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Constitution Bench to hear powers of High Courts to order CBI probe

J. Venkatesan

Apex court deals with special leave petition by West Bengal Government

New Delhi: A five-Judge Constitution Bench of the Supreme Court will decide the question whether High Courts have the power to order a probe by the Central Bureau of Investigation (CBI) contrary to the provisions of the Delhi Special Police Establishment Act that contemplates prior consent of the State concerned for such a probe.

A three-Judge Bench comprising Justice B.N. Agrawal, Justice P.P. Naolekar and Justice H.S. Bedi referred the question to a five-judge Constitution Bench while dealing with a special leave petition (SLP) filed by the West Bengal Government in April 2001.

It might be recalled that a few days ago the Calcutta High Court, exercising its inherent powers, had ordered a suo motu CBI probe into the police firings in Nandigram village in which 14 persons were killed.

The State had challenged the powers of the High Court to order a CBI inquiry into the death of 11 Trinamool Congress workers at Gabreta in Midnapore district, which allegedly involved workers of the ruling party.

During the pendency of this SLP, several State governments also questioned the powers of the High Courts to order a CBI enquiry on incidents within the territory of the respective States.

Their argument was whether the High Court could act against law providing for prior consent of the State government. Though the High Courts had on several occasions held that they had the inherent powers to refer a matter for CBI probe even without the State government's consent, it was argued that the High Courts could not do so in the face of statutory limitations.

In November 2006, a two-Judge Bench felt that the question needed examination by a three-Judge Bench. The Bench framed a question — "whether the court ordered the CBI to investigate a cognisable offence which is said to have taken place within the territory of a State without the consent of the State government." The Bench had said "in our opinion the question of law involved is of great public importance and frequently coming before the courts and, therefore, it is necessary that it is settled by a larger Bench."

On many occasions for political or other considerations State governments had themselves given consent for CBI probes. But even as the enquiry was on, in the face of unpleasant investigation such consent had been withdrawn. In the light of Wednesday's reference, the Constitution Bench will also consider the effect of withdrawal of the consent for a CBI probe on investigations already carried out.

Anticipating that the West Bengal Government might prefer an appeal against the High Court order for a CBI probe into the Nandigram episode, advocate Bijan Ghosh, representing Kalyan Bandhyopadhyay, filed a caveat in the apex court urging that nothing be done in the matter without notice to him to represent the respondent.

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