section 6 of the DSPE Act.”
8 states have withdrawn nod for CBI probe in fresh cases
The verdict comes in the wake of eight non-BJP states having so far withdrawn general consent for CBI to probe fresh cases, Punjab being the last one to do so. The others are Jharkhand, Kerala, Maharashtra, West Bengal, Rajasthan, Chhattisgarh and Mizoram. Andhra Pradesh was among the first to withdraw consent, but Jagan Reddy restored it soon after coming to power.
“Obviously, the provisions are in tune with the federal character of the Constitution, which has been held to be one of the basic structures of the Constitution,” the court said. The bench passed the order on an appeal filed by accused challenging validity of the CBI probe against them in a corruption case on the ground that prior consent was not taken from state government. Two of the accused are state government employees and the rest are private parties, including one company.
Rejecting their appeal, the court said the state of UP had accorded a general consent for extension of powers and jurisdiction of the members of Delhi Special Police Establishment (DSPE) in 1989 in the whole of state under the Prevention of Corruption Act, “The same is however with a rider, that no such investigation shall be taken up in cases relating to public servants, under the control of the state government, except with prior permission of the state government. As such, insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them,” the bench said.
The bench ruled against government employees also saying that “there are no pleadings by public servants with regard to the prejudice caused to them on account of non-obtaining of prior consent under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force, nor with regard to miscarriage of justice”.
The bench passed the order on an appeal filed by accused challenging validity of the CBI probe against them in a corruption case on the ground that prior consent was not taken from state government
Pressures on CBI
…especially when probing politicians; 1948- 2018
Connection counts in India, especially to keep the police, or the CBI, at bay. Since independence, ruling political parties have maintained a firm grip over investigating agencies and the prosecution and decide when a criminal case should be filed against an opponent and a pending case against a friend be closed. The police, the CBI or the prosecution seldom had the independence to chart the course of politically sensitive cases.
Immediately after independence, then India’s high commissioner to the UK V K Krishna Menon ignored protocol and signed a Rs 80 lakh contract with a foreign firm for supply of 200 jeeps to the Army. Contract money was paid upfront but only 155 jeeps reached India. A probe began but was abruptly closed by then PM Jawaharlal Nehru, who forced home minister G B Pant to shut the files. Menon’s proximity to the then PM came handy. Since then, the ruling class has never let go an opportunity to dictate the course of investigation in a case to the CBI. Often, pliant CBI directors complied with political diktats, unconcerned with the merit of cases.
In the last 22 years, constitutional courts have unfolded the blatant interference in CBI probes into politically sensitive cases. First was the JMM MPs bribery case, where the Congress government led by P V Narasimha Rao attempted to misdirect the CBI probe right from the time of registration of FIR. A tenacious Delhi HC bench of Justices Y K Sabharwal and D K Jain had scooped out the details.
Rashtriya Mukti Morcha had lodged a complaint with the CBI on February 1, 1996, alleging that the Congress government won the vote of confidence in July 1993 by a wafer thin majority after buying votes of MPs from JMM and JD-A. It had produced account details of one JMM MP, who had naively deposited the bribe money in the bank. Despite clear evidence, the CBI headed by K Vijaya Rama Rao diluted the FIR so as to prevent embarrassment to PM Rao. The director was caught redhanded by the HC bench, admonished and the CBI was ordered to register a proper FIR.
Ironically, the Rao government had set up a commission headed by N N Vohra in July 1993 to unearth the unholy politician-bureaucrat-police-mafia nexus. The nexus continues to prosper despite the Vohra committee identifying the malaise and suggesting remedial measures, which never got seriously implemented.
Then came the coalition era at the Centre and the Bofors scam. For decades, the case was on and off the CBI’s burner depending on the political strength and manoeuvring of Congress, which was erecting and dismantling coalition governments at its whim. The gun proved its mettle but the CBI lost credibility. One of the main suspects Ottavio Quattrocchi escaped the law. The Congress government allowed de-freezing of his London account. It also refused permission to appeal in the Argentina SC for his extradition. As the gun silenced its opponents in the Kargil war, lapse of time numbed the prosecution. The Delhi HC quashed the case. The CBI took more than a decade to file an appeal in the SC.
In 2003, the SC ordered the CBI to register an FIR against BSP chief Mayawati in the Taj Heritage Corridor scam. The probe meandered on and off track, depending on BSP’s usefulness to the central government. In 2006, the then AG agreed with the CBI that the case needed closure. The SC sought the opinion of the CVC, which said there was enough evidence to prosecute her. The CBI finally decided to file a chargesheet but UP governor T V Rajeswar declined sanction based on a 262-page opinion given by a law officer of UPA.
When Mayawati was in the good books of Congress-led UPA, Mulayam Singh Yadav was not. On a PIL, the SC had ordered a probe by CBI into Malayam and his family’s disproportionate assets. The agency proceeded with zeal and came out with meticulous details of his and family members’ income to tell the SC that there was enough evidence to prosecute Mulayam and his family members.
Political equations change dramatically. It was Mulayam and his party’s sizeable number of MPs which bailed out the UPA government in Parliament over the India-US nuclear deal, which caused Left parties to leave the coalition. The seasoned Mulayam demanded his pound of flesh. An indebted Manmohan Singh government readily obliged and the CBI accomplished a seemingly difficult task of re-calculating the assets’ value and sheepishly inform SC that the Yadavs’ had no disproportionate assets.
The CBI has competent investigating officers, who have time and again displayed their ability to crack difficult cases which did not involve politicians. The Ghaziabad PF scam, in which the scanner was on some constitutional court judges, was probed fearlessly. But the CBI top brass showed rubbery backbones and bent to the wishes of the ruling dispensation whenever it took up investigations into politically sensitive cases.
The list of beneficiaries and sufferers are many and include Lalu Prasad, Rabri Devi, Shibu Soren and Ajit Jogi. The heavy feet of the agency were best exhibited in the criminal case relating to demolition of Babri Masjid, which started in December 1992 and is still dragging on.
The CBI’s instinctive reflex action to bend before political power was palpable in the SC monitored coal scam probe. The agency director had rushed to get its probe status report, to be filed in the SC, vetted by UPA law minister Ashwani Kumar before putting it before the SC bench. This was unacceptable to the SC as it was getting the feel of the scam reaching the doors of PM Manmohan Singh. This action of the CBI, coupled with its past approach of being obedient to the master, led the SC to christen it ‘caged parrot’, a tag that the agency is finding difficult to shed.
The systematic dismantling, destruction and devaluing of CBI has been going on with impunity for decades. What we will see in future could be worse, unless someone with integrity and firm backbone assumes leadership of CBI. The sooner it is, the better it will be for the country.
International ambit
2016
CBI director Anil Sinha said in 2016 that 392 of its criminal investigations, which have international angles to them, are pending in 66 countries.
The central anti-corruption agency has many investigations where it needs information from several countries including 2G scam, AgustaWestland scam, the defence scandal related to Embraer and India deal. CBI is India’s nodal agency for the transnational organised crime, Interpol, anti-corruption and bank frauds. (The Times of India)
Jurisdiction
Limits of CBI jurisdiction
Can States bar the Central Bureau of Investigation (CBI) from functioning in their territory?
Yes. The CBI is a national agency with police powers. Its primary jurisdiction is confined to Delhi and Union Territories. As policing (detecting crime and maintaining law and order) is a State subject, the law allows the agency to function outside only with the consent of the States. Andhra Pradesh and West Bengal have withdrawn their general consent to the CBI to operate within their territories.
Has it happened before? And why?
There are several instances of State governments withdrawing their consent. There was even an instance in Sikkim, when the State withdrew its consent after the CBI registered a case against former Chief Minister Nar Bahadur Bhandari, and before it could file a charge sheet. The most common reason for withdrawal of consent is a strain in Centre-State relations, and the oft-repeated allegation that the agency is being misused against Opposition parties. The decision by Andhra Pradesh and West Bengal has come amid concerns being voiced by Opposition parties that Central agencies such as the CBI, Enforcement Directorate and Income Tax Department are being used against them.
Under what law is it done?
The CBI draws its power from the Delhi Special Police Establishment (DSPE) Act. The Home Ministry, through a resolution, set up the agency in April 1963. Under Section 5 of the Act, the Central government can extend its powers and jurisdiction to the States, for investigation of specified offences. However, this power is restricted by Section 6, which says its powers and jurisdiction cannot be extended to any State without the consent of the government of that State.
What is the impact of States taking back their consent?
The withdrawal of general consent restricts the CBI from instituting new cases in the State concerned. However, as decided by the Supreme Court in Kazi Lhendup Dorji (1994), the withdrawal of consent applies prospectively and therefore, existing cases will be allowed to reach their logical conclusion. The CBI can also seek or get specific consent in individual cases from the State government.
How has the consent issue played out?
In most cases, States have given consent for a CBI probe against only Central government employees. The agency can also investigate a Member of Parliament. Apart from Mizoram, West Bengal and Andhra Pradesh, the agency has consent in one form or the other for carrying out investigations across the country.
What happens to cases in which there is a demand for a CBI probe?
The Supreme Court has made it clear that when it or a High Court directs that a particular investigation be handed over to the CBI, there is no need for any consent under the DSPE Act. A landmark judgment in this regard was the 2010 Supreme Court decision by which the killing of 11 Trinamool Congress workers in West Bengal in 2001 was handed over to the CBI.
2018: AP, Bengal withdraw “general consent”
The fight between oppositioncontrolled states and the BJPled Centre intensified dramatically on Friday with Andhra Pradesh and West Bengal forbidding CBI and other central agencies from operating within their boundaries.
In a marked escalation, governments led by Chandrababu Naidu and Mamata Banerjee, both of whom are busy trying to erect an anti-BJP front, withdrew the “general consent” extended to the CBI.
Naidu justified the move by saying the CBI had been reduced to a tool for blackmail by the Centre, an accusation which was soon endorsed by Banerjee as she followed suit.
“The CBI has lost its credibility,” the Trinamool boss said. West Bengal, incidentally, was the first state to open its doors to the CBI.
BJP alleged that a “coalition of corrupt parties” was taking shape in the country and the party would raise this issue at all political platforms. “Recent happenings in the CBI have been cited as a lame excuse and a ruse to brazenly save the corrupt and extend political patronage to people and organisations involved in acts of corruption and criminality,” BJP’s G V L Narasimha Rao said.
In fact, Andhra Pradesh’s move was not limited to the CBI. It withdrew consent also with regard to implementation of 63 central Acts and 188 different sections of the IPC — a drastic move which many in the government believe might hinder probe and action by central agencies that deal with offences such as hijacking, smuggling of antiquities, and those covered under central laws dealing with arms, atomic energy, benami transactions, customs, explosives, passports and money-laundering.
Personnel issues
Dir Verma vs, SplDir Asthana
From: Neeraj Chauhan, No. 1 vs No. 2 war in CBI escalates, DSP in Asthana’s team arrested, October 23, 2018: The Times of India
From: October 24, 2018: The Hindu
From: October 24, 2018: The Hindu
From: October 25, 2018: The Times of India
From: Five charges that hurt ousted CBI chief Alok Verma, January 11, 2019: The Times of India
Govt May Ask NSA Doval To Examine Facts
The internal war within India’s premier investigative agency, the CBI, escalated with the arrest of DSP Devender Kumar, who, along with special director Rakesh Asthana, has been accused of taking Rs 3 crore in bribes from businessman Sathish Babu Sana.
The action against Kumar, whose office was searched by the agency, was seen as a declaration of intent by CBI director Alok Verma to take the FIR against his rival Asthana to its logical culmination and
as a pointer to the sordid lengths to which the factional blood-letting might go.
The agency has named Asthana as accused number one in its FIR registered on October 15 on the basis of a complaint from Sana, promoter of Playboy Club in Hyderabad. Another accused in the case, Dubai-based investment banker Manoj Prasad, has already been arrested.
The repercussions of the strife will travel beyond what happens to the combatants; it has opened a bloody sore at the heart of the government. Besides threatening to chip at its claim of strong and decisive governance, it raises questions about the fate of sensitive cases being handled by Asthana, like the ones against Vijay Mallya and the AgustaWestland scam. The matter was already causing concern to the government and there were indications that NSA Ajit Doval might be asked to look at the facts.
Asthana was said to be exploring legal options in the face of what sources close to him ter med a “vicious effort” by Verma and other factional rivals, as well as a few working for other agencies, to thwart him from becoming the CBI chief by “framing” him in a “false corruption case”. The CBI was yet to show recovery of the bribe amount that DSP Kumar and Asthana allegedly extorted from Sana.
As reported earlier, Sana was being probed by an SIT led by Asthana for a suspicious transaction of Rs 50 lakh with Moin Qureshi, a meat exporter accused in a money-laundering case. During its investigation, the SIT chanced upon evidence of alleged payment of bribe of Rs 2 crore to the CBI chief by Sana with the help of a Rajya Sabha member belonging to a regional party. Asthana communicated this to the CVC on August 24. On September 26, Sana allegedly admitted, in a statement before Kumar, to paying a Rs 2 crore bribe to the CBI chief.
But in a dramatic turn of events just 19 days later, the CBI registered an FIR against Asthana for allegedly taking a bribe of Rs 3 crore from Sana, whom he wanted to arrest.
CBI spokesperson Abhishek Dayal said Sana’s statement against Verma was fabricated by Kumar as an “afterthought” to substantiate the charge that Asthana levelled against Verma in his complaint to the CVC.
BJP concerned about implications
BJP expressed concern on Monday about the implications for the credibility of the CBI and said the government would take action to ensure it was not eroded. “We would like people’s faith in the institution of the CBI to continue,” BJP spokesperson Meenakshi Lekhi said.
Rahul says CBI in terminal decline
Congress chief Rahul Gandhi blamed the CBI internal war on the Centre’s interference and targeted special director Rakesh Asthana. “The PM’s blue-eyed boy... has now been caught taking bribes. An institution in terminal decline that’s at war with itself,” he tweeted.
Verma-Asthana clashes festered for over a year
CBI spokesperson Abhishek Dayal stressed on Monday that Sathish Babu Sana. was not in Delhi on September 26, the day when he purportedly admitted to DSP Devender Kumar that he had paid a bribe to CBI chief Verma — an assertion which meant the CBI has given a clean chit to Verma.
Sources close to Asthana, however, claimed that there was strong evidence of the Rajya Sabha MP meeting Verma to organise help for Sana.
Some in the agency expressed surprise over Asthana being named in the FIR based on Sana’s statement when the latter was already being investigated for bribery, and when there was no evidence of any contact between him, in person or through phone or email, and Asthana.
Asked why the agency didn’t take permission from the government as per Section 17A of the Prevention of Corruption Act, the CBI said the provision didn’t apply in this case. The CBI also refused to comment on Asthana’s allegations against additional director A K Sharma’s family members running shell companies, saying the CVC was looking into the case.
The clash between Verma and Asthana has festered for over a year now since Verma first opposed Asthana’s elevation as special director, which was turned down by the CVC, the government and the Supreme Court.
Over the last 6-7 months, important cases handled by Asthana have been taken away from him while the CBI’s special unit has been reportedly unleashed on Asthana and his subordinates. In one of the letters written to the cabinet secretary on August 24, Asthana had claimed that “there have been concerted attempts by Verma, Rajeshwar Singh (joint director of the Enforcement Directorate) and others to tarnish” his image.
Verma is also learned to have given adverse remarks in Asthana’s performance report. Asthana alleged that this was being done to “adversely affect my career prospects”.
Verma vs Asthana: How it all started
Alok Verma vs Rakesh Asthana: How it all started, October 24, 2018: The Times of India
The government sent CBI director Alok Verma and special director Rakesh Asthana on leave and appointed M Nageshwar Rao as interim chief of the probe agency "with immediate effect".
The government's move to appoint Rao as interim CBI chief + comes a day after high-voltage drama involving director Alok Verma and special director Rakesh Asthana in the Delhi high court. But, the two have never been on good terms while serving in the agency, with each accusing the other of wrongdoing.
We take a look at the bitter feud in the agency. Here is how it all started:
- The rift between Verma and Asthana dates back to October 2017 when Verma, during a meeting of the five-member CVC, objected to Asthana's promotion as special director.
- Verma believed Asthana had scuttled induction of officers recommended by him. He also alleged that CBI had come across Asthana's role in the Sterling Biotech case. The panel rejected the objection and Asthana was promoted. The SC too, gave the clean chit to Asthana.
- On July 12, while Verma was abroad, CVC called a meeting to discuss promotions in the CBI in which Asthana was invited as the No. 2 in the agency. Verma wrote to CVC saying he has not authorised Asthana to attend meetings on his behalf.
- On August 24, Asthana wrote to CVC and cabinet secretary giving details of alleged corruption by Verma, his right-hand man additional director AK Sharma and their efforts to save several accused persons. Asthana claimed Sathish Babu Sana, Hyderabad-based businessman had paid Rs 2 crore to Verma to save himself in the Moin Qureshi case.
- Last week, Asthana again wrote to the CVC and the cabinet secretary and said he wanted to arrest Sana last month but Verma scuttled the proposal. He claimed that in February, when his team tried to question Sana, he got a call from Verma instructing not to do so.
- By this time, Verma had taken Asthana off important probes, including Delhi government cases, IRCTC scam, probe against P Chidambaram and others, and handed them to Sharma. Asthana's staff officer was also transferred.
- On October 4, the CBI got Sana to record a statement before a magistrate against Asthana, in which he claimed to have paid him Rs 3 crore over a 10-month period.
- On October 15, the CBI filed a case against Asthana for allegedly taking bribe of Rs 3 crore from Sana.
- On Tuesday, the Delhi high court directed the CBI to maintain status quo on the criminal proceedings initiated against the agency's special director Asthana and a trial court sent an arrested mid-level officer facing bribery charges to seven-day remand.
- Both Alok Verma and Rakesh Asthana sent on leave on October 24.
Asthana, Verma and the CBI slugfest
HIGHLIGHTS
Asthana, during his initial years in Gujarat, would often seek central deputations as he had little patience for how Congress leaders worked.
In 2002, when Modi was the Gujarat chief minister, Asthana was asked to head the Special Investigation Team (SIT) to probe the Sabarmati Express train tragedy.
CBI special director Rakesh Asthana, who was probing some of the biggest cases with the CBI - including the AgustaWestland scam, the INX media case, and the Vijay Mallya loan default - is the consummate insider.
When he was a student at Netarhat Vidyalaya in Bihar, now Jharkhand, Rakesh Asthana, the Special Director at Central Bureau of Investigation, was known in the class as the sharpest boy who idolised Sardar Vallabhbhai Patel.
The image had not changed much when he went to the Jawaharlal Nehru University for higher studies or when he cleared the Union Public Service Commission examination in his first attempt. And even today, when the 1984-batch Gujarat cadre IPS officer finds himself at the centre of the crisis that has gripped the CBI, there is still very little wrong with his work credentials, except him being seen as a “man in a tearing hurry.”
Asthana, during his initial years in Gujarat, would often seek central deputations as he had little patience for how Congress leaders worked. “He was never comfortable with the Congress thinking and how its governments in Gujarat operated,” said a former IPS officer who worked closely with Asthana.
In the first five years of his tenure as an IPS officer, Asthana was reputed to be honest, hardworking and approachable. However, soon this changed. Asthana, while maintaining a good public image, began to get cosy with some top Gujarat industrialists. “Unlike several other IPS officers in Gujarat, who would not shy away from accepting bribes from bootleggers or stage fake encounters, Asthana had his eyes set on the big league,” the officer said.
That Narendra Modi and he took an instant liking to each other is wrong. Asthana was essentially an L K Advani man. In the mid-nineties, Asthana sought a deputation to the CBI and in 1996 arrested the then chief minister of Bihar Lalu Prasad Yadav in the fodder scam. “That was the last time the Congress saw power in Bihar. This set Asthana’s image as an anti-Congress officer,” said a senior BJP MP who did not wish to be identified.
In 2002, when Modi was the Gujarat chief minister, Asthana was asked to head the Special Investigation Team (SIT) to probe the Sabarmati Express train tragedy. Several Kar Sevaks returning from Ayodhya had died when the S6 coach of the train caught fire at Godhra. It was Asthana who first made a public statement calling the fire a premeditated conspiracy. Insiders say that Asthana’s appointment to head SIT was Advani’s idea to help Modi, then his protégé.
As Modi grew in stature and drifted away from Advani, Asthana decided to hitch his wagon to the former. Not many have had the liberty to joke with Asthana, but an industrialist, who claimed to be close to Asthana, told Mirror: “We would tease Asthana of being a Modi bhakt in 2002. He never protested.”
Asthana did not opt for central deputation after Modi became the chief minister of Gujarat. “Contrary to public belief, Amit Shah and Asthana came in touch only after Modi became the CM,” a Gujarat BJP minister close to Amit Shah told this newspaper. “Asthana and Modi are thick,” he said, adding that Asthana always got plum postings during Modi’s tenure as CM. And whether it was the Ishrat Jahan fake encounter case or the Asaram Bapu rape case, Asthana came to the aid of the BJP government in Gujarat.
In the Ishrat Jahan case, for instance, Satish Verma -- another Gujarat-cadre IPS officer known for his integrity and rock-solid investigations -- had petitioned the Gujarat High Court pointing out how Asthana, under the influence of Gujarat government, tried to coerce a forensics officer to alter evidence in the case.
After the Jodhpur police arrested self-professed godman Asaram Bapu in a rape case, murmurs about his son Narayan Sai’s involvement in human trafficking spread. The Gujarat government decided to arrest him and it was Asthana who was given this responsibility.
Asthana was considered a man of style. When his daughter got married in 2016 in Vadodara, it was a marriage that became the talk of the state. In week-long festivities, Asthana indulged his guests to five-star pleasures. It has now been disclosed that all hotels extended “complimentary” services to Asthana and his family.
According to a high-level sources in the Gujarat government, Asthana once flew overseas in a private chopper owned by an industrialist. This last-minute trip by Asthana from Ahmedabad International Airport was to settle a family dispute.
During his tenure in Gujarat, he held several important posts in Gujarat such as IG, Vadodara, Jt CP Ahmedabad, and Commissioner of Police in Surat and Vadodara. As Vadodara police chief, he detected the 2008 serial blasts in Ahmedabad and the planting of bombs in Surat.
In June 2016, when the CBI set up an SIT for speedy probes into important cases, Asthana was asked to head it. The SIT was probing several sensitive cases with political ramifications like the AgustaWestland scam, the INX Media case, the Kingfisher Airlines loan default case against Vijay Mallya, and the ambulance scam in Rajasthan involving former chief minister Ashok Gehlot, ex-union minister Sachin Pilot and former finance minister P Chidambaram’s son Karti Chidambaram.
The war within the CBI
The seeds of the war were sown in October last year, when Rakesh Asthana was elevated to the No. 2 position at the CBI by a selection committee headed by the Central Vigilance Commission (CVC). Alok Verma reportedly opposed the elevation on the grounds that he was being probed in a corruption case related to a Gujarat-based company Sterling Biotech.
The tension between Verma and Asthana continued to simmer. In July, Verma raised the ante by telling the CVC that Asthana could not represent him in meetings to consider postings in his absence, since his role in several cases was itself under the scanner.
In September, Asthana wrote to the government, accusing Verma of trying to thwart investigations in important cases, including the IRCTC scam in which RJD chief Lalu Prasad Yadav and his family are the accused. The CBI termed Asthana’s complaint as “intimidation” of the offi cers probing his role in at least six cases.
Asthana also wrote to the cabinet secretary and the CVC, accusing Verma and his Man Friday Additional Director AK Sharma of trying to save accused persons in several cases. He alleged that Satish Babu Sana, a Hyderabad-based businessman, paid Verma Rs 2 crore to save himself in the case of meatexporter Moin Qureshi, who is facing tax evasion and money laundering charges. Asthana also claimed Verma thwarted his attempt to arrest Sana.
Fallout: 13 officers shuffled, top 2 benched
No. 3 Overlooked, Jt Director Rao Put In Charge
A sequence of dramatic developments culminated in the government sending the CBI’s feuding No. 1 and 2, director Alok Verma and special director Rakesh Asthana, on leave on the basis of a strongly worded report from the Central Vigilance Commission (CVC). It is the first time in the agency’s 55-year history that its chief has been divested of his duties in the middle of a tenure.
The year-long fight that saw Asthana file a complaint accusing Verma of several improprieties and the CBI chief retaliating by registering an FIR against his deputy for alleged corruption ended with both being benched and as many as 13 officers shuffled.
The decision immediately led to opposition protests that the action was intended to prevent probe into sensitive cases concerning the government, a charge reiterated by Verma in a petition he filed in the Supreme Court on Wednesday.
The CVC order, under Section 8(1)(a) and (b) of the CVC Act, said Verma had not cooperated in making available records relating to complaints about his own role in allegedly shielding one of the main suspects in the UPA-era railway contracts scam and also allegations levelled by Asthana about bribes in the Moin Qureshi case. The CVC said despite reminders, CBI failed to provide information on the cases, but it then came to light that the agency had registered an FIR against Asthana on the basis of a statement by an accused being probed by the officer. The CBI’s attitude established “non-cooperation” and “noncompliance” and amounted to “wilful obstruction” of the CVC’s functioning, it said.
The Centre overlooked the No. 3, A K Sharma, allegedly for his proximity to Verma in dealing with cases against Asthana, and appointed joint director M Nageswar Rao interim CBI chief.
2019, Jan: SC puts Verma back, but with clipped wings
Alok Kumar Verma was allowed to come back as CBI Director, albeit with his wings clipped, by the Supreme Court which gave a jolt to the Centre and the CVC by setting aside their orders divesting him + of his powers and sending him on leave.
However, the sword "of divestment of power and authority" of Verma is still hanging on his head as the apex court said it was "still open" for the high-powered committee, which selects the CBI chief, to consider the matter within a week since the CVC is probing the charges of corruption against him.
It also made it clear that on reinstatement, Verma will cease and desist from taking any major policy decisions till the committee's decision.
The top court set aside the October 23, 2018 orders of the Central Vigilance Commission (CVC) and the Department of Personnel and Training (DoPT) divesting Verma of his powers and asking CBI's joint director M Nageshwar Rao to look after the duties and functions of the agency's director.
In its 44-page verdict, a bench headed by Chief Justice Ranjan Gogoi said: "We deem it proper to direct that Verma, director CBI, upon reinstatement, will cease and desist from taking any major policy decisions till the decision of the committee permitting such actions and decisions becomes available within the time frame indicated."
The bench, also comprising Justices S K Kaul and K M Joseph, asked the high-powered committee comprising the Prime Minister, the Chief Justice of India and the leader of opposition to meet within a week.
Verma's two-year tenure as CBI Director ends on January 31.
The entire issue of Verma revolved around his feud with CBI's special director Rakesh Asthana as both of them have levelled charges of corruption against each other.
While Verma had moved the apex court against the government's orders, Asthana has not sought any relief from the top court but has moved the Delhi high court for quashing of FIR against him in a corruption case.
Like Verma, Asthana was also divested of his powers and was send on leave by the government.
In its judgement, the top court said, "We further make it explicit that the role of Alok Kumar Verma as the director, CBI during the interregnum and in terms of this order will be confined only to the exercise of the ongoing routine functions without any fresh initiative, having no major policy or institutional implications."
The bench referred to its verdict in Vineet Narain case and subsequent amendment in law to drive home the point that legislative intent has been to ensure "complete insulation of the office of the director CBI from all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of the CBI as a whole".
The Vineet Narain judgement, delivered by the apex court in 1997, relates to investigation of allegations of corruption against high-ranking public officials in India. The top court referred to a provision of the Delhi Special Police Establishment (DSPE) Act, which said that the CBI director cannot be transferred without the consent of the selection committee.
It said the legislature did not intend to confer any authority to the state to take interim measures against CBI director in such an eventuality.
"If the word 'transferred' has to be understood in its ordinary parlance and limited to a change from one post to another, as the word would normally convey and on that basis the requirement of 'previous consent of the committee' is understood to be only in such cases, i.e. purely of transfer, such an interpretation would be self-defeating and would clearly negate the legislative intent," the bench said.
It said the institution of CBI has been perceived to be necessarily kept away from all kinds of extraneous influences so that it can perform its role as premier investigating and prosecuting agency "without any fear and favour and in the best public interest".
"The head of the institution, namely, the director, naturally, therefore, has to be the role model of independence and integrity which can only be ensured by freedom from all kinds of control and interference except to the extent that Parliament may have intended," it said.
The bench said all authorities should be kept away from "intermingling or interfering" in the functioning of CBI director.
Dealing with the situation where authorities may require to take action against CBI director, the bench said public interest must be writ large against the backdrop of the necessity and such a "compelling necessity can only be tested by the opinion of the committee".
The court also noted that the relevant law does not have any provision with regard to interim suspension or removal of the CBI Director and made clear that any such decision has to be taken after taking consent of the high-powered selection panel.
The judgement was penned by CJI Gogoi. However, the CJI didn't attend court and it was pronounced by Justice Kaul.
The apex court noted that CBI has grown over the years in its role, power and importance and today it has become the premier investigative and prosecution agency of the country.
"The high stature and the pre-eminent position that the institution has acquired is largely on account of a strong perception of the necessity of having such a premier agency," it said.
48 hrs later, panel removes Verma from CBI
Five charges that hurt ousted CBI chief Alok Verma, January 11, 2019: The Times of India
From: Neeraj Chauhan, January 11, 2019: The Times of India
The selection committee led by PM Narendra Modi and comprising Justice A K Sikri and Congress leader Mallikarjun Kharge decided 2:1 to remove CBI chief Alok Verma + on the basis of the Central Vigilance Commission’s (CVC) report raising serious questions on Verma’s integrity.
“The panel took into account the extremely serious nature of observations made by the CVC against Alok Verma. The panel was of the view, that being the head of a very sensitive organisation, Verma was not functioning with the integrity expected of him,” a source said. Kharge submitted a dissenting note.
Verma was found guilty on five of the 10 alleged instances of corruption, criminal misconduct, interference in sensitive cases, shielding big defaulters and other offences. The five charges are as follows:
1. In the Indian railway catering and tourism corporation case involving former railway minister Lalu Prasad, the CVC felt that it can be reasonably concluded that Verma deliberately excluded a name from the FIR, for reasons best known to him, said sources.
2. Rakesh Asthana alleged that Verma took Rs 2 crore from Sathish Babu Sana to influence Moin Qureshi case probe. CVC found Verma's conduct "suspicious". The CVC also said Verma misled the vigilance body when he said that the agency was probing his factional rival Rakesh Asthana + for his role in the Sterling Biotech case, besides finding him guilty of seeking to induct officers of doubtful integrity in CBI.
3. Verma while functioning as Delhi Police chief in 2016, allegedly instructed escorting of a gold smuggler who was caught by customs. The CVC found allegations partially substantiated and recommended investigation by a different branch of CBI.
4. In a Haryana Land Scam, Verma is accused of being in touch with then director of town and country planning of Haryana in which Rs 36 crore allegedly exchanged hands to make sure that the preliminary enquiry was closed. CVC said that further enquiry was required.
5. Verma allegedly made attempts to induct two tainted officers in the agency, despite adverse reports against both. CVC found the allegations substantiated.
Lone Lone dissenter Kharge sought extension for CBI chief
Five charges that hurt ousted CBI chief Alok Verma, January 11, 2019: The Times of India
Before the PM-led selection committee shunted out Alok Verma, Congress leader Mallikarjun Kharge, one of the three members of the panel, turned in a six-page dissent note that said Verma should not only be given a chance to “explain himself” before the panel on the charges against him but also sought extension of his tenure by 77 days — the period he was on leave. The CVC report didn’t have anything “substantial” against Verma, he said.
Procedures
SOPs for investigators updated/ 2020
Rajshekhar Jha, December 22, 2020: The Times of India
The CBI has released its revised crime manual laying down updated standard operating procedures for the agency’s investigating officers. The manual was last updated in 2005 and before that in 1991.
The CBI crime manual is a document which its IOs need to religiously stick to during probes. It has kept sight of latest developments in law, probe techniques and procedures, in consonance with global best practices, an official said. In the revised manual, focus has been on laying down SOPs in investigations conducted abroad. New chapters on Interpol notices and functioning have been added. Changes in law and procedure and interpretations have been incorporated, the official said.
The updated manual lists out adoption of team approach during investigation of larger and complex cases. The makers have elaborated on “preventive vigilance” to be used in the field so as to reduce lapses. Detailed SOPs have been listed for cyber crime probes to enhance the speed and quality of probes.
It elaborates on inter-agency functioning and coordination, especially the role of Enforcement Directorate, and the need to function in tandem. The amended Prevention of Corruption Act and amendments in CrPC too have been included. The manual was released by junior personnel minister Jitendra Singh.
The states vs. the CBI
2012/ Madhya Pradesh shielded its officers
The CBI-Kolkata Police standoff reminds top cops of Madhya Pradesh of a similar situation in 2012, when the then BJP government issued an extraordinary gazette notification ‘protecting’ IAS, IPS, IFS officers of MP cadre from investigation by CBI. Congress-led UPA helmed the Centre then.
Though the exact reason behind the notification was never officially revealed, many believe fear of a CBI crackdown on some IAS officers ahead of the 2013 state polls could have been a trigger. “The notification was aimed at shielding bureaucrats from the federal agency. Investigations into ‘Coalgate’ and Vyapam scams were in full swing and polls were just two months away. The Shivraj Chouhan regime did not want to take any chances,” said a former DGP.
2019/ Bengal, the Saradha Scam crisis
From: Dhananjay Mahapatra, February 5, 2019: The Times of India
See graphic:
The CBI vs. Government of Bengal confrontation, 2013 and 2017-2019
‘Stay orders’ cannot be issued
138 graft cases stalled due to SC stays
138 graft cases stalled due to SC stays: CBI, August 1, 2017: The Times of India
The CBI told the Supreme Court that despite a statutory ban on higher courts staying trial in corruption cases, the apex court's stay on 45 appeals had resulted in trials in 138 cases under Prevention of Corruption Act getting stalled.
Solicitor general Ranjit Kumar informed a bench of Chief Justice J S Khehar and Justice D Y Chandrachud that some of these appeals were pending in the SC for the last 15 years and CBI investigating officers now feared that any further delay in restarting the trials would result in losing evidence.
Lapse of time has a serious impact on producing evi dence through witnesses in criminal trials, especially in corruption cases, the SG said and requested the court for vacation of stay granted on the petitions filed by various accused persons from across the country who were prosecuted under PC Act by the CBI. The bench agreed to list the appeals for hearing on August 7.
The SG said stays in graft cases were granted despite a statutory ban under Section 19(3)(c) of the PC Act, which provides, “No court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.“
Success rate
70% conviction of tainted officials: 2006-16
4,054 Cases In Which Govt Staff Found Guilty In Last Decade
Nearly seven out of every 10 corruption-related cases investigated by the Central Bureau of Investigation (CBI) ended in conviction of government officials in the last decade, a record that justifies the dread that the agency strikes among unscrupulous officials.
Since 2006, CBI probed over 7,000 cases, of which trial has been completed in 6,533. About 4,054 cases (68%) ended in conviction of the accused under the Prevention of Corruption Act, 1988, while 2,095 (32%) ended in acquittal.
The relatively high conviction rate counters the popular belief that trials in India are often delayed and officials, along with the influential, usually avoid jail time.
The analysis by public information website Factly .com is based on data shared by the government in Lok Sabha. “Given Indian conditions, 68% conviction is fairly decent. The major flaw is in the judicial system which is full of delays, which in turn allows influencing witnesses, said Shailesh Gandhi, former information commissioner.
Of the 7,000 corruption-related cases probed and disposed of between 2006 and June 2016, some 3,615 ended in prosecution, 2,178 ended in prosecution as well as regular de partmental action (RDA) while 636 cases were subject to only RDA. Another 671 cases were closed without action.
While CBI investigates select cases, national data up to 2015 showed that 13,585 corruption cases were being investigated, mostly relating to bribery and criminal misconduct. Some 29,206 corruption cases were pending trial while the accused were acquitted or discharged in 1,549 cases in 2015.
CBI completed investigations in the highest number of cases in 2008 followed by 2007. The least number of cases were investigated and disposed of in 2010, the year when the 2G and Commonwealth Games scams held national attention.
On an average, 9.3% of the cases ended in closure without any action.
In cases where trial has been completed, acquittal rate was highest in 2007 at over 50%. Most number of cases were disposed of in 2013 (921), followed by 865 in 2012. The least number of cases were disposed of in 2008 (369).
Data from the National Crime Records Bureau show an increase of 5% in corruption cases in 2015 (5,867) compared with 2014 (5,577).
Factly .com's Rakesh Dubbudu noted that getting sanction for prosecution of a government official continued to be an issue.
… and some non-successes
Cases that did not do CBI credit
Sunil Baghel, April 14, 2022: The Times of India
After 22 years of investigation, a case sought to be ‘closed’
Just for perspective, the last time an investigation report in this case was filed was in 1999 – the year when the Kargil war was fought and when Leander Paes and Mahesh Bhupati, still friends, won the Wimbledon.
While the main urea scam case resulted in convictions of former Prime Minister P V Narsimha Rao, his nephew B Sanjeeva Rao and several officials and private persons, this particular case related to the supply of 1 lakh metric tonnes of urea was registered in 1997. The CBI named former National Fertilizers Ltd managing director C K Ramkrishnan, executive director D S Kanwar, chief executive of Hyderabad-based Sai Krishna Impex M Sambasiva Rao and S Nuthi of US-based Alabama International Inc.
A special CBI court earlier this month rejected a closure report filed by the agency and instead directed it to investigate and explain the 22 years’ delay in filing this report. “This is obviously a cause of concern to this court and also should be a cause of concern to the head of investigating agency i.e. director, CBI,” Special Judge Surinder Rathi said. He added that the CBI director should take necessary action to ensure that such “miscarriage of justice” does not happen again.
Sushant Singh Rajput: murder, money, drugs?
“Justice for Sushant” was a slogan used in election rallies in Bihar in 2020. But justice has not been served yet.
The actor allegedly died by suicide on June 14, 2020 in Mumbai. Under pressure from various quarters, a case was registered in Patna, Bihar, and transferred to the CBI the very next week. However, more than one-and-a-half years after the agency took over, a charge sheet is yet to be filed. We know nothing about “the financial transactions” that apparently led to his “death” and the “involvement” of his girlfriend actor Rhea Chakraborty.
In September 2020, a medical board of the All India Institute of Medical Sciences (AIIMS) in Delhi, based on the post-mortem examination and viscera reports, concluded that the actor’s death was a case of suicide.
The last important development in the case is from November last year when the agency approached the California-headquartered Google and Facebook under the Mutual Legal Assistance Treaty seeking details of the actor’s deleted chats, emails or posts.
Narada sting – pick a side please
Named after the news portal which conducted sting operations across two years targeting senior government officers and leaders of the party in power – the All India Trinamool Congress (TMC) – the case is about politicians and officers accepting cash bribes for providing favours to a fictitious company based out of Chennai. The news story, with about 52-hours of footage, was carried by the portal months before the 2016 West Bengal assembly elections. The Calcutta high court transferred the case to the CBI in March 2017.
In May 2021, the agency arrested only four accused based on a sanction from the governor – Firhad Hakim, Subrata Mukherjee, Madan Mitra and Sovan Chatterjee. All were ministers in the TMC government at some point.
Two senior TMC leaders Mukul Roy and Suvendu Adhikari, too, were named in the case. But they later switched to the Bharatiya Janata Party – the party leading the central government alliance –before the 2021 atate elections. Roy joined the BJP in November 2017 and Adhikari in December 2020. This helped them evade arrest.
The CBI was reported to have “found nothing” nothing against Roy when asked about him after the four arrests. The reason cited for not acting against Adhikari was that the agency’s application seeking sanction to act against him was pending with the Lok Sabha Speaker since April 2019.
Adarsh Society case – how a “caged parrot” acts
If one were to explain in brief why the investigations in the 2010 Mumbai Adarsh Society scam – in which a building meant for war heroes and war widows was grabbed by politicians – has not gone beyond filing of charge sheet, all one needs is two paragraphs. Here goes:
Then Maharashtra governor K Sankarnarayanan, appointed under the UPA regime, had, in 2013, refused to grant sanction to the CBI to prosecute Ashok Chavan, who was revenue minister when the scam took place and chief minister when it was exposed.
However, after the National Democratic Alliance government came to power both at the Centre as well in the state, Ch Vidyasagar Rao was appointed governor of the state. The CBI, in 2015, sought a fresh sanction to prosecute Chavan based on ‘fresh material’, which was granted in 2016.
This sanction was successfully challenged by Chavan before the Bombay high court where a division bench, in December 2017, struck down the fresh sanction observing that while the governor did have powers to revisit the sanction if ‘fresh material’ was produced, there was no fresh material to grant sanction in this given case. The CBI approached the SC against this order, which granted a stay against proceeding further against Chavan.
The question is, did the CBI come across this “new material” only after a new government took office?
The coal blocks scam
This is considered to be one of the longest running probes by the CBI with multiple cases registered across several states. The investigations have spanned UPA and NDA regimes.
It was during one of the hearings on a petition in this case in May 2013 before the Supreme Court that the comment about the agency being a “caged parrot” was made by Justice RM Lodha. The court seemed to be referring to the controversy reported days before this hearing, where it was alleged that the draft status report of the investigation (to be submitted to the court by the CBI) had been shared with officials in the coal ministry and the PMO and the contents of the reports were allegedly changed.
“The heart of the report was changed on suggestions of government officials,” the bench had observed and said that the job of CBI was not to interact with government officials but to interrogate them to find the truth and that the agency must know how to stand up against all pulls and pressures by government and its officials.” 2G spectrum scam
Nearly everyone listed as accused by the CBI in this case, where airwaves were allegedly sold for a song causing a loss of Rs 1.7 lakh crore to the government, were acquitted. Among the acquitted were then telecom minister A Raja, senior DMK leader Kanimozhi, former managing director of Reliance Anil Dhirubhai Ambani Group Gautam Doshi, Bollywood producer Karim Morani and businessman Shahid Balwa.
The special CBI court, while acquitting the accused, made a telling remark about the CBI’s investigation. It said the agency had failed to prove the case made in its “well-choreographed charge sheet”. The court also said that many facts recorded in the charge sheet were incorrect and that the quality of prosecution had deteriorated and become directionless by the end of the case.
CBI vs CBI – as if all the blundering was not enough
Second half of the year 2018 saw a bitter fight between the no. 1 and the virtual no. 2 of the agency causing a huge embarrassment to the agency as the two levelled corruption charges against each other.
It all started with the Central Vigilance Commission inviting special director Rakesh Asthana to attend the CBI selection meeting in July 2018. CBI director Alok Verma, who was abroad then, objected saying that Asthana did not have the mandate to represent him.
This was followed by Asthana writing to the cabinet secretary making corruption allegations against Verma the next month. Eventually, the agency registered a corruption case against Asthana and an SP and conducted a raid on its own office.
Before this, Verma as CBI director, had opposed Asthana’s promotion as special director citing corruption allegations against him. Eventually, both of them were sent on leave and M Nageswara Rao was appointed as the agency’s interim chief on October 24, 2018.
CBI boss fined ₹ 15L for shoddy death probe
VijayV Singh, CBI boss fined ₹ 15L for shoddy death probe, March 11, 2018: The Times of India
Maha Rights Body Asks Agency Chief To Pay Relief to Dad Of MBA Student Who Died Mysteriously
The Maharashtra State Human Rights Commission (MSHRC) has directed the CBI director to pay Rs 15 lakh to the father of an MBA student for carrying out a shoddy probe into his mysterious death thus delaying delivery of justice. The commission said the father has been waiting for justice for seven years and the adverse findings against the CBI by a magistrate court raises question over the credibility of the investigators and way they function.
The commission’s directions came in response to a complaint filed by Vijay Singh, a Patna resident whose son Santosh was found dead under mysterious circumstances in Kharghar on July 15, 2011. The commission said the compensation has to be paid for violation of his fundamental rights guaranteed under the Constitution within six weeks and disciplinary action initiated against the erring officers. MSHRC member M A Sayeed, in his order, asked the CBI to sensitise officers about significance of a proper investigation in accordance with the rules and procedures.
Vijay Singh had filed a complaint with the commission in 2011, which was amended five years later with additional evidence. The CBI, which last probed the murder case based on a high court order, had concluded it as a suicide and filed a closure report in the magistrate court at Panvel. The magistrate court refused to accept the report pointing out lapses and ordered arrest of the accused for murder.
Santosh stayed on the fourth floor of Janardan Sadan building with three friends — Vikas Kumar, Jitendra Kumar, Dheeraj Kumar. On July 15, 2011, he was found dead in the balcony of a first floor flat. Kharghar police registered an accidental death report on the basis of Jitendra’s statement where he mentioned that Santosh had, under the influence of alcohol, committed suicide by jumping from the toilet window.
Vijay was not satisfied with the finding of the local police that Santosh committed suicide. In 2012, he filed a writ petition in the high court, which ordered a CID probe, but Vijay was again not satisfied with the progress. On his request, the high court then ordered a CBI probe. The CBI registered a case of murder and filed a closure report in a Panvel court.
Magistrate J M Chavan, in his December 2017 order rejecting the closure report, said the possibility of Santosh being under the influence of alcohol is not proved in the chemical analysis report.
“It is impossible for the deceased to climb atop the flush tank under the influence of alcohol and remove the window panes.” The magistrate also cited various other inconsistencies based on the medical report, including the time of the death. “Material showed that the probe was not proper, and it was done in a manner to save the accused,” the court said.
The court believed that the deceased was inflicted multiple injuries with a sharp object due to which he died. The court observed that evidence showed the accused had killed Santosh and thrown the body down to show it as a suicide. The order said, “It was unnatural death, but still even the medial officer had not preserved viscera for analysis.” The magistrate slammed the CBI for terming the suspicious death as a case of suicide despite the fact that circumstantial evidence indicated that it was a murder.
All the three accused are at present in judicial custody.
The CBI: jurisdiction, type of work, importance
LEARNING WITH THE TIMES - CBI can take suo motu action in graft cases under PCA Why did we need the CBI?
The significant increase in the British government's expendi ture in the early stages of the Second World War resulted in profiteering by corrupt businessmen and government officials. Since the local police found it difficult to investigate these cases, the British government felt the need for a special force. The Special Police Establishment (SPE) with mandate to investigate cases of bribery and corruption in transactions related to war, was formed under the War department in 1941.In the post-war years, the need for a central investigating agency was felt and Delhi Special Police Establishment (DSPE) Act was brought into force in 1946, which also shifted its superintendence to the home department. Later, the DSPE was re-christened Central Bureau of Investigation (CBI) in 1963. Even today , the jurisdiction of CBI is defined by DSPE Act 1946.
What kind of cases does the CBI investigate?
CBI was primarily supposed to investigate cases involving central government employees or the interests of the central government, and crime on the high sea and airlines, as per the DSPE Act, 1946. It was vested with power to investigate cases of breach of central laws related to export-import, foreign exchange, passports and so on. It also investigated serious cases of fraud, cheating and embezzlement relating to Public Joint Stock Companies and other cases of a serious nature, when committed by organised gangs operating in several states. In addition, it collected intelligence about corruption in public services as well as in projects and undertakings in the public sector.
When did the CBI start investigating conventional crime?
Initially an anti-corruption probe agency , in due course of time the CBI started receiving requests from various quarters of government and judiciary to investigate conventional crime and other specific cases like the Bhagalpur blindings, Bhopal gas tragedy and so on. Since early 1980s, constitutional courts also started referring cases to CBI for investigation and enquiry . In 1987 as its role expanded, it was divided into two sections -an anti-corruption division and the special crimes division, the latter dealing with conventional crimes and economic offences. Apart from this, special cells have often been created to investigate high-profile cases like Rajiv Gandhi's assassination, Ba bri Masjid demolition and so on.
What is CBI's jurisdiction?
CBI derives its power from section 2 of the DSPE Act 1946 to investigate offences in Union Territories only. However, the jurisdiction can be extended by the Centre to other areas, including Railways and also state governments, with their consent.CBI is authorised to probe only those cases notified by the Centre. Anyone can make a complaint regarding corrup tion in the central government, PSUs and nationalised banks; CBI can also take suo motu action in cases under Prevention of Corruption Act. It can investigate criminal cases if a state requests the Centre for CBI's help, or when SC or an HC direct CBI to investigate a crime.
