Name of the Student : Anjan Vartak

Registration Number : 17BBLB060

Programme : BBALLB

Semester : 8th Semester

Course : Criminal Law II

Course Code : 5BBL802

Component : Research Paper

Date of Submission : 3rd July, 2021

Submitted to : Prof. Mitike Srivastava

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 THE CENTRAL BUREAU OF
INVESTIGATION: A DETRIMENT
TO FEDERALISM

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 TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION 5

CHAPTER 2: LITERATURE REVIEW 6

CHAPTER 3: FURTHER INVESTIGATION 7

CHAPTER 4: CBI AND FEDERALISM 10

CHAPTER 5: CONCLUSION 14

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ABSTRACT

The Central Bureau of Investigation (CBI) is a well-known investigative agency that

was created to investigate into allegations of corruption. The agency's mission is no
longer confined to investigating allegations of bribery and corruption involving
government officials; it is also known to investigate unusual crimes, high-profile
cases, economic crimes, and other forms of corruption. The CrPC 1973 lays forth the
legislation and the investigative procedure in detail. Any inquiry into a crime must
follow the rules set out by the law. However, there are certain roadblocks in the way
of public employees and government officials. The Single Directive and the Sanction
for Prosecution are stumbling obstacles that frequently obstruct the inquiry process.

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 CHAPTER 1: INTRODUCTION

The police are an important part of the criminal justice system. The work of inquiry is
the most important of all the duties, since it has an influence on both the accused and
society as a whole. Investigation is the foundation of the criminal justice system, and
it is thus the most important component in its operation. Any errors or deficiencies in
the inquiry are deadly, and no judicial devoted to justice and truth can remedy them.”
Investigation is typically assigned to state authorities in India, as it is a topic covered
under Schedule 7 List II, State List, entry 2 of the Constitution. The Central
Government, on the other hand, can use its powers under Schedule 7 List I. The
Central Bureau of Investigation (CBI) is a well-known investigative agency that was
created to investigate into allegations of corruption. The agency's mission is no longer
confined to investigating allegations of bribery and corruption involving government
officials; it is also known to investigate unusual crimes, high-profile cases, economic
crimes, and other forms of corruption. The Indian government formed the Central
Bureau of Investigation to examine bribery and corruption in government
transactions, particularly those involving the Department of War and Supply. Because
the police were unable to adequately investigate cases of corruption involving
government officials, it became essential to establish a distinct and new agency that
would focus only on cases of corruption and bribery involving government officials,
culminating in the establishment of the CBI.

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 CHAPTER 2: LITERATURE REVIEW

The foundation of the criminal justice system is investigation. The facts and
circumstances surrounding an offense are proven before a court of law via inquiry. If
there are no solid and trustworthy evidences on file, the Court must provide the
accused the benefit of the doubt. It increases the difficulty and duty of the investigator
to gather sufficient evidence so that the inquiry may come to a logical conclusion and
justice can be served. In “Law and Process of Investigation by Central Bureau of
Investigation: Issues and Perspectives” by Bhagwan Gawali and Dipa Dube, the
authors provided an overview of the working of Central bureau of investigation like
their jurisdiction, preliminary issues to investigation by CBI and preliminary enquiry.
Apart from this, the stages of investigation and how the arrest of an accused is done by
CBI. They also discussed the lack of coordination within the CBI while conducting the
investigation.

Further in an Lawmantra article titled “Dwindling status of CBI as an impartial and

objective of investigative agency”, the origin of CBI and the Delhi Special police
establishment Act was explained in detail. In addition to this, the authors compared
the scenario of CBI when it was established with the present scenario which drew a
clear perspective of the current situation and the problems. Consequently, the
independence given to CBI along with the accountability was elucidated. The authors
brought up the concept of introspection which is necessary in India specifically to
support the investigative agency to perform their function in an unbiased manner.

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 CHAPTER 3: FURTHER INVESTIGATION

Further investigation essentially means a continuation of an already completed

investigation, and thus a special agency getting into an equivalent matter would be
deemed to be a "reinvestigation." However, it's clear that when a "further
investigation" is ordered, it must be to an equivalent agency as before. Furthermore,
the Hon'ble Apex Court stated in Rama Chaudhary v. State of Bihar that "further
investigation within the sense of Section 173(8) Cr.PC is extra; more; or
supplemental." As a result, "further inquiry" refers to the continuation of the previous
investigation instead of a replacement investigation or reinvestigation that might start
from scratch, obliterating the previous investigation.' within the case of Rana Sinha v.
State of Tripura, it had been held that when a 'investigation' by the local police or the
CID is completed, or when a 'investigation' is commenced by workplace , like the
Central Bureau of Investigation (i.e., CBI), which is separate and distinct from the
government , it becomes a case of' re-investigation.'1

In the politically charged atmosphere, the chief has been abusing its power and
misusing its official machinery, especially the police, to shield the guilty, for they
belong to the ruling dispensation. Under these circumstances, to possess a free and
fair investigation, this Court need to transfer all the cases to CBI. The measure of
ordering a search by workplace outside the state might be necessary “for doing
complete justice and enforcing fundamental rights.” 'Further investigation' is where
the Investigating Officer obtains further oral or documentary evidence after the
ultimate report has been filed before the Court in terms of S.173(8). This power is
vested with the chief. it's the continuation of a previous investigation and, therefore,
is known and described as a 'further investigation'. Scope of such investigation is
restricted to the invention of further oral and documentary evidence. Its purpose is to
bring truth facts before the Court albeit they're discovered at a subsequent stage to the
first investigation. it's commonly described as 'supplementary report'. 'Supplementary
report' would be the right expression because the subsequent investigation is supposed
and intended to supplement the first investigation conducted by the empowered
policeman. Another significant feature of further investigation is that it doesn't have

1 Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1973 (India).

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the effect of wiping out directly or impliedly the initial investigation conducted by the
investigating agency.

The basis is discovery of fresh evidence and in continuation of an equivalent offence

and chain of events concerning an equivalent occurrence incidental thereto. it's a well-
settled canon of criminal jurisprudence that the superior courts have the jurisdiction
under Section 482 of the Code or maybe Article 226 of the Constitution of India to
direct ‘further investigation’. The superior courts are even vested with the facility of
transferring investigation from one agency to a different, provided the ends of justice
so demand such action2. The question now to be considered is whether or not 'further
investigation' should be entrusted to an equivalent investigating agency which
investigated and filed a final report under Section 173(2), CrPC. the solution is sure to
be within the negative3.

within the case of Sudipta Lenka v. State of Odisha & Ors4, the said question was
considered. it had been held therein, “it can't be said that after the charge-sheet is
submitted, the court isn't empowered, in an appropriate case, handy over the
investigation to an agency like CBI.” The Constitution of India guarantees basic human
rights called Fundamental Rights to its citizens. The Supreme Court and High Courts
are the protector of those rights and are empowered to deal with any grievance
concerning an equivalent, within the interests of justice. In pursuance thereof, several
cases, over the years, are mentioned CBI by these Constitutional Courts.27 This
reference by Courts is additionally to the facility of Central and State Governments to
refer investigation of offences to CBI.

In Sampat Lal’s case, the apex Court held that the ‘Court’ can direct CBI investigation
and for the compliance of the writ, the CBI needn't to require permission under Section
6 of the DSPE Act, 1946 which is otherwise essential. In Gudalure M.J Cherian v.
Union of India5 the Supreme Court directed CBI to require up the investigation of the
case in Gajraula Nun's rape case. There the investigation was conducted by the State
Police which had filed a charge-sheet also. so as to try to to justice between parties and
to instill confidence within the public mind, the Supreme Court directed CBI to

2 K.N. Chandrashekharan Pillai, R.V. Kelkar, Criminal Procedure 67 (Eastern Book Company, Lucknow
2008).
3 Id.,
4 Sudipta Lenka v. State of Odisha & Ors, 11 SCC 527 (2014).
5 Gudalure M.J Cherian v. Union of India, 1 SCC 397 (1992).

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conduct the investigation. The observations and therefore the propositions, though
made within the backdrop of a request for retrial, those concerning the essentiality of
a good and complete investigation and trial also because the solemn duty of the courts
to make sure the discernment of truth to administer even handed justice as institutions
of trust of public faith and confidence, are in our estimate, of universal application and
binding effect, transcending the factual settings of a case.

further investigation essentially means a continuation of the already done

investigation, and thus, a special agency getting into an equivalent matter would
essentially deemed to be ‘reinvestigation’, having said that, it becomes clear that when
a ‘further investigation’ is ordered, it must be only to an equivalent agency because it
was earlier. Furthermore, in Rama Chaudhary v. State of Bihar6, the Hon’ble Apex
Court held ‘further investigation within the meaning of provision of Section 173(8)
Cr.PC is additional; more; or supplemental. “Further investigation”, therefore, is that
the continuation of the sooner investigation and not a fresh investigation or
reinvestigation to be started initially wiping out the sooner investigation altogether.’ it
had been held within the case of Rana Sinha v. State of Tripura, on completion of
'investigation' by the local police or the CID or without completion thereof, an
'investigation' is commenced by workplace , say as an example by the Central Bureau
of Investigation (i.e., CBI), which comes under an authority, which is distinct and
different from the government , it becomes a case of 're-investigation'.

6 Rama Chaudhary v. State of Bihar, 6 SCC 346 (2009).

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 CHAPTER 4: CBI AND FEDERALISM

It is essential that the standards used for identifying federal offences is framed
carefully, to make sure that the CBI’s jurisdiction doesn't become too broad or
overarching. For non-federal offences, this mechanism of requiring state consent
should be retained, with the police having primary jurisdiction. the elemental question
is of legislative competence of the Parliament to enact a law to determine a police with
the facility of investigation.

In the case of Management of Advance Insurance v. Shri Gurudasmal7, the Supreme

Court acknowledged that the Section 6 of the DSPE Act relates to Entry 80 of List I,
which allows the Central Government to enact laws for the aim of extension of
jurisdiction of 1 state to a different, with the consent of the latter; during this context,
the term ‘State’ within the Entry 80 of List I includes a Union Territory. The DSPE Act
is traceable to 2 entries of various schedules. First, Entry 2 of List II, which is that the
power to enact laws in respect of police and second, Entry 80 of List I, which is power
to enact laws to increase jurisdiction of police of 1 state to a different. The relative
legislative competence of the legislature of the province qua the central legislature
(pre-Constitution) in reference to the state legislature qua the Parliament (post-
Constitution) remains preserved. Entry 80 of List I of the Seventh Schedule of the
Constitution relates to Entry 39 of List I of the Seventh Schedule of the govt of India
Act, 1935.

The idea that the Union can legislate and establish a police for Union Territory then
use that, albeit with the consent of the state, to use it as a police for investigation of
offences within other states, is therefore flawed. Doing so may be a colorable exercise
of power of the Parliament. The ambit of Entry 80 of List I cannot a contemplate a
legislation which provides powers of investigation to the Union within the states which
is within the exclusive jurisdiction of the state without the consent of the State itself.

Section 6 of the DSPE Act allows the state to consent to the extension of the facility
and jurisdiction of 1 state to a different. Typically, this is able to involve the extension
of powers and jurisdiction of the police of 1 state, which has legislative competence to
legislate thereon, to a different state. But, since the Union has power to make a police

7 Mangament of Advance Insurance v. Shri Gurudasmal, AIR 1126 (1970).

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, in effect, it finishes up exercising police powers throughout the territory of India,
which, as I even have argued may be a colorable exercise of the facility of the
Parliament.

Furthermore, The Bombay supreme court, in Pragyasingh Chandrapal Thakur v.

State of Maharashtra8, analyzed the legislative competence of the Parliament to enact
National Investigation Agency Act, 2008. The act additionally to making offences also,
under Section 3(1), establishes a police to research offences. Further, under Section 6,
the central government has the facility suo moto, with none consent of the state, to
direct investigation in offences mentioned within the Schedule. However, the creation
of a police can't be an exercised through an ancillary power, because it's explicitly put
within the State List (List II). The approach of Guwahati supreme court is according
to the conceptualization of the Entry 2 of List II, which is that only Police duly
constituted by States is competent to undertake investigation. The view of the
Judiciary that word ‘investigation’ in Entry 8 of List I to mean investigation in terms
of Cr.PC upends the constitutional tilt in favor of the states within the matters of
policing powers and bestows that power within the Union. If both the Union and
therefore the State were to be contemplated to exercise powers of investigation
concurrently, it might be best placed within the List III of the Seventh Schedule.

The investigation of CBI does not violate the principle of federalism. India federalism
was not a result of a compact between several sovereign units but a result of conversion
of a unitary system into a federal system. Here the movement has been from unity to
union, from unitarism to federalism, unlike other countries where the historical
process has been for separate units to come together to form a federal union.
Nowadays, there is no country which may be said to have ‘pure federalism’ in the sense
of there being a complete dichotomy of functions between the State and the Centre.

The Courts do have the power to direct the investigation by CBI without the consent
of the State Governments, they have such powers vested in them as granted by the
India Constitution itself. Federalism is not a static concept but rather a dynamic one.
It is always in the process of adjustments and evolution as per the needs of each facts
and circumstances. Thus, the question of federalism being violated does not

8 Pragyasingh Chandrapal Thakur v. State of Maharashtra, Cr.L.J 545 (2016).

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necessarily arise because such order is based in the interest of doing complete justice
to the parties.

Furthermore, the Court has to prevent injustice where injustice is founded and Article
142 (1) has immense potential to prevent the same. Referring to Article 142 (1) of the
India Constitution, the Supreme Court in the case of Supreme Court Bar Association
v. Union of India9, said that “The Supreme Court has always been a law-maker and its
role travels beyond just dispute resolution. It is a problem solver in the nebulous
areas.” In the case of State of West Bengal v. Committee for Protection of Democratic
Rights10, the bench held that it had the power and obligation to protect the
fundamental rights zealously and vigilantly. Moreover, the same is also contended to
be violative of the Principle of Separation of Powers by the Respondents. The concept
of ‘separation of powers between the legislature, executive and the judiciary is the basic
structure of the Constitution. This principle gets violated where the essential function
of one branch is taken over by another branch leading to removal of checks and
balances.

The High Court and Supreme Court under the exercise of Article 226 and 32 have the
duty to do complete Justice. The Constitutional Courts are the sentinels of justice and
have been vested with extraordinary powers of judicial review to ensure that the rights
of citizens are duly protected. The power under article 142 (1) to do complete justice is
entirely of different level and of a different quality. Any prohibition or restriction
contained in ordinary laws cannot act as a limitation on the constitutional power of
the court.

Moreover, when the Special Police Act itself provides that subject to the consent by the
State, the CBI can take up investigation in relation to the crime which was otherwise
within the jurisdiction of the State Police, the court can also exercise its constitutional
power of judicial review and direct the CBI to take up the investigation within the
jurisdiction of the State.

The power of the High Court under Article 226 of the Constitution cannot be taken
away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there
being any statutory provision acting as a restriction on the powers of the Courts, the

9 Supreme Court Bar Association v. Union of India, 4 SCC 409 (1998)

10 State of West Bengal v. Committee for Protection for Democratic, 3 SCC 571 (2010).

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restriction imposed by Section 6 of the Special Police Act on the powers of the Union,
cannot be read as restriction on the powers of the Constitutional Courts In Secretary,
Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya
and Anr11, this Court had said that an order directing an enquiry by the CBI should be
passed only when the High Court, after considering the material on record, comes to a
conclusion that such material does disclose a prima facie case calling for an
investigation by the CBI or any other similar agency.

Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya
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and Anr., 3 AWC 2509 (2002).

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 CHAPTER 5: CONCLUSION

The CrPC 1973 lays forth the legislation and the investigative procedure in detail. Any
inquiry into a crime must follow the rules set out by the law. However, there are certain
roadblocks in the way of public employees and government officials. The Single
Directive and the Sanction for Prosecution are stumbling obstacles that frequently
obstruct the inquiry process. The lack of coordination among the investigative
authorities, as well as many points of reference to the CBI, as well as delays, resulting
in a blinkered, bungled, and time-consuming inquiry, which has a significant impact
on the Criminal Justice System. In the face of growing crime rates and shifting criminal
patterns, it is critical to strengthen the CBI and streamline the investigative process in
order to address the nation's dangers.

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