Friday, November 8

CBI 'unconstitutional', can't investigate crimes - Gauhati HC

An unprecedented judgement by the Gauhati High Court has sent the Union government in 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 today said it will challenge the judgement in the Supreme Court and seek an urgent stay since it will affect the functioning of the premier Central probe agency. Below is a look at what the judgement is all about:

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.


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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.


'CBI probe under statutory rules'

What the sc had said on CBI In Vineet Narain Judgment delivered on December 18, 1997: "In 1994 due to increased workload relating to bank frauds and economic offences a separate Economic Offences Wing was established in CBI with the result that since then the CBI has three investigation divisions, namely, anti-corruption division, special crimes division and economic offences division."

"We are informed that almost all the state governments have given concurrence for extension of the jurisdiction of the Delhi Special Police Establishment in their States with the exception of only a few. The result is that for all practical purposes, the jurisdiction in respect of all such offences is exercised in the consenting states only by the CBI and not by the state police. This is the significance of the role of the CBI in such matters and, therefore, technically the additional jurisdiction under the general law of the state police in these matters is of no practical relevance."

"Once the CBI is empowered to investigate an offence generally by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provision which provide for the initiation and manner of investigation the offence. This is not an area which can be included within the meaning of "superintendence" in section 4(1)."

"It is, therefore, the notification made by the central government under Section 3 which confers and determines the jurisdiction of the CBI to investigate an offence; and once that jurisdiction is attracted by virtue of the notification under Section 3, the actual investigation to be governed by the statutory provisions under the general law applicable to such investigation. This appears to us the proper construction of section 4(1) in the context, and it is in harmony with the scheme of the act, and section 3 in particular."



Sources:
1. FirstPost
2. Times of India

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