The Rizwanur Rahman case had created a wave of anger against the state police and sympathy for the victim’s family. It was also the case against which the West Bengal government fought tooth and nail, questioning the legality of the Calcutta High Court’s order to go ahead with a Central Bureau of Investigation (CBI) probe. And West Bengal chief minister Buddhadeb Bhattacharya wondered how the high court could pass such an order without consulting the state government. A few in his ministry openly questioned the authority of the high court to pass such an order.

But a judgment on December 5, 2007, by Justice Bhaskar Bhattacharya and Justice Sadhan Kumar Gupta of the Calcutta High Court, in the case of Jawahar Singh, justifies the power of the court to order a CBI investigation. The judgment also clearly explains when and under what circumstances the court can use its powers to bypass the state machinery and order a CBI probe.

“Where it is not satisfied with the police or CID proceedings, the high court has the power to transfer the investigation from the CID to the CBI,” says Ranjan Roy, CBI lawyer, Calcutta High Court. “There are instances where the police has been influenced, where there’s political pressure or where the CID has made no progress in the investigation. Such instances are reason enough to ask for a CBI probe or transfer the case to the CBI,” he adds.

The Constitution empowers the court to exercise such powers. Article 226 states the high court has the power to entertain certain writs to oversee within its jurisdiction that the citizen’s fundamental right is exercised. Article 227 empowers the high court to oversee the orders passed by lower courts. Article 142 empowers the Supreme Court to order investigation in the interest of justice.

Kalyan Bandyopadhyay, senior lawyer, appearing on behalf of petitioner Jawahar Singh, contended that “although the son of the petitioner had been missing for three years, to date no effective steps were taken to trace his whereabouts. Hence CBI investigation is justified”.

Jawahar Singh’s son was kidnapped in 2004, but the CID made no progress in the matter even after three years. The Calcutta High Court held that even after interrogation, the CID hadn’t taken any effective steps to find out the whereabouts of the missing person. The CID arrested suspect Vineeth Kumar Singh in February 2007, but made little progress on tracing the kidnapped son.

“Enough opportunities were given to the CID to complete the investigation within a reasonable time but the way the investigation proceeded the court found ample reasons to be anxious about the life of the son of the petitioner. If further time is wasted without any prompt and appropriate investigation, the possibility of fruitful result in the matter would be remote,” the judgment observed. Though no specific prayer was made for shifting the investigation to the CBI, the court exercised its power to pass this direction for the proper investigation and protection of the life of someone.

“The court can pass a suo motu order asking for a CBI probe,” points out Siladitya Sanyal, criminal lawyer, Calcutta High Court. In the Nandigram police firing on March 14, 2007, which led to the death of 14 people, the Calcutta High Court ordered a probe by the premier investigation agency.

The court held that the police firing was unconstitutional and cannot be justified under any provision of law. “The court was justified in taking suo motu notice of the incident on the basis of newspaper reports and the governor’s statements,” adds Sanyal.

Another area where the court can always ask for a CBI probe is in cases of police inaction or where their action is under the scanner. Roy cites the R.S. Sodhi case where the apex court held, “However faithfully the local police may carry out the investigation, this will lack credibility as the allegations are against them.” In this case, also known as the Pilbhit firing case, the state police were accused of high-handedness. The SC held that where the allegations are against the state machinery, however efficient they might be, they cannot be put in charge of investigations as there’s a chance of bias creeping in.

In the Sampat Lal case — where Sampat Lal filed a PIL after the bodies of two teens Sanjib and Tirthankar were found on the rail tracks in Barrackpore — the Supreme Court held that the high court cannot appoint a special officer with a direction to inquire without being satisfied that the investigation so far had not been proper or adequate. The general view was that foul play was involved (it was said the teens had stumbled upon a drug cartel and were hence killed), though the police were trying to pass it off as a case of twin suicide. Thus the apex court held that a CBI investigation can be ordered, but only after being satisfied that the CID or police were not performing their duties.

“The apex court has repeatedly held that the consent of the state government under Section 6 of the Delhi Special Establishment Act, 1946, is not required when the high court orders a CBI enquiry in exercise of its jurisdiction under Article 226,” says Calcutta High Court lawyer Prasanta Bishal. The CBI was set up under the Delhi Special Police Establishment Act, 1946.

A CBI investigation can also be sought in cases of corruption in public administration, misconduct by the bureaucracy, fabrication of official records and misappropriation of public funds. “In such cases, investigation should be carried out by an independent agency. If the court feels the CID has been influenced, the CBI then becomes the only option,” says Uttam Majumdar, vice-chairman of the Bar Council, West Bengal.

“Even large scale violation of human rights can create scope for a CBI probe,” he adds.

However, in issuing directions for a CBI probe, the courts must be mindful of the public interest and the principles of proportionality, that is, the need to strike a balance between independent investigation (CBI probe) and the state’s power.