M A I N   N E W S

Gauhati HC questions CBI validity
Quashes Home Ministry’s 1963 resolution; says agency’s formation void
Bijay Sankar Bora/TNS

Centre to move SC New Delhi: The Centre said on Thursday evening that it would move the Supreme Court as early as Monday to challenge the Gauhati High Court order. “The judgment is patently wrong. It is bound to be set aside. We are certainly going to challenge it and the appeal is likely to be filed in the Supreme Court latest by Monday,” said Additional Solicitor General PP Malhotra. Malhotra said the government resolution on the formation of the CBI had been held valid by the apex court time and again. "We are confident that the Gauhati judgment will also be set aside," he said. PTI

Guwahati, November 7
A Division Bench of the Gauhati High Court has set aside and quashed a Union Home Ministry resolution of April 1, 1963 through which the Central Bureau of Investigation (CBI) was constituted, saying that the very process of setting up the CBI was invalid.

An 89-page judgment passed by the Division Bench comprising Justice Iqbal Ahmed Ansari and Justice Indira Shah, while disposing of a writ petition filed by Navendra Kumar, said the CBI was neither established under the DSPE Act, 1946, nor was it an organ or part of the Delhi Special Police Establishment (DSPE).

“We hold that CBI is neither an organ nor a part of the DSPE and that the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946. We hereby also set aside and quash the impugned resolution (of the Union Home Ministry) whereby the CBI has been constituted,” the judgment said.

The order comes as a surprise to all as it means the CBI ceases to be a constitutionally valid organisation empowered to probe crimes. Moreover, in the wake of the judgment, all CBI cases now stand to become null and void.

The petitioner, against whom the CBI had submitted a chargesheet in November 2007, had contended that the CBI was not a statutory body because it was not constituted under any statute, but under an executive order/resolution of the Ministry of Home Affairs.

The Division Bench, however, held that the judgment would not bar the police from conducting further investigation into the case against Navendra Kumar.

“On a careful reading of the contents of the impugned resolution, what becomes evident is that the resolution does not refer to any provisions of the DSPE Act, 1946, as the source of its power. In other words, deriving strength from the DSPE Act, 1946, the CBI has not been constituted. One cannot, therefore, treat the CBI as an organ or part of the DSPE either,” the judgment said.

It said the resolution could not be termed as the decision of the Government of India and that the CBI was a newly-constituted body and not same as the DSPE.

“When asked to produce records relating to the creation of the CBI, the respondents (the Government of India) did not file the original record but produced a certified copy of records received from the National Archives,” it said. The Division Bench recorded that it was not clear whether the MHA resolution had received the assent of the President, saying that no relevant records could be produced on behalf of the respondents in this regard.

In the submissions before the court, the CBI said that the Constitutional validity of the DSPE Act, 1946 had been already upheld by the Supreme Court in a case dating back to 1990 and that the history of formation of the CBI had been highlighted by the Constitution Bench in a case of 2010 apart from a three-judge Bench of the Supreme Court in 2007.

“The CBI is only a change of name of the DSPE and the CBI is, therefore, not an organisation independent of the DSPE,” the order quoted the CBI submission as has been made.

The order also quoted as submission of the CBI that “since the CBI has been functioning for the last 50 years under the DSPE Act, 1946, it may not be sound or proper exercise of discretion to unsettle the settled law and thereby create turmoil ‘unnecessarily’.”