Maharashtra withdraws ‘general consent’ for CBI: What this means for agency, TRP scam and Sushant case
While most states have a general consent in place for the CBI, Maharashtra is now the fifth state to withdraw its general consent for the CBI to operate, after Andhra Pradesh, West Bengal, Chhattisgarh, and Rajasthan
The Uddhav Thackeray-led Maharashtra government on Wednesday issued an order withdrawing the general consent given to the Central Bureau of Investigation (CBI) to probe cases in the state.
The order, which was issued on late Wednesday, now makes it necessary for the Central agency to get the state government's permission to conduct investigations.
"Though the general consent has been withdrawn, the government can decide on giving permission on a case-by-case basis," government sources told PTI.
Though the CBI cannot file any new FIRs, this move does not impact cases already being probed by the agency.
The state home department's order issued stated, "In exercise of the powers conferred by section 6 of the Delhi Special Police Establishment Act, 1946, the government of Maharashtra hereby withdraws the consent accorded to the Members of the Delhi Special Police Establishment vide Government Order dated 22 February 1989."
Section 6 of the Act says, “Nothing contained in Section 5 (which deals with the 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.”
Maharashtra has become the fifth state to withdraw its general consent for the CBI to operate, after Andhra Pradesh and West Bengal (in November 2018), Chhattisgarh (January 2019), and Rajasthan (June 2020).
The move comes at a time when two recent high-profile cases, first registered in Maharashtra, reached the CBI's doors via secondary FIRs registered in BJP-ruled states.
The CBI has recently taken over probe in two cases that were under media glare: the death of actor Sushant Singh Rajput and the fake TRP scam in which Mumbai Police has charged several news channels of tampering with the TRP system.
The decision also comes hours after the CBI filed a case to investigate the rating scam on the basis of a complaint filed in BJP-ruled Uttar Pradesh, reported NDTV
According to the Indian Express, the state government took this step due to an “apprehension” that the CBI would take over the case that the Mumbai Police is investigating against four channels who are accused of a similar offense.
Meanwhile, Maharashtra home minister Anil Deshmukh on Thursday said the step was taken to ensure that the Central agency is not misused for "political purposes".
"CBI had been given a free pass by the earlier government. We have withdrawn it. We thought about political scores being settled through CBI. So we have withdrawn the permission granted earlier to avoid such a thing happening," Deshmukh said.
"Earlier, CBI had taken up the investigation in some cases. We are concerned about the use of CBI to intervene in the ongoing TRP scam and hence Maharashtra decided to withdraw its permission," the home minister said.
Deshmukh said a Supreme Court judge had a few years ago described CBI as the 'government's parrot'. "We want to avoid it happening now," the minister said.
How CBI operates
While the CBI is considered a Central investigative agency, it was not constituted by an Act of Parliament like the National Investigation Agency (NIA). The CBI was founded under a Delhi government law called the Delhi Special Police Establishment Act 1946 (DSPE Act).
So what does this mean?
As per this The Quint, this means that unlike the NIA, which can take up a case dealing with its scheduled offences in India without the consent of the state government in question, the CBI can’t operate wherever it wants, even in cases dealing with its core competencies such as anti-corruption or foreign exchange violations.
This is why, even as the Maharashtra government was reviewing the Bhima Koregaon case, the NIA was able to take it over without the state's consent.
There is also no bar on the investigation into cases that are already being probed by the CBI, although the CBI now cannot file any new FIRs in any new cases.
"For example, if an offense has been committed in Delhi and part of it is in Mumbai and if the state government does not allow the CBI to file a case in Maharashtra, the CBI has an option of registering a case in Delhi and then seeking assistance from the Maharashtra police to carry out the investigation in Maharashtra. However, the CBI will not have power or jurisdiction to probe the case in Maharashtra," former CBI director Shantonu Sen told TheNewsMinute.
As per this Print.in report, the CBI can take over a criminal case registered by a state police only in three situations: First, the state government concerned makes a request to that effect and the Centre agrees to it pursuant to receiving comments from the CBI. Second, the state government issues notification of consent under Section 6 of the DPSE Act, and the Centre also issues a similar notification. And finally, if the Supreme Court or the high court orders the CBI to take up a case.
Sushant Singh Rajput case
The CBI earlier this year, took over the investigation into actor Sushant Singh Rajput’s death, which was being probed by the Mumbai Police, after a Supreme Court order.
So what does this new order mean for this case?
In the case of Sushant Singh Rajput's death, the Supreme Court had handed over the case to the CBI on 19 August. In cases like this, when a Supreme Court has directed the Central agency to take over, then as clarified by the courts, no state government can object to such a probe.
As per a 2018 order by the Delhi High Court, the CBI also has the power to investigate cases registered anywhere else in the country, but involves people stationed in Maharashtra.
Fake TRP scam case
Unlike the Rajput case where the Mumbai Police had not registered an FIR (before the CBI took over), in the fake TRP case, it has not only registered an FIR but has also arrested eight persons.
So what does this new order mean for this case now?
As per Hindustan Times, the Maharashtra government cannot stop CBI from investigating the TRP case registered on the recommendation of the Uttar Pradesh government.
"But the CBI cannot take over the Mumbai Police’s FIR in the TRP case without the state government’s approval,” a retired CBI official, who did not wish to be named, told the newspaper.
Another option for the Central agency is to move to the Supreme Court. If the apex court tells the CBI to take over the Mumbai Police investigation into the TRP case, the state government cannot deny it. However, the top court will have to be convinced of reasons as to why the CBI should take over the Mumbai Police case, as per Indian Express.
Or the CBI can rely on the Delhi High Court judgment from 2018 to say that the offense it is investigating arose outside Maharashtra, and hence it can conduct its investigation without the Maharashtra government’s permission, as per the TheQuint.
The alleged fake TRP scam came to light when rating agency Broadcast Audience Research Council (BARC) filed a complaint with the Mumbai Police through Hansa Research Group, alleging that certain channels were rigging TRP numbers to lure advertisers.
Editor in chief of Republic TV Arnab Goswami had approached the Supreme Court to transfer the probe to the CBI. The apex court, however, asked him to approach the Bombay High Court.
The CBI took over the probe on Tuesday based on a complaint filed in Uttar Pradesh, although the case originally came to light in Mumbai and is also being investigated by the city's police.
The FIR was registered by a Delhi-based government empaneled ad agency, Golden Rabbit Communications on Saturday in Lucknow, the capital of BJP-ruled Uttar Pradesh, as per NDTV.
The report stated that the CBI's aid was requested by the state government on Monday, which was cleared by the Central government within 24 hours. The CBI then officially filed its FIR by Tuesday according to PTI.
With inputs from PTI
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