CBI Quashed
The very creation of CBI illegal
CBI Investigation, arrest, charge sheet, prosecution conviction quashed
CBI has no legal existence
The Caged Parrot - there was neither a cage nor a parrot
When people fear government, there is tyranny
THE CBI - the very name that sends a chill down the spine of even the most honest Government Servant and many a politician - has been in existence for the last 50 years - ILLEGALLY. The very creation of CBI was illegal and unconstitutional and CBI never had the power to arrest and prosecute all those angels of Indian Society, whom it had sent to jail.
The CBI was created by a Union Home Ministry Resolution dated 1.4.1963, which is now struck down by the Guwahati High Court.
The High Court started its judgement with a quote from Thomas Jefferson, “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”
Article 21 is one of the most cherished provisions in our Constitution, which prohibits the State from depriving a person of his life and liberty except according to the procedure established by law. However, what happens if by the State's action, which has been neither sanctioned by a legislation nor has been taken in valid exercise of its executive powers, the ineffaceable mandate of Article 21 gets smudged. This is precisely the issue, which the appellant has been, for almost a decade of litigation, urging the court to decide. Some of the prominent questions, which have arisen for determination, in this appeal, are:
(i) Whether ‘Central Bureau of Investigation', popularly called CBI, is a constitutionally valid police force empowered to ‘investigate' crimes?
(ii) Could a ‘police force', empowered to ‘investigate' crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers?
(iii) Could a ‘police force', constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender?
(iv) Whether CBI is a ‘police force' constituted under the Union's Legislative powers conferred by List I Entry 8?
(v) Do Entry 1 and 2 of the Concurrent List empower the Union Government to raise a ‘police force' and that, too, by way of Executive instructions of Union Home Ministry?
(vi) Whether Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a ‘police force' in the name of CBI?
(vii) Above all, is it permissible for the Executive to create a ‘police force' with power to ‘investigate' crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21?
SUBMISSIONS ON BEHALF OF THE PETITIONER :
It is submitted by the counsel for the appellant that the CBI is a non-statutory body inasmuch as it has been constituted by way of an Executive Order/Resolution, dated 01.04.1963, issued by the Ministry of Home Affairs, Government of India, and not by making any legislation.
In the absence of any law laying the birth of the CBI, the exercise of powers of police, by the said organization, such as, registration of First Information Reports, arrests of persons, ‘investigation' of crimes, filing of charge sheets and prosecution of the offenders cannot be permitted, for, allowing the CBI to do so would offend the fundamental rights guaranteed under Article 21 of the Constitution of India, which expressly provides that no person shall be deprived of his life and liberty except according to the procedure established by law.
SUBMISSIONS OF THE CBI
A) That the CBI derives its power to ‘investigate', like a police force, as contemplated by the Cr.PC, from the DSPE Act, 1946;
B) That the CBI is only a change of the name of the DSPE and the CBI is, therefore, not an organization independent of the DSPE;
C) That as per Section 5 of the DSPE Act, the Central Government may extend the powers and jurisdiction of the members of Delhi Police Establishment to investigate an offence beyond the territorial limits of Delhi and as per Section 6 of the DSPE Act, 1946, the members of the Delhi Police Establishment can exercise powers and jurisdiction in any area of any other State with the consent of the Government of that State;
QUERIES RAISED BY THE COURT
1) If a Pre-constitutional law was made on a subject, which is, now, covered by State List, whether the law will be valid after the Constitution has come into force bearing in mind Article 372?
2) Whether a law can be made by Parliament, on a subject covered by the State List, in respect of a Union Territory, after the Constitution has come into force?
3) The Executive power of the State is co-extensive with its legislative power. Is it, therefore, possible to constitute an investigating agency by a State taking recourse to State's executive Power?
4) Delhi was a Part-C State under the Govt. of India Act. On coming into force of the Constitution, it was made a Union Territory and it has, now, the status of a State, but some of its powers, under the State List, are exercised by Parliament. The Court wants to know details of the legislative history of the present status of Delhi, as a State, and its legislation making process.
5) The points, which, now, falls for determination, is: whether CBI is established under the DSPE Act, 1946, or is an organ of the Delhi Special Police Establishment Act and, if not, whether a force, with the object of investigation of crimes preparatory to filing of charge-sheet for prosecution of offender, can be created by the Central Government by way of an Executive order/Resolution and whether the CBI can be said to be validly created by the Central Government by way of an Executive order/Resolution.
WHETHER CBI IS A NON-STATUTORY BODY?
The Court Observed:
A statutory body, as the name suggests, is a body, which has a legislative sanction. In other words, a body or agency can be termed as statutory only when it is created by a statute to carry out certain functions.
There is no dispute that CBI came into existence with the issuance of Resolution, dated 01.04.63. If CBI is an integral part of the DSPE, then, such a resolution ought to have been issued by the Central Government in exercise of powers vested in the Central Government by the DSPE Act, 1946. In other words, had the CBI been constituted under the DSPE Act, 1946, by the Central Government, the CBI could have been treated as having been created by way of delegated legislation. There is, however, nothing, either in the DSPE Act, 1946, or in the impugned Resolution, dated 01.04.1963, to show that the CBI is a creation of a delegated piece of legislation. In order to exercise powers under delegated legislation, it is necessary that the Statute itself empowers the Executive to issue notification/resolution to meet the exigencies of time; whereas no such power is vested in the Central Government by the DSPE Act, 1946.
The source of power to create CBI as an investigating agency cannot be traced to, or be said to be located in, Entry 8 of List I (Union List). This apart, from the fact that while the law existing, prior to the coming into force of the Constitution of India, is protected in terms of the mechanism introduced by Article 372 and Article 372A of the Constitution of India, no amendment to any such law, if made after the Constitution of India has already come into force, be saved or protected by taking resort to Article 372 and 372A if the provisions, embodied in the Constitution, run counter to the scheme of our Constitution.
So far as constitution of police force is concerned, Union and the State, both have legislative competence to enact laws on ‘police'. However, so far as law, enacted by Parliament, is concerned, it can operate only in the ‘Union territories' and not in any ‘State', because ‘police' is a subject falling under State List.
The question, now, is: whether the impugned Resolution, dated 01.04.1963, is an executive action and, therefore ‘law' within the meaning of Article 13 (3)(a) and/or Article 21 of the Constitution of India?
It is seen that CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946.
The impugned Resolution, dated 01.04.1963, is not, strictly speaking, an executive action of the Union within the meaning of Article 73 inasmuch as the executive instructions, embodied in the impugned Resolution, were not the decision of the Union Cabinet nor were these executive instructions assented to by the President. Therefore, the impugned Resolution, dated 01.04.1963, can, at best, be regarded as departmental instructions, which cannot be termed as ‘law' within the meaning of Article 13(3) (a) nor can the executive instructions, embodied in the impugned Resolution, dated 01.04.1963, be regarded to fall within the expression, "procedure established by law", as envisaged by Article 21 of the Constitution.
Situated thus, the actions of the CBI, in registering a case, arresting a person as an offender, conducting search and seizure, prosecuting an accused, etc., offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional.
WHETHER THEDSPE ACT, 1946, IS ULTRA VIRES THE CONSTITUTION ?
The fundamental question, raised in the appeal, is: Whether the CBI is an organ of the DSPE under the DSPE Act, 1946? Merely because arguments and counter-arguments have been advanced before, on the validity of the DSPE Act, 1946, the arguments and the counter-arguments do not warrant a decision on this issue inasmuch as no decision, on this issue, is warranted when it is already held that the CBI is not a part or organ of the DSPE, under the DSPE Act, 1946.
The High Court set aside and quashed the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted. The High Court further set aside and quashed the impugned charge sheet, submitted by the CBI, against the appellant and, consequently, the trial, which rests on the impugned charge sheet, shall stand set aside and quashed.
We bring you this order from the Guwahati High Court today