The Supreme Court today referred the question of whether courts can order CBI probes without the consent of the state concerned before a Constitution Bench.

The question has assumed considerable significance now with some states objecting to high court orders, and even an apex court one, for CBI probes into crimes within their jurisdiction. The five-member Constitution Bench will also look into whether consent can be withdrawn once it is given, and the effects of this.

The decision to place the matter before the Bench came while dealing with an appeal filed by the West Bengal Government against the decision of the Calcutta High Court dated April 7, 2001, where it ordered a CBI probe into into the alleged killing of 11 Trinamool Congress

workers at Gabreta in Midnapore district.

It was contended that if courts order a CBI probe, which was created under the Delhi Special Police Establishment Act, 1946, it amounts to violation of Section 6 of the said Act that clearly lays down that the CBI cannot investigate a cognisable offence alleged to have taken place in a state without the prior consent of the state concerned.

When the appeal came up for hearing before the Bench of Justices B N Agrawal and P P Naolekar in 2006, it was noted as “a question of law in great public importance.” The Bench headed by Justice B N Agrawal referred it to a larger Bench. Today, the matter came up before the Bench comprising Justices P P Naolekar, H S Bedi and B N Agrawal and was referred to a five-member Constitution Bench.

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