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The Supreme Court on Wednesday said the CBI is an organ or a body which is established by the Union government and is under its superintendence and administrative control in view of the statutory scheme as enacted by the Delhi Special Police Establishment Act.

"No doubt that the powers of superintendence of the central government would not relate to the superintendence of investigation of a particular case and the investigating agency (CBI) would always be entitled to investigate the offences independently. However, that would not water down the administrative control and superintendence of the DSPE that vests with the central government," a bench of Justices B R Gavai and Sandeep Mehta said.

The court declared as maintainable an original suit filed by the West Bengal government against the Union government alleging that the CBI continued to probe cases from the state despite withdrawal of consent.

The court rejected preliminary objections by the Union government that such a suit against it was not maintainable as the CBI was an independent body.

The court said the very establishment, exercise of powers, extension of jurisdiction, the superintendence of the Delhi Special Police Establishment, all vest with the Government of India.

"The contention of the Solicitor General that even if the CBI, being an independent agency, is considered to be an instrumentality of the State under Article 12 of the Constitution, it cannot be equated to the term Government of India as contemplated under Article 131 of the Constitution, in our view, holds no water," the bench said.

The court pointed out that it is the case of the plaintiff that the CBI is established by the Union government, its exercise of powers is controlled by the Centre and its functioning is also under its superintendence. Therefore, it cannot be said that the plaintiff has not made out any cause of action against the Union government. 

In the suit, the court noted, the plaintiff, West Bengal government raised the legal issue as to whether after withdrawal of the consent under Section 6 of the DSPE Act, the CBI via the Union of India can continue to register and investigate cases in its area in violation of the provisions of Section 6 of the DSPE Act. 

"The same has been sought to be attacked by the defendant – Union of India by raising various contentions challenging the maintainability of the suit. In our considered opinion, the contentions raised by the defendant, do not merit acceptance and are rejected," the bench said.

The court fixed the matter for framing of issues on August 13.

The court took into records the provisions of the Delhi Special Police Establishment Act and the Supreme Court Rules to arrive at its conclusion that the plaint disclosed the cause of action as the State alleged the CBI continued to register cases in constitutional overreach after withdrawal of the consent on November 16, 2018.

Referring Section 3 of the DSPE Act, the bench said it is clear that the DSPE is entitled to investigate only such offences or classes of offences which are specified by the central government by issuing a notification in the official gazette.

The court also noted except in cases registered under the Prevention of Corruption Act, the superintendence of the CBI in all other matters vested with the central government.

It also pointed out the claim of the petitioner is with regard to the investigations except with respect to the FIRs registered under the order of competent court of law.

"Merely because, in any of the proceedings initiated under Article 32 or Article 136 or even Article 226 of the Constitution, one of the parties is common, in our view, the pendency of such proceedings would not come in the way of a specific party mentioned in Article 131 of the Constitution to take recourse to the remedy available therein," the bench said.

The top court had on May 8 reserved its judgement by wrapping up the hearing on preliminary objections made by the Centre on maintainability of the suit filed under Article 131 of the Constitution.

Solicitor General Tushar Mehta in his rejoinder submission had told court that West Bengal's submission of CBI being a police force of the Union was a devastating statement.

Court was further told that power of investigation did not include in the Centre to direct CBI to register an FIR against a particular person as per Section 5 of Delhi Police Special Establishment Act.

"Administrative control of CBI is with the Director not the central government..There are several PSUs created by the central government, but their day-to-day work is not governed by the Centre..Central government cannot direct the CBI to register a case, it can only be done through the HC's order or by its own motion..DoPT never registers a case, there is no investigation by it..it is only a cadre controlling authority..", the SG had stressed.

An argument was also made that CBI has a separate legal and functional identity outside of the Union of India. 

Notably, State of West Bengal had flagged the issue of Enforcement Directorate being brought into the state through the cases being investigated by CBI. "Once you don't allow CBI, the ED enters, it has huge ramification on the polity of the state..as far as supervision is concerned, all other aspects are under the Centre...", Senior Advocate Kapil Sibal had submitted on behalf of West Bengal government.