GUWAHATI, Nov 7 � The division bench of the Gauhati High Court comprising Justice IA Ansari and Justice Indira Shah by a judgment passed in WA no. 119/08 yesterday declared that the Central Bureau of Investigation (CBI) is neither an organ nor a part of Delhi Special Police Establishment Act, 1964 (DSPE Act) and CBI cannot be treated as a police force constituted under the DSPE Act, 1964 and, accordingly set aside and quashed the resolution dated April 1, 1963 whereby CBI has been constituted.
Appellant Navendra Kumar filed a writ appeal challenging the judgment and order dated November 30, 2007 passed in WP (C) no. 6678/05 whereby the Single Judge of the High Court dismissed the writ petition wherein the appellant had sought for, inter alia, quashing of resolution dated April 1, 1963, under which CBI stands as an establishment, as ultra vires the Constitution of India and also for quashing the proceeding which originated from the FIR of CBI and presently pending against the appellant in the Court of Special Judge (CBI), Assam.
In the writ appeal, the appellant has submitted that the CBI is a non-statutory body in as much as, it has constituted by a resolution dated April 1, 1963 issued by the Ministry of Home Affairs, Govt of India and not by making any legislations and therefore, the CBI cannot have the power to register an FIR, arrest a person, investigate crimes, file chargesheets, and allowing the CBI to do so would offend the fundamental rights guaranteed under Article 21 of the Constitution of India.
In the writ appeal it was further submitted that the CBI which was constituted by a resolution by the Govt of India cannot carry out function of police in as much as the Constitution scheme does not permit the police personnel to carry out police function.
Countering the submission of the appellant, PP Malhotra, Additional Solicitor General of India appearing for the CBI submitted before the court that the CBI derives its power to investigate, like a police force, as contemplated by the CrPC from the DSPE Act, 1964. Further, the CBI is only the changed name of DSPE and the CBI is, therefore, not an organisation independent of the DSPE.
The division bench after hearing the matter and considering the various pronouncement of the Supreme Court of India and different High Courts passed the judgment holding, inter alia, that the creation of India�s premier investigating agency CBI by a resolution dated April 1, 1963 issued by the Ministry of Home Affairs, Govtof India is ultra vires the Constitution and thus set aside the said resolution dated April 1, 1963. The court further held that the CBI is neither an organ nor a part of DSPE and the CBI cannot be treated as a police force constituted under the DSPE Act, 1964.