CBI’s genesis invalid: HC - Shock and surprise in legal circles over Gauhati court judgment

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  • Published 7.11.13

Guwahati, Nov. 6: Gauhati High Court today ruled that the very process of setting up the Central Bureau of Investigation (CBI) was invalid.

The high court said the country’s premier investigating agency was constituted through a resolution issued by the Union ministry of home affairs on April 1, 1963.

A division bench comprising Justice Iqbal Ahmed Ansari and Justice Indira Shah today declared the creation of the CBI through the resolution, which was signed by then secretary to the Union government V. Viswanathan, as ultra vires.

The court also set aside the impugned resolution. As a result of that, from today, the CBI ceased to be a constitutionally valid police force empowered to investigate crimes and all CBI cases have become void ab initio.

The high court was of the view that a police force with powers to investigate crime cannot be constituted by merely issuing an executive order. For that purpose, an act shall have to be passed by the legislature, it added.

Senior CBI officials tonight expressed disbelief over the high court’s ruling.

“We are in a state of shock and awe. We have consulted our legal team and they have been asked to examine the judgement,” said a senior CBI official.

According to him, the order seems to be “faulty” as so many CBI cases are being monitored by the Supreme Court at present and several high courts often ask the country’s investigative agency to probe cases. “How can it be so if the CBI is ultra vires?” the official asked.

“It is surprising that while the Supreme Court wants to free us from bureaucratic clutches, Gauhati High Court wants us to pack our belongings,” he added.

Today’s order was passed in connection with a writ appeal (number 119 of 2008) filed by Navendra Kumar. The CBI had registered a case against Kumar, an employee of Bharat Sanchar Nigam Limited (BSNL) in Assam, under Sections 120B (criminal conspiracy) and 420 IPC (cheating) in 2001.

Following registration of the case, Kumar filed a writ petition (civil) (number 6877 of 2005) in the high court challenging the constitution of the CBI by claiming it as ultra vires and seeking quashing of the FIR registered against him by the CBI.

Kumar’s writ petition was rejected by a single-judge bench of the high court, after which he filed the writ appeal before a division bench that passed the judgment today. The division bench also quashed the chargesheet filed by the CBI against Kumar and aborted his trial.

On the Delhi Special Police Establishment (DSPE) Act, 1946, which governs the CBI, the high court said the investigating agency was neither an organ nor a part of the DSPE Act and it cannot be treated as a police force constituted under the act.

Additional solicitor-general of India P.P. Malhotra appeared for the Centre and the CBI. Speaking to The Telegraph, Malhotra said the judgment was “totally erroneous” and the Centre would appeal in the apex court on November 11 after the vacation. Noted criminal lawyer Kamini Jaiswal said the “judgment is shocking and surprising” and “has to be set aside”.

An official source said the CBI is likely to challenge the judgment in the Supreme Court.

Other legal experts said the judgment cannot be countenanced by any other court as the CBI had been validly constituted under a parliamentary enactment and the apex court itself had in a number of judgments upheld the role of the CBI and the DSPE Act 1946, under which it was constituted.

“The Centre must, and I think it will, be moving the apex court because the ruling that the very set up of CBI is void ab initio will have far-reaching implications. All the cases like the 2G scam, Coalgate and others in which the CBI had conducted investigation will become null and void if the order is not stayed,” Jaiswal said.

Malhotra explained that the CBI has been set up with an act of Parliament. Tracing the history of the DSPE Act, he said initially it was set up through an ordinance by the British regime in 1942, post World War II, to curb corruption in the country.

After Independence, the ordinance had become a law as per the Constitution, which says that all such legislation (British regime) will become law of the country unless it is inconsistent with the Constitution.

“The apex court is bound to stay it, otherwise all cases before the agency will not have any validity,” noted constitutional expert Anil Divan said.

Malhotra pointed out that the Supreme Court itself, in a series of judgments, had upheld the validity of the CBI and cited the Constitution Bench ruling in the 2010 judgment of West Bengal vs Organisation for Protection of Democratic Right (OPDR).

In the said judgment on February 17, the apex court had ruled that constitutional courts (Supreme Court and high courts) can order a CBI investigation into a serious offence without the consent of the state government concerned but such “extraordinary power” must be used “sparingly, cautiously and in exceptional circumstances”.

Further, the apex court in 1994 (Kazi Hendup Dorjee vs CBI), while interpreting the DSPE, had observed that “the act was enacted to make provision for the constitution of special police force in Delhi for the investigation of certain offences in the Union territories and for the superintendence and administration of the said force and for the extensions to other areas of the powers and jurisdiction of the members of the said force in regard to investigation of the said offence. DSPE under the said act is now known as the Central Bureau of Investigation.”