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Hands tied, CBI officials feel Lokpal panel their new Boss by Ritu Sarin

Team Anna complains that the Lokpal has no administrative control over the CBI and its investigation wing but CBI officials feel that the agency now could be subject to the whims of new master — the three-member Lokpal panel.
Besides the elevation of the status of its Director — the Prime Minister, the Leader of Opposition and the Chief Justice or a Judge appointed by him are now on the selection panel — four of the six “issues of concern’’ the agency listed after the Standing Committee's report remain in the final draft.

The agency has managed to stave off a change in its structure. It retains its prosecution wing but hasn’t been able to shift administrative and financial control from the Ministry of Personnel to the Lokpal — it had suggested that it didn’t have any objection if this were done.

But now it faces the prospect of being answerable to yet another master: three-member Lokpal panels.

The Lokpal doesn’t need to seek sanction or approval for conducting a Preliminary Enquiry or filing a chargesheet/closure report but the CBI remains hamstrung by Section 6A of the Delhi Police Establishment Act, which requires prior sanction to be sought for initiating a Preliminary Enquiry or chargesheeting any officer above the rank of a Joint Secretary.

“The removal of the 6A sanction has been on the cards for a long time and the CBI felt the introduction of the Lokpal regime was the opportune time for the benefit to come to the agency,’’ said a top agency officer after tabling of the Bill in Parliament.

The CBI’s main objections are over the fine print of Chapters Seven and Eight of the Lokpal Bill.

Clause 20 (6) is the most critical, especially since in the days prior to the tabling of the Bill the CBI had categorically told top government officials that the powers of a police officer — to decide the fate of an investigation — should be exclusively retained. Any changes, the CBI had warned, “would be against established jurisprudence which says clearly that the powers for taking a final decision after the conclusion of an investigation should be left to the investigating agency.’’

As against this, the Lokpal Bill has stipulated that nothwithstanding anything contained in Section 173 of the Code of Criminal Procedure, the CBI should submit its investigation reports — in cases referred by the Lokpal — to the Lokpal and a three-member bench will consider every investigation report and decide if the case is fit for filing a chargesheet or closure.

In the current scheme of things, only special CBI courts have the prerogative of accepting or rejecting charge-sheets/closure reports.

The other significant impediment for the CBI in Lokpal-referred cases is the stringent “deadlines’’ its probes will be subject to. Clause 20 (5) of the Lokpal Bill gives the CBI a maximum of six months to complete its investigation which can be extended for another six months with reasons for extension to be provided to the Lokpal in writing.

The CBI had earlier pointed out that there was need for flexibility in the investigative process since the agency was frequently faced with court stay orders; need to travel; delay in getting expert opinions or in tracking the absconding accused. A fixed time limit, the CBI had argued, can be retained only in simple trap cases but its objections have been ignored.

There are also “special powers’’ bestowed to the Lokpal which over the years may create an imbalance, said officials. For example, Clause 26 (1) of the Bill empowers the Lokpal to authorise the investigating agency to search or seize (read raid) any place where it feels it can find useful documents or evidence and to retain this evidence till the investigation is over. The Lokpal, via Clause 29 (1) of the Bill, has also been empowered to order a provisional attachment of property for a 90-day period.