Nothing illegal in CBI search in office of Secretary to Delhi Chief...

Nothing illegal in CBI search in office of Secretary to Delhi Chief Minister

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On 14 December 2015, the Central Bureau of Investigation (CBI) conducted searches in the office and residential premises of Rajendra Kumar, Principal Secretary to Delhi Chief Minister Arvind Kejriwal in connection with a corruption case. The CBI has repeatedly clarified that no searches were conducted in the office of the Chief Minister, and that searches were conducted only in the premises of his principal secretary. Many experts have raised legal issues about this raid, such as: (1) the CBI being a central investigating agency, it does not have power to conduct searches in the offices of a State and that it is against federal principles; (2) since the allegations of corruption related to purchase of computers, the investigation could have been conducted by scrutinizing the files in the departments of education and finance, and that there was no need to conduct searches in the present office of Rajendra Kumar; etc.

Central Bureau of Investigation (CBI)I am of the considered opinion that there is nothing wrong in the aforesaid CBI raid when considered purely from the constitutional and legal point of view. Let me point out the detailed reasons for my aforesaid opinion.

Firstly, let me point out that Delhi is a Union Territory, as per the provisions of Schedule 1 to the Constitution of India (read with Articles 1 and 4 thereof). Part II of Schedule 1 to the Constitution specifies which are the Union Territories, and Entry 1 is as under:

II. THE UNION TERRITORIES

Name Extent
1. Delhi The territory which immediately before the commencement of this Constitution was comprised in the Chief Commissioner’s Province of Delhi.

Thus, it should be unequivocally clear that Delhi continues to be a Union Territory under the provisions of the Constitution. This is notwithstanding the fact that certain special provisions have been made under Article 239-AA of the Constitution with regard to Delhi, which confer some of the characteristics of a state on Delhi. In fact, it is pertinent to point out that Article 239-AA is itself contained in Part 8 of the Constitution which has the heading of “The Union Territories”.

Therefore, there should not be any doubt that under the Constitution of India, Delhi is still a Union Territory, notwithstanding the fact that some special provisions have been made giving it certain powers that are given to a state.

Let me now point out the provisions of the Delhi Special Police Establishment Act, 1946 (DSPE Act) which governs the CBI. Section 2 of this Act is reproduced as under:

“2. Constitution and powers of special police establishment.—(1) Notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special police force to be called the Delhi Special Police Establishment for the investigation in any Union Territory, of offences notified under Section 3.

(2) Subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout any Union Territory, in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein.

(3) Any member of the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any Union Territory any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.”

The above legal provisions make it quite clear that the CBI (i.e., the Delhi Special Police Establishment) has been constituted for the investigation in any Union Territory of offences notified under Section 3 of the said Act. This section also makes it quite clear that CBI officers have the same powers of investigation, arrest, searches, etc., as the regular police officers have within a Union Territory (in the present case, officers of Delhi Police). Moreover, an officer of the rank of or above of the rank of Sub-Inspector in the CBI has the powers of the SHO in a Union Territory.

It may also be pointed out that offences under the Prevention of Corruption Act have been notified under Section 3 of the said DSPE Act by the Central Government.

Thus, it may be seen that the CBI has full powers of investigation within a Union Territory, unlike within the jurisdiction of a state where consent of the State government may be necessary under the provisions of Section 6 of the said DSPE Act.

In view of what is mentioned above, it should thus be very clear that Delhi being a union Territory under the provisions of the Constitution, the CBI has full powers of investigation within Delhi, including investigation of corruption cases against Delhi government officers. There is no requirement of obtaining any consent from the Delhi government for conducting an investigation against its officers by CBI.

It is also noteworthy that previously Section 6-A of the said DSPE Act required that for conducting investigation (in cases other than trap cases) against officers of and above the rank of Joint Secretary, prior approval of the Central Government was necessary. However, recently in the case of Subramanian Swamy v. CBI, (2014) 8 SCC 682 : AIR 2014 SC 2140, a Constitution bench of the Supreme Court has struck down the said requirement. Therefore, no prior approval is now necessary for the CBI for conducting investigation against senior officers; and, in fact, it may be pointed out that even previously this approval was required to be taken from the Central Government and not from the State Government. Likewise, no prior intimation is required to be given to the State Government or any other Government authority about the proposed searches.

In view of the aforesaid provisions, I am of the considered opinion that the CBI had full powers to conduct investigation against Rajendra Kumar, Principal Secretary to the Delhi Chief Minister, and there is no illegality or unconstitutionality in the said action. Accordingly, the criticism of the aforesaid action by certain legal and other experts is uncalled for and is due to being ignorant of the provisions of the Constitution and the relevant laws.

Let me now cover the second aspect of criticism against the CBI raid. It has been pointed out that there was no necessity for conducting raid in the present premises of Rajendra Kumar and that the investigation could have been completed by merely scrutinizing the files from the departments of education and finance.

Let me point out from my personal experience of having worked in CBI (and also in IPS) that as and when the premises of any officer are searched by CBI after registration of an FIR, invariably all premises belonging to that officer are searched, including his present office and residential premises. This has been a convention. The reason behind this convention is to ensure that no important documents are lost or destroyed which are required to be seized during the investigation. All searches are required to be made simultaneously so that the accused officer does not get a chance to destroy or conceal important documents that may be necessary for the purposes of the investigation. It may be recalled that recently in the coal scam cases, certain important files were destroyed or became missing from the Coal Ministry only because the CBI did not conduct timely searches.

In fact, Section 165 of the Criminal Procedure Code (Cr.P.C.) gives powers to CBI officers to conduct searches even without obtaining search warrants from the competent court. However, in the present case, media reports suggest that the CBI had obtained search warrants from the competent court for conducting searches in 14 premises belonging to or connected with Rajendra Kumar, principal Secretary to the Delhi Chief Minister. Thus, the searches were conducted only after obtaining search warrants from court. Therefore, the CBI has acted perfectly in accordance with the provisions of law while conducting these searches. There is no illegality in these searches.

As mentioned above, it has also been clarified by the CBI that searches were not conducted in the office of the Delhi Chief Minister and that only the chamber belonging to the principal Secretary (in Delhi Secretariat) was searched who was directly involved in the corruption case in respect of which these searches were conducted. There is no provision under law to spare any particular premises from being searched merely because such premises are adjoining to the office of a Chief Minister.

In the present case, action was taken against an IAS officer who was posted as Principal Secretary to the Delhi Chief Minister. No action was taken against the Delhi Chief Minister himself. The CBI had full powers in this regard under the provisions of the Constitution and the relevant laws. There is no illegality or unconstitutionality in the said action. Of course, given the sensitive nature of the action, whether it was prudent for the CBI to conduct the searches in the manner and at the time in which it has been done (given that the Parliament session was going on and also given that the Delhi Chief Minister is in the habit of shouting from the rooftops even for the smallest things) is a question that can be answered only by the CBI. My comments in the foregoing paragraphs relate only to the legal and constitutional validity of the action of the CBI, and not about the desirability of the said action from political and/or practical point of view.

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