What is ‘General Consent’ for the CBI

By Educrat IAS Academy | | 0 comment | 23 March, 2022 | 0

Meghalaya has withdrawn consent to the CBI to investigate cases in the state, becoming the ninth state in the country to have taken this step.

The CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946, and it must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.
The CBI’s position is in this respect different from that of the National Investigation Agency (NIA), which is governed by The NIA Act, 2008, and has jurisdiction across the country.
The consent of the state government to CBI can be either case-specific or general.

General Consent:

When a state gives a general consent (Section 6 of the Delhi Special Police Establishment Act) to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.
A general consent is given to facilitate that seamless investigation in a case of corruption or violence.

Specific Consent:

When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government.
If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that state.
This hurdle impedes seamless investigation by the CBI.

It means the CBI will not be able to register any fresh case involving officials of the central government or a private person in the state without the consent of the state government.

In Vinay Mishra vs the CBI, the Calcutta HC ruled in July this year that corruption cases must be treated equally across the country, and a central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent. The HC also said that withdrawal of consent would apply in cases where exclusively employees of the state government were involved.
The agency can use the Calcutta HC order to its advantage until it is — if it is — struck down by the SC.
Even otherwise, the withdrawal of consent did not make the CBI defunct in a state — it retained the power to investigate cases that had been registered before consent was withdrawn.
Also, a case registered anywhere else in the country, which involved individuals stationed in these states, allowed the CBI’s jurisdiction to extend to these states.
There is ambiguity on whether the CBI can carry out a search in connection with an old case without the consent of the state government. But the agency has the option to get a warrant from a local court in the state and conduct the search.
Finally, consent does not apply in cases where someone has been caught red-handed taking a bribe.

Again, the CBI could use the Calcutta HC order to register a fresh case in any state.
Alternatively, it could file a case in Delhi and continue to investigate people inside these states. The CBI could register cases in Delhi if some part of the offence is connected with Delhi, and still arrest and prosecute individuals in these states.

After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
It is now mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.
Earlier, the Centre had mandated that such permission was required only for officials of the level of joint secretary and higher which has now been extended.

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