Suboridinate Legislation not empowered to create CBI superceding State Police Powers; CBI is not a legitamate Investigation Agency created by a Valid Enactment: Gauhati High Court held in W. A. No. 119 OF 2008 IN W. P. (C) No. 6877 OF 2005 on 7th November, 2013 - . In a path breaking judgment Gauhati High Court has ruled that the 1963 executive order under which the CBI was formed is unconstitutional, and that an act should have been passed for the purpose. A Division Bench of Justices Iqbal Ahmed Ansari and Indira Shah in Navendra Kumar v. Union of india Writ Appeal ;119/2008 said “The resolution number 4/31/61-T dated 1/4/1963 issued by secretary to the Government of India, V. Viswanathan, constituting the CBI is ultra vires. The CBI is neither an organ nor part of the Delhi Special Police Establishment Act and the CBI can’t be treated as a police force constituted under the Act”, . Justice Ansari who wrote the Judgment started the Judgment with Thomas Jefferson’s famous words “When the people fear the government, there is tyranny. When the government fears the people, there is liberty”. The Court formulated the following questions for consideration. (i) Whether ‘Central Bureau of Investigation’, popularly called CBI, is a constitutionally valid police force empowered to ‘investigate’ crimes? (ii) Could a ‘police force’, empowered to ‘investigate’ crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers? . (iii) Could a ‘police force’, constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender? (iv) Whether CBI is a ‘police force’ constituted under the Union’s Legislative powers conferred by List I Entry 8? (v) Do Entry 1 and 2 of the Concurrent List empower the Union Government to raise a ‘police force’ and that, too, by way of Executive instructions of Union Home Ministry?(vi) Whether Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a ‘police force’ in the name of CBI?, . (vii) Above all, is it permissible for the Executive to create a ‘police force’ with power to ‘investigate’ crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21? After hearing the parties as well as the learned Amicus Curiae the Bench formulated the following questions: . 1) If a Pre-constitutional law was made on a subject, which is, now, covered by State List, whether the law will be valid after the Constitution has come into force bearing in mind Article 372? 2) Whether a law can be made by Parliament, on a subject covered by the State List, in respect of a Union Territory, after the Constitution has come into force? 3) The Executive power of the State is co-extensive with its legislative power. Is it, therefore, possible to constitute an investigating agency by a State taking recourse to State’s executive Power ? . 4) Delhi was a Part-C State under the Govt. of India Act. On coming into force of the Constitution, it was made a Union Territory and it has, now, the status of a State, but some of its powers, under the State List, are exercised by Parliament. The Court wants to know details of the legislative history of the present status of Delhi, as a State, and its legislation making process, . The CBI came into existence by the Resolution No. 4/31/61-T, dated 01.04.1963., issued by the Government of India, Ministry of Home Affairs, the impugned R E S O L U T I O N - The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime, . As a first step in that direction, the Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely:- (i) INVESTIGATION AND ANTI-CORRUPTION DIVISION. (DELHI SPECIAL POLICE ESTABLISHMENT). (ii) TECHNICAL DIVISION. (iii) CRIME RECORDS AND STATISTICS DIVISON. (iv) RESEARCH DIVISION. (v) LEGAL DIVISON & GENERAL DIVISION. (vi) ADMINISTRATION DIVISION, . The Charter of function of the above-said Divisions will be as given in the Annexure. The assistance of the Central Bureau of Investigation will also be available to the State Police Forces on request for investigating and assisting in the investigation of interstate crime and other difficult criminal cases. Sd/- (V. VISWANATHAN). Secretary to the Government of India”, . ” Though the Division Bench had directed the respondents to produce the original records on creation of the CBI, they just submitted a certified copy of the records from the National Archive. “However, even a perusal of the entire records makes it clear that the Resolution, dated April 1, 1963, was neither produced before the President, nor did it ever receive the assent of the President. Hence, strictly speaking, the Resolution cannot even be termed the decision of the Government of India, . That apart, it is apparent from the records that the CBI is a newly constituted body and not the same as DSPE. ”The Court while declined to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, held that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946. It set aside and quashed the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted, . The Court also set aside and quashed the impugned charge-sheet, submitted by the CBI, against the appellant however, made it clear that quashing of the proceedings, pending in the CBI Court, would not be a bar to any further investigation by police having jurisdiction over the subject-matter.
Posted on: Fri, 08 Nov 2013 14:46:11 +0000
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