Consent of the concerned state government is required for CBI investigation in a state, as per legislative provisions and previous case references.

ORDER

1. A public interest litigation was filed before the Calcutta High Court by the Committee for Protection of Democratic Rights, seeking relief, amongst others, regarding the investigation in Garbeta Police Case No.3 of 2001 arising out of the written complaint lodged by one Abdul Rahaman Mondal on 4-1-2001, to be forthwith handed over and conducted by the Central Bureau of Investigation (CBI). It was alleged that on 4-1-2001 at 10.30 p.m. some miscreants attacked with firearms and other explosives as a result of which 11 persons had died and the FIR was lodged on 5-1-2001. Although in the incident 11 persons had died on 4-1-2001 and more than three months had lapsed, yet all the accused persons named in the FIR were not arrested except two. Eleven persons were said to have died as alleged in the FIR but no serious attempts were made to identify those persons said to have died in the incident. According to the statement of Abdul Rahaman, 5 persons had died but no serious attempts were made to identify those 11 or 5 persons said to have died in the incident, though the police had registered a case under Section 302 IPC, etc. Three months had elapsed and the police had not been able to come to a definite conclusion whether those persons were dead or alive. The High Court observed that in the background of the case, it has strong reservations about the impartiality and fairness in the investigation by the State Police because of the political implications and, therefore, in the opinion of the High Court no useful purpose would be served in continuing the investigation by the State Investigation Agency and even if the investigation is made by the State agency, it would be looked at with reservation and suspicion because of the allegation that all the assailants were members of a ruling party. Therefore, it was considered all the more necessary to do justice in the case and to maintain impartiality and fairness in the investigation and to uphold the rule of law the High Court thought it appropriate that the inquiry be conducted by an independent agency, that is, Central Bureau of Investigation (CBI).

2. Aggrieved by the order passed by the Division Bench of the High Court directing investigation to be conducted by CBI, the State of West Bengal filed petition for special leave to appeal before this Court. Notice was issued by this Court on 12-7-2001 and leave was granted on 3-9-2001.

3. It is submitted by the learned Senior Counsel, Shri K.K. Venugopal, that the High Court could not have exercised powers of directing investigation in the crime committed and FIR lodged within the territorial jurisdiction of the State of West Bengal by CBI without the consent of the State Government of West Bengal. With all fairness, the learned Senior Counsel has brought to our notice the reference order made in Haryana Mahila Sangathan v. Union of India on 10-3-1989, whereby a two-Judge Bench of this Court referred the question of law to a larger Bench, preferably a Bench comprising of five learned Judges, that whether the Court can order CBI to investigate a cognizable offence, which is alleged to have taken place in the State, without the consent of the State Government and without any notification or order issued by the State Government, conferring powers on CBI to investigate any case in the State.

4. On 8-7-1996 the matters were placed before the Constitution Bench and on the basis of the submissions made by the Senior Counsel appearing therein that the question of law involved in those matters is covered against him by the judgments of this Court in Advance Insurance Co. v. Gurudasma and in Kazi Lhendup Dorji v. CSP. Thereupon, the appeals and the connected matters including WPs (Crl.) Nos. 531-36 of 1988 were dismissed with no costs.

5. Learned Senior Counsel for the appellants urges that the matters, wherein the question was referred, had been dismissed on the basis of concession made by the Senior Counsel appearing therein and, in fact, the