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The Centre is gearing up to move the Supreme Court against the Gauhati High Court’s verdict that questioned the existence and powers of the Central Bureau of Investigation (CBI), rendering it “unconstitutional”.
The Department of Personnel and Training (DoPT), the administrative ministry of the CBI, has approached the law ministry on this matter. “DoPT intends to file an appeal against the order,” Law Minister Kapil Sibal said.
But the CBI maintained the high court (HC) order did not stop it from registering First Information Reports (FIRs). “We are studying the order of the Gauhati High Court and will submit our opinion to the DoPT. We are definitely seeking urgent action,” Ranjit Sinha, CBI director, said. (BUREAU DOWNGRADE)
The investigative agency has been on a spree of filing cases against industrialists, politicians and bureaucrats in several cases, especially after the SC had in May called the CBI a “caged parrot” and “its master’s voice”, and criticised the government for interfering in its functioning.
The HC order is being cheered by all those under CBI’s radar in high-profile cases. Lawyers of several accused are planning to make use of the order in getting a reprieve for their clients. Citing the Gauhati HC ruling, legal counsel in the 2G case, Vijay Agarwal, on Friday told O P Saini, the special CBI judge presiding over the spectrum scam hearing, that the trial could not proceed. Agarwal — who is representing R K Chandolia, personal secretary to former telecom minister A Raja, and DB Realty’s promoter Shahid Balwa in the trial — is planning to file an application in the court on Monday to stop it since it is “bad in law.”
Majeed Memom, appearing for accused Swan Telecom promoter Vinod Goenka, told the court going ahead with the proceedings would be contempt of court, said a PTI report. The judge declined this plea and a similar plea by Raja’s counsel to halt the trial. “I have read the newspaper but I cannot go by media reports,” the judge said, according to the report.
Rebecca John, counsel of Sanjay Chandra of Unitech, who is accused in the 2G spectrum scam, lauded the order and said it was absolutely legal. “CBI does not have the power to prosecute. There is a gap in the law. We will wait for more clarity once the Supreme Court intervenes,” she added.
The HC had on Wednesday said the CBI “cannot be treated as a ‘police force’ constituted under the DSPE (Delhi Special Police Establishment) Act”. It said the CBI was legally not a police force, and questioned the agency’s powers to investigate crimes, arrest suspects and file chargesheets.
The government, however, is not wasting any time to defend the constitution of the CBI under the DSPE Act through a home ministry resolution. There was no central government notification on the formation of the CBI in 1963.
Additional Solicitor-General P P Malhotra said, “The judgment is 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.”
The fact that the Supreme Court has several times referred cases to the CBI, including those on coal block allocation and the Niira Radia taped conversations, gives a new dimension to the CBI’s validity as an investigation agency. “If the Supreme Court has the power to refer cases to the CBI, this order implies that what the apex court did is illegal,” constitutional expert Subhash Kashyap told Business Standard.
Former high court judge R S Sodhi said the HC order was well articulated in stating the facts. “We don’t know yet in what context the resolution (to set up the CBI) was formed and whether it can be equated with a central government’s notification.”
Even former CBI director Joginder Singh did not find the HC order “incorrect”. However, with respect to the prosecution powers of the agency, he said, “No FIR or chargesheet is filed under CBI’s name. It is by an officer of the rank of the Superintendent of Police, who gets his position under the DSPE Act.”
A three-judge Supreme Court (SC) bench in the Vineet Narain hawala case had said in December 1997 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 the state police ... technically the additional jurisdiction under the general law of the state police in these matters is of no practical relevance.” This was with respect to the jurisdiction of the CBI on investigating crimes in states. The HC judgment by a bench of judges I A Ansari and Indira Shah came on a petition by one Navendra Kumar, challenging an order by a single judge of the high court in 2007 on the resolution through which the CBI was set up.
