2013 (11) TMI 500 - HC - Indian Laws

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 - Whether Central Bureau of Investigation popularly called CBI is a constitutionally valid police force empowered to investigate crimes - Whether Delhi Special Police Establishment Act 1946 empowers the Union Home Ministry to establish a police force in the name of CBI A criminal case was registered against the Petitioner 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 Held that - CBI 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 - Parliament is competent to make law on the Central Bureau of Intelligence and Investigation the CBI which is constituted under the Resolution No.4/31/61-T dated 01.04.1963. No statute has been enacted by Parliament establishing a body called CBI. Since there is no legislation constituting the CBI the CBI s constitutional validity according to the learned Amicus Curiae has to be tested in the light of the provisions embodied in the Constitution of India - Whereas DSPE has been established under the DSPE Act 1946 the CBI has been constituted by a mere executive fiat - If the impugned Resolution had received the assent of the President of India this Court vide its order dated 20.01.2013 directed the respondents to produce the records relating to the creation of the CBI. Though the relevant records have not been produced in original a copy thereof has been produced by the learned Additional Solicitor General and has been perused by the Court and the parties concerned inasmuch as the learned Additional Solicitor General had made it clear to this Court that the said records were no longer classified documents. Whether the impugned Resolution dated 01.04.1963 is an executive action and therefore law within the meaning of Article 13 (3)(a) and/or Article 21 of the Constitution of India Held that - A bare reading of Article 73 makes it evident that the executive powers of the Union extends to all the matters with respect to which the Parliament has power to make laws; but there are three fetters on exercise of the executive powers. First this exercise is subject to provisions of the Constitution and secondly this exercise of executive power shall not save as expressly provided in the Constitution or in any law made by Parliament extend in any State to matters with respect to which the Legislature of the State also has power to make laws. Thirdly the exercise of executive power cannot be stretched to the extent of infringing fundamental rights. Article 73 cannot be read in isolation and it becomes necessary to understand its co-relation with Article 245 and Article 246 of the Constitution which embody the concept of federal structure of our Constitution - A combined reading of Article 245 and Article 246 shows that Parliament and State Legislatures have Constitutional competence to make laws - Subject matter of the laws to be made have been delineated in the form of three lists namely Union List State list and the Concurrent list - Police is a subject falling under Entry 2 of List II (State List). In view of Article 246 (3) therefore only State has exclusive power to make laws on police by taking recourse to Entry 2 of List II (State List). However Union Territories are not States within the meaning of Article 246 and hence Parliament can make laws on police for the Union Territories - Once a legislation occupies a field neither any of the States nor the Union can exercise its executive powers on the same field inasmuch as the legislation is the primary work of the Legislature and not of the Executive. CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act 1946. In fact impugned Resolution dated 01.04.1963 is not strictly speaking an executive action of the Union within the meaning of Article 73 inasmuch as the executive instructions embodied in the impugned Resolution were not the decision of the Union Cabinet nor were these executive instructions assented to by the President. Therefore the impugned Resolution dated 01.04.1963 can at best be regarded as departmental instructions which cannot be termed as law within the meaning of Article 13(3) (a) nor can the executive instructions embodied in the impugned Resolution dated 01.04.1963 be regarded to fall within the expression procedure established by law as envisaged by Article 21 of the Constitution - 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. Appellant has been able to make out a case calling for interference with the impugned Resolution dated 01.04.1963 and also with the impugned prosecution of the appellant on the basis of the charge-sheet which has been laid by the CBI in the Court of the learned Special Judge Assam Kamrup and as a sequel to the conclusions - Impugned Resolution dated 01.04.1963 whereby CBI has been constituted is quashed - Quashed the impugned charge-sheet submitted by the CBI against the appellant and consequently the trial which rests on the impugned charge-sheet shall stand set aside and quashed Decided in favor of Petitioner.

Summary

Issues Involved:
1. Constitutional Validity of CBI: Whether the 'Central Bureau of Investigation' (CBI) is a constitutionally valid police force empowered to investigate crimes.
2. Creation of CBI by Executive Order: Whether a police force, empowered to investigate crimes, could have been created and constituted by a mere Resolution of the Ministry of Home Affairs, Government of India.
3. Powers of CBI: Whether a police force constituted by a Home Ministry Resolution can arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheets, and/or prosecute alleged offenders.
4. Legislative Powers: Whether CBI is a police force constituted under the Union's Legislative powers conferred by List I Entry 8.
5. Concurrent List Powers: Whether Entry 1 and 2 of the Concurrent List empower the Union Government to raise a police force by way of Executive instructions of Union Home Ministry.
6. Delhi Special Police Establishment Act, 1946: Whether the Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a police force in the name of CBI.
7. Executive Powers and Fundamental Rights: Whether it is permissible for the Executive to create a police force with power to investigate crimes in exercise of its executive powers when such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21.

Detailed Analysis:

1. Constitutional Validity of CBI:
The primary issue was whether the CBI, established by a mere executive order, is constitutionally valid. The court found that the CBI was not created under any statutory law but by an executive resolution dated 01.04.1963. The court held that the CBI is not a statutory body as it was not created by any legislation. The court concluded that the CBI is not a constitutionally valid police force as it was not established under any law enacted by the Parliament.

2. Creation of CBI by Executive Order:
The court examined whether the CBI could have been validly created by an executive order. It was found that the CBI was constituted by an executive resolution without any legislative backing. The court held that the executive cannot create a police force with powers to investigate crimes solely through an executive order, as it infringes upon the legislative domain and fundamental rights under Article 21 of the Constitution. The court emphasized that the executive powers are co-extensive with legislative powers and cannot be exercised in a manner that infringes fundamental rights.

3. Powers of CBI:
The court scrutinized the powers exercised by the CBI, such as arrest, search, seizure, and prosecution. It was determined that the CBI, being created by an executive resolution, does not have the statutory backing to exercise such powers. The court declared that the actions of the CBI, including registering cases, arresting individuals, conducting searches, and filing charge-sheets, are unconstitutional as they violate Article 21.

4. Legislative Powers:
The court examined whether the CBI could be considered a police force constituted under the Union's legislative powers conferred by List I Entry 8. It was concluded that Entry 8 of List I (Union List) does not empower the Parliament to create a police force to investigate crimes in the manner done by the CBI. The court referred to Constituent Assembly debates where Dr. B.R. Ambedkar clarified that the term 'investigation' in Entry 8 does not permit the Central Government to investigate crimes, which is a state subject.

5. Concurrent List Powers:
The court considered whether Entries 1 and 2 of the Concurrent List empower the Union Government to raise a police force by executive instructions. It was concluded that these entries do not provide the Union Government with the power to create a police force like the CBI through executive instructions. The court noted that criminal law and procedure are within the legislative competence of both the Union and the States, but the creation of a police force falls within the State List.

6. Delhi Special Police Establishment Act, 1946:
The court evaluated whether the Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a police force like the CBI. It was found that the DSPE Act, 1946, does not mention the CBI and does not provide for its creation. The court held that the CBI is not an organ or part of the DSPE and cannot derive its powers from the DSPE Act, 1946.

7. Executive Powers and Fundamental Rights:
The court examined the permissibility of the Executive creating a police force with investigative powers when such exercise affects fundamental rights. It was held that the executive instructions creating the CBI are not 'law' within the meaning of Article 13(3)(a) nor do they constitute 'procedure established by law' under Article 21. Therefore, the actions of the CBI, based on the executive resolution, infringe upon the fundamental rights guaranteed under Article 21 and are unconstitutional.

Conclusion:
The court concluded that the CBI, constituted by an executive resolution dated 01.04.1963, is not a constitutionally valid police force. The resolution creating the CBI was quashed, and the charge-sheet filed by the CBI in the case was set aside. The court emphasized that the creation and functioning of a police force with investigative powers must be backed by appropriate legislation to ensure it does not infringe upon fundamental rights.