Thursday, November 7, 2013

Court Says CBI Is Unconstitutional

SC stays Gauhati HC's order that declared CBI 'unconstitutional'-TOI Evening 09.11.2013

NEW DELHI: The Supreme Court on Saturday stayed the Gauhati high court's verdict that declared the CBI 'unconstitutional'. The next hearing is on December 6.

Earlier in the day, the Centre had challenged before the Supreme Court the Gauhati high court order and sought a stay on it contending that the verdict will adversely impact thousands of criminal cases pending across the country.

The matter was heard at the residence of Chief Justice P Sathasivam.


In its appeal, the government sought an urgent hearing against the high court order saying it "directly impacts about nine thousand trials currently underway and about one thousand investigations which are being undertaken by the CBI."

The special leave petition settled by attorney general GE Vahanvati, said "if the impugned order is not stayed, it will frustrate the law machinery and may result in multiplicity of proceedings."

"The order is already being seized upon by various accused persons in various proceedings in the country to seek a stay of further proceedings against them," the petition drawn by advocate Devadatt Kamat said.

The Centre also contended that the high court has erred in holding that the constitution of CBI was illegal, that the resolution constituting it needed presidential assent and that it could not be treated as a police force.

A division bench of Gauhati high court had on November 6 quashed the April 1, 1963 Resolution constituting CBI under the Delhi Special Police Establishment Act, 1946 and declared all its actions unconstitutional.

The Centre said "the impugned judgement has serious ramifications on the functioning of the CBI as it has quashed a fifty-year-old Resolution which had stood the test of time."

"The CBI has been functioning effectively and has a staff of about 6000 people all of whom are engaged in the investigation and prosecution of various cases.

The said judgment is thus likely to have serious and severe consequences and it is absolutely necessary in the interests of justice and convenience that immediate ad-interim orders be granted staying the said judgment and operation thereof," the petition said.


Centre moves SC against Gauhati high court order on CBI


Gauhati High Court terms CBI's genesis unconstitutional-ET 08.11.2013

GUWAHATI: A division bench of the Gauhati High Court has set aside a resolution that created the Central Bureau of Investigation, India's premier investigation agency.

Delivering the judgment on Wednesday a division bench of Justice Iqbal Ahmed Ansariand Justice Indira Shah said, "while we decline to hold and declare that the Delhi Special Police Establishment (DSPE) 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."


CBI is governed by the Delhi Special Police Establishment (DSPE) Act, 1946. The court further said, "we hereby also set aside and quash the impugned resolution dated April 1, 1963, whereby CBI has been constituted."


A CBI spokesman said in New Delhi that it would wait for a certified copy of the court order. "Once it is received, it will be examined and appropriate action will be taken," he told ET. The surprise verdict would come into operation only if it is not stayed by the Supreme Court within a month.


A senior advocate in Gauhati high court, Hafiz Rashid Choudhury told ET, "Following the judgement, CBI ceased to be a constitutionally valid police force empowered to investigate crimes," if the verdict is not stayed.


Choudhury said that the bench has raised a question on the Act that constituted CBI. There is no Act passed by Parliament. He added 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.


The judgement came in a case CBI had registered against Navendra Kumar, an employee of Bharat Sanchar Nigam Limited (BSNL) in Assam, under Sections 120B (criminal conspiracy) and 420 IPC (cheating) in 2001. Kumar filed a writ petition (civil) (number 6877 of 2005) in the high court challenging the CBI's constitution and claiming it as ultra vires.

Gauhati HC quashes resolution through which CBI was set up
His petition was rejected by a single judge bench of the high court, following which he filed a writ petition to the division bench. The division bench while delivering the judgment quashed the charge sheet CBI filed against Kumar. Additional solicitor general of India PP Malhotra appeared for the Centre and CBI.


Public prosecutor Zirul Kamar said the judgment has country-wide ramification as it has questioned CBI's existence. "According to the judgment, CBI does not have any legal status. We have to wait for more clarity on the matter."

Centre to move SC against Gauhati HC order on CBI by Monday-ET 08.11.2013

NEW DELHI: Taken aback by the Gauhati High Court order holding as unconstitutional the setting up of the CBI, Centre said tonight that it would move the Supreme Court as early as Monday next to challenge it. 

In a curious judgement, the Gauhati High Court has struck down the resolution through which the Central Bureau Investigation was set up and held all its actions as "unconstitutional". 


"The judgement 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, " Additional Solicitor General P P Malhotra told PTI. 


The judgement by the division bench, comprising justices I A Ansari and Indira Shah, came on a writ petition filed by one Navendra Kumar challenging an order by a single judge of the High Court in 2007 on the resolution through which CBI was set up. 


Malhotra contended that the government resolution on the formation of the CBI has been held valid by the apex court time and again in a number of judgements. 


"We are confident that the Gauhati judgement will also be set aside," he said, adding, "Today evening, I received the copy of the judgement. I am examining it and tomorrow morning I will speak to the concerned ministry. Only after reading it properly, I will be in a position to comment on it in detail". 


"We hereby...set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted... We do hold that the CBI is neither an organ nor a part of the Delhi Special Police Establishment (DSPE) and the CBI cannot be treated as a 'police force' constituted under the DSPE Act, 1946," the High Court said. 


Malhotra, who appeared for the Centre before the High Court, said the constitutional validity of the Act and the formation of the CBI was also upheld way back in 1970 and the latest was in 2010. 


The ASG said the verdict will not affect CBI's functioning. The Supreme Court reopens on Monday after a break for Diwali. 
http://economictimes.indiatimes.com/news/politics-and-nation/centre-to-move-sc-against-gauhati-hc-order-on-cbi-by-monday/articleshow/25396660.cms

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