Can an offence committed under a central Act, by a central government employee, posted in a state, be investigated by the Central Bureau of Investigation, without the state’s consent?
On 2 January 2025, the Supreme Court delivered a judgment on this issue, overturning a verdict dated 13 April 2023 of Andhra Pradesh High Court; the SC upheld CBI’s power and jurisdiction sans state’s consent and directed trial against two central government employees to continue. The SC judgment [The State, CBI versus A.Satish Kumar & Ors. – SLP Crl. 10737 & 10038 of 2023], hereinafter referred to as “Satish Kumar” judgment, has missed out settled constitutional and legal principles.
Delhi Special Police Establishment [named as “CBI” on 1 April 1963] cannot exercise power or jurisdiction to investigate any offence committed within the territorial jurisdiction of any state without prior consent of the state. This is mandated under Section 6 of Delhi Special Police Establishment Act, 1946 (DSPEA). This embargo is placed on CBI (a police force) because “Police” is a state subject. Every state has its own police force; so, two different police forces cannot be permitted to exercise parallel jurisdiction, unless the state consents.
Even if a state consents, the scheme of DSPEA does not divest the state police its power and jurisdiction; this was ruled by a three-judge bench of the Supreme Court in the matter of A.C. Sharma Versus Delhi Administration (1973) 1 SCC 726. This remains the law of the land. It is also well-settled that the central government’s jurisdiction to investigate is excluded in respect of offence committed within a sstate [Bhavesh Jayant Lakhani Versus State of Maharashtra (2009) 9 SCC 551].
A three-judge bench of the Supreme Court has ruled that article 246 (3) read with List II of 7th Schedule of the Constitution of India forms a part of basic structure of the Constitution, namely, its quasi-federal character [Union of India Versus Rajendra N Shah – 2021 SCC On Line 474].
Article 246 (3) empowers the legislature of any state exclusive power to make laws for the state or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (State List). “Police” is in Entry 2 of List II (State List).
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Doctrine of occupied field
Entire “field” of power/jurisdiction to investigate offence committed within the territory of a state is occupied exclusively by police force of the concerned state. This follows directly from Articles 246(3) and 162 read with Entry 2 of List II of the Constitution.
Article 246 (3) stipulates as follows: “Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters Enumerated in List II…..”
Notably, executive power of a state extends to its legislative power in terms of Article 162.
List II of 7th Schedule uses the words “STATE LIST”. The word “STATE” is unqualified, and means the whole of the state. Neither Article 246 (3), nor List II qualifies the word “STATE” or restricts its scope or meaning. So, across the entire territory of a state, the state police force has exclusive jurisdiction to investigate any offence if it (offence) is committed within the territory of the state. This constitutional position is clear and brooks no ambiguity.
Thus, the police force of a state within its territory reigns supreme. This has remained the position since 1861 with the enactment of Police Act, 1861. Later, even after enactment of the Government of India Act, 1935, “Police” continued to be under the Provincial Legislative List (Seventh Schedule List II Entry 3).
For the first time, on 19 November 1946, the British Parliament enabled the central government to constitute a special police force, Delhi Special Police Establishment [named as CBI on 1 April 1963] to investigate some specific offences committed in Union Territories.
Thus, DSPE Act, 1946 was enacted, notwithstanding the Police Act, 1861. This was the starting point of tug of war between police and CBI. This was also the inception of dilution of federal structure. Of course, the British had their own agenda.
With the enactment of Indian Independence Act, 1947 on 18 July 1947 and Section 18 (3) thereof, and the enactment of the Constitution on 26 January 1950, and Article 372 thereof, the DSPE Act, 1946 continued to operate even after India became a Sovereign Democratic Republic in 1950.
So, since 1861, police remains a state subject. Instead of going into these constitutional provisions and the law, as established, the “Satish Kumar” judgment has relied upon Resolution dated 1 April 1963 of Ministry of Home Affairs to interpret that if a Central Government employee while posted in a State commits an offence within the State under the Prevention of Corruption Act, 1988, then CBI can investigate such offence without State’s consent. With great respect, this interpretation is erroneous.
What is unfortunate is that the issue cropped up only because of bifurcation of the state of Andhra Pradesh with effect from 2 June, 2014. If the High Court of Andhra Pradesh has quashed the two FIRs [registered by CBI] on 13 April 2023 for want of CBI’s jurisdiction, that does not mean the two employees cannot be proceeded against by the state police. Fresh FIRs could always be filed by the state police of the appropriate jurisdiction, Andhra Pradesh or Telangana. If an offence has been committed in the state of Andhra Pradesh, FIR cannot be registered by CBI in the state of Telangana, and that too without the consent of the state of Telangana. The Andhra Pradesh High Court, with greatest respect, has correctly decided the issue.
Para 21 of “Satish Kumar” verdict has used the expression “presumed to exist”. There can’t be any presumption of consent of the state government. Consent has to be express and clear. It cannot be imputed or inferred.
“Satish Kumar” judgment has further ruled: “…it will create only lawlessness or in other words a total vacuum in the subject matter (s) in which event persons could engage in such offences with impunity to certain extent.” The Supreme Court has missed out that the state police exists always. There is no question of “lawlessness” or “vacuum” if law disables CBI from registering FIR in a state for lack of jurisdiction.
“Satish Kumar” judgment has relied upon two verdicts of Supreme Court – Kanwal Tanuj v. State of Bihar and Ors. [(2020) 20 SCC 531] and Fertico Marketing and Investment Private Limited and Ors v Central Bureau of Investigation and Anr [(2021) 2 SCC 525]. What has been argued in this piece applies in equal measure to these two verdicts constitutionally. The “Satish Kumar” verdict has diluted federalism. It is time this tug of war between the CBI and the state police stops, and the federal structure of the Constitution is allowed to reign supreme.
“Federalism”, the basic structure of India’s Constitution, must be protected.
Bishwajit Bhattacharyya is a senior advocate in the Supreme Court and former Additional Solicitor General of India. Views are personal.
That’s not the important point at the moment.
What is of paramount importance is that the Supreme Court must not interfere in matters of Islam. It must not think of itself as superior to the Quran and the Hadiths.
The CJI must publicly acknowledge the supremacy of the Quran iver the Indian Constitution and also refrain from interfering in Islamic matters.
Rulings, such as the one on triple talaq, must be abrogated rightaway.