State can't withdraw consent for CBI probe by omnibus order, Centre tells SC

No complete embargo on withdrawal of consent to CBI by state, Centre says

The Union government has told the Supreme Court that a state government cannot claim a right to issue omnibus, sweeping and overarching directions to withdraw consent for a CBI probe into any matter.

"The power to take a decision not to grant consent in any case to the central agency and / or power to pass a sweeping order withdrawing consent in all cases is an ultra vires exercise of power and is non-est," it said.

The Centre maintained the statutory power conferred upon the state government to grant consent to the CBI is always coupled with a responsibility to exercise that power on a case-to-case basis with an inbuilt condition of exercising it in larger public interest and not to shield any accused or purely on political consideration.

The Centre was responding to an original suit filed by the West Bengal against CBI probe into a number of cases, including those related post poll violence and coal pilferage case allegedly involving Abhishek Banerjee, TMC MP and nephew of CM Mamata Banerjee.

After the WB government's decision November 16, 2018, the Centre denied that the CBI was always required to obtain the prior consent of the state before registering and investigating cases in the state's territory.

On Friday, after taking the response into record, a bench of Justices L Nageswara Rao and B R Gavai put the matter for detailed hearing on November 16.

In its affidavit, the Union government maintained that it was undeniable that despite the federal principles, the unitary bias of Constitution is well recognised.

"From a combined reading of the Constitution, the relevant entries in the List I, List II and List III, the Delhi Police Establishment Act and the relevant precedents of this court, it cannot be stated that there is a complete embargo on any investigation by the Delhi Special Police (CBI) in all situations irrespective of the factual scenario," it said.

The Centre said the Union government has itself not registered any case in West Bengal, nor has it been investigating any case.

"Yet, as is evident from the prayers, each and every one in the present suit is directed either towards restraining the Union government from investigating any case or towards quashing cases where the Union government has allegedly registered FIRs," it said.

On the other hand, it is the CBI, which has registered FIRs and investigated cases, but strangely, it has not made a party to the suit, it added.

The Centre further said it is inconsequential whether the concerned state government has accorded its consent or not in conducting investigation into offences, committed in ‘Railway Areas’, or those relating to cross border international illegal trade, or those having multi-state ramifications or offences relating to employees under the direct administrative control of the Union government.

Of 12 cases listed by the WB government with regard to CBI probe, the Centre said six cases were pending adjudication before the top court separately.

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