CBI’S authority to investigate within ‘Railway Areas’ in a state remains unfettered by state government’s withdrawal of consent: Calcutta High Court

In a learned, latest, landmark and laudable judgment titled Anup Majee Vs Union of India and others in WPA No. 10457 of 2020 while exercising its appellate side of Constitutional Writ jurisdiction, a single Judge Bench of Calcutta High Court ruled cogently, convincingly and categorically that the authority of the CBI to investigate into the allegations in a particular case within Railway areas remain unfettered by the withdrawal of consent of the State Government. The Single Bench of Justice Sabyaschi Bhattacharyya further observed that the extension of powers of the CBI in respect of Railway areas falls outside the purview of the State’s authority to grant or withdraw consent. The composite reading of Sections 5 and 6 of the 1946 Act makes it evident that the grant or withdrawal of consent by the State Government, though valid for other territories in the State, does not have any repercussion on Railway areas. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is laid down that, “The petitioner is a director of a company named Mark Enclave Private Limited, which is engaged in the business of purchase and sale of coal. In the course of its business, the petitioner’s company purchased coal from various organisations, including the Eastern Coalfield Limited (ECL).”

To put things in perspective, it is then put forth in para 2 that, “The Central Bureau of Investigation (CBI), respondent no.2 herein, started investigation on the basis of FIR No. RC 0102020A0022 dated November 27, 2020. As per the FIR, the suspected offence was criminal conspiracy, criminal breach of trust by public servants and criminal misconduct by public servants by dishonestly or fraudulently misappropriating the property entrusted to them or any property under their control as public servants or allowing other persons to do so. The FIR specified the place of occurrence of the offence as leasehold area of ECL under Kunustoria, Kajora area, District West Burdwan, corresponding Railway Sidings and other places. The petitioner was one of the accused persons named in the FIR.”

It is quite significant to note that it is then mentioned in para 24 that, “In reply, learned Additional Solicitorgeneral, appearing for the CBI, submits that Section 5 of the 1946 Act was invoked in the present case to extend the powers of the CBI to investigate cases of national importance, spread over several States of India. Rampant illegal mining and theft of coal in several States, including West

Bengal, and the Railway areas and mines falling within such States prompted the extension of the powers of CBI to look into those matters. It is argued that Entry No. 80 of List I of the Seventh Schedule of the Constitution mentions under the Union List the extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction of any area outside that State without the consent of the Government of the State in which such area is situated; extensions of the powers and jurisdiction of members of a police force belonging to any State to Railway areas outside that State. As such, Railway areas have been carved out as an exception to the fetter of consent of the concerned State.”

It also cannot be glossed over that it is then elucidated in para 28 that, “It is argued that the initial conferment of power under Section 5 of the 1946 Act covered the entire State of West Bengal, including the Railway areas. The subsequent withdrawal of consent by the State could not operate in respect of Railway areas. It is unimaginable, it is contended, that an agency conducting investigation in the Railway areas on the basis of an FIR, if necessary for the purpose of investigation, cannot interrogate persons or continue investigation in other areas as well, in connection with such FIR. The CBI has been empowered to investigate the rampant coal mining offences spread over various States, including West Bengal; thus, the said agency can very well go into any area within the State of West Bengal for the ancillary purpose of investigation into connected matters, irrespective of Section 6 of the 1946 Act.”

As we see, the moot question that is then asked in para 29 is that, “Upon considering the materials and hearing the contesting parties, the question which acquires relevance in the present case is whether the CBI has jurisdiction to investigate in the State of West Bengal by virtue of its initial conferment of power by the Central Government Notification dated February 18, 1963, in view of the consent under Section 6 of the 1946 Act, granted by the State of West Bengal on August 2, 1989, having been withdrawn subsequently by a Notification dated November 16, 2018.”

Without mincing any words, it is then stated in para 30 that, “Despite the arguments of the learned Advocate General to the tune that the 1957 and 1989 Acts are self-contained Codes and preclude the powers of the police and the CBI to investigate into matters falling within the Railway areas, such argument is rather irrelevant for the present context. The 1989 Act clearly pertains to revenue earned by the Railway administration and consequent compensation for loss, damage, etc. of goods being transported by the Railways. The expression “Railway land” as defined in Section 2(32A) of the 1989 Act merely mentions any land in which a Government Railway has any right, title or interest.”

To be more clear, it is then specified in para 31 that, “The 1957 Act, on the other hand, pertains to Railway offences, that is, offences relating to “Railway property” which expression, as per Section 2(e) of the 1957 Act, includes goods, money or valuable security etc. belonging to or in charge or possession of a Railway administration. The said Act was enacted for constitution and regulation of an Armed Force for the limited purpose of better protection and security of Railway property, passenger area and passengers. In the present case, the offence on which the impugned FIR was lodged relates to illegalities regarding coal mining and corruption related thereto. As such, the genesis of the alleged offence does not fall within the purview of either the 1957 or the 1987 Act. Thus, the argument that the Railway Protection Force or the Railway authorities have sufficient powers to deal with Railway properties, is not valid for the present purpose.”

For the sake of clarity, it is then made clear in para 32 that, “The offence in the present case relates to coal mining and theft of coal and not any offence to Railway properties, as envisaged under the 1957 and 1989 Acts or the connected Rules. Therefore, there is no bar within the periphery of the said Acts, for the CBI to conduct the present investigation.”

In hindsight, it is then stated in para 33 that, “As far as the 1946 Act is concerned, no definition of “Railway area” is given therein. As such, contemporaneous extant statutes which pertain to Railway areas ought to be looked into for the purpose of ascertaining the purport of the expression. The definition of “Railway property” in Section 2(e) of the 1957 Act and of “Railway land” in Section 2(32A) of the 1989 Act do not provide ample clarity on the exact nature of areas covered by the expression “Railway area”. Thus, it is necessary to look into the definition closest in meaning to Railway area as used in the 1946 Act.”

In retrospect, it is then pointed out in para 36 that, “The initial order issued by the Government of India, Ministry of Home Affairs on February 18, 1963 extended the powers and jurisdiction of members of Delhi Special Police Establishment under sub-section (1) of Section 5 of the 1946 Act to several States, including West Bengal, for the investigation of offences specified in the Schedule annexed thereto.”

Significantly, it is then rightly laid down in para 37 that, “The language used in Section 5(1) of the 1946 Act is the Central Government “may by order extend to any area (including Railway areas), in a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a Notification under Section 3”. Thus, an order extending such powers need not separately stipulate Railway areas for the purpose of extension of powers. The mention of the concerned State (in the present case West Bengal) in the order of extension is sufficient to include Railway areas falling within such State since the extension contemplated in Section 5(1) is inclusive. It speaks of extension to any area in a State, putting the expression “including Railway areas” within parenthesis, thereby attaching an inclusiveness to the expression. Hence, the extension of power to a State would automatically include Railway areas falling therein, in the absence of any specific exclusion of such areas in the order conferring such powers.”

What’s more, it is then stated in para 38 that, “Moreover, till withdrawal of consent by the State in 2018, there was no grievance of the Government of West Bengal in the operation of the CBI within the State, including Railway areas. As such, the conferment of power has to be deemed to include Railway areas within West Bengal as well.”

Furthermore, it cannot be also glossed over that it is then envisaged in para 39 that, “Even the initial consent accorded by the Governor of West Bengal, vide Notification dated August 2, 1989, spoke of the extension of powers and jurisdiction of all members of the Delhi Special Police Establishment to the “State of West Bengal” for investigation of offences stipulated therein. The withdrawal of consent vide Notification dated November 16, 2018 also referred to the “State of West Bengal”.”

More significantly, it is then rightly pointed out in para 40 that, “Since, under Section 6, the consent of the State Government operates only in respect of a State and not Railway areas, which are specifically excluded in the section, the grant or withdrawal of consent by the State Government is irrelevant in respect of Railway areas. The initial extension of power by the Central Government being for the entire State of West Bengal, without any qualification or exclusion of Railway areas, even despite the subsequent withdrawal of consent by the State, such extended powers of the Delhi Special Police Establishment never ceased to continue in respect of Railway areas falling within the territory of West Bengal.”

Adding more to it, the Bench then holds in para 41 that, “Even Fertico Marketing (supra) observed that if the FIR originated in a Union Territory, interrogation and investigation could extend to the State of Bihar irrespective of the specific consent of the State of Bihar. However, the existence of a general consent in the said case, unlike the present, is a distinguishing factor. Thus, the ratio laid down therein is not applicable in terms to the present case.”

On a different note, it is then stated most crucially in para 42 that, “State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others (supra) was rendered on a different footing than the instant case. The Supreme Court held there that the court, under Articles 226 and 32 of the Constitution of India, has powers of judicial review, which includes a direction upon the CBI to take up any investigation in relation to a crime which was otherwise within the jurisdiction of the State police.”

While continuing in a similar vein, it is then most significantly pointed out in para 43 that, “Such exercise of power by the courts was held not to be circumscribed by the fetters of Section 6 of the 1946 Act, since the section only creates a restriction on the Central Government to extend the powers of the Delhi Special Police Establishment in the absence of consent of the State. The ingredients of federalism ingrained in our Constitution interdicts in the Central Government imposing its will on the State Governments insofar as the conduct of investigation under the 1946 Act is concerned. The 1946 Act provides sufficient safeguard in the form of Section 6, which contemplates a consent by the State Government in that regard. However, for obvious reasons, Railway areas were excluded, since such areas spread over the whole of the country and are interconnected. Therefore, it would be absurd if each and every State asserts rights over the Railway areas to impose their own fiat regarding such areas, which would adversely affect the continuity of services and operation of the Railways.”

To say the least, it is then made clear in para 44 that, “As far as Sampat Lal’s case (supra) is concerned, again the courts’ power to give direction to the CBI was held to be unfettered by Section 6 of the 1946 Act. In the present instance, no specific case has been made out for an independent direction by the court on the CBI to conduct the investigation.”

Needless to say, it is then clarified in para 46 that, “Thus, the aforesaid judgments do not have any application in the present case. The scope of this court, in the present writ petition, is only to consider the legality and scope of investigation of the CBI in view of the withdrawal of consent by the State, and not to independently direct any such investigation.”

Most significantly, it is then put forth in simple and straight language in para 49 that, “A composite reading of Sections 5 and 6 of the 1946 Act makes it evident that the grant or withdrawal of consent by the State Government, though valid for other territories in the State, does not have any repercussion on Railway areas. As observed earlier, in the present case, the initial order of extension of power of the Delhi Special Police Establishment was in respect of the entire State of West Bengal, which includes the Railway areas lying therein in the absence of any specific exclusion being mentioned in the order of extension. Thus, the authority of the CBI to investigate into the allegations in the present case within Railway areas remains unfettered by the withdrawal of consent by the State Government in 2018, for the simple reason that the extension of powers of the CBI in respect of Railway areas, even in West Bengal, falls outside the purview of the State’s authority to grant or withdraw consent.”

To be sure, it is then also maintained in para 50 that, “Although it might lead to certain practical difficulties for the CBI to investigate in the Railway areas falling within the State of West Bengal while not being able to conduct such investigation in the other areas of the State, such a conclusion is unavoidable as per the scheme of the 1946 Act, particularly keeping in mind the federal structure recognized by the Constitution of India.”

No less significant is what is then stated quite emphatically in para 51 that, “Hence, upon a complete assessment of the relevant statutes and the cited reports, it can only be concluded that the CBI has powers to investigate, by virtue of the Order dated February 18, 1963 issued by the Government of India, Ministry of Home Affairs, and to continue such investigation in the Railway areas in so far as the State of West Bengal is concerned. As a necessary corollary, the CBI shall have the authority to summon any witness or suspect for the purpose of interrogation, even if they reside outside the Railway areas in West Bengal, to the limited extent as such interrogation is necessary for investigation within the Railway areas.”

Finally, it is then held in para 51 that, “Accordingly, WPA No. 10457 of 2020 is disposed of in the following manner:

(i) The FIR, impugned in the present writ petition, being validly lodged, is not interfered with by this court; (ii) The Central Bureau of Investigation is authorized to continue its investigations in respect of the said FIR in whatsoever manner within the “Railway areas” situated in West Bengal [areas covered by the definition of “Railway” as provided in Section 2(31) of the Railways Act, 1989];

(iii) Although the CBI is not authorized to conduct physical raids and/or active investigation into other areas of West Bengal than the Railway areas, it can summon and interrogate witnesses residing in West Bengal, even in places other than Railway areas, for the purpose of such investigation;

(iv) In the event the CBI deems it necessary for the purpose of such investigation within the Railway areas in West Bengal and in other States, pertaining to the FIR impugned herein, the CBI will be at liberty to approach the State authorities of West Bengal for the purpose of the latter’s cooperation in the matter and necessary permission to hold joint raids and/or investigation. However, such action, in areas beyond the Railway areas, shall be conducted by the CBI only subject to specific consent being granted by appropriate authorities of the State of West Bengal; and

(v) This order will not prevent the State Government from granting fresh consent under Section 6 of the Delhi Special Police Establishment Act, 1946, in the event it so deems fit, for the extension of the powers and jurisdiction of the CBI to places in West Bengal other than the Railway areas.

In summary, it is thus quite clear that the Calcutta High Court is absolutely right to hold clearly that the CBI’S authority to investigate within ‘Railway Areas’ in a State remains unfettered by State Government’s withdrawal of consent. It is right in holding that the withdrawal of consent by the State of West Bengal does not denude the CBI of any authority to conduct investigation within the territory of West Bengal. There can certainly be no denying or disputing it!

OPINION