Background to the case:  A criminal case was registered in 2001 under PCA in the office of CBI,Silchar, Assam against the petitioner, who is an employee of MTNL, New Delhi.  The CBI filed the chargesheet in 2004.  The petitioner first filed a writ petition  challenging the constitutional validity of the very formation of the CBI and its powers to carry out the functions of police. A Single Judge of the HC dismissed the petition on 30-11-2007. The petitioner then filed an appeal before the DB.

Issues: The Petitioner contended that the CBI is not a statutory body, the same having been constituted under an Executive Order/Resolution No.4/31/61-T, dated 1-04-1963, of the Min. of Home Affairs, though police is a state subject.  Only a Police Officer, under the Criminal Procedure Code, can conduct investigation.  The CBI claimed it had been exercising functions and powers of police under the Delhi Special Police Establishment Act, 1946 (DSPE) The CBI further claimed that there was no challenge to its validity for more than four decades, and hence, this legal position cannot now be unsettled.

COUNSEL

Counsel for appellant was Dr.L.S.Choudhury.
Addl Sol.General who appeared for the CBI was P.P.Malhotra
N.Dutta appeared as Amicus Curiae.

The chief merit of petitioner’s argument was that under Art.21, no person shall be deprived of his life and liberty except according to the procedure established by law. As registration of FIRs, arrest of persons, investigation of crimes, filing of charge sheets and prosecution of offenders etc would offend the fundamental rights guaranteed under Art.21, CBI, which was born in the absence of any law, cannot exercise these powers.

Entry 8 of List I mentions Central Bureau of Intelligence and Investigation. Entry 2 of List II refers to Police.  CBI, constituted under Entry 8 of List I, can only perform an enquiry, and not an investigation, conducted by a police officer under Cr.P.C. Constitution does not permit the Central Govt to carry out functions of police and the police functions.  Even DSPE is ultra vires the Constitution, as Parliament is not competent to make law on police for whole of India, under Art.372 (continuing in force of existing laws and their adaptation).

It is also in conflict with Section 3 of Delhi Police Act, 1978, which is an Act of Parliament, which provides that there shall be one police force for the whole of Delhi.

CBI’s response:

 1. Under Article 73, the executive powers of the Union extends to matters with respect to which Parliament has the power to make laws. The resolution, creating CBI, was issued by virtue of the Union’s executive powers.
2. The Centre derived its powers from Entries 1-3 of Concurrent List, dealing with Criminal law, procedure and preventive detention respectively.
3. The constitutionality of DSPE Act has been already upheld by the Supreme Court in Advance Insurance Co. v. Gurudasmal (1970)1SCC 633.


Petitioner’s response to CBI’s stand:  


1. The argument that CBI is merely a change of name for DSPE cannot be accepted because the DSPE Act clearly mentions that the name of the force which it has created shall be called DSPE.
2. Art.73 cannot be an answer because executive powers cannot be exercised to offend fundamental rights.

Court’s findings:

1. The Resolution does not refer to any provisions of the DSPE Act as the source of its power.  Therefore, the CBI has not been constituted under the DSPE Act.
2. If a statute gives a specific name to an organisation, created by the statute, it is not permissible to confer a new name  on the organisation by any executive instructions; therefore, CBI cannot be termed as statutory body created by the DSPE Act.
3. The Resolution was neither produced before the President, nor did it ever receive his assent.  Hence, it cannot be termed as the decision of the GOI.
4. CBI’s creation cannot be traced to Entry 8 of List I.  Constituent Assembly Debates support petitioner’s contention.
5. Entry 80 of List 1 cannot help the CBI because it is relevant only for a validly constituted police force.
6. The SC ruling in Advance Insurance Co. Ltd is a precedent only on the point that DSPE is a police force functioning in the U.T. of Delhi.
7. Under List III, laws on criminal procedure and penal laws can be framed on any of the subjects which are not covered by List I and List II.  Entry 8 of List I makes Parliament competent to enact a law on CBI.
8. Once a legislation occupies a field, executive powers on the same field cannot be exercised. In Ram Jawaya Kapur, it was held that Executive can exercise the powers of departmental or subordinate legislation, when such powers are delegated to it by the Legislature. It further cautioned that if by the notifications and acts of the executive Government, fundamental rights are violated, then they have to be termed unconstitutional.
9. It is not necessary to go into the question whether DSPE is a valid piece of legislation.
10. The present issue has not been raised before the Supreme Court in any case earlier.


CONCLUSION:

CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a police force under the DSPE Act.  Resolution constituting CBI set aside.  Chargesheet and trial against the appellant also set aside.

While the UOI may succeed in getting a stay on the verdict in the Supreme Court, it may find it very challenging to rebut the sound reasoning, backed by solid case law, in the HC judgment.

UPDATE:  SC has granted the stay on the judgment.In this appeal, the UOI has relied on N.Mani v. Sangeetha Theatre.  The relevant paragraph in that order is as follows:

It is well-settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.