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Gauhati High Court declares CBI 'unconstitutional'

Passing an order on a writ petition, the division bench comprising Justice I.A. 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.

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 division bench of the Gauhati High Court passed the orders on a writ appeal filed by one Navendra Kumar.

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?"

The judgment has created ripples in the legal fraternity here.

Senior advocate of the Gauhati High Court Hafiz Rashid Ahmed Choudhury said: "According to the judgment, the CBI is created only by a mere executive order passed by the then secretary of the Union Home Ministry. If that is so, it has constitutional validity."

"This is going to create a big problem, as people of the country have great faith in the CBI," he said. He added that one must wait till the Supreme Court clarifies the matter.

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