Can the Uttarakhand Government withdraw its notification of giving its consent for CBI investigation in the sting videos of chief minister Harish Rawat? If so, what is the validity of such withdrawal of consent? It has been reported in media that the Uttarakhand cabinet has asked the CBI to terminate its investigation into sting videos allegedly implicating chief minister Harish Rawat, informing the CBI that Uttarakhand will set up its own special investigation team (SIT) to conduct a probe. Uttarakhand Chief secretary has reportedly said that the cabinet withdrew the state administration’s notification issued to CBI to probe the sting, under provisions of the Delhi Special Police Establishment Act. He has said that “there is a provision under the Act which empowers state cabinet to take back a CBI investigation into any criminal case”. It is noteworthy that a sting video purportedly shows Harish Rawat striking a deal with rebel Congress MLAs to save his government a day before the President rule was proclaimed in Uttarakhand on March 27, 2016. Let me examine this issue of withdrawal of the consent for CBI investigation.
Firstly, let me make it clear that the Chief Secretary has wrongly claimed that there is a provision in the said Delhi Special Police Establishment Act, 1946, that allows withdrawal of the consent given by a state for CBI investigation. This Act is available online here; it clearly shows that there is no such provision in this Act to withdraw the consent already given to the CBI. There is only one section in this Act (section 6) which deals with the consent of the State Government for allowing CBI investigation, and this section is reproduced below [Note: In the said Act, CBI is referred to as Delhi Special Police Establishment (DSPE)]:
“6. Consent of State Government to exercise of powers and jurisdiction. – Noting contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State not being a Union Territory or railways area, without the consent of the Government of that State.”
Thus, there is no provision in the said Act to withdraw the consent for CBI investigation, once given by a State Government, as wrongly claimed by the Uttarakhand Chief Secretary.
Secondly, this issue is no longer res integra. This issue has already been examined by the Supreme Court and it has been held that consent, once given by a State Government, for CBI investigation, cannot be subsequently withdrawn and it should be taken to the logical conclusion.
In the case of Kazi Lhendup Dorji v. CBI, 1994 Supp (2) SCC 116, the issue before a 3-judge bench of the Supreme Court was as under. The Government of Sikkim had conveyed its consent under Section 6 of the Delhi Special Police Establishment Act to the members of the CBI in exercising powers and jurisdiction on the whole of the State of Sikkim for the investigation of the offences punishable under various provisions of the Indian Penal Code specified therein as well as offences under the Prevention of Corruption Act. Similar consent in respect of offences under other enactments was conveyed by Government of Sikkim. Nar Bahadur Bhandari was the Chief Minister of Sikkim during the period 1979 to 1984. He ceased to be the Chief Minister on 11-5-1984. On 26-5-1984, a case [RC.5/84-CIU(A)] was registered by the CBI for offences punishable under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947, against him for acquiring assets disproportionate to his known sources of income. On 7-8-1984, another case [RC.8/84-CIU(A)] was registered by CBI for offences punishable under Section 120-B IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947, against him and others for corruption charges in awarding contracts to the tune of Rs. 1,62,31,630 to certain private parties for implementing Rural Water Supply Scheme under the Minimum Needs Programme during 1983-84 on higher rates. After registering these two cases, CBI started investigation and while the matters were under investigation, Nar Bahadur Bhandari again became the Chief Minister of Sikkim in March 1985. By notification dated 7-1-1987, when he was the Chief Minister of Sikkim, it was notified that all consents of or on behalf of the State Government for investigation of offences by CBI under Section 6 of the DSPE Act are withdrawn and stand cancelled with immediate effect. In spite of requests made by officials of the Government of India, the Government of Sikkim did not agree to permit investigation by CBI in respect of cases under the Prevention of Corruption Act and declined to give consent for such investigation. As a consequence of the notification dated 7-1-1987, CBI suspended further action in the aforementioned two cases registered against Nar Bahadur Bhandari. The petitioner in the above case [Kazi Lhendup Dorji], who happened to be a former Chief Minister of Sikkim, filed the said writ petition as PIL before the Supreme Court, seeking various reliefs including the quashing of the said notification dated 7-1-1987. The petitioner submitted that there is no provision under the DSPE Act which empowers the State Government to withdraw the consent which has been accorded and that the said notification dated 7-1-1987, withdrawing the consent, was in violation of the provisions of the DSPE Act.
Nar Bahadur Bhandari, based on the notings in the file containing the opinions of the then Advocate General as well as the Chairman of the State Law Commission, argued that the consent given under Section 6 of the said DSPE Act could be rescinded under Section 21 of the General Clauses Act, 1897, which is in following terms:
“21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.— Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any to add to, amend, vary or rescind any notifications, orders, rule or bye-laws so issued.”
Relying upon the decision in the case of Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers’ Union, 1953 SCR 439 : AIR 1953 SC 95, the Supreme Court held that Section 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation. The Supreme Court further observed that:
“Therefore, even if we proceed on the basis that Section 21 of the General Clauses Act is applicable to an order passed under Section 6 of the Act, an order revoking an order giving consent under Section 6 of the Act can have only prospective operation and would not affect matters in which action has been initiated prior to the issuance of the order of revocation. The impugned notification dated 7-1-1987, has to be construed in this light. If thus construed it would mean that investigation which was commenced by CBI prior to withdrawal of consent under the impugned notification dated 7-1-1987, had to be completed and it was not affected by the said withdrawal of consent. In other words, the CBI was competent to complete the investigation in the cases registered by it against Respondent 4 and other persons and submit the report under Section 173 Cr.P.C. in the competent court. On that view of the matter, it is not necessary to go into the question whether the provisions of Section 21 of the General Clauses Act can be invoked in relation to consent given under Section 6 of the Act.”
By allowing the said writ petition, the Supreme Court declared that the above notification dated 7-1-1987, withdrawing the consent given by the Government of Sikkim under Section 6 of the DSPE Act would operate only prospectively and the said withdrawal would not apply to cases which were pending investigation on the date of issuance of the said notification.
Thus, the Supreme Court has clearly held that if an investigation has already started in a case on the basis of a consent given by the State Government for CBI investigation, the withdrawal of consent on a subsequent date would not affect such investigation and such investigation would be taken to its logical conclusion. In this view of the matter, I am of the considered opinion that the Uttarakhand withdrawal of consent may not be valid legally if the CBI has started its investigation on the basis of the consent already given by the Uttarakhand Government for CBI investigation in sting videos of the chief minister Harish Rawat.
However, there is a little twist in the present matter. From the media reports, it appears that the CBI has registered a Preliminary Enquiry (PE) in the said sting videos matter on the basis of the consent given by the State Government. It is not the same as a Regular Case (RC), which is equivalent of an FIR registered by a state police station. Of course, PE has received legal recognition from the Supreme Court in some cases. Also, it appears that the registration of the said PE has been done on the basis of the consent of the State Government, this is what I understand from the media reports. Moreover, in the above Kazi Lhendup Dorji case, the Supreme Court has kept the issue open as to whether the provisions of Section 21 of the General Clauses Act can be invoked in relation to consent given under Section 6 of the Act. In view of these reasons, it will have to decided as to whether the consent of the State Government could be withdrawn in such scenario, and, if yes, then what would be its impact on the investigation / enquiry being conducted by the CBI in the said sting videos. Should the enquiry / investigation be not allowed to be taken to its logical conclusion? Why should the State Government set up its own SIT in this matter in place of the CBI investigation? It appears that such enquiry / investigation should be allowed to be completed once the consent has already been given by the state. It is pertinent to point out that though initially Harish Rawat had denied the authenticity of the sting video, at a later stage he had virtually admitted his presence in the sting video. So, let the investigation be completed.
[Dr. Ashok Dhamija is the author of a comprehensive book on Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-592-6), which also contains detailed coverage of the Delhi Special Police Establishment Act, 1946.]