W.A. No. 119 of 2008. Case: Sh. Navendra Kumar Vs Union of India and another. Guwahati High Court
| Case Number | W.A. No. 119 of 2008 |
| Counsel | For Appellant: L. S. Choudhury, D. S. Choudhury, R. P. Singh, Advs. and For Respondents: P. P. Malhotra, Addl. SGI |
| Judges | I. A. Ansari, J. and Mrs. I. Shah , J. |
| Issue | Constitution of India - Articles 13(3)(a), 21, 73, 245, 246, 252, 266; Delhi Special Police Establishment Act (25 of 1946) - Sections 2, 3, 5; Criminal Procedure Code (2 of 1974) - Section 482 |
| Citation | 2013 CriLJ 5009 |
| Judgement Date | November 06, 2013 |
| Court | Guwahati High Court |
Judgment:
I. A. Ansari, J.
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"When the people fear the government, there is tyranny. When the government fears the people, there is liberty."
Thomas Jefferson, the principal author of the Declaration of Independence (1776) and the third President of the United States (1801-1809)
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Article 21 is one of the most cherished provisions in our Constitution, which prohibits the State from depriving a person of his life and liberty except according to the procedure established by law. However, what happens if by the State's action, which has been neither sanctioned by a legislation nor has been taken in valid exercise of its executive powers, the ineffaceable mandate of Article 21 gets smudged. This is precisely the issue, which the appellant has been, for almost a decade of litigation, urging the court to decide. Having been unsuccessful in his attempt to convince the Court in his writ petition of the correctness and righteousness of his contentions, the appellant is, now, before us, seeking a revisit to his submissions.
2a. Some of the prominent questions, which have arisen for determination, in this appeal, are:
(i) Whether 'Central Bureau of Investigation', popularly called CBI, is a constitutionally valid police force empowered to 'investigate' crimes?
(ii) Could a 'police force', empowered to 'investigate' crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers?
(iii) 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?
(iv) Whether CBI is a 'police force' constituted under the Union's Legislative powers conferred by List I Entry 8?
(v) Do Entry 1 and 2 of the Concurrent List empower the Union Government to raise a 'police force' and that, too, by way of Executive instructions of Union Home Ministry?
(vi) Whether Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a 'police force' in the name of CBI?
(vii) Above all, is it permissible for the Executive to create a 'police force' with power to 'investigate' crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21?
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The present appeal has arisen out of the judgment and order, dated 30-11-2007, passed, in Writ Petition (Civil) No. 6877 of 2005, by a learned single Judge of this Court dismissing the writ petition, whereby the writ petitioner had sought for, inter alia, (i) quashing of the impugned Resolution No. 4/31/61-T, dated 01-04-1963, whereunder the Central Bureau of Investigation stands established, as ultra vires the Constitution of India and (ii) quashing of the criminal proceeding/prosecution, which originated from the FIR/RC No. 39(A)/2001/CBI/SIL and is presently pending against the petitioner, in the Court of Special Judge (C.B.I), Assam, at Guwahati.
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The material facts, which have given rise to the present appeal, may, in brief, be set out as under:
(i) A criminal case being RC No. 39(A)/2001/CBI/SIL was registered, on 31-07-2001, under Sections 120B, IPC/420, IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, in the office of the Superintendent of Police, Central Bureau of Investigation (hereinafter referred to as 'CBI'), Silchar, Assam, against the petitioner, who is an employee of Mahanagar Telephone Nigam Limited, New Delhi. Having investigated the case, the CBI laid a charge-sheet, dated 25-11-2004, in the Court of the learned Special Judge, CBI, Assam, Kamrup, Guwahati.
(ii) With the help of the writ petition, bearing WP(C) No. 6877 of 2005 aforementioned, the constitutional validity of the very formation of the CBI and its powers to carry out the functions of police, namely, registration of First Information Report (in short, 'FIR') under Section 154 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C'), arrest of a person, as an accused, investigation of offences, filing of charge-sheets against alleged offenders and to prosecute them were put to challenge.
(iii) The two substantive prayers, made by the petitioner-appellant, were as follows:
"(i) quash the impugned Resolution No. 4/31/61-T, dated 01-04-1963, as ultra vires the Constitution of India, by way of an appropriate writ, order or direction in the nature of certiorari and
(ii) quash the criminal proceeding/prosecution originated from the FIR/RC No. 39(A)/2001/CBI/SIL pending against the petitioner in the court of Special Judge (C.B.I) for Assam at Guwahati, by way of an appropriate writ, order or direction in the nature of certiorari."
(iv) The constitutional validity of the formation of the CBI and its powers to investigate and function as a police force and/or its powers to prosecute an offender were challenged, in the writ petition, by contending that the CBI is not a statutory body, the same having been constituted not under any Statute, but under an Executive Order/Resolution No. 4/31/61-T, dated 01-04-1963, of the Ministry of Home Affairs, Government of India, though police is a State subject within the scheme of the Constitution of India inasmuch as it is only a State Legislature, which, in terms of Entry No. 2 of List-II (State List) of the Seventh Schedule to the Constitution of India, is competent to legislate on the subject of police and, therefore, the Central Government could not have taken away the power, which so belongs to State legislatures, and create or establish an investigating agency, in the name of CBI, adversely affecting or offending the fundamental rights, guaranteed under Part III of the Constitution of India.
(v) To substantiate the above contention, reliance was placed on the Constituent Assembly debates, dated 29-08-1949, wherein Dr. B.R. Ambedkar had clarified that the word 'investigation', appearing in Entry 8 of List I (Union List) of the Seventh Schedule, which read, "Central Bureau of Intelligence and Investigation", would not permit making of an 'investigation' into a crime by the Central Government inasmuch as 'investigation' would be constitutionally possible only by a police officer under the Cr.P.C., police being exclusively a State subject and the word 'investigation', appearing in Entry 8 of List I (Union List), would, in effect, mean making of merely an 'enquiry' and not 'investigation' into a crime as is done by a police officer under the Code of Criminal Procedure. The word 'investigation' is, therefore, according to the Constituent Assembly Debates, intended to cover general enquiry for the purpose of finding out what is going on and such an investigation is not an investigation preparatory to the filing of a charge-sheet against an offender, because it is only a police officer, under the Criminal Procedure Code, who can conduct 'investigation'.
(vi) In the writ petition, the Union of India did not file any response; but the CBI, as respondent No. 2, filed an affidavit, wherein it claimed that it had been exercising functions and powers of police under the Delhi Special Police Establishment Act, 1946. In its affidavit, filed in the writ petition, the CBI further submitted that the CBI has had been functioning for more than four decades, but its constitutional validity has never been challenged by any one and, hence, this settled position may not be unsettled.
(vii) By the impugned judgment and order, dated 30-11-2007, a learned single Judge of this Court dismissed the writ petition holding thus, ".................. not only the Delhi Special Police Establishment Act is a valid piece of legislation, as originally enacted, but the same has been validly continued after coming into force of the Constitution and is in harmony with the provisions thereof and, therefore, the said legislation validly continues to hold the field"
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Aggrieved by the order, dated 30-11-2007, aforementioned, the writ petitioner has preferred the present writ appeal.
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We have heard Dr. L.S. Choudhury, learned counsel for the appellant, and Mr. P.P. Malhotra, learned Additional Solicitor General of India, appearing on behalf of the respondents. We have also heard Mr. N. Dutta, learned Senior counsel, who has appeared as Amicus Curiae.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
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It is submitted by Dr. L.S. Choudhury, learned counsel for the appellant, that the CBI is a non-statutory body inasmuch as it has been constituted by way of an Executive Order/Resolution, dated 01.04.1963, issued by the Ministry of Home Affairs, Government of India, and not by making any legislation.
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According to Dr. Choudhury, learned counsel for the appellant, in the absence of any law laying the birth of the CBI, the exercise of powers of police, by the said organization, such as, registration of First Information Reports, arrests of persons, 'investigation' of crimes, filing of charge-sheets and prosecution of the offenders cannot be permitted, for, allowing the CBI to do so would offend the fundamental rights guaranteed under Article 21 of the Constitution of India, which expressly provides that no person shall be deprived of his life and liberty except according to the procedure established by law.
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The word 'law', within the meaning of Article 21, would, according to the learned counsel for the appellant, mean legislation and not executive instructions or executive fiat, such as, the one, whereunder the CBI has been created and established inasmuch as no executive instructions can be acted upon if any such instructions violate or offend the fundamental rights guaranteed under Part III of the Constitution of India.
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It is the submission of the learned counsel for the appellant that at best, the CBI may be treated to have been constituted by the Central Government under Entry 8 of the...
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