MEMORIAL ON BEHALF OF THE PETITIONER

JUSTCE P.B. SAWANT SIXTH NATIONAL MOOT COURT COMPETITION

2018-19

TEAM CODE: 130

BEFORE THE HON’BLE FEDERAL COURT OF INDIYANA

IN THE MATTER OF:

MR. J. K. RAWAL KUMAR ... PETITIONER

V.

CRIME BUREAU OF INVESTIGATION ... RESPONDENT

WRIT PETITION NO. __/2017

UPON SUBMISSION TO THE HON’BLE FEDERAL COURT OF INDIYANA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIYANA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

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2018-19

TABLE OF CONTENTS

S.No. Page No.

1. List of Abbreviations III-IV

2. Index of Authorities V-VI

3. Statement of jurisdiction VII

4. Statement of facts VIII-IX

5. Statement of issues X

6. Summary of pleading XI-XIII

7. Arguments advanced 1-16

ISSUE 1

Whether the arrest of Mr. Rawal Kumar by the CBI violates

the due Process of Law?

 Jurisdiction

 Arrest

ISSUE 2

Whether the CBI is authorized to arrest the accused on an

alert issued by INTERPOL without the consent of the State

Government?

 Domestic laws

 Authority

 Judicial Intervention

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ISSUE 3
Whether the general consent given by the State government
to CBI for Investigation of a Particular crime can be revoked
before the completion of investigation?
 General Consent
 What is Revocation?
ISSUE 4
Whether the establishment of DSPE/CBI as police force is
contrary to constitutional philosophy of distribution of
power between centre and state?
 CBI is contrary to the Constitutional Scheme
 CBI as an organ of Central Govt.
ISSUE 5
Whether the role defined and powers conferred on CBI
under the DSPE Act, 1946 are constitutionally valid?
 Whether the CBI is a Statutory Body?

8. Prayer XIV

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2018-19

LIST OF ABBREVIATIONS

CBI Crime Bureau of Investigation

DSPE ACT Delhi Special Police Establishment

R.C. Regular Case

P.E. Preliminary Enquiry

I.P.C. Indian Penal Code

Dept. Department

H.Q. Head Quarters

G.O. Government Order

Govt. Government

Ors. Others

NO. Number

Co. Company

F.I.R. First Information Report

N.C.B. National Central Bureau

Hon’ble Honorable

MANU Manupatra

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2018-19

SCC Supreme Court Cases

UOI Union Of India

v. Versus

AIR All India Report

SC Supreme Court

Art. Article

Anr. Another

Sec. Section

Ltd. Limited

C.r.P.C. Code of Criminal procedure

INTERPOL International Police Organisation

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2018-19

INDEX OF AUTHORITY

CASE LAWS

1. Maneka Gandhi v. Union Of India............................................(1978) 1 SCC 248

2. State Of West Bengal & Ors. v. The Committee for Protection of Democratic
Rights, West Bengal & Ors................................................MANU/SC/0121/2010
3. Vineet Narain v. Union of India.............................................. (1998) 1 SCC 226
4. Lalita Kumari v. State of U.P........................................................(2014) 2 SCC 1
5. Manoj Kumar Agarwal v. CBI & Ors............................. MANU/DE/1520/2015
6. State of Bihari v. Lal Krishna Adwani......................................(2003) 8 SCC 361
7. Common Cause v. UOI.............................................................(1999) 6 SCC 667
8. Bhavesh Jayanti Lakhani v. State Of Maharashtra & Or…...... (2009) 9 SCC 551
9. Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v.
Sahngoo Ram Arya and Ors..............................................MANU/SC/0441/2002
10. AK. Surendran v. Simon K. Francis & Ors.......................MANU/KE/0384/2006
11. Dharam Dutt & Ors. v. UOI & Ors...........................................(2004) 1 SCC 712
12. Navendra Kumar and Anr. v. UOI and Anr.....................MANU/GH/0435/2013
13. Joginder Kumar v. State of Uttar Pradesh and Ors....................(1994) 4 SCC 260
14. Romila Thapar and Ors. v. UOI.........................................MANU/SC/1098/2018
15. Subramanian Swamy v. Director, CBIand Ors.........................(2005) 2 SCC 317
16. Manohar Lal Sharma v. UOI......................................MANU/SCOR/01950/2019
17. Babubhai Jamnadas Patel v. State of Gujarat............................(2009) 9 SCC 610
18. P. Sirajuddin v. State of Madras...............................................(1970) 1 SCC 595
19. K. Veeraswami v. UOI..............................................................(1991) 3 SCC 655
20. Girish Kumar Suneja v. CBI....................................................(2017) 14 SCC 809
21. UOI v. Association for democratic reforms and anr................(2002) 10 SCC 111

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STATUTES

1. Constitution Of India, 1950

2. Delhi Special Police Establishment Act, 1946

BOOKS

1. M.P.Jain, Indian Constitutional Law, 1180, Lexis Nexis Butterworths

Wadhwa, Nagpur, (8th edition, 2018).
2. D.D.Basu, Intoduction to the Constitution of India, (22nd edition, 2015).

REPORT

1. 19th Report of Department- Related parliamentary Standing Committee on

Personnel, Public Grievances, law and Justice on Demands for Grants of
the Ministry of Personnel, Public grievances and Pensions, (2008)
2. 43rd Report of Department- Related parliamentary Standing Committee on
Personnel, Public Grievances, law and Justice on Action taken Replies of
the Govt. on the observations contained in the 38th report of the Committee
on Demands for Grants of the Ministry of Personnel, Public grievances and
Pensions, (2010)

DYNAMIC LINKS

1. www.maupatra.com
2. www.scconline.com
3. www.westlaw.com

INTERNATIONAL INSTRUMENTS

Constitution of the ICPO- INTERPOL

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STATEMENT OF JURISDICTION

The Petitioner humbly submits before the Hon’ble Federal Court of Indiyana, the
memorandum for the Petitioner in lieu of the Writ Petition filed by the Petitioner
under Art. 32 of the Constitution of India, 1950.

The Hon'ble Federal Court of Indiyana has the jurisdiction in this matter under Article
32 of the Constitution of Indiyana which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part

(1)The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed

(2)The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.”

Hence, this petition is maintainable.

The present memorandum sets forth the facts, contentions and arguments in the
present case.

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STATEMENT OF FACTS

BACKGROUND

Indiyana is a republic, sovereign, democratic country with the parliamentary form of

government. It has written constitution which is considered as supreme of law of land.
The distribution of powers amongst Federal Government and State Governments is
one of the essential features of the written constitution of Indiyana.

THE PURPOSE OF RAIDS

On 26th August, 2017, news broke on electronic media about the raids conducted by
federal agency of Indiyana, Central Bureau of Investigation in many parts of the
country and consequential arrest of some of people in connection of child trafficking
for child prostitution. The action of CBI was in pursuance of the alert issued by
INTERPOL, an International Police Organization. It was contended by CBI that the
arrested person who were involved in children exchange programs that are being
conducted in various countries with the object of familiarisation of diverse culture
were involved in certain malpractices such as selling for prostitution. The action of
CBI was a shock for the society as majority of arrested people were prominent
personalities including the Petitioner in the case Mr. J. K. Rawal Kumar, a social
worker.

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THE STATE GOVERNMENT’S OFFICIAL STATEMENT

The State Government of Mahayana issued an official statement stating that neither
the state police were involved in the arrest of Mr. Rawal Kumar nor the Home
Department received any information about the matter. Further, the State Government
condemned the action of CBI and expressed its dissatisfaction stating that the arrest
was made without proper jurisdiction. The state government emphasized that it by
Government Order (GO) No. 42 of the Home Department dated August 1, 2017
withdrawn the general consent given to CBI wide Government Order (GO) No. 29 of
home department dated May 20, 2017. The Government Order No. 29 permitted all
members of the DSPE/CBI to exercise the powers and jurisdiction under the Act No.
25 OF 1946 in the State of Mahayana. Under the said Act, the withdrawals of general
consent by concerned state prohibit the CBI to carry out searches or to investigate in
that state without the consent from the concerned state government. This
governmental statement invited great debate on legality of action of CBI. It was also
rumoured that state Government was unhappy with the manner of investigation by
CBI in the state which resulted in the withdrawal of general consent.

PETITION FILED BY Mr. RAWAL KUMAR

Feeling aggrieved by the arrest and detention by CBI, Mr. Rawal Kumar approached
the Federal Court of Indiyana. Some fundamental questions of constitutional
importance have been raised in his petition. He has taken the stand that he is a reputed
social worker and the manner in which he was arrested by the CBI was violative of
due process of law and right to life and personal liberty guaranteed by the constitution
of the Indiyana.

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JUSTCE P.B. SAWANT SIXTH NATIONAL MOOT COURT COMPETITION
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STATEMENT OF ISSUES

ISSUE 1

Whether or not the arrest of Mr. Rawal Kumar by the CBI violates the due Process of
Law?

ISSUE 2
Whether or not the CBI is authorized to arrest the accused on an alert issued by
INTERPOL without the consent of the State Government?

ISSUE 3
Whether or not the general consent given by the State government to CBI for
Investigation of a Particular crime can be revoked before the completion of
investigation?

ISSUE 4
Whether or not the establishment of DSPE/CBI as police force is contrary to
constitutional philosophy of distribution of power between centre and state?

ISSUE 5
Whether or not the role defined and powers conferred on CBI under the DSPE Act,
1946 are constitutionally valid?

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SUMMARY OF PLEADINGS

ISSUE 1

I. WHETHER OR NOT THE ARREST OF MR. RAWAL KUMAR BY THE CBI

VIOLATES THE DUE PROCESS OF LAW?
It is humbly submitted before the Hon'ble court that, the right to life and personal
liberty under Art. 21 of the constitution of Indiyana have been violated on
account of arbitrariness of the CBI, thus resulting in the violation of article 14
and 19(d) as well. The CBI made the arrest of the Petitioner without actual
jurisdiction thereby violating the due process of law.

ISSUE 2

II. WHETHER OR NOT THE CBI IS AUTHORISED TO ARREST THE

ACCUSED ON AN ALERT ISSUED BY INTERPOL WITHOUT THE
CONSENT OF STATE GOVERNMENT?
It is humbly submitted before the Hon'ble court that, the arrest made by the CBI
merely on an alert issued by the INTERPOL and without the consent of the State
Govt. is invalid. Laws under the INTERPOL are of international nature which are
un-codified. The consent of the State Govt. is mandatory as the domestic laws of
the country reign supreme.

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ISSUE 3

III. WHETHER OR NOT THE GENERAL CONSENT GIVEN BY THE STATE

GOVERNMENT TO CBI FOR INVESTIGATION OF A PARTICULAR
CRIME CAN BE REVOKED BEFORE THE COMPLETEION OF
INVESTIGATION?
It is humbly submitted before the Hon'ble court that, the general consent given by
the State Govt. can be revoked at any time as per the discretion of the State Govt..
No further investigation can be carried out for the revocation as Sec. 6 of DSPE
Act, 1946 itself states that the consent of the State Govt. is mandatory for the
purpose of carrying investigation in that particular state.

ISSUE 4

IV. WHETHER OR NOTTHE ESTABLISHMENT OF DSPE/CBI AS POLICE

FORCE IS CONTRARY TO CONSTITUTIONAL PHILOSOPHY OF
DISTRIBUTION OF POWER BETWEEN CENTRE AND STATE?
It is humbly submitted before the Hon'ble court that, establishment of DSPE/CBI
is contrary to the constitutional philosophy of separation of power between the
Centre and the State. The CBI is an agency of the Central Govt. and has been
made by the Central legislature out of its ambit. However, the subject police
comes under the State list and the Centre cannot encroach upon the State as per
the federal structure of the constitution.

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ISSUE 5

V. WHETHER OR NOT THE RULE DEFINED AND POWERS CONFERRED

ON CBI UNDER THE DSPE ACT, 1946 ARE CONSTITUTIONALLY
VALID?
It is humbly submitted before the Hon'ble court that, the rule defined and powers
conferred on CBI under the DSPE Act,1946 are constitutionally not valid. The
DSPE Act, 1946 itself states about a special police force to be named as the Delhi
Special Police Establishment and the term CBI is nowhere mentioned in it.

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AGRUEMENTS ADVANCED

I. WHETHER OR NOT THE ARREST OF MR. RAWAL KUMAR BY THE CBI

VIOLATES THE DUE PROCESS OF LAW?
It is humbly submitted by the Petitioner before this Hon’ble court that the
respondent has violated the due process of law and hence the arrest made is
invalid.
Due process
Art. 21 of the constitution of Indiyana is one of the most cherished provision of
the constitution which states that "no person shall be deprived of his life and
personal liberty except according to the procedure established by law".
As established by this Hon'ble Court in the case of Maneka Gandhi V. UOI1
'Procedure' prescribed by law has to be fair, just and reasonable, and not
fanciful, oppressive or arbitrary.
The procedure established by law is equal to the due process of Law of the
American Constitution as the word 'due' means 'just', 'proper', or 'reasonable'.
With reference to the present case the Petitioner sheds light on the golden triangle
created by Article 14, 19 and 21 of the constitution of Indiyana.
The Petitioner implies that as Article 14 is a bulwark against any arbitrary action
of the State and Article 19(d) deals with the freedom of movement, both the
Articles along with Article 21 have been violated. The investigation and arrest
made by the CBI is an arbitrary action and was wholly and solely made by the
CBI without the consent of the State Government. Neither had they informed the
State administration about the same nor did they involve the state police which is
an essential as present in the CBI crime manual which mandates the CBI to make
request to the Superintendent of the Police concerned as early as possible in order
to investigate out of its jurisdiction. The action of CBI per se infringes freedom to
movement of the Petitioner giving rise to the violation of life and liberty under
Art. 21 of Indiyana.

1
Maneka Gandhi v. Union Of India, (1978) 1 SCC 248.
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1. Jurisdiction

The CBI does not have legal mandate to take cognizance of cases in Mahayana
as according to Sec. 5 read along with Sec. 6 of DSPE Act as laid under-

Sec. 5 “ (1)The Central Government may by order extend to any area

(including Railways areas), 1[in 2[a State, not being a Union territory]] the
powers and jurisdiction of member of the Delhi Special Police Establishment
for the investigation of any offences or classes of offences specified in
notification under section 3.

(2)When by an order under sub-section (1) the powers and jurisdiction of

members of the said police establishment are extended to any such area, a
member thereof may, subject to any orders which the Central Government
may make in this behalf, discharge the function of a police officer in that area
and shall, while so discharging such functions, be deemed to be a member of a
police force of that area and be vested with the powers, functions and
privileges and be subject to the liabilities of a police officer belonging to that
police force.

(3)Where any such order under sub-section (1) is made in relation to any
area, then, without prejudice to the provisions of sub-section (2) any member
of the Delhi Special Police Establishment of or above the rank of Sub-
Inspector may subject to any orders which the Central Government may make
in this behalf, exercise the powers of the officer in charge of a police station in
that area and when so exercising such powers, shall be deemed to be an
officer in charge of a police station discharging the functions of such an
officer within the limits of his station.

Sec. 6 “Consent of State Government to exercise of powers and jurisdiction.

Nothing contained in section 5 shall be deemed to enable any member of the
Delhi Special Police Establishment to exercise powers and jurisdiction in any
area in 5[a State not being a Union Territory or railways area], Without the
consent of the Government of that State.]”.
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The CBI has no jurisdiction to operate in the State of Mahayana as through

G.O. No. 42 of the Home Department dated August 21, 2017 the general
consent given to CBI was withdrawn & then and there the CBI lost its power
to further investigate regarding the present case. Even if it had to continue with
the investigation, the CBI could have obtained prior permission of the Hon’ble
Court to get directions in order to continue with the investigation and further
procedure.2

The signature tune in Vineet Narain3 case is; “However high you may be, the
Law is above you”. This replicates that even though the CBI being a very
prominent central agency can not prevail above the law of the land.

The very basic question of fact is that even after the revocation of the consent
given by the State Government, by what authority and jurisdiction the CBI
kept on investigating the given case.

2. Arrest
From the outset itself the investigation which led to the arrest of the Petitioner
was unjust, unfair, and unreasonable. The arrest was made without even
registering the R.C. which is mandatory for making the arrest. As earlier stated
in the facts of the present case that the State Govt. gave their consent wide
G.O. No. 29 of Home Department dated May 20th 2017 and the consent given
was revoked vide G.O. No. 29 dated August 1st 2017. It can be inferred that
the CBI had a total of 72 days before the revocation to investigate the case and
in those 72 days as mentioned the CBI could only complete the P.E. which
was not even required as the very purpose behind P.E. is to distinguish
between a cognizable and non-cognizable offence4 and the alert issued by the
INTERPOL was specifically regarding child trafficking and child prostitution

2
State Of West Bengal & Ors. v. The Committee for Protection of Democratic Rights, West Bengal &
Ors., MANU/SC/0121/2010.
3
Vineet Narain v. Union of India, (1998) 1 SCC 226.
4
Lalita Kumari v. State of U.P., (2014) 2 SCC 1.
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which is a cognizable offence under art 370 & 372 of IPC. According to the
modus operandi of the CBI, if an alert has been issued by a competent
authority which is especially regarding a cognizable offence then the CBI is
required to register a RC (regular case) at the very moment it receives the
information. Registration of F.I.R/R.C. is mandatory under Sec.154 of CrPC,
if the information discloses commission of a cognizable offence and no P.E. is
permissible in such a situation5. The CBI being such a trusted agency could
not even follow the procedure laid down in their own crime manual. Hence,
this clearly proves the CBI did not follow the procedure established.
In the present Petition it is amply clear that the proceedings have been initiated
against the petitioner not only to malign his name and reputation, but also to
harm the reputation of the institutions he has been associated with violating
the right to reputation which is the facet of the right to life of a citizen under
Art. 21. This Article within takes its sweep right to reputation.6
It implies that the procedure of the arrest of the Petitioner was totally invalid in
the eyes of law. CBI being a very reputed and highly recognized agency
should not have operated in such a manner as to destroy the due process of
law.
In the case of Common cause v. UOI7, it has been held that “Right to Life” set
out in Art. 21 mean something more than mere survival or animal existence.
This right also includes the right to live with human dignity and all that goes
along with it namely the bare necessities of life such as adequate nutrition,
clothing, and shelter over the head and facilities for reading, writing and
expressing oneself in different forms, freely moving about and mixing and
comingling with fellow human beings. A man has therefore. To be left alone to
enjoy “LIFE” without fetters. He cannot be hounded out by the police or the
CBI merely to find out whether he has committed or is living as a law abiding
citizen.
5
Manoj Kumar Agarwal v. CBI & Ors., MANU/DE/1520/2015.
6
State of Bihari v. Lal Krishna Adwani, (2003) 8 SCC 361.
7
Common Cause v. UOI, (1999) 6 SCC 667.
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The Petitioner hereby asserts that the manner of investigation and the arrest by
the CBI is invalid in toto as there was dire violation of the due process of law.
Therefore, the whole contention raised by the Petitioner is valid.

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II. WHETHER OR NOT THE CBI IS AUTHORISED TO ARREST THE

ACCUSED ON AN ALERT ISSUED BY INTERPOL WITHOUT THE
CONSENT OF STATE GOVERNMENT?
It is humbly submitted by the petitioner before this Hon’ble court that, the CBI is
not authorized to arrest the accused on an alert issued by the Interpol without the
consent of the state government.

INTERPOL is an International Police Org. with 194 countries as its members.

The object of establishing INTERPOL was “to promote the widest possible
mutual assistance between all criminal police authorities”. Indiyana is one of the
members of INTERPOL. The organizational system of issuing International
notices is the backbone of its functioning.

1. Domestic Laws
Notices issued by INTERPOL are not considered as administrative decisions
having transnational effect they are not construed as an “International
Administrative Act”. Although INTERPOL is an org. with its own legal
personality but according to the Constitution of Indiyana International laws are
not codified laws and the laws under INTERPOL are of International nature.
They are mere part of a treaty. Enforcement of a treaty must conform to the
domestic laws of the country.
In the present case, due to the alert issued and, the investigation made
thereafter led to the violation of the basic structure of the constitution i.e. the
Fundamental Rights under art.21, 14, and 19(d) of the constitution of the
Indiyana. The Right to Life and Personal Liberty along with the Right against
Arbitrariness and Freedom of movement of the petitioner has been infringed.
The respondent in the case acted merely on INTERPOL’s alert without
keeping in mind the laws of the country, and encroached upon the specific
powers given to the specified authorities.

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The domestic laws of a country reign supreme and decisions are made keeping
in mind such laws.8
If the CBI will work in such a manner it will be a difficult task to protect the
supremacy of the constitution of Indiyana as it lays down specific domestic
laws.

2. Authority
The CBI didn’t had any authority to continue the investigation and arrest the
accused as earlier established according to Sec 5 read along with Sec 6 of
DSPE Act

Sec. 5 of DSPE Act

“ (1)The Central Government may by order extend to any area (including

Railways areas), 1[in 2[a State, not being a Union territory]] the powers and
jurisdiction of member of the Delhi Special Police Establishment for the
investigation of any offences or classes of offences specified in notification
under section 3.

(2)When by an order under sub-section (1) the powers and jurisdiction of

members of the said police establishment are extended to any such area, a
member thereof may, subject to any orders which the Central Government
may make in this behalf, discharge the function of a police officer in that area
and shall, while so discharging such functions, be deemed to be a member of a
police force of that area and be vested with the powers, functions and
privileges and be subject to the liabilities of apolice officer belonging to that
police force.

(3)Where any such order under sub-section (1) is made in relation to any
area, then, without prejudice to the provisions of sub-section (2) any member
of the Delhi Special Police Establishment of or above the rank of Sub-
Inspector may subject to any orders which the Central Government may make

8
Bhavesh Jayanti Lakhani v. State Of Maharashtra & Ors., (2009) 9 SCC 551.
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in this behalf, exercise the powers of the officer in charge of a police station in
that area and when so exercising such powers, shall be deemed to be an
officer in charge of a police station discharging the functions of such an
officer within the limits of his station.

Sec. 6 of DSPE Act

“Consent of State Government to exercise of powers and jurisdiction.Nothing

contained in section 5 shall be deemed to enable any member of the Delhi
Special Police Establishment to exercise powers and jurisdiction in any area
in 5[a State not being a Union Territory or railways area], Without the
consent of the Government of that State.]”.

According to the above mentioned sections CBI had already lost the authority
to proceed further with the investigation as and when the consent was revoked.

The CBI without informing the State authorities proceeded with the
investigation and even made the arrest. This implies the arbitrariness on the
part of the CBI as it tried to act in a way supreme to the State authorities and
above the law of the land. It was a dire disrespect of the powers of the
superiors.
The CBI did not even have the authority to arrest the petitioner without
informing the State police. As per the functions of CBI it is required for the
CBI to assist the State police in the investigation of the offences having
International ramification like in the present case and not to overpower the
State authorities.

3. Judicial Intervention
The CBI had an option to go the court when the State authorities withdrew
their consent as it has been laid down by this Hon'ble Court that a decision to
direct an inquiry by the CBI against a person can only be done if the High
Court after considering the material on record comes to a conclusion that such
material does disclose a prima facie case calling for an investigation by the

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CBI or any other similar agency, and the same cannot be done as a matter of
routine or merely because a party makes some such allegations.9 However, the
CBI in the present case did not really have any record on the issue and hence,
they didn't even approach the court for the grant of the permission for
continuing the investigation in the State of Mahayana.
This clearly implies mala fide intention on the part of the Respondent, of
harming the reputation of the social worker. In the opinion of the Petitioner,
this action of CBI could be because of some political vendetta. As it has been
said by the former Chief Justice of the Federal Court, R.M. Lodha that the CBI
is a “Caged Parrot”, the petitioner duly agrees with it.
It is evident that the reason behind the action of CBI was just to spoil the
reputation of the prominent personalities, the petitioner being one of them. In
addition, the action of arresting a person is an extremely serious one. It not
only attaches the social stigma to the person so arrested but also abridges the
personal liberty of that particular individual.

Therefore, the CBI is not at all authorised to arrest the accused on an alert issued
by the INTERPOL without the consent of the state government.

9
Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and
Ors., MANU/SC/0441/2002.

9
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III. WHETHER OR NOT THE GENERAL CONSENT GIVEN BY THE STATE

GOVERNMENT TO CBI FOR INVESTIGATION OF A PARTICULAR
CRIME CAN BE REVOKED BEFORE THE COMPLETION OF
INVESTIGATION?
It is humbly submitted by the petitioner before this Hon’ble court that the
general consent given by the state government to CBI for investigation of a
particular crime can be revoked before the completion of investigation.

1. General Consent
There are two types of consent-
Case-Specific & General Consent
The present case deals with general consent which is required by the CBI in
order to investigate in a particular State.
The Petitioner here by asserts that as the State Govt. has the authority to give
the consent, revocation of such consent comes along with it. As established
in earlier arguments the consent of the State Government is mandatory to
access jurisdiction in a particular State. This has been stated in Sec 6 of
DSPE Act. However, the said act only talks about the consent to be required
hence, this clearly indicates that if there is any revocation of such consent
then the CBI cannot operate suo motu. The very existence of Sec 6 in DSPE
Act,1946 denotes the limitation imposed on the CBI and the Powers
conferred on the State Government. Hence, the State Govt. is within its
power to limit the CBI to exercise its jurisdiction in a particular State.

2. What is Revocation?
Revocation means that CBI officers will lose all the powers of a police
officer as soon as they enter the State unless the State Govt. has allowed
them.
In the present case, the CBI wasn’t working with proper process and was
going against prominent personalities without any reasonable justification.
The state police were not at all involved and was upset as their powers were

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not respected and were being encroached upon. The CBI had 72 days before
the revocation was made, however, in those 72 days the CBI could not find
anything related to the offences being conducted in the State of Mahayana
and neither the CBI was working according to the due process of law and it
went on exceeding its powers. As the most important duty of a State Govt. is
to protect the interests of their people, the Govt. was forced to withdraw their
consent.
However, the Respondent did everything on its own which was not within its
power. Even after the revocation, it continued with the investigation and
even made the arrest. The respondent had not registered any R.C. before the
revocation which is an essential element of the investigation and arrest
procedure and also the Respondent claims that the P.E. was completed before
the arrest but there isn’t any evidence that the Respondent has anywhere
registered the P.E.. This clearly proves that the investigation done and the
arrest made after the revocation was totally invalid as once the consent is
revoked a fresh case cannot be registered and the arrest of the Petitioner was
made after the withdrawal of the consent of the State Govt. Hence, the whole
investigation and arrest is not well-founded.
In the view of Sec. 6 of DSPE Act, 1946, the powers and jurisdiction
conferred under Sec. 5 can be exercised in the extended area only with the
consent of the Government concerned.10
In Manoj Kumar's11 case it was held that Sec. 6 of the DSPE Act 1946 is
mandatory in nature and the jurisdiction of DSPE can only be enlarged vide
consent of the concerned State Govt.

Therefore, the Petitioner asserts that the general consent given to the CBI can be
revoked by the State Govt. As it is the discretion of the State to give and take back
the consent.

10
AK. Surendran v. Simon K. Francis & Ors., MANU/KE/0384/2006.
11
Supra 5.
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IV. WHETHER OR NOT THE ESTABLISHMENT OF DSPE/CBI AS POLICE

FORCE IS CONTRARY TO CONSTITUTIONAL PHILOSOPHY OF
DISTRIBUTION OF POWER BETWEEN CENTRE AND STATE?
It is humbly submitted by the petitioner before this Hon’ble court that the
establishment of DSPE/CBI as police force is contrary to constitutional
philosophy of distribution of power between Center and State.

1. CBI is contrary to Constitutional Scheme

The pivotal point of a federal constitution is the division of power between
the center and the region, the whole structure of the federal system
constitutes to revolve around this central point.12 Usually certain powers are
allotted exclusively to center, certain powers are allotted exclusively to
region & there may be a common or concurrent area for both to operate
simultaneously. Each one of these organs have to confine itself within the
field entrusted to it by the constitution and not to act in contravention to the
letter and spirit of the Constitution.
The constitution of Indiyana seeks to create three functional areas-
a. An exclusive area for the center (Union List)
b. An exclusive area for the state list (State List)
c. A common or concurrent area in which both Central & State may
operate simultaneously subject to the overall supremacy of the constitution.
(Concurrent List)

The establishment of CBI as police force is contrary to constitutional

scheme. The Central legislature have no constitutional backing on the
formation of CBI, the central legislature went out of its ambit and made the
agency.

2. CBI as an organ of the Central Govt.

12
Dharam Dutt & Ors. v. UOI & Ors., (2004) 1 SCC 712.

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CBI may be treated as the creation of the Central Govt. under entry 8 of list I
(Union List), but the idea behind which is that there may be a bureau to
collect information with regard to any kind of crime committed by people
throughout the country and also investigate whether the information supplied
to it is correct or not thereby assisting the State police in the efficient
working13. However, the “police” and “law and order” are subjects under the
state list. The power of police in a state in respect of any offence committed
within the territory of the State comes within the legislative competence of
the State. Though, undoubtedly the Constitution exhibits supremacy of
parliament over State Legislature yet the principle of federal supremacy laid
down in Art. 246 of the Constitution cannot be restored to unless there is an
irreconcilable direct conflict between the entries in the Union and the State
lists. There is no quarrel with the broad proposition, that under the
constitution there is a clear demarcation of legislative powers between the
Union and the States and they have to confine themselves within the field
entrusted to them.

Whereas in the present case the CBI depicting itself as the body of central
govt. is working out of its ambit by encroaching upon the duties and powers
of the State police as without even having proper jurisdiction it continued
with the investigation and arrested the petitioner, it went against the State
govt. and now claims that the withdrawal of consent of the state govt. is
invalid. The rule of law requires that the federal structure embodied in the
constitution as a basic principle should not be disturbed by any dept. to
investigate an offence in a State committed out of its jurisdiction without the
consent of that particular State. The CBI is trying to build a new edifice by
ignoring the express statutory provisions and thereby trying to achieve
something indirectly which cannot be achieved directly. The respondent’s
perseverance is dismantling the federal system of the constitution of
Indiyana. According to a famous aphorism, federalism connotes a legislative

13
M.P. Jain, Indian Constitutional Law, 550 (8th ed., 2018)
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govt. There being a division of power between the Center and State, none of
the govt. can step out of its assigned field; if it does so the law passed by it
becomes unconstitutional.

Hence, the CBI, an agency established by the union intervenes in respect of a state
subject, without the consent of the concerned state.

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V. WHETHER OR NOT THE RULE DEFINED AND POWERS CONFERRED

ON CBI UNDER THE DSPE ACT, 1946 ARE CONSTITUTIONALLY
VALID?
It is humbly submitted by the Petitioner before this Hon’ble court that the rules
defined and the powers conferred on CBI under the DSPE Act, 1946 are
constitutionally invalid.

The CBI is constituted by way of an Executive Order/ Resolution, dated

01.04.1963, issued by the Ministry of Home Affairs, Government of India, and
not by the way of any legislation.
According to the 7th Schedule of the Constitution the Central Govt. has powers
under the Union List and the State under the State List. CBI being an organ of
the Central Govt. cannot carry out functions of police as the constitutional
scheme does not permit the Central govt. to carry out the functions of police as
these functions lies in the exclusive domain of the State Govt. concerned.
The State legislature can make laws related to Police with reference to List II of
the Seventh Schedule. Though, parliament too is competet to make laws on any
entries mentioned in List-II, yet, such laws should be made without encroaching
upon the federal structure of the Constitution.

Whether CBI is a statutory body?

A statutory body is one having a legal sanction. However, the CBI is just made
through a Govt. resolution and there is no legislation particularly for it. It is
claimed that the CBI derives its powers from the DSPE Act, 1946, however, the
DSPE Act, 1946, talks about a Special Police Force to be called Delhi Special
police Establishment and the term CBI is nowhere mentioned in the said act. If a
statute gives a specific name to an organization, it should not be permissible to
confer a new name on the organization by any executive instructions. And, even
after so many amendments CBI was not mentioned anywhere in the said act.
The DSPE has been established by the DSPE act, 1946 whereas the CBI has

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been constituted by a mere executive fiat and hence, there should not be any
connection between both.
Discussions have been going on in the Parliament about empowering CBI by a
suitable legislation in order to investigate the offences. 14 It is high time that the
DSPE Act, 1946 is replaced with an exclusive and separate Act for CBI. 15 This
implies that even the parliament knows that the functioning of CBI needs to be
modernized and its current dependence on the DSPE Act is not meaningful.
The Petitioner hereby asserts that if the CBI is a valid constitutional body there
is a need to bring a legislation properly specifying its roles and powers and for
the current period the CBI can only make enquiries to assist any investigation
carried out by the local police.
It was held in the case of Common Cause v. UOI16 “it is clear that if the field
meant for legislature and executive is left unoccupied detrimental to the public
interest, this court would have ample jurisdiction under Article 32 read with
Articles 141 and 142 of the Constitution to issue necessary directions to the
executive to sub serve public interest”

Therefore, in lieu of the present case it is highly required for the courts to review as
there is absence of an adequate legislation.

14
19th Report of Department- Related Parliamentary Standing Committee on Personnel, Public
Grievances, law and Justice, Rajya Sabha, Demands for Grants of the Ministry of Personnel, Public
grievances and Pensions, 2008.
15
43rd Report of Department- Related parliamentary Standing Committee on Personnel, Public
Grievances, law and Justice, Rajya Sabha, Action taken Replies of the Govt. on the observations
contained in the 38th report of the Committee on Demands for Grants of the Ministry of Personnel,
Public grievances and Pensions, 2010.
16
Supra 7.
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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
this Hon'ble Court may be pleased to:

1. Hold the CBI liable for the violation of the Due Process of law and the right to
Life and Personal Liberty under Article 21.
2. Declare that the manner of investigation and arrest made by the Respondent is
pro tanto invalid.
3. Declare that the DSPE/CBI as police force is contrary to the constitutional
scheme of distribution of power between central and state.
4. Direct the CBI to compensate the Petitioner for mental loss and agony, and the
harm caused to his reputation.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience. And for this, the Respondents as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENT

XIV