Why is CBI, and not ACB, investigating Adarsh? A fresh development, some inconvenient questions

Mumbai, 16 Nov: Activist Santosh Daundkar and his lawyer Y P Singh today moved the Metropolitan Magistrate at Esplanade Court to direct Maharashtra Anti-Corruption Bureau (ACB) to register a First Information Report (FIR) against former IAS officer Ramanand Tiwari (currently State Information Commissioner) and other key players in the Adarsh scam. This is because their complaint to ACB did not result in an FIR being registered till date. As per the Criminal Procedure Code (CrPC), FIR must be registered within 48 hours if cognizable offences are clearly made out in the complaint. The case will come up for hearing before the magistrate on December 1.

Y P Singh argues that CBI’s ongoing investigation is an effort to pull wool over citizens’ eyes and letting the main culprits slip away. “As per the CBI manual, where a larger number of State Government Officers and fewer Central Govt. officers are involved, the jurisdiction for investigating the offences rests with the State ACB. Also, why has no FIR been registered yet? Until FIR is registered, the law of the land does not empower any investigating agency to conduct meaningful investigations,” he says.

CIVIL SOCIETY ASKS SOME INCONVENIENT QUESTIONS:

A. HAS CBI REGISTERED AN FIR? IF SO, ARE SUSHIL KUMAR SHINDE, VILASRAO DESHMUKH AND ASHOK CHAVAN NAMED AS THE ACCUSED? One wonders whether by asking CBI to handle investigations, the Prime Minister is attempting to shield them. CBI is directly under Personnel Ministry/DOPT, which is a portfolio held by Dr Manmohan Singh himself. Also, until becoming the Chief Minister, Prithviraj Chavan was Minister of State for Persmin/DOPT.

B. IS CBI OUTSIDE ITS PROPER JURISDICTION? Look at CBI’s website (http://cbi.nic.in/aboutus/cbiroles.php) which says, “The following broad categories of criminal cases are handled by the CBI: Cases of corruption and fraud committed by public servants of all Central Govt. Departments, Central Public Sector Undertakings and Central Financial Institutions.” Under the subhead, ‘Jurisdiction of CBI vis-a-vis State Police’, it says, “Law and Order is a State subject and the basic jurisdiction to investigate crime lies with State Police. Besides, due to limited resources, CBI would not be able to investigate crimes of all kind. CBI may investigate: Cases which are essentially against Central Govt. employees or concerning affairs of the Central Govt; Cases in which the financial interests of the Central Government are involved; Cases relating to the breaches of Central Laws with the enforcement of which the Government of India is mainly concerned; Cases having interstate and international ramifications and involving several official agencies where, from all angles, it is considered necessary that a single investigating agency should be in charge of the investigation.”

BY CONTRAST, THE JURISDICTION OF ACB MAHARASHTRA IS BEYOND QUESTION. ACB’s website (http://acbmaharashtra.org/ ) states, “The Anti-Corruption Bureau has jurisdiction over the State of Maharashtra. Police Officers attached to the Bureau are competent to investigate cases against all public servants, irrespective of the fact whether the public servant concerned is under the control of the Central Government or of the State Government... However, there is a separate agency (i.e. the Central Bureau of Investigation) to deal with cases against Central Government Servants. Hence, to avoid duplication of work, the officers of the Bureau make enquiries and investigations into complaints only against servants of the State Government, of the statutory Corporations of Bodies set up and financed by the State Government...”

Prevention of Corruption Act 1988 ( http://www.box.net/shared/x9a6utkf9g) defines the term “public servants” in the broadest possible way as “any person in the pay of the government”. Even ministers and legislators are “public servants” under this definition. ACB derives its mandate under this Act.

C. CBI IS UNDER SUPERINTENDENCE OF CENTRAL VIGILANCE COMMISSION (CVC), WHICH HAS NO JURISDICTION OVER POLITICIANS. As per the CVC Act notified on 12.09.2003, the superintendence over CBI relating to investigation of offences alleged to have been committed under the Prevention of Corruption Act 1988, vests in Central Vigilance Commission. Even if we ignore the fact that the current CVC Mr P J Thomas is himself a tainted bureaucrat, how does one cope with the fact that CVC does not have jurisdiction over politicians, and that it merely forwards complaints against bureaucrats to the respective department heads to investigate and report back? These are critical deficiencies that have been pointed out by Karnataka Lokayukta Justice Santosh Hegde, former CVC P Shankar, senior Supreme Court advocate Prashant Bhushan and others.

Admittedly, the involvement of defense land and defense personnel – a central subject -- provides a fig-leaf of justification for CBI’s involvement. The question that we are asking Dr Manmohan Singh is: Mr Prime Minister, are you misusing your direct power over CBI for shielding your cabinet colleagues Sushil Kumar Shinde and Vilasrao Deshmukh?

Krish

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