Zee Media Bureau
New Delhi: Law Minister Kapil Sibal confirmed on Friday that the government will file an appeal against Gauhati High Court order declaring CBI unconstitutional.
The Gauhati High Court had, yesterday, struck down the resolution through which the Central Bureau Investigation (CBI) was set up and held all its actions as "unconstitutional".
Additional Solicitor General PP Malhotra had also termed the judgement as “patently wrong”. “It is bound to be set aside. We are certainly going to challenge it and the appeal is likely to be filed in the Supreme Court latest by Monday," he said.
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.
Malhotra contended that the government resolution on the formation of the CBI has been held valid by the apex court time and again in a number of judgements.
"We are confident that the Gauhati judgement will also be set aside," he said, adding, "Today evening, I received the copy of the judgement. I am examining it and tomorrow morning I will speak to the concerned ministry. Only after reading it properly, I will be in a position to comment on it in detail". The ASG said the verdict will not affect CBI`s functioning.
"We hereby...Set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted... We do hold that the CBI is neither an organ nor a part of the Delhi Special Police Establishment (DSPE) and the CBI cannot be treated as a `police force` constituted under the DSPE Act, 1946," the High Court said.
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".
Malhotra, who appeared for the Centre before the High Court, said the constitutional validity of the Act and the formation of the CBI was also upheld way back in 1970 and the latest was in 2010.
In its order, the court further said "the actions of the CBI, in registering a case, arresting a person as an offender, conducting search and seizure, prosecuting an accused etc. offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional."
The court, however, said quashing of the proceedings that are pending in the CBI court would not be a bar to any further investigation by police having jurisdiction over the subject-matter.
On the setting up of the CBI, the court said the investigating agency was constituted as an ad hoc measure to deal with certain exigencies.
"This measure, taken by the Union Government, was not in the form of any Ordinance; rather, constitution of the CBI was an executive decision and that too, without citing, or referring to, the source of power," it added.