SC stays Gauhati HC verdict holding CBI unconstitutional

The Supreme Court on Saturday stayed a Gauhati High Court order holding the Central Bureau of Investigation (CBI) unconstitutional.

The Supreme Court on Saturday stayed a Gauhati High Court order holding the Central Bureau of Investigation (CBI) unconstitutional after quashing the April 1, 1963 home ministry resolution setting up the agency under the Delhi Special Police Establishment Act, 1946.

An apex court bench of Chief Justice P. Sathasivam and Justice Ranjana Prakash Desai while staying the high court order after a 19-minute-long hearing at the former’s residence Saturday evening said: “We have to stay the order. You have read today’s (Saturday’s) newspapers. Two people accused in sensational cases are seeking stay of their trial. What will happen?”

The court observation came as counsel L.S. Chaudhary appearing for Narendra Kumar sought the dismissal of the petition as it was being filed by the Department of Personnel and Training (DoPT) which was not a party to the proceedings before the high court.

The court said: “We can’t dismiss it… CBI too is filing a petition challenging the high court order. We are not rejecting your objections. You file your objections. Your objections will be considered at an appropriate time.”

“We want to know whether you read today’s newspapers. Within a day, two of the accused in sensational cases they prayed for stay of the trial,” the court told Chaudhary.

The order came after Attorney General G.E. Vahanvati faulted the high court verdict, saying the court “asked wrong questions, preceded on wrong premises and gave wrong answers”.

The attorney general told the court that the “order has far reaching consequences. It has been passed on a completely wrong premise”.

“They (the high court) proceeded on the basis that the source for setting up the CBI was not there in the statute. And that it was done by a mere executive order.”

“The court says as far as CBI is concerned it is not constituted by any statute but set up by an executive order. This is a case which requires court’s consideration,” the attorney general told the court.

He told the court that there are five judgments of the apex court which say that CBI is a creation of the Delhi Special Police Establishment Act, 1946.

As the apex court asked the attorney general to point to the portion of judgment they are objecting to, Vahanvati said: “It is very clear that there is a power under Section 2 of the DSPE Act for setting up the CBI.”

“The only two reasons are given (by the high court) that you have not mentioned the DSPE Act. Non-mention or even wrong mentioning of a provision does not invalidate it (CBI) as long as there is a legislation,” he said.

At this, Chief Justice Sathasivam said: “The resolution (April 1, 1963) very unfortunately did not notice it (Section 2 of DSPE Act, 1946). But it is there in the Act. We take it that there is a mention in section 2.”

Assailing the high court of “complete misunderstanding” of the creation of CBI under the DSPE Act, 1946, Vahanvati told the apex court that the high court verdict was being taken advantage of by people being investigated by the agency or being tried by special CBI courts.

Vahanvati said: “We want the order to be stayed for the reasons that there are thousands of pending cases. About 9,000 cases are being probed. Six thousand people are working for the CBI”, and people (being tried/accused) were taking advantage of it.

Chief Justice Sathasivam said: “We read in the newspapers that many people are seeking stay of their trials on the basis of the (high court) judgment.”

The ministry of personnel and training, the CBI’s administrative ministry, moved the court challenging the high court order and seeking stay of its operation.

The government Saturday morning filed a petition challenging the high court order and seeking an ex-parte stay. The government sought an urgent hearing of the matter.

While staying the high court order, the apex court issued notice to Narendra Kumar on whose petition the high court pronounced its verdict. The notice has also gone to the home ministry and the CBI.

Directing the next listing of the matter Dec 6, the court gave the respondent Narendra Kumar two weeks time to respond to the DoPT petition and gave the government another two weeks to file its rejoinder.



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