New Delhi: The Centre told the Supreme Court on Thursday that it exercises no functional control over the central bureau of investigation (CBI), which is an investigating agency, and despite the Department of Personnel and Training (DoPT) being the cadre-controlling authority of the agency, it cannot direct registration of any case or monitor an investigation.

The central government’s submission was made by Solicitor general Tushar Mehta while opposing a suit by West Bengal government, which questioned the action of the CBI to probe cases even after the state withdrew consent under the Delhi Special Police Establishment (DSPE) Act in November 2018.

Terming the suit “mischievous” for including Union government through DoPT as a party and not CBI, which has registered the cases, Mehta said, “CBI is not central government. If you want relief against CBI, you have to file against CBI. We have no superintendence or control over it. It is an independent body.”

A bench of justices BR Gavai and Aravind Kumar, while hearing the suit, said, “But administratively it is under your (Centre) control. We understand that in manner of investigation, CBI will have absolute freedom.”

Mehta explained that as per the Allocation of Business Rules of the Union Government, the CBI falls under the DoPT but it does not exercise any “functional control” over CBI as far as investigation of cases is concerned.

“The Union government cannot direct investigation or monitor prosecution as in a case, some ministers in the Central government can be accused,” Mehta said, pointing out that DoPT is merely a cadre controlling authority and the same does not in any manner make the CBI a part of the legal person of the DoPT or the Union government.

He sought dismissal of the suit on the ground there is no cause of action against the Centre, claiming, “If DoPT cannot direct registration of offence, setting aside of an offence, or monitoring of investigation, how can the suit lie against DoPT.” The suit required the Court to direct the Centre to forthwith stop investigation into a list of 12 cases probed by CBI.

Mehta further accused the WB government of “suppression” as in four cases where the probe was ordered by the constitutional courts or the central vigilance commission (CVC). Mehta said the CVC is granted administrative autonomy, independence and insulation from external influences and can give directions to the CBI for discharging the responsibilities entrusted to it. Even here, he pointed out, “the CVC shall not exercise powers in such a manner so as to require the CBI to investigate or dispose of any case in a particular manner.”

Senior advocate Kapil Sibal appearing for the state informed the Court that the relief in the suit is not against CBI but against the Centre which is given power under the DSPE Act to determine the jurisdiction of cases to be investigated by the agency. He further stated that once a state withdraws consent for CBI to investigate an offence within the state, the agency cannot initiate probe in the state.

“It is one thing to exercise superintendence over CBI’s investigation, which is the role of CVC, but quite a different thing to say Centre has nothing to do with CBI,” Sibal said. He termed the Centre’s argument “unique” and an instance of “conceptual confusion” pointing out that CBI’s jurisdiction to probe cases was determined through a notification issued by the Centre unlike other agencies such as national investigation agency (NIA) or enforcement directorate (ED), which derived their investigating powers under a statute.

He said that under Section 6 of DSPE Act, state grants consent for CBI to investigate an offence in its territory. This consent was granted by the state in August 1989 but subsequently withdrawn on November 16, 2018. Yet, Sibal argued, the CBI kept lodging cases in the state.

“This impacts principle of federalism, which forms part of basic structure of the Constitution. If the Court permits this to happen, then every day, like under the prevention of money laundering act, the Centre will investigate offences in states and states will not be able to challenge it as an investigation can be challenged only by accused,” Sibal argued.

Mehta pointed out that some of the offences which the state wants to set aside are offences committed by a Central government employee or an offence having multi-state or pan-India implication. “The consent of the state government was sought for some of such offences. It is not understood as to why the state government came in the way of such investigation which would have an inevitable effect of shielding those who are guilty of such multi-state/pan-India offences,” the Centre said.

As Sibal’s arguments remained inconclusive, the Court decided to continue hearing on November 23.