The Central Bureau of Investigation (CBI) has told the Supreme Court that West Bengal government’s withdrawal of general consent under Section 5 of the Delhi Special Police Establishment Act for CBI to probe matters in the State will not preclude the investigating agency from exercising its jurisdiction over railway areas within the State.
In respect of conducting investigation into offences that have been committed in ‘Railway Areas’, it is inconsequential whether the concerned State Government has accorded its consent or not, as the DSPE Act unequivocally grants the power to investigate in such cases, the affidavit filed by CBI in Supreme Court said.
In this regard the affidavit highlighted Section 6 of the DSPE Act which requires consent of the State Government for exercising powers and jurisdiction under the Act to any area in the State except railways or Union Territory.
“In view of Section 5 and 6 of the DSPE Act, it can be held “that for exercise of jurisdiction by the CBI in a State (other than Union Territory or Railway area), consent of the State Government is necessary” and as is the admitted position in the instant case, majority of the area where the offence as been committed is within the ‘Railway Areas’ in the State of West Bengal, which confers the power to the present Respondent to conduct investigation even in the absence or withdrawal of a general consent under Section 5 of the DSPE Act,” the affidavit said.
“The object of including ‘Railway Areas’ within the jurisdiction of the CBI to investigate upon, was that the Railway Areas are spread across the country, overlapping into the territories of various States and thus, if the CBI was to undertake consent from every State prior to conducting investigation in such cases, it would completely defeat the purpose sought to be achieved by the DSPE Act,” it added.
The affidavit was filed in response to a plea by one Anup Majee accused in an illegal coal trading case, challenging a February 12 order by a Division Bench of the Calcutta High Court which had granted permission to the CBI to probe the case within the State of West Bengal.
Investigation into ‘Railway Areas’ was one of the major aspects of the present case as the coal illegally removed from mines was transported through railways starting from railway siding in the mining areas to different places.
The Division Bench order itself stayed a single-judge order which had restricted the power of CBI to carry out probe within ‘Railway Areas’ situated in West Bengal as covered by definition of “railway” as provided in the Railways Act of 1989.
The single-judge had ruled that any action which required the investigation to go beyond the ‘railway areas’ should be done by CBI only after taking the consent of the State government.
The Division Bench, however, stayed the same stating that investigation would require CBI to go beyond “Railway Areas” and proper investigation cannot be carried out if investigation is divided in parts drawing lines on territories.
In his plea before the Supreme Court, Majee raised a three-fold contention as regards the power of CBI.
Firstly, he submitted that the notification of 1982 issued under Section 5 of DSPE Act does not mention “Railway Areas” and hence CBI cannot exercise powers over “Railway Areas” unless it was specifically mentioned.
Even otherwise, once the State of West Bengal withdrew its general consent for CBI under Section of DSPE Act, power of CBI to investigate any offence within the State of West Bengal including “Railway Areas” stood abrogated, the plea contended.
Secondly, it was submitted that allegations relate to coal mining in mining areas which do not fall within “Railway Areas” and therefore the investigation by CBI is de hors the law.
Thirdly, it was highlighted that the term “Railway Areas” has not bee defined under the DSPE Act and the definition of Railways under Railways Act should be considered as the reference point to ascertain the areas covered by Railways.
The West Bengal government has supported Majee’s submissions.
The CBI, in its affidavit, has submitted that it has the jurisdiction to lodge an FIR in the case since the wrong was committed within ‘railway area’.
The affidavit said that findings of the FIR make it abundantly clear that the investigation of the case relates to various facets concerning the Railways.
“The Petitioner and other co-accused persons were engaged in the facilitation and conduct of illegal mining and the transportation of coal by the Railways. Moreover, it has been succinctly noted by the Hon’ble High Court that the ‘Railway Areas’ constitute one of the major parts of the instant investigation, as the coal was illegally removed from the mines and transported through railways, starting from the railway siding in the mining area to different places,” the affidavit said.
It was further submitted that the investigation was based on a mandate given by the Central Vigilance Commission (CVC).
“The CBI is under a mandate of the CVC to continue and complete the investigation. The object of the accused persons is to siphon off depleting natural resources for their own gain running into hundreds of crores of rupees, thus leading to a loss of revenue to the Central government,” submits CBI.
CBI has also stated that once the registration of the FIR and the jurisdiction of the CBI with respect to “railway areas” is upheld, it is “indominable to restrict the expanse of investigation as was done by the single-judge bench.”
It was also contended that the doctrine of public trust will be applicable in this case since the offence pertains to illegal mining, excavation and theft of coal.
The object of the accused persons in the FIR was to siphon-off the depleting natural resources for their own gain running into hundreds of crores of rupees leading to a loss of revenue to the Central Government, thereby attracting the Doctrine of Public Trust, it was submitted.
The case is likely to be heard on March 15, 2021.