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Courts can order CBI probe
Published on 18 Feb. 2010 12:40 AM IST
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The Supreme Court Wednesday said the apex court and high courts are constitutionally empowered to order a Central Bureau of Investigation (CBI) probe into criminal cases for protecting the fundamental rights of citizens, for which it requires no consent or concurrence from the state or the union governments. “A direction by the high court in exercise of its jurisdiction under Article 226 of the Constitution or by the SC under Article 32, to the CBI without the consent of the state to investigate a cognizable offence committed within the territory of a state will neither impinge upon the federal structure of the constitution nor violate the doctrine of the separation of power and shall be valid in law,” the apex court said. The judgment was delivered by a five-judge constitution bench headed by Chief Justice K.G. Balakrishnan. The other judges on the bench were Justice D.K. Jain, Justice R.V. Raveendran, Justice P. Sathasivam and Justice J.M. Panchal. “Being the protector of civil liberties of the citizens, this court (the Supreme Court) and the high courts have not only the power and jurisdiction but also the obligation to protect the fundamental rights, guaranteed by Part III in general and Article 21 of the Constitution in particular,” the bench said. Holding that various courts of the higher judiciary need not seek the concurrence or the consent of the union or the state governments to order a CBI probe, the bench said: “The courts 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 bench, however, sounded a word of caution for various courts of the higher judiciary. Before ordering a probe, the courts must satisfy themselves of the need for the probe to uphold fundamental rights and the dignity of the rule of law. “Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Article 32 and 226 of the Constitution, while passing any order, the courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers,” the bench said. “The extraordinary power must be exercised sparingly... in exceptional situations where it becomes necessary to provide credibility... in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice,” it ruled. The question of whether higher courts are empowered to order a CBI probe was referred to the constitution bench March 22, 2007 by Justice B.N. Agrawal, who later retired in October 2009. Justice Agrawal had referred the question while dealing with an appeal by the West Bengal government against a Calcutta High Court ruling of April 7, 2001. The ruling had ordered a CBI probe into the alleged killing of 11 Trinamool Congress workers at Gabreta. It had been contended by the West Bengal government that if courts order a CBI probe, it amounts to a violation of section 6 of the Delhi Special Police Establishment Act, 1946. Section 6 of the act provided that the CBI cannot investigate a cognisable offence alleged to have taken place in a state without the prior consent of the state concerned, the government counsel had said. The bench ruled that section 6 imposes restriction on the union government and not on the courts. Rejecting West Bengal government’s contention, the apex court said: “The 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,” the bench said.

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