NEW DELHI (TIP): In a startling decision which has ramifications for sensitive cases, the Gauhati high court has ruled that the Central Bureau of Investigation (CBI) was legally not a police force and stripped it of its powers to investigate crimes, arrest suspects and file charge-sheets. The ministry of home affairs (MHA) had, by a resolution dated April 1, 1963, constituted the CBI as a police force under the Delhi Special Police Establishment (DSPE) Act, 1946. The CBI had drawn its powers to investigate cases from the DSPE Act. A division bench of the high court comprising Justice IA Ansari and Justice Indira Shah on Wednesday upheld the constitutional validity of DSPE Act but held that “the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act”. Unless this ruling is reviewed and amended by a higher court, the CBI will not function as a police force and will be unable to proceed further — in fact, not even file FIRs — in highprofile cases like Coalgate, 2G spectrum scam and those related to the Gujarat riots.

In these cases, the CBI was directed by the Supreme Court to investigate and report to it. Once the cover of the law under DSPE Act is taken away, the very existence of the CBI comes to naught. A worried Centre is preparing to rush to the SC on Friday to appeal against the HC judgment. “We hereby also set aside and quash the impugned (under challenge) resolution dated April 1, 1963, whereby the CBI has been constituted,” the HC said. Interestingly, the HC also limited the application of DSPE Act to Union Territories. This means, even if a new police force was set up validly as per the HC’s logic, its power to investigate crimes would remain confined to the UTs. The bench said, “A careful reading of the preamble to the DSPE Act, 1946, would make it evident that the DSPE Act, 1946, has been made for the Union Territories. This legislative power cannot be exercised by Parliament except under Article 246(4) of the Constitution, which enables Parliament to enact laws on subjects covered by List-II (State List), in respect of Union Territories.”

Chargesheets invalid
Allowing a writ petition filed by one Navendra Kumar, the bench quashed the chargesheet filed against him by the CBI but said the alleged offence could be investigated afresh by the regular state police. As a triggering effect, this judgment would render all chargesheets filed by the CBI till date invalid. The HC had on January 20 this year directed the CBI to produce records relating to the creation of the agency. After scrutinizing these, the HC said that the 1963 MHA Resolution creating the CBI under the DSPE Act did not even receive the President’s assent. “Hence, strictly speaking, the resolution in question cannot even be termed as the decision of the Government of India. That apart, it is apparent from the records that the CBI is a newly constituted body and not the same as DSPE,” said Justice Ansari, who authored the judgment on behalf of the bench. The HC went through the 1963 resolution minutely and relied on Constituent Assembly debates on the role of the force to be created through legislation under Entry 8 of Union List. It said, “The central government had set up altogether a new body known as CBI by the impugned Resolution… Admittedly, at that time, no legislation was made to set up the CBI and the source of power being traced to Entry 8 of Part-I (Union List), which reads ‘Central Bureau of Intelligence and Investigation’.

” The HC said: “The word ‘investigation’; was, therefore, according to the Constituent Assembly debates, intended to cover general ‘enquiry’ for the purpose of finding out what was going on and this ‘investigation’, which amounts to a mere ‘enquiry’, is not an ‘investigation’ preparatory to the filing of chargesheet against an offender, for, such an ‘investigation’ can be carried on only by a police officer, under the Criminal Procedure Code, and none else”. “This apart, it is the state legislature, which is entitled to constitute a ‘police force’ for the purpose of conducting ‘investigation’ into crime,” it said. “From the above discussion, which took place in the Constituent Assembly, it becomes crystal clear that Parliament cannot, by taking resort to Entry 8 of List-I (Union List), make any law empowering a police officer to make ‘investigation’ in the same manner as is done, under the Criminal Procedure Code, by a police officer while conducting an ‘investigation’ into an offence for the purpose of bringing to book an offender,” it said.

‘CBI probe under statutory rules’
What the sc had said on CBI In Vineet Narain Judgment delivered on December 18, 1997: “In 1994 due to increased workload relating to bank frauds and economic offences a separate Economic Offences Wing was established in CBI with the result that since then the CBI has three investigation divisions, namely, anticorruption division, special crimes division and economic offences division.” “We are informed that almost all the state governments have given concurrence for extension of the jurisdiction of the Delhi Special Police Establishment in their States with the exception of only a few. The result is that for all practical purposes, the jurisdiction in respect of all such offences is exercised in the consenting states only by the CBI and not by the state police. This is the significance of the role of the CBI in such matters and, therefore, technically the additional jurisdiction under the general law of the state police in these matters is of no practical relevance.” “Once the CBI is empowered to investigate an offence generally by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provision which provide for the initiation and manner of investigation the offence. This is not an area which can be included within the meaning of “superintendence” in section 4(1).” “It is, therefore, the notification made by the central government under Section 3 which confers and determines the jurisdiction of the CBI to investigate an offence; and once that jurisdiction is attracted by virtue of the notification under Section 3, the actual investigation to be governed by the statutory provisions under the general law applicable to such investigation. This appears to us the proper construction of section 4(1) in the context, and it is in harmony with the scheme of the act, and section 3 in particular.”