Government moves SC on Gauhati HC ruling on CBI

New Delhi, Nov 9 (IANS): The government Saturday moved the Supreme Court, contesting the Gauhati High Court verdict declaring the CBI unconstitutional.

The high court quashed the 1963 home ministry resolution setting up the Central Bureau of Investigation (CBI) under the Delhi Special Police Establishment Act, 1946.

The hearing will take place at 4.30 p.m. Saturday at the residence of Chief Justice P. Sathasivam. The centre had moved an application for an urgent hearing.

Attorney General G.E. Vahanvati is expected to mention the matter before the chief justice.

The petition by the Department of Personnel and Training (DoPT) said that though it was not a party before the Gauhati High Court, it was "moving the present Special Leave Petition against the impugned judgment due to the large scale ramifications and adverse impact on thousands of criminal cases pending throughout India".

The DoPT is the coordinating agency of the Central Government in personnel matters.

Seeking the ex-parte stay of the High Court verdict as an interim relief, the petition said that it (the court order) "directly impacts about 9,000 trials currently underway and about 1,000 investigations which are being investigated by the CBI".

The petition said the high court judgment was already being seized "upon by various accused persons in various proceedings in the country to seek a stay of further proceedings against them" and "if the impugned order is not stayed (it would) frustrate the law machinery and may result in multiplicity of proceedings".

The government said the Gauhati High Court judgment has "serious ramifications on the functioning of the CBI as it has quashed a 50-year-old Resolution which had stood the test of time".

It further said the investigating agency has been "functioning effectively and has a staff of about 6,000 people, all of whom are engaged in the investigation and prosecution of various cases".

Pressing for an interim stay of the high court judgment, the petition by the DoPT said it was "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 high court in its Nov 6 verdict had said the CBI was neither an organ nor a part of the Delhi Special Police Establishment Act.

"... while we decline to hold and declare that the 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 Act... and the CBI cannot be treated as a 'police force' constituted under the DSPE Act, 1946."

Having held that the CBI was not a police force constituted under the DSPE Act, the court quashed the April 1, 1963 resolution of the home ministry for constituting the investigating agency.

"We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted," the high court ruling said.

The petition has erred the high court for holding that "the Resolution dated 01.04.1963 does not mention the source of power or the DSPE Act, the resolution is legally infirm" and "that the CBI is not an organ of the DSPE".

Addressing the question of law, the petition in a poser said whether the Gauhati High Court "failed to consider that even if a wrong provision is mentioned or the source is not referred to as long as there exists a valid source of power the wrong mention or not mentioning of the provision does not affect the validity of the order".

The petition said the high court erred in holding that the CBI was ultra vires while it "accepted the position that DSPE Act was valid peace of legislation".

"Therefore the high court could not have held that the body constituted under the DSPE Act was not referable to any constitutional or legal power," the government contended.

It said the Gauhati High Court was wrong coming to conclusion that the CBI could have been created by way of delegated legislation.

It said it was not a case of delegated legislation and the central government has been specially empowered under Section 2 of the DSPE Act to constitute a Special Police Force.

"Therefore, the observation that there is no power to constitute the Special Police force is exfacie erroneous," the petition said.

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Title: Government moves SC on Gauhati HC ruling on CBI

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