State ACB Arrests Central GST Officer - Helpless CBI Looks On
DECEMBER 05, 2018
By Vijay Kumar
Can State ACB arrest a Central GST officer?
FIRST the NEWS:
The Hindu - 1 st December 2018:
|
ACB traps Central govt. employee
For the first time, officials of the Anti-Corruption Bureau (ACB) have done the job of the Central Bureau of Investigation (CBI), for which the State government has withdrawn the general consent to register a case in A.P.
The Central Investigation Unit (CIU) of the ACB on Friday trapped Central Board of Indirect Taxes and Customs (CBIC) office superintendent M. Kali Ramaneswar of Machilipatnam while he was allegedly accepting a bribe from a complainant.
The accused officer was caught red-handed while he was allegedly taking Rs.30,000 from K. Lokesh Babu of Jayalakshmi Steel and Cements, for not auditing their Input Tax Credit (ITC) records and harassing them, said ACB Director-General R.P. Thakur.
The accused was taken into custody and investigation is on.
|
So, a CGST Superintendent has been arrested by the Anti-Corruption Bureau (ACB) of the State of Andhra Pradesh under the Prevention of Corruption Act. The Andhra Pradesh Government had recently withdrawn its general consent to the CBI to investigate cases in Andhra Pradesh. So, effectively, the CBI is ineffective in Andhra Pradesh. Can the State ACB step in?
The Hindu - 1 st December 2018:
| A.P. govt. stalled consent, says CBI - Accuses ACB of using confidential information to trap Central excise official.
In the first face-off with the Andhra Pradesh government after withdrawal of general consent, the Central Bureau of Investigation has accused the State government's Anti-Corruption Bureau of using the inputs it had furnished seeking specific permission to proceed against a public servant.
The CBI said its Visakhapatnam unit received a written complaint from one K. Lokesh Babu on November 28, alleging a bribery demand by Mukku Kali Rajeswar, Superintendent, Central Board of Indirect Taxes and Customs (CBIC), for not raising objections in the CGST returns filed by the complainant's firm.
"Immediately on receipt of the written complaint, the CBI (Visakhapatnam) Superintendent of Police wrote a top secret letter addressed to the Principal Secretary (Home) of the Andhra Pradesh government and sent the letter by hand to the Principal Secretary through a Deputy SP rank officer of CBI," said the agency.
In this letter, the agency requested the State government to issue a specific consent to the CBI to lay a trap. It also wanted the information to be kept confidential and not to be shared with any other party.
The SP also called on the Principal Secretary (Home) at her office in Velagapudy on November 29 and requested for early action in issuing the specific consent under Section 6 of the DSPE Act to enable the CBI to register the case and lay the trap, the agency said.
However, the State government allegedly did not issue the specific consent and instead shared the details with the State ACB.
The ACB laid a trap on November 30 evening against the accused Central government official by using the contents of the request letter.
"Further, State ACB also issued a press release as if the complainant had directly approached them," said the CBI.
|
The Hindu - 1 st December 2018
|
ACB has jurisdiction on Central staff too: DGP
R.P. Thakur, Director-General of the Anti-Corruption Bureau and DGP, said on Saturday the ACB would have jurisdiction on all State and Central government employees in the State.
He told newsmen that it would work in coordination with the CBI, the Central Vigilance Commission (CVC), the Income Tax (IT), the Enforcement Directorate (ED) and other agencies to control corruption.
Mr. Thakur said a complainant K. Lokesh Babu had approached the ACB on November 22 and then the CBI against Central Board of Indirect Taxes and Customs (CBIC) office superintendent M.K. Ramaneswar of Machilipatnam.
He submitted to the ACB Vijayawada the voice recordings of the officer who allegedly demanded? 1 lakh. As the ACB team was busy in another trap, the officers asked him to come after two days. But the trader had approached the CBI, Visakhapatnam.
The CBI SP approached the Principal Secretary (Home) for consent to trap Ramaneswar. As the ACB already had information on the case, the Central Investigation Unit (CIU) successfully trapped him, Mr. Thakur said.
In a press release issued by Principal Secretary (Home) A.R. Anuradha said the AP government had briefed the current policy of the government and asked the CBI SP to take up the operation jointly, which the CBI did not agree to.
|
The Hindu - 3 rd December 2018
|
CBI should work with ACB to act on bribery cases: official
The CBI should work jointly with the Anti-Corruption Bureau (ACB) to take action in corruption cases in Andhra Pradesh, after the State government withdrew general consent to the CBI, according to Principal Secretary A.R. Anuradha.
In the first case after the GO. 176 on November 8 withdrawing the general consent, the agency approached the AP Principal Secretary (Home) requesting for consent to act in a corruption case against a Central Board of Indirect Taxes and Customs (CBIC) employee in Machilipatnam, M.K. Ramaneswar.
Explaining the policy of the State government, Ms. Anuradha asked the CBI authorities to work jointly with the ACB for which the Central investigation authority did not agree to.
The ACB however announced that it was ready to work with the CBI.
"The ACB has wider footprint in AP with 13 offices in all district headquarters and the DG office in Vijayawada. We have much manpower compared to the CBI and the ACB is in a better position to act swiftly on corruption complaints," ACB DGP R.P. Thakur said.
Good network
The ACB officials said they had good network in the Central government offices and were getting information on corrupt officers. It would focus on the Central government offices from now, an ACB officer said.
"The AP government reiterates its stand that the ACB will deal with corruption cases and welcomes all agencies including the CBI to work with the State investigating agency [ACB]", Ms. Anuradha said.
"Our aim is to put AP in the list of least corrupt States and we are ready to coordinate with all agencies including the CBI, the ED, the IT and other wings," Mr. Thakur said.
|
Is the CBI powerless in the States - without the consent of the State Government?
Can the State ACB arrest/investigate corruption cases of Central Government officers?
Maybe we need to go into a little history and jurisprudence.
The CBI story:
As per the CBI website,
During the period of World War II, a Special Police Establishment (SPE) was constituted in 1941 in the Department of War of the British India to enquire into allegations of bribery and corruption in the war related procurements. Later on it was formalized as an agency of the Government of India to investigate into allegations of corruption in various wings of the Government of India by enacting the Delhi Special Police Establishment (DSPE) Act, 1946. In 1963, the Central Bureau of Investigation (CBI) was established by the Government of India with a view to investigate serious crimes related to Defence of India, corruption in high places, serious fraud, cheating and embezzlement and social crime, particularly of hoarding, black-marketing and profiteering in essential commodities, having all-India and inter-state ramifications. CBI derives its legal powers to investigate crime from the DSPE Act, 1946.
Can CBI suo-moto take up investigation of any crime anywhere in the Country?
No. As per section 2 of the DSPE Act, CBI can suo-moto take up investigation of offences notified in section 3 only in the Union Territories. Taking up investigation by CBI in the boundaries of a State requires prior consent of that State as per Section 6 of the DSPE Act. The Central Government can authorize CBI to investigate such a crime in a State but only with the consent of the concerned State Government. The Supreme Court and High Courts, however, can order CBI to investigate such a crime anywhere in the country without the consent of the State.
Is the CBI legally constituted?
Several questions arose for consideration before the Guwahati High Court in 2013-TIOL-871-HC-GUW-MISC
1. Whether CBI is established under the DSPE Act, 1946, or
2. Is it an organ of the Delhi Special Police Establishment Act,
3. if not, whether a force, with the object of investigation of crimes preparatory to filing of charge-sheet for prosecution of offender, can be created by the Central Government by way of an Executive order/Resolution and
4. whether the CBI can be said to be validly created by the Central Government by way of an Executive order/Resolution.
The CBI was created by an executive resolution of the Home Ministry on 1 st April 1963. It seems this resolution is not available anywhere, though a copy obtained from the National Archives was produced in the Court. Nobody knows whether this had the approval of the President or the Cabinet.
The High Court observed,
- It is seen that CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946.
- the actions of the CBI, in registering a case, arresting a person as an offender, conducting search and seizure, prosecuting an accused, etc., offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional.
The High Court quashed the Resolution, dated 01.04.1963, whereby CBI has been constituted.
Thus, the very existence of CBI was quashed. The High Court judgement was delivered on 06.11.2013 and the Supreme Court stayed the operation of the judgement on 09.11.2013. So, the CBI now exists on the strength of a Stay Order from the Supreme Court. And the case is happily pending in the Apex Court. Why doesn't the government make a special plea to the Supreme Court to decide this matter on an utmost priority?
Manoje Nath, of the 1973 batch of IPS, who has the reputation of being a fiercely honest officer (and who had to pay a heavy price for that) answers:
Every politician, every political party worth the name aspires to the Sultanate of Delhi. All of them would like to use this versatile tool when their turn comes to discipline their rivals. CBI is happy to be used and has found innovative ways to be ever more useful.
He writes on CBI,
I am thinking of CBI, spawned in 1963, for some noble purpose no doubt, but it has proved to be by far the greatest disruptor of our political process in the last several decades, and its activities - antics -are constitutive of the political history of our time. It has destabilised governments, helped oust popular leaders, shored up the sagging fortunes of those who should have been condemned to jail, destroyed dynasties and consigned many highly regarded public figures to the moral twilight between guilt and innocence, forever.
The CBI is an aberration, a bio mythological monster.
(His latest blog CBI AND THE FOLLY OF THE WISE )
Even if the CBI is active, alive and legal, it still is required to take the consent of the State Government and once that is rejected, all that the CBI can do is stand and stare.
In the famous case of Himachal Pradesh Chief Minister, Virbhdra Singh, the Delhi High Court in its judgement dated 31.03.2017 asked the question:
Whether it was mandatory for the Central Bureau of Investigation to seek the consent of the State Government as per section 6 of the Delhi Special Police Establishment Act at the time of registration of FIR and its subsequent investigation and raiding the residential premises of the petitioners and non-conforming to mandatory provisions of section 6 of the Delhi Special Police Establishment Act vitiates the investigation as well as raid in the official premises of the petitioners?
And answered it as:
It was not mandatory for the CBI to seek the consent of the State Government of Himachal Pradesh under Section 6 of the DSPE Act at the time of registration of the FIR/ RC. Thus, the FIR/ RC cannot be quashed on the ground of there being no consent under Section 6 of the DSPE Act from the State Government of Himachal Pradesh. It was mandatory for the CBI to obtain the consent of the State of Himachal Pradesh under Section 6 prior to conduct of any part of investigation in the area of State of Himachal Pradesh. The issue whether such consent had been obtained generally, or specifically, as well as the issue as to what is the effect of the investigation conducted, if any, without obtaining the prior consent of the State Government of Himachal Pradesh, cannot be determined in the present proceedings and would fall for consideration, if and when a charge-sheet is filed before the learned Special Judge. The issue whether, investigation carried out de hors the consent of the State of Himachal Pradesh - even if it were to be accepted for the sake of arguments that such consent was not available, would have to be considered by the learned Special Judge.
The CBI has taken the case to the Supreme Court seeking a clarification on the nature of consent to be given by the State Government.
In a recent judgement (8th October 2018), the Delhi High Court held that merely because the further acts pursuant to that criminal conspiracy were performed by the co-accused in a place outside Delhi, in this case Raipur, there would be no necessity for the CBI to seek the prior sanction of the State of Chhattisgarh under Section 6 DSPE Act to take further steps to investigate that case in Raipur or other places in Chhattisgarh.
The Court observed,
At first blush, it would appear that any investigation carried out in a State other than the State where the case is registered would require the CBI to take the prior permission of the State in which the investigation is sought to be carried out. Thus, in the hypothetical situation of a case registered by the CBI in Kolkata, West Bengal requiring investigations to be carried out in four other States, if one went by the contention of the Petitioner then prior permission would have to be sought from the Governments of each of those four States before the CBI proceeds to take any step in any of those respective States by way of investigation.
The petitioner in this case was quick to move the Supreme Court, where it has just entered..
Alright, CBI needs permission of the State Government, but can the State Police trap and arrest a Central GST Officer for corruption?
Interestingly, though much noise is being made in the media now, this is not the first time that such a thing has happened. A similar incident took place in Andhra Pradesh more than twenty years ago. In June 1998, the Anti Corruption Bureau of the State of Andhra Pradesh laid a trap against a senior officer of a Central Government Undertaking and a bribe amount of four lakh rupees were recovered. The case went to the AP High Court with a question, whether the registration of the crime and laying of trap against the petitioner by a State agency, namely, ACB is illegal for want of jurisdiction and what is the consequence of such illegality?
The High Court noted that obviously in this case the registration of the crime, laying of trap and the initial investigation have been done by the ACB, which is a State agency against the petitioner, who is admittedly an employee of the Central Government Undertaking. Central Bureau of Investigation is the agency established to conduct investigation into the cases of bribery and misconduct against the employees of Central Government and its undertakings.
The High Court in Dr. G.S.R. Somayaji vs State through CBI on 27 September, 2001 made some very noteworthy remarks.
- It is one of the essential functions of the State to maintain law and order. To maintain an orderly society, the State has undertaken the task of bringing the culprits to book and prosecute them. The essential function of the police established under the Indian Police Act, 1861 is prevention and detection of the crime and to bring the culprits to book. In view of the diversity of cases pertaining to various fields like regular law and order problems, white collar offences, offences under special enactments both State and Central, and other economic offences, various investigating agencies have been established for administrative convenience of the State but the investigation would be always with the police. The investigating agency functions under the executive control of the State. The function of the investigating agency is merely to collect evidence and on being satisfied that there has been a prima facie case to initiate proceedings before a Court of law for its adjudication as to the guilt or otherwise of the person proceeded against. Adjudication, therefore, is the sovereign judicial function of the State. If this is understood, there may not be any difficulty in adjudicating the short but an important point that arises in this case.
- The consent of the State Government is required for the Central Bureau of Investigation to conduct investigation even against a Central Government employee when that employee is working within the territorial limits of that State.
- Illegality in the investigation by itself will not vitiate the merits of the case the cognizance whereof was taken by a competent Court unless that illegality in the investigation is shown to have caused in any manner miscarriage of justice.
- Initial action on the part of the A.C.B. in having laid the trap after registering the case, being not in violation of any mandatory or directory provision of law therefore, is not illegal.
In Conclusion: The State ACB authorities are fully empowered to arrest and investigate corruption cases against Central GST officers (of course, all Central Government Officers) and it is not the exclusive domain of the CBI. The CBI can act only with the consent of the State Government. Even when the CBI has the consent of the State Government, the State ACB still has the power to initiate cases against Central Government officers. Thus, in States, where the CBI has the consent of the State, Central Government employees run the risk of attack from two agencies, CBI and ACB, while in States like Andhra Pradesh, where CBI has no consent, they have to deal with only one agency, the ACB. Which is the better situation?
I was discussing this issue with a lawyer who asked me, "what difference does it make for an employee if he is trapped (accepting a bribe) by the ACB or the CBI?"
Tail spark: Why not a GST Anti Corruption Bureau under the GST Council? Now that we are talking too much about the glorious Co-operative Federalism, (in spite of one State withdrawing consent for CBI and not stopping with that but arresting a Central GST officer), why not we have a GST Anti Corruption Bureau under the GST Council, to pursue cases under the Prevention of Corruption Act pertaining to GST? This can be called the GBI - GST Bureau of Investigation.
