How did Gauhati HC declare CBI invalid? All you need to know

FP Staff Nov 9, 2013

An unprecedented judgement by the Gauhati High Court has sent the Union government in to a tizzy. In its verdict on Thursday, the bench quashed the resolution based on which the CBI was constituted and ruled that the body cannot be treated as a ‘police force’.

The government has meanwhile The Centre will move the Supreme Court on Saturday to challenge the Gauhati High Court order which declared the Central Bureau of Investigation unconstitutional by ruling that the government of India’s order which led to the setting up of the CBI in 1964 is not a legally valid one.

“While we decline to hold and declare that the DSPE (Delhi Special Police Establishment) Act, 1946, is not a valid piece of legislation, we do hold 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,” said Justice Iqbal Ahmed Ansari and Justice Indira Shah of Guwahati High Court in their judgment on Wednesday.

According to a report on The Times of India: Minister of state for personnel V Narayanaswamy met attorney general G E Vahanvati on Friday to fathom the legal basis of the HC judgment and both agreed that an appeal should be filed in the SC by Saturday, pointing out the errors apparent in the verdict.

The report also points out that even if the appeal is made on Saturday, it will only come up in the court on Monday. Meanwhile, the Centre intends request the SC to stay the HC judgment so that the premier investigative agency can keep working.But what did the HC judgement really say? Here is a quick summary:

What the petitioner in the case said:

First, there is no co-relation between the DSPE Act and CBI. In DSPE Act, the word ‘CBI’ is, nowhere, mentioned, even though the DSPE Act has undergone several amendments.

This apart, even the Executive Order, dated 1 April, 1963, does not disclose that the CBI has been constituted under DSPE Act. Second, the plea, that the CBI is merely a change of name of the DSPE, does not have legal standing as the DSPE Act, 1946. The Act specifically mentions, that the police force, constituted under the DSPE Act, shall be called “Delhi Special Police Establishment”.

Hence, when the Act itself defines the name of the force, the argument that the CBI is merely a change of name of the DSPE cannot hold water.

Had it been so, the name of the DSPE should have been changed in the Act itself, but this wasn’t done despite many amendments having been made to the Act. He argued that the creation of the CBI was not backed by any legislation. Even if the CBI is considered to be a valid constituted body, it cannot function in the manner as is done by the police.

The CBI, so constituted, can, at best, collect information by making ‘enquiries’ to assist any investigation carried out by a local police.

What the amicus curiae told the court:

N Dutta, amicus curiae, submitted that the CBI and the DSPE are not one and the same thing, but everybody appears to have proceeded on the basis that the CBI and DSPE are one and the same thing.

He pointed out that while the DSPE was established under the DSPE Act, 1946, the CBI has been constituted by a mere executive fiat. Dutta further submitted that though the CBI has been empowered to ‘investigate’ crimes, no power has been specifically provided for ‘prosecution’ of offenders by the CBI.

The DSPE can merely ‘investigate’ a case and lay charge-sheet and, hence, the CBI’s role shall come to an end once ‘investigation’ is complete, he argued.

What CBI, the respondent, told the court:

Resisting the writ petition, the Additional Solicitor General, appearing on behalf of the CBI, said the CBI derives its power to ‘investigate’, like a police force, and is only a change of the name of the DSPE. As per the DSPE Act, the Centre may extend the powers and jurisdiction of the members of Delhi Police Establishment to investigate an offence beyond the territorial limits of Delhi and the members of the Delhi Police Establishment can exercise powers and jurisdiction in any area of any other State with the consent of the state government.

What the court finally ruled:

The bench noted the amicus curiae had been correct in his submission that the Centre has constituted a body called ‘CBI’ but the investigating agency does not have any legal sanction till date.

The bench said it was satisfied that the petitioner has been able to make out a case that there has been interference with the resolution by which the CBI was formed and also with the prosecution against him on the basis of the chargesheet, which has been filed by the CBI.

The court set aside the earlier judgement and order against the petitioner. While it declined to hold and declare that the DSPE Act, 1946, was not valid, it 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.

It also set aside and quashed the resolution whereby the CBI had been constituted. It further set aside and quashed the chargesheet, submitted by the CBI, against the appellant and as a result of which the trial, which was based on the chargesheet, also stands quashed. 

The bench, 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.