In other words, sans a state government’s consent, the CBI cannot exercise its power within that state's

borders, something that makes the investigative agency different from the National Investigation Agency
(NIA) that has jurisdiction all over India

In contrast, if the CBI does not have the general consent of a state government, it is required to apply for
consent on a case-by-case basis and cannot act before the consent is given. Withdrawal of general
consent also means that the CBI will not be able to register any fresh case involving central
government officials or private persons in a particular state without prior permission of that state
government. That being said, the CBI can continue to investigate cases in a state registered prior
permission of that state government. That being said, the CBI can continue to investigate cases in a state
registered prior to the withdrawal of general consent.

While Chhattisgarh withdrew consent in 2019, Punjab, Maharashtra, Rajasthan, Kerala, and Jharkhand
followed in 2020, with all of them citing the misuse of the central agency as the reason for withdrawal.

In July, the High Court, in a case of illegal coal mining and cattle smuggling being investigated by the CBI,
ruled that the central agency cannot be stopped from investigating a central government employee in
another state.

In its order, the High Court observed that corruption cases across the country must be treated equally,
and that central government employees could not be exempt from investigation on the grounds that
their offices were located in states that had withdrawn general consent. The judgment also said that
withdrawal of general consent and its ramifications would be applicable in cases where exclusively state
government employees were involved.

……………………………………………………………………………………………………………………………………………………………..

Chapter IV of Part V of the Constitution of India, titled “The Union Judiciary,” contains the functions,
jurisdiction, and powers of the Supreme Court of India. The apex court of India deals with appeals that
are covered under Article 136. This article provides the right to apply for an appeal and not the right to
appeal. This Article does not limit itself to a particular type of case only. Article 136 was earlier
incorporated as Draft Article 112 of the Indian Constitution.

A special leave petition is not a right that is guaranteed to the citizens of India, but it is a privilege that is
granted to the Supreme Court by the Constitution of India. Article 136 applies to both final and
intermediary orders. SLP can also be filed if the high court refuses to grant a certificate of fitness for
appeal under Article 134A of the Indian Constitution to the Supreme Court of India.

A question of law means a point in law that is to be answered by the judge by applying legal principles. If
the Supreme Court dismisses the special leave petition by a speaking or non-speaking order, then it
cannot leave the question of law open for future consideration. The discretionary power of the Supreme
Court under Article 136 is ended when the petition is rejected. New grounds for a case cannot be added
under the special leave petition if it was not introduced earlier in the case.

Whether the investigation should be directed to CBI or not without the State’s consent?

Jurisdiction of CBI-

The state legislature has exclusive jurisdiction regarding the police under entry 2 list 2 of 7th schedule.
This exclusive jurisdiction cannot be taken away by any act of Parliament.

#Clause (2) of Article 226 of the Constitution limits the jurisdiction of the High Courts.

Sacrifice of the Federal principle (essentially maintaining ‘Public order’ and ‘police’)-

Morals of the state police officials investigating such crimes is bargained

[Joshini Tuli v. State (NCT of Delhi) & Ors].

While dismissing the Public Interest Litigation filed by Advocate Joshini Tuli, a Division Bench of Chief
Justice Satish Chandra Sharma and Justice Subramonium Prasad imposed costs of ₹10,000 on the lawyer.

“Such type of petitions only affect the morale of the Police and must not be encouraged. Baseless
allegations are bound to taint the faith the general public has in the criminal justice system. Delhi Police
is a professional unit and to boost their morale, petitions of this nature must be severely deprecated,”
the Court said.

It is State’s police pivotal function to maintain law and order based on Rule of law

The term ‘police’ is the subject of the state list under the Seventh Schedule of the Constitution of the
India.

The right of the police to investigate into a cognizable offence is a statutory right over which the court
does not possess any supervisory jurisdiction under CrPC. In Emperor v. Khwaja Nazir Ahmad [AIR 1945
PC 18 : 46 Cri LJ 413] the Privy Council spelt out the power of the investigation of the police, as follows :
(AIR p. 22)

“In India, as has been shown, there is a statutory right on the part of the police to investigate the
circumstances of an alleged cognizable crime without requiring any authority from the judicial
authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible
to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court.”

The central agency is being misused against Opposition parties-

K.V. Rajendran v. CBCID, (2013) 12 SCC 480

On the contrary, Shri K. Ramamurthy and Shri Nagendra Rai learned Senior Counsel appearing on behalf
of the State and Respondent 3, the then RDO, have opposed the appeal contending that there was no
subsequent development on the basis of which the transfer of investigation could be sought to CBI.
Moreover, it is not a fit case to transfer to CBI. The appellant is pursuing a trivial issue since 1998 and had
been moving from one court to another for the last 15 years. The liberty was given to the appellant by
this Court vide order dated 2-9-2008 [State v. K.V. Rajendran, (2008) 8 SCC 673 : (2008) 3 SCC (Cri) 600] to
move the High Court for transfer of investigation to CBI only on the basis of subsequent events, if any. In
fact there has been no such subsequent event, which could warrant such a course of action. This Court
has laid down certain parameters for transferring the case to CBI and the present case does not fall
within the ambit thereof. The State police has already investigated the matter and filed the final report
under Section 173(2) CrPC before the court concerned. The appellant has already filed the protest
petition and it is for the learned Magistrate to decide the case in accordance with law. The Magistrate is
not bound to accept the report so submitted by the investigating agency, he may take cognizance and
also direct further investigation under Section 173(8) CrPC Thus, there is no justification to transfer the
case to CBI and the appeal is liable to be rejected. Shri Mukul Gupta, learned senior counsel appearing
on behalf of the CBI, supported the case of the respondents and further submitted that the CBI has a
shortage of manpower and is already overburdened. More so, the present case does not present special
features warranting transfer to CBI for investigation.
In only Exceptional and rare circumstances where the investigation can be transferred to CBI-

Amar Nath Chaubey v. Union of India, (2021) 11 SCC 804(this call for progress report was not asked by
the high court in moot prop and the time was not given to state police to submit the investigation report
to court).

The petitioner, son of the deceased, approached the Allahabad High Court complaining of the
lackadaisical manner in which the police was investigating because some powerful political personalities
were also involved. The investigating officers were also being changed with regularity seeking a
mandamus for a proper inquiry into the murder of his father including by CBI. The High Court called for a
progress report and also required the Chief Secretary to file his affidavit in the matter. The petitioner is
aggrieved by the impugned order of the High Court dated 17-5-2018 [Amarnath Chaubey v. Union of
India, 2018 SCC OnLine All 5958] disposing the writ petition, accepting the contention of the police that
the investigation would be concluded expeditiously and report will be submitted before the competent
court within a period of eight weeks.

The issue involved herein, is no more res integra. This Court has time and again dealt with the issue
under what circumstances the investigation can be transferred from the State investigating agency to any
other independent investigating agency like CBI. It has been held that the power of transferring such
investigation must be in rare and exceptional cases where the court finds it necessary in order to do
justice between the parties and to instil confidence in the public mind, or where investigation by the
State police lacks credibility and it is necessary for having “a fair, honest and complete investigation”, and
particularly, when it is imperative to retain public confidence in the impartial working of the State
agencies. Where the investigation has already been completed and charge-sheet has been filed,
ordinarily superior courts should not reopen the investigation and it should be left open to the court,
where the charge-sheet has been filed, to proceed with the matter in accordance with law. Under no
circumstances, should the court make any ex pression of its opinion on merit relating to any accusation
against any individual.

#Shri Mukul Gupta, learned Senior Counsel appearing on behalf of CBI, supported the case of the
respondents and further submitted that CBI has a shortage of manpower and is already overburdened.
More so, the present case does not present special features warranting transfer to CBI for investigation.

In State of W.B. v. Committee for Protection of Democratic Rights [(2010) 3 SCC 571 : (2010) 2 SCC (Cri)
401] a Constitution Bench of this Court has clarified that extraordinary power to transfer the
investigation from State investigating agency to any other investigating agency must be exercised
sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and
instil confidence in investigation or where the incident may have national and international ramifications
or where such an order may be necessary for doing complete justice and enforcing the fundamental
rights.
Subrata Chattoraj vs Union Of India & Ors

If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List
I on the other, an investigation by another agency is permissible subject to grant of consent by the State
concerned, there is no reason as to why, in an exceptional situation, court would be precluded from
exercising the same power which the Union could exercise in terms of the provisions of the Statute. In
our opinion, exercise of such power by the constitutional courts would not violate the doctrine of
separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its
constitutional duty

This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instill confidence in investigations or where the incident
may have national and international ramifications or where such an order may be necessary for doing
complete justice and enforcing the fundamental rights.

Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it
difficult to properly investigate even serious cases and in the process lose its credibility and purpose with
unsatisfactory investigations.”