In West Bengal a big scam
was noticed through ponzi scheme or chit fund type scheme. Companies collected some
money and promised to give heavy return. Sardha and other companies were
involved in this scheme and scam where the companies cheated lakhs of people
most of whom were people from poor and weaker section of society. (poor persons
invested even Rs 100 in the scheme). The
Sardha group started its nefarious design in 2006 and the scam was noticed in
2013. This group and other groups may have collected around 20000 crores from West
Bengal, Orissa, Assam, Bihar, Tripura and duped millions of people. Mamata Banerjee
constituted a special investigation team (SIT) comprising four IPS officers
headed by Rajeev Kumar who is currently Commissioner of Police, Kolkata. In
2013 he being head of SIT has investigated the case, collected various documents,
electronic evidences, pen drives, CD, etc. Kunal Kumar Ghosh,
Member of Parliament, Rajya Sabha, Journalist and MP, TMC was arrested in 2013. The Supreme Court on
May 9, 2014 ordered CBI to take over investigation of Sardha scam and other
similar scam in all concerned States. Certain arrests were made. Srinjoy Bose, Member of Parliament from TMC was arrested in Nov, 2014 by
CBI. CBI also summoned four IPS officers constituting SIT to appear and give
details of their investigation. Rajeev Kumar, CP,
Kolkata has also been summoned at least three times but he did not appear. The
CBI also asked for police staff as the volume of scam was too big and the CBI required
human resources. CBI approached the Supreme Court regarding non cooperation of
the West Bengal government. On July 16, 2018 the Supreme Court observed that such
attitude of West Bengal government was "Sorry State of Affairs" and instructed the government
to cooperate CBI. The Supreme Court also asked police officers to approach court
in case they feel unnecessarily harassed. In August 2018 CBI again summoned Rajeev
Kumar who did not turn up. Meanwhile CBI got engaged in its own trouble between
two top officers (Alok verma and Rakesh Asthana) where both alleged each other
of serious corruption charges followed by removal of CBI director. It seems
after the internal conflict of CBI was over, CBI instructed Kolkata office to
meet and inquire Rajeev Kumar because CBI apprehended that crucial evidences
are destroyed and disappeared. Therefore, to further investigate the CBI team tried
to meet Rajeev Kumar, the Police Commissioner of Kolkata. CBI team was stopped, manhandled and detained
by Kolkata Police. Mamata Banerjee alleged that CBI was being used by Modi government
because in West Bengal there was a coalition meet of various political parties.
Mamata Banerjee has also alleged that CBI has approached Kolkata police without
permission of the State government. Is
the CBI legally required to seek permission of State government in Sardha chit
fund and Rose Valley scam? The answer is no because of two reasons, constitutional
and statutory.
A. Constitutional reason
The Supreme Court ordered
CBI to conduct investigation in this scam of Sardha ponzi scheme (Subrata Chattoraj v. Union of India, May 9, 2014). This order
is given under article 32 of the Constitution of India. The Supreme Court has
exercised its power of judicial review under article 32 which is a part of basic
structure of the Constitution of India. The Supreme Court exercises constitutional
power under article 32 and therefore, this order is above any other provision,
be it statutory or executive. If the central government gives CBI any direction
to begin a probe, in that case, CBI cannot proceed without the consent of State
government because both central and State government are executive authorities and
both are bound by the provision (section 6 here) of DSPEA, 1946 (DSPEA deals
with CBI). What to tell about Supreme Court, even high court can give direction
to CBI to conduct investigation and CBI is not required to seek any permission.
This is also not violative of federal feature. (see, State
of West Bengal v. CPDR, 2010, a Constitution
Bench decision).
B. Statutory reason
It is being argued that
Ms Mamata Banerjee has withdrawn the consent given under section 6 of DSPEA in
Nov 2018. The Supreme Court passed a judgement (Subrata Chattoraj v Union of
India)on May 9, 2014 where it ordered
the CBI to conduct investigation into the scams to the tune of 10000 crores (and
2015 the Supreme Court apprehended that it may be 20000 crore). Such withdrawal
of consent by an executive authority is inconsequential because the order was
by the Supreme Court under constitutional power. For the sake of legal discussion only the legal question is whether the
withdrawal of such consent has retrospective operation or prospective
operation. Will such withdrawal be operative from back date and stop previous investigations?
There is another Supreme Court judgement which removes the cloud. In the
case of Kazi Lhendup Dorji v. Central Bureau of Investigation decided on
29 March, 1994, (1994 Supp (2) SCC 116) by a full bench (three judges) the Court held-“
Section 6 of the Act, operates only prospectively and the said withdrawal would
not apply to cases which were pending investigation on the date of issuance of
the said Notification. The Notification dated January 7, 1987, does not
preclude the C.B.I, from submitting the report in the competent court under
Section 173 Cr. P.C. on the basis of the investigation conducted by it ….”
Therefore, the argument
that CBI did not take consent of the West Bengal government or the step of CBI
violates federal structure or the consent was withdrawn has no sound legal
basis. Other objections are that there
is a court order not to take coercive measure. And CBI did not go with warrant
to meet Rajeev Kumar at his residence. For normal inquiry no warrant is
required under law that too when the Supreme Court has ordered investigation
with free hand. And talking to an SIT chief is not a coercive measure that too
when he did not honoured various summons of the CBI and CBI had apprehensions that
evidences are destroyed or disappeared.
The CBI was doing its job and ensuring rule of
law be prevailed. The government of West Bengal and the police chief has not
discharged their obligation and acted against rule of law. Hope the Supreme
Court will take this matter seriously and direct the West Bengal government to
cooperate with CBI.
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