CBI is illegal, not created by law: Gauhati HC

Source: Hindustan Times

In a significant ruling, the Gauhati high court has declared the Central Bureau of Investigation (CBI), the country's premier investigating agency, an illegal entity on the grounds that it has not been created by law.

Any organisation whose functions curtail personal liberty, through means such as arrest, has to be set up through a legislation, it said.

The CBI, which functions under the Delhi Special Police Establishment Act (DSPE) 1946, was created by a home ministry resolution on April 1, 1963.

The verdict has far-reaching implications for high-profile cases such as the 2G, Commonwealth Games and Coalgate scams being probed/prosecuted by the CBI.

Acting on a petition filed by a BSNL employee, Navendra Kumar, who was being prosecuted by the CBI in a corruption case, justice Iqbal Ahmed and justice Indira Shah said, "...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."

Reversing the verdict of a single judge who had on November 30, 2007 rejected Kumar's petition questioning the validity of the CBI, the bench quashed the April 1, 1963 resolution by which the CBI was created. It also set aside the CBI charge sheet against Kumar as also the trial.

However, it said the verdict would not act as a bar to any further investigation by police having jurisdiction over the subject matter.

While the CBI contested the case, the Union government chose not to file any affidavit.

The high court said the 1963 resolution was not even a proper executive order as it was neither a cabinet decision, nor was it signed by the President.

The bench said the impugned resolution can, at best, be regarded as departmental instructions, which cannot be termed 'law', nor can it be termed "procedure established by law", as envisaged by Article 21 of the Constitution.

Article 21 says no person shall be deprived of his life or liberty, except in accordance with procedure established by law.

Former additional solicitor general and senior advocate Vikas Singh said: "I have not read the verdict. But prima facie it appears to be correct. But the Supreme Court in all probability will stay it, given the huge ramifications for high-profile cases such as the coal and 2G scams being probed by the CBI. If the Supreme Court finally upholds the high court's verdict, all CBI cases will fall flat. But the cases in which convictions have already taken place cannot be overturned."

Minister of state for personnel V Narayanasamy said, "I am not aware of what the court has ruled and I won't be able to comment till I have gone through the judgment."

Government sources, however, termed the verdict "strange and legally unsustainable" and said it would be challenged in the Supreme Court at the earliest.

Additional solicitor general of India PP Malhotra, who appeared for the CBI, said the judgment was "totally erroneous and the Centre will appeal in the apex court on November 11".

The government's top law officers are likely to mention the matter in the apex court on Monday, when it reopens after the Diwali break.

The CBI's spokesperson told HT, "We are yet to receive a certified copy of the court order. Once it is received, it will be examined and appropriate steps in this regard will be taken."

A CBI official said, "CBI probes, including those pertaining to the coal block allocation scam and 2G spectrum scam, are monitored by the apex court and high courts. Many high-profile cases are in fact handed over to the agency by the apex court and high courts. Would they be doing this if the CBI was an invalid organisation?"