Zee Media Bureau
New Delhi: Trying to take advantage of the Gauhati High Court order, striking down a 50-year-old resolution for creating CBI, former telecom minister A Raja and other accused in the 2G scam on Friday pushed for a stay on the proceedings of the case. At the same time, Congress leader Sajjan Kumar, who is facing a 1984 anti-Sikh riots case against him, sought to declare as "illegal" the probe and charge sheets filed by the investigating agency.
Raja and other 2G accused including top corporate executives said continuance of the trial in the case which has been probed by CBI would amount to contempt of court.
"Before we proceed today I want to mention that the nation today woke up with banner headlines in newspapers that the CBI is not police. By coincidence the chief Investigating Officer happens to be in the court today and in view of the Gauhati High Court judgement we should not proceed with the proceedings otherwise it would be a contempt of court," Majeed Memom, appearing for accused Swan Telecom Promoter Vinod Goenka, told the court.
Sajjan seeks to declare CBI probe illegal
Sajjan Kumar`s counsel mentioned before District Judge JR Aryan high court`s yesterday`s verdict and said if CBI itself is unconstitutional, its probe and charge sheets are also illegal.
The judge, however, said the effect of this judgement is not clear at this stage as it is too early and asked the counsel to proceed with the case.
The court also asked the defence counsel to advance his arguments on the two applications filed by Kumar and other accused in the case.
The court posted the matter for November 15 for arguments on the applications after Kumar`s counsel sought adjournment on the ground that some other advocate is not well and is not present.
Gauhati HC order on CBI
The Gauhati High Court yesterday struck down the resolution through which the Central Bureau Investigation was set up and held all its actions as "unconstitutional".
The Gauhati High Court in a ruling Nov 6 held that the CBI, constituted under the Delhi Special Police Establishment (DSPE) Act, 1946, was not a police force and that it was neither an organ nor a part of the 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," the judgment said.
The high court quashed the April 1, 1963, resolution of the home ministry constituting the Central Bureau of Investigation (CBI).
The judgement by the division bench, comprising justices IA Ansari and Indira Shah, came on a writ petition filed by one Navendra Kumar challenging an order by a single judge of the High Court in 2007 on the resolution through which CBI was set up.
Passing an order on a writ petition, the division bench comprising Justice IA Ansari and Indira Shah Wednesday set aside and quashed the very resolution issued by the union Home Ministry April 1, 1963, under which the CBI was constituted.
It further said the aforementioned Home Ministry resolution was "not the decision of the Union Cabinet nor were these executive instructions assented to by the President".
"Therefore, the impugned Resolution...Can, at best, be regarded as departmental instructions, which cannot be termed as `law`," the judgement said.
The high court observed that a police force with powers to investigate crime cannot be constituted by merely issuing an executive order. For that purpose, an act shall have to be passed by the legislature, the court said, in its judgment.
The CBI had registered a case against Kumar, an employee of Bharat Sanchar Nigam Limited (BSNL) in Assam, under Sections 120B (criminal conspiracy) and 420 (cheating) of the Indian Penal Code in 2001.
After the registration of the case, Kumar, however, filed a writ petition in the high court challenging the constitution of the CBI by claiming it was ultra vires, and sought quashing of the FIR registered against him by the investigating agency.
A single-judge bench of the high court, however, rejected the petition.
Following this, Kumar filed a fresh writ appeal before a division bench that passed the judgment Wednesday. The division bench of Justice Ansari and Shah also quashed the chargesheet filed by the CBI against Kumar, and aborted his trial.
The order asked: "Could a `police force`, empowered to `investigate` crimes, have been created and constituted by a mere Resolution of the Ministry of Home Affairs, Government of India, in purported exercise of its executive powers?"
"Could a `police force`, constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender?"