The affidavit filed by the central government before the supreme court regarding autonomy of the central bureau of investigation (CBI) and the chargesheet filed by CBI in the infamous railway board recruitment scandal stand at opposite poles.

The centre, in its affidavit before the supreme court, vows to take a string of measures to make CBI autonomous in this functioning by ensuring: (i) transparency in the appointment of key posts in CBI, (ii) non-interference in investigation, (iii) creating a directorate of prosecution to focus on prosecution of the cases, (iv) oversight through an ‘accountability commission’, and (v) ensuring financial autonomy.  The merit or otherwise of these measures is a separate matter and before the court.

The developments around the necessity to free CBI from the controls of the government recall an earlier discussion by the author on this website.

However, the actions of CBI in the ‘Railgate’ leave very less to be imagined about the continued ‘independent’ functioning of the CBI and the same central government’s commitment to free CBI.

In the recent chargesheet filed by CBI, the then railway minister Pawan Bansal is named as a prosecution witness notwithstanding naming others for having committed misdeeds in appointment of Mahesh Kumar as a member of the railway board, which was done with the backing of the railway Minister, who happened to be Bansal himself. 

The process for recruitment further involves the railways minister who along with the board proposes a list of eligible candidates to the appointment committee of the cabinet in order of preference. The committee after vetting the same sends the same to the prime minister’s office (PMO). The eligibility criterion for appointment of a board member is that the candidate should have been the general manager of a zonal railway for at least one year. Kumar was the General manager Western railways, and hence eligible for the said post.

Under Section 34 of Indian penal code (IPC), it is sufficient if the facts and circumstances show that a group of persons shared a common intention (indicative from facts and events) to commit any punishable misdeed/offence irrespective of their individually assigned roles.

Lord Summer’s classic legal shorthand on constructive criminal liability expressed is relevant to note:

“They also serve who only stand and wait.”

Plurality of persons engaged in an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood –all have a common intention and are liable to be prosecuted and, if found guilty, punished.

As per reports, the CBI had claimed that Singla (Bansal’s nephew) used to meet Kumar at Bansal’s official residence in Delhi. CBI also maintained that Bansal had met Kumar in Mumbai during his posting as general manager (western railways).

Bansal as minister involved in preparing the order of preference or eligibility for Kumar’s appointment and the corroborative fact of Kumar being a visitor to his official residence and Bansal meeting Kumar even in Mumbai are facts not capable of being ignored because they point directly towards Bansal working for the appointment of Kumar.

Further, even the appointment of Kumar had already been given effect to, obviously with the actions of Bansal as railway minister.

If CBI therefore does believe that money exchanged hands for the appointment of Kumar, then how does it choose to simultaneously look the other way on the facts and circumstances indicating direct involvement of Bansal as the minister who acted to ensure the appointment of Kumar, as per Kumar’s understanding with Singla?

Would the case have been any different if Bansal was not the then railway minister or if some other person would have been in the place of his nephew?

The answer should be no. Facts and circumstances should speak for themselves, not subject to change depending on the stakeholders involved.

Bansal, therefore, is as much liable for the commission of all the offences which Singla, Kumar and the other accused have been charged with on account of Bansal having the same common intention to ensure appointment of Kumar (as that of Singla and others) who have been held liable, in the same manner as if the same offences had been commitment by Bansal alone.

Hence, to exonerate Bansal of charges of being an accomplice do not stand the test of law.

By giving a clean chit to Bansal, has CBI therefore constructively given a clean chit to every accused in the case as well? Has CBI lost the case even before filing the chargesheet? If yes, then why and at whose instance?

These questions, and many more relating to CBI’s ‘independent functioning’ since the reprimand by the apex court, seriousness of the central government to make CBI autonomous, remain to be answered by both the CBI and the government.