The Central Bureau of Investigation (CBI) is our premier investigative and prosecution agency. Right from its inception, the CBI has been tasked with some of the most complex investigations having pan-India ramifications, and also with some of the most important unsolved crimes in India.

However, the CBI has also been called a "caged parrot" in recent times. This comment has only highlighted what was always felt about the CBI since the 1990s, when the Vineet Narain judgment paved the way (at least on paper) for a more independent CBI.

The Vineet Narain judgment

In 1997, the Supreme Court of India delivered a verdict, in a case famously known as the Jain Hawala Case, that paved the way for the CBI’s overhaul as an investigating agency. It also brought guaranteed tenure for its Director and, at least in theory, created a separate Directorate of Prosecution in the CBI.

Below is a summary of some of the directions issued by the Court:

1. The Central Vigilance Commission (CVC) shall be given statutory status.

2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity. The appointment shall be made by the President on the basis of the recommendations made by the Committee.

3. The CVC shall be responsible for the efficient functioning of the CBI. While the government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning.

4. The Central government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.

5. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work.

6. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation.

7. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations.

8. Selection/extension of tenure of officers upto the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.

9. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI’s in-house expertise, professionals from the revenue, banking and security sectors should be inducted into the CBI.

10. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI’s functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials.

11. A document on CBI’s functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI;

12. Time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office;

13. The Director, CBI should conduct regular appraisal of personnel to prevent corruption and/or inefficiency in the agency.

From these directions, it is clear that the Bench was under the impression that the provisions of the Crime Manual are based on the Code of Criminal Procedure (CrPC), 1973. The Bench did not go into the merits of the contents of the Manual and see whether it conforms to the Code or whether it was a parallel “legislation”.

The disclaimer on the first page of the Manual states that it is meant for internal circulation only, and it is not a substitute for law. However, the picture gets blurred when one reads the operative part of the Vineet Narain judgment, which will be binding as law under Article 141 of the Constitution of India. The passage (in point 10 above) is being used by the CBI administration to fasten disciplinary proceedings against CBI officials for failing to adhere to the Manual, even when they are acting as per the CrPC.

The judgment presumes that the Manual is in consonance with the CrPC, and clothes the Manual with legal backing, based on this understanding and assumption.

CBI Crime Manual versus CrPC

Since the passing of the judgment in Vineet Narain, no judgment has ever gone into an analysis as to whether the CBI Manual is framed in accordance with the CrPC. A brief comparison of the provisions in the Manual that are in conflict with the CrPC is, therefore, apposite.

1. Registration of FIR/regular case - As per the Manual, only the competent authority can decide which case to register and which to not, even if the case is a cognizable offence and falls within the jurisdiction of a particular CBI branch in accordance with the offences notified u/s 3 of the Delhi Special Police Establishment (DSPE Act), from which the CBI draws its powers. This lies in teeth of the provisions of Section 5(2) and 5(3) of the DSPE Act, which empowers a member of the CBI to exercise the powers of an officer-in -charge of a police station, which will logically include the powers under Section 154 of the CrPC regarding registration of FIR in a case.

2. Provisions regarding Search - The CBI Manual requires sanction of the competent authority for conducting a search, whereas u/s 165 of the Code, a member of the CBI investigating a case which it can lawfully investigate can conduct a search without such approval, in view of the powers deemed to have been vested in him u/s 5 of the DSPE Act.

3. Arrest without warrant - Similarly, a police officer (of the rank of SI and above in the context of CBI) can arrest without a warrant any person falling within the four corners of Section 41 of the CrPC. However, even for effecting an arrest, a member of the CBI ( though expressly empowered u/s 5 of the DSPE Act r/w Section 41 of the Code) has to obtain the prior approval of the competent authority as per the CBI Manual, depending on the class of offence and that of the offender. This goes against the express powers u/s 41 of the Code, and makes the CBI Manual supersede the Code.

4. Investigation - Under the CBI Manual, routine matters relating to an investigation must also be referred for the approval of the Superintendent of Police, who is the head of the CBI branch. This also goes against the autonomy of the officer-in-charge of a police station under the Code. The CBI Manual goes against the Code and takes away this discretion on the pretext of instilling discipline among the CBI officials. However laudable the objective may be, the Manual cannot supersede the express provisions of the Code in the name of supplementing it, because this would amount to negating the express provisions of a law made by Parliament.

5. Maintenance of general diary - Every police station maintains an online general diary, whereas the CBI general diary is offline, with the self-proclaimed competent authority taking advantage of this. They order officers not to record the complaint in the general diary and instead have a separate secret register, which is arbitrary and against the law. The competent authority will decide whether or not to register the complaint, even if the information discloses the commission of a cognizable offence.

6. Public Prosecutors and Assistant Public Prosecutors are also under the administrative control of the CBI through their respective heads of branch, which is in contravention of the statutory provisions under Section 24 and 25 CrPC, the 14th Report of the Law Commission of India and various judgments of the Supreme Court including SB Shahane and ors v. State of Maharashtra and anr. It is pertinent to note that the prosecution has been functioning independently from the police in every state, making the functioning of the Prosecution Wing in the CBI a direct contravention of Article 14 of the Constitution of India, especially when there is no reasonable rationale for the same and there can be no reasonable nexus of such a rationale with the purpose sought to be achieved (if any).

A glaring example of the CBI Manual being ultra vires the Code is seen in the conflict with Section 321 of the Code, which vests a Public Prosecutor with the power to withdraw from the prosecution. However, the said power is expressly curtailed by the CBI Manual by prescribing that only the CBI Director can approve the withdrawal of the prosecution in a case. This flies in the face of not just Section 321 of the Code, but is also contrary to landmark judgments like Sheo Nandan Paswan v. State Of Bihar & Ors, which held that the power of withdrawal from prosecution is to be exercised by the Prosecutor alone, and no one can curtail or circumvent such power.

The lack of competence in the CBI administration

More often than not, it is seen that superintendence over a CBI branch is given to an officer who doesn’t possess sufficient experience in police, law and related subjects. It is widely known that the CBI is, to a large extent, dependent upon officers-on-deputation. The CBI Manual has entrusted responsibilities and powers on officials that require a thorough knowledge of criminal law, including procedure. Officials from backgrounds such as income tax, banks, accounts services, municipal corporation, etc may bring valuable insights and expertise to the CBI, but often create hurdles in implementing and following decisions of the constitutional courts. There is also friction among the direct recruits in the CBI and the officers-on-deputation, as the latter are not able to grasp the legal essence of a situation, but they are nevertheless superior in position than the police officers in CBI.

It is unfortunate that the CBI is designating such officers as branch heads of the police wings, whose parent department is governed by a statute totally different from the penal and criminal procedure, and has no connection with criminal/police laws. How can such officer provide effective supervision, guidance and support to the officers who have vast experience in that field? The specialized knowledge and expertise are generally required to effectively oversee the work of officers in a particular field. So, while experience in one area of law is certainly a valuable asset, it may not be sufficient for providing effective supervision in areas of law with which the officer is not familiar with.

The way forward

The Supreme Court has had the occasion to analyze the Police Act several times, most notably in the Prakash Singh case, and has suggested reforms. However, since the Vineet Narain judgment, there was no occasion for the Supreme Court to find out whether the provisions of the Crime Manual are conducive to proper functioning of the CBI as per the Code, or whether the provisions in the Manual have turned the rules of the game in the CBI upside down. The author does not wish to contend that the Manual itself has no legal basis. The Vineet Narain judgment grants the Manual with the imprimatur of the Court and clothes it with legal force. However, in doing so, it opened up a Pandora’s Box of problems being faced by officials of the CBI, who are faced with the dilemma of following the Manual over the CrPC.

The way forward is to set at naught the troubling provisions of the Manual, and to either omit them or modify them to make them compatible with the provisions of the Code. Policing falls under the State List of the Seventh Schedule of the Constitution, and therefore, any deviation from this general executive power has to be in compliance with the general law relating to criminal procedure. A police force like the CBI can take away the life and liberty of an individual, and therefore, any procedure that takes away life and liberty has to comply with the fair procedure requirement of Article 21 of the Constitution of India. The author only hopes that someday, the apex court will go into the merits of the provisions of the Manual and make it compatible with the CrPC and the Constitution of India.

Sunil Verma is a Public Prosecutor in the CBI. Views are personal.