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TMI Blog2013 (11) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... en, 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 inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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" 5. Aggrieved by the order, dated 30-11-2007, aforementioned, the writ petitioner has preferred the present writ appeal. 6. We have heard Dr. LS Choudhury, learned counsel for the appellant, and Mr. PP 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: 7. It is submitted by Dr. LS 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. 8. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence and Investigation, the CBI, which is constituted under the Resolution No.4/31/61-T, dated 01.04.1963, cannot carry out functions of police inasmuch as the Constitutional scheme does not permit the Central Government to carry out functions of police and the police functions, according to Dr. LS Choudhury, lies within the exclusive domain of the State Government concerned. 12. Yet another leg of argument of Dr. Choudhury, learned counsel for the petitioner, is that even Delhi Special Police Establishment Act, 1946 (in short, 'the DSPE Act, 1946') is ultra vires the Constitution, for, it offends, according to Mr. Choudhury, Article 372 of the Constitution inasmuch as Parliament is not competent to make law on police for whole of India and it is only a State legislature, reiterates Mr. Choudhury, which can make, or could have made, law, on police by taking resort to Entry No.2 in the State List (List II). Thus, the DSPE Act, 1946, submits Dr. Choudhury, cannot continue anymore inasmuch as its continuance violates the basic Constitutional scheme. 13. Reverting to the Constitution, Dr. LS Choudhury submits that though Parliament, too, is competent to make law on any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y constituted body, it cannot function in the manner as is done by the police under the scheme of the Code of Criminal Procedure and the CBI, so constituted, can, at best, collect information by making 'enquiries' to assist any investigation carried out by a local police. SUBMISSIONS OF THE CBI 17. Resisting the writ petition, what the learned ASG, appearing on behalf of the CBI, submits, may be summarized as follows: A) That the CBI derives its power to 'investigate', like a police force, as contemplated by the Cr. PC, from the DSPE Act, 1946; B) That the CBI is only a change of the name of the DSPE and the CBI is, therefore, not an organization independent of the DSPE; C) That as per Section 5 of the DSPE Act, the Central Government may extend the powers and jurisdiction of the members of Delhi Police Establishment to investigate an offence beyond the territorial limits of Delhi and as per Section 6 of the DSPE Act, 1946, the members of the Delhi Police Establishment can exercise powers and jurisdiction in any area of any other State with the consent of the Government of that State; D) That the creation of CBI may also be taken to have been covered by Entry 80 of List I (U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Secondly, the plea, that the CBI is merely a change of name of the DSPE, cannot stand scrutiny of law inasmuch as the DSPE Act, 1946, specifically mentions, under Section 2, that the police force, constituted under the DSPE Act, shall be called "Delhi Special Police Establishment". Hence, when the DSPE Act itself defines the name of the force, which the DSPE Act, has created and established, the argument that the CBI is merely a change of name of the DSPE cannot hold water. Had it been so, the name of the DSPE ought to have been changed in the DSPE Act itself; more so, when several amendments have, otherwise, been introduced into the DSPE Act. iii) Thirdly, though Union of India's executive powers may, in the light of Article 73, be co-extensive with its legislative powers, the fact remains that the executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropriate legislation; but, in the cast at hand, the resolution, dated 01-04-1963, whereunder CBI has been constituted, is not backed by any legislation. SUBMISSIONS OF THE AMICUS CURIAE 18. Mr. N. Dutta, learned Amicus Curiae, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a member of the DSPE may, subject to any order, which the Central Government may make in this behalf, exercise any power of the Officer-in-Charge of a police station in the area, which he is, for the time being, posted to, and, when so exercising the powers, he shall be subject to any such orders, which may be made by the Central Government and be deemed to be an Officer-in-Charge of a police station discharging the function of an officer within the limits of his station. If the expression, "Officer-in-Charge of a police station", appearing in Section 2(c) of the DSPE Act, 1946, is read together with Section 36 of the Cr.P.C, then, it would become clear, according to learned Amicus Curiae, that an officer of the DSPE, while functioning in any State, shall be subordinate to the superior officers of the State police; whereas, in the case of CBI, while investigating a case, in any State, purportedly, by virtue of its powers under Section 5 read with Section 6 of the DSPE Act, 1946, the CBI investigators reports to their own hierarchy of officers and not to the superior police officers of the police station within whose local jurisdiction he, as a CBI officer, may be investigating a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the same having been obtained from the National Archives and could, therefore, be perused by the parties concerned. 26. Before proceeding further, it is pertinent to note that in response to a specific query put by this Court as to whether the issue, raised in the petition, with regard to the Constitutional validity of the CBI, can be found to have been raised in any decision of any Court, the learned ASG as well the learned Amicus Curiae, with commendable fairness, have admitted that in the light of the reported decisions, this issue has never been raised, in any case, in any other High Court or the Supreme Court. 27. The points, which, now, falls for determination, is: whether CBI is established under the DSPE Act, 1946, or is an organ of the Delhi Special Police Establishment Act and, if not, whether a force, with the object of investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, is reproduced below: "No. 4/31/61-T GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS New Delhi, the 1st April, 1963 RESOLUTION The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime. As a first step in that direction, the Government of India have decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice Establishment, which we have been referring to as the DSPE. 38. The learned ASG has completely failed to show that the CBI can be said to have been established or constituted as an organ or part of the DSPE or is a special force, which has been constituted by taking recourse to Section 2 of the DSPE Act, 1946. We have, therefore, no hesitation in concluding that CBI is not established under the DSPE Act, 1946, or is an organ of the Delhi Special Police Establishment . 39. While considering the question, framed above, it is worth noticing that there is no dispute that CBI came into existence with the issuance of Resolution, dated 01.04.63. If CBI is an integral part of the DSPE, then, such a resolution ought to have been issued by the Central Government in exercise of powers vested in the Central Government by the DSPE Act, 1946. In other words, had the CBI been constituted under the DSPE Act, 1946, by the Central Government, the CBI could have been treated as having been created by way of delegated legislation. There is, however, nothing, either in the DSPE Act, 1946, or in the impugned Resolution, dated 01.04.1963, to show that the CBI is a creation of a delegated piece of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the CBI, is not an act of delegated legislation, the Resolution cannot become a part of the DSPE Act, 1946. 45. This Court, vide order, dated 20.01.2013, has directed the respondents to produce the records relating to creation of the CBI. It is relevant to note that despite directions, the respondents did not file the original records; rather they produced a certified copy of the records received from the National Archives. 46. However, even perusal of the entire records makes it clear that the Resolution was neither produced before the President of India nor did it ever receive the assent of the President of India. Hence, strictly speaking, the Resolution, in question, cannot even be termed as the decision of the Government of India. That apart, it is apparent from the records that the CBI is a newly constituted body and not the same as DSPE. The very subject of the file reads as Setting up of Central Bureau of Investigation and creation of various posts. We would like to point out certain notings, at page 11, 20, 21, 23, 25, 26, 103, 104 and 105, which read as follows: "The setting up of a Central Bureau of Investigation seems to be necessary for the following reasons: &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions of expanding its scope in due course to its original conception and that this would require suitable legislation by Parliament which would be undertaken at the appropriate stage. Again at Page 98 Now that a decision has been taken to constitute and set up a Central Bureau of Investigation it has to be considered how best to implement this and to give it a shape. The points that arise for consideration are:- (i) Whether it is necessary to consult the States before setting up the Central Bureau of Investigation? (ii) Whether it is necessary to have a new comprehensive Act to define the functions and the powers of the Central Bureau of Investigation and to give it the legal authority for conducting enquiries and investigations all over India? (iii) What items of work should be allotted to the Central Bureau of Investigation? 2. If States are to be consulted and if a new comprehensive Act has to be passed by Parliament before the setting up of the Central Bureau of Investigation, this proposal is likely to be unduly held up. Objections might be raised or doubts might be expressed by som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in existence for some time and when its difficulties and requirements as brought out by actual experience are known. At that time it would also be far easier to obtain the consent of the States for fresh legislation. At Page 104: 10. In this connection a point worthy of note is that fresh legislation on the lines contemplated is not free from difficulties. Very great care will have to be taken to frame the proposed Act in such a way as not to infringe on the provisions of the Constitution. Even with all the care in drafting and preparing the Act it is likely to be questioned in courts and it is difficult to anticipate what the decision of the courts would be on the validity of the new Act or on legal points arising from it. On the other hand, it might be mentioned that the Delhi Special Police Establishment Act has already gone through this process. Its provisions have been debated in courts from all possible angles and it has withstood onslaughts from all directions. Even the highest courts have upheld the validity of the provisions of this Act. It is a matter for consideration whether it would be worthwhile framing a new Act just at present with all the delay and difficulty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t information with regard to any kind of crime that is being committed by people throughout the territory of India and also make an investigation as to whether the information that has been supplied to them is correct or not and thereby be able to inform the Provincial Governments as to what is going on in the different parts of India so that they might themselves be in a 'position to exercise their Police powers in a much better manner than they might be able to do otherwise and in the absence of such information. 53. One of the members, Mr. Nazimuddin Ahmed could visualize a conflict of interest between the States, on the one hand, and the Union Government, on the other, and raised, in the Constituent Assembly, question about the implications and the use of the word, 'investigation', appearing within the expression 'Central Bureau of Intelligence and Investigation', in the following words: "Mr. Nazimuddin Ahmad: Mr. President, Sir I beg to move: "That in amendment No.1 for List I (Sixth Week) in the proposed entry 2 of List I, the words 'and investigation' be deleted." Then I move my n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation". If you keep the investigation within this entry it should be the Central-Bureau of Intelligence, as well as Bureau of Investigation. If there are two Bureaus only there, could be no difficult and there will be no clash and let us have as many Bureaus as you like but if you want investigation, it will be inviting conflict. Rather it is another attempt to encroach on the provincial sphere. I find there is no limit to the hunger of the Central Government to take more and more powers to themselves and the more they eat, the greater is the hunger for taking more powers. I oppose the amendment of Dr. Ambedkar. I appeal to the House not to act on the spur of the moment; it is easy for them to accept it as it is easy for them to oppose it and the entry does not seem to be what it looks." 54. Dr. Ambedkar, in response to the doubts, expressed by Mr. Nizamuddin, had clarified and assured the House, in no uncertain words, that the Central Government cannot and will not have the powers to carry out investigation into a crime, which only a police officer, under Cr.P.C., can do. The response of Dr. Ambedkar is extracted below: The Honourable Dr. B. R. Ambedkar: The point of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituent Assembly debates is to gather an idea behind the general law making process. In any view of the matter, the debates quoted above, becomes relevant and unavoidable when it is contended, on behalf of the respondents, that the creation of the CBI can be traced to the Central Government's power embodied in Entry 8 of List I of the Union List, which provides for creation of 'Central Bureau of Intelligence and Investigation'. 58. It is an admitted position that no independent law exists on Central Bureau of Intelligence and/or Investigation; rather, it is the DSPE Act, 1946, only which, as argued by the ASG, is the law, which, according to the respondents, has created the CBI. But then, Entry 8 List I (Union List) definitely empowers the Parliament to enact a law in the form of 'Central Bureau of Intelligence and Investigation'. Such a legislative competence is preserved under Art. 246 (1), which reads, "Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"). 59. Having enacted a law, under Entry 8 of List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitute CBI may be traced to Entry 8 of List I (Union List). 65. We may, however, point out that Entry 8 of List I (Union List), indeed, empowers Parliament to enact a law on the subject of 'Central Bureau of Intelligence and Investigation'. Such a legislative competence is preserved under Art. 246 (1), which reads, "Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List". 66. Coupled with the above, if the debates are borne in mind, it becomes abundantly clear that the word, 'investigation', appearing within the expression "Central Bureau of Intelligence and Investigation" became a heated subject matter of debates, in the Constituent Assembly, primarily, for the reason that empowering the Parliament to enact law, on 'investigation' conducted into an offence by police, would amount to encroachment into the realm of the subject matter of State List, though 'police' is a subject, which falls in the State List. 67. The inclusion of the word, 'investigation', appearing within the expression, 'Central Bureau of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a special police force [in Delhi for the investigation of certain offences in [the Union territories]], for the superintendence and administration of the said force and for the extension to other [***] of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. WHEREAS it is necessary to constitute a special police force [in Delhi for the investigation of certain offences in [the Union territories]] and to make provision for the superintendence and administration of the said force and for the extension to other areas [***] of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences; Section 1 - Short title and extent (1) This Act may be called the Delhi Special Police Establishment Act, 1946. (2) It extends to [the whole of India], [***]." 72. A careful reading of the preamble to the DSPE Act, 1946, would make it evident that the DSPE Act, 1946, has been made for the 'Union Territories'. This legislative power cannot be exercised by the Parliament except under Art 246 (4), which enables Parliament to enact laws on subjects, covered by List II (State List), in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament, far less the Central Government, to enact a law creating a separate police force for the purpose of 'investigation' into a crime preparatory to the filing of charge sheets. What Entry 80 of List I permits is only making of provisions of 'extension' of a valid law governing activities of police of one State to have jurisdiction in any other State with, of course, the consent of the other State concerned. 78. Thus, if the DSPE Act, 1946, were treated to be a valid piece of legislation, then, by virtue of Entry 80 of List I (Union List), the Parliament could have incorporated, in the DSPE Act, 1946, that the operation of DSPE Act, 1946, may be extended to other States if the latter State gives consents thereto. 79. In the backdrop of what have been discussed above, Section 5, subject to Section 6 of the DSPE Act, 1946, can be regarded as an embodiment of Entry 80 List I (Union List). Such a provision could be made in the DSPE Act, 1946, because such a power was available with the Governor General-in-Council under Entry 39 of List I of Seventh Schedule to the Government of India Act, 1935, which corresponds to Entry 80 of List I (Union List). 80. Therefore, as regards the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding to Entry 80 of List I (Union List) of the Constitution of India. Relying on the definition of 'State', as given in Section 3 (58) of the General Clauses Act, the Supreme Court held that 'State' also meant a 'Union Territory' and so far as Entry 80 was concerned, since the substitution of term 'Union Territory', for the term 'State,' is not repugnant to the context thereto, the term 'State' would also mean a Union Territory. The Supreme Court further observed, in Advance Insurance Co. Ltd. (supra), that since Entry 80 of List I (Union List) under the Government of India Act, 1935, corresponding to Entry 39 of List I of the Seventh Schedule, enables the police force of one State to function and carry out 'investigation' into an offence in another State if the latter State consents to such 'investigation', an 'investigation' by the DSPE into a case, in Maharashtra, is permissible. To put it a little differently, the members of the DSPE, the DSPE being a valid establishment under the DSPE Act, 1946, may be empowered to 'investigate' an offence in a State, outside Delhi, provided that the State concerned given consent to the same. This is precisely what has been done by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding all matters included in the Code of Criminal Procedure at the commencement of this Constitution." 89. Article 246 (2), dealing with Concurrent List, provides that notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. 90. Thus, both, Union and State, can enact a criminal or penal law. However, such a penal law should not be on any of the subjects mentioned in List I or II and should not be laws on use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. Again, as empowered by Entry 2, both, Union and State, can introduce changes in the Code of Criminal Procedure. 91. Article 246, in essence, lays down the principle of federal supremacy and in the event of inevitable conflict between the exercise of power by the Union and a State, it is the power, exercised by the Union, which would prevail over the State's powers and, in the case of overlapping of a legislation made by a State vis-à-vis a legislation made by the Parliament on a subject covered by List III ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, under the Assam Police Act, 2007, there may be several police officers; but not all of them have the power to register a case, investigate an offence and/or submit a charge-sheet. 98. An example may be given by referring to Sec. 30 and Sec. 55 of Assam Police Act, 2007, which read as under: "Sec. 30 District Armed Reserve: The District Armed Reserve, which will function under control, direction and supervision of the District Superintendent of Police shall be the armed wing of the District Police to deal with an emergent law and order problem or any violent situation in the district, and for providing security guards or escort of violent prisoners, or such other duties as may be prescribed". Sec. 55 Investigation by special crime investigation unit:-The state government shall ensure that in all metropolitan Police Stations having a population of 10 (ten) lakhs or more, a Special Crime Investigation Unit, headed by an officer not below the rank of Inspector of Police, is created with an appropriate strength of officers and staff, for investigating organized, economic, and heinous crimes. The personnel posted to this unit shall not be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; (b) To the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement; Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution." 104. 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions of the legislature. The relevant observations, made in this regard, read as under: "....The law making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and if the executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of re-promulgation without submitting it to the voice of legislature, it would be nothing short of usurpations by the executive of the law making function of the legislature. The executive cannot by taking resort to an emergency power exercising by it only when the legislature is not in session, take over the law making function of the legislature. That would be clearly subverting the democratic process which lies at the core of our Constitutional Scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution, but, by the laws made by the executive. The government cannot bypass the legislature and without enacting the provisions of the Ordinance into Act of legislature, re-promulgate the Ordinance as soon as the legislature is prorogued..... ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve actions have to be termed as unconstitutional. 115. The case law, most appropriate to the above aspect of the Constitutional limitations, imposed on the exercise of the executive power, can be found in D. Bhuvan Mohan Patnaik vs State of AP (AIR 1974 SC 2092), wherein some prisoners had challenged the installation of live electric wire on the top of jail wall as being violative of personal liberty enshrined in Article 21 of the Constitution. The Supreme Court, having questioned the legal authority justifying such installation of live wires, rejected the argument that installing of the live high-voltage wire, on the walls of jail, was solely for the purpose of preventing the escape of prisoners and was, therefore, a reasonable restriction on the fundamental rights of the prisoners. 116. Observed the Supreme Court, in D. Bhuvan Mohan Patnaik vs State of AP AIR 1974 SC 2092 (Supra), that if the petitioners succeed in establishing that the particular measure, taken by the jail authorities, violated any of the fundamental rights available to them under the Constitution, the justification of the measure must be sought in some 'law' within the meaning of Article 13(3) (a) of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the meaning of Article 13(3) (a) nor are they "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore, if the petitioners. are right in their contention that the mechanism constitutes an infringement of any of the funda- mental rights available to them, they would be entitled to the relief sought by them that the mechanism to be dismantled. The State has not justified the installation of the mechanism on the basis of a law or procedure established by law" (Emphasis is supplied) 118. Moreover, a Constitution Bench of the Supreme Court, in the case of State of M.P. v. Thakur Bharat Singh (1967 SCR 454), has held that the executive action cannot infringe rights of a citizen without lawful authority. 119. Again, in the case of Bishambhar Dayal Chandra Mohan v. State of UP, reported (1982) 1 SCC 39, it has been held that though the executive powers of the State are co-extensive with the legislative powers of the State, no executive action can interfere with the rights of the citizens unless backed by an existing statutory provision. 120. It will not be out of place to mention here that the executive powers of the State are to fill up the gaps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, seen that CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946. In fact, we have already indicated above that the 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. 125. Situated thus, 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. WHETHER THE DSPE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avenes or is repugnant to the said provision. The Act of 1941 creating the liability of the Railways to taxation by local authorities was passed by the then Central Legislature which was a Federal Legislature of India. The present Central Legislature namely, the Parliament has not enacted any law after coming into force of the Constitution making any provision affecting the exemption of the property of the Union from all taxes imposed by a State or by any authority within a State. The 1941 Act is repugnant to clause (1) of Article 285. It is neither a law made by Parliament nor a law made by the Central Legislature after the advent of the Constitution. In either view of the matter it is not a law covered by the phrase `save in so far as Parliament may by law otherwise provide' occurring in clause (1) of Article 285. There is an additional reason for rejecting the argument of Mr. Ramamurthi in this regard. If the contention as made were to hold good it will make clause (2) of Article 285 almost nugatory. We, therefore, hold that the property in question is exempt from all taxes claimed by the Bellary Municipal Council under clause (1) of Article 285 unless the claim can be supported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court, was whether Delhi Special Police Establishment is constitutionally valid and whether Delhi Special Police Establishment has jurisdiction to investigate cases in other States. 133. The Supreme Court had the occasion to deal with the history of the DSPE Act, 1946, and it observed as follows: "On July 12, 1943 the Governor General enacted an ordinance (XXII of 1943) in exercise of his powers conferred by Section 72 of the Government of India Act which was continued in the Ninth Schedule to the Government of India Act, 1935. An emergency had been declared owing to World War II and the powers were exercisable by the Governor General. The ordinance was called the Special Police Establishment (War Department) Ordinance, 1943. It extended to the whole of British India and came into force at once. By Section 2(4) the Special Police Establishment (War Department) was constituted to exercise throughout British India the power and jurisdiction exercisable in a province by the members of the police force of that province possessing all their powers, duties, privileges and liabilities. under Section 4 the superintendence of the Special Police Establishment (Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the long title and the preamble. The purpose of this was to remove reference to the States in the phrases "for the extension to other areas in the States". The more significant changes came in 1952 by the Delhi Special Police Establishment (Amendment) Act 1952 (XXVI of 1952). In the long title (after the "Adaptation of Laws Orders 1950) the words were: An Act to make provision for the Constitution of a special police force for the State of Delhi for the investigation of certain offences committed in connection with matters concerning Departments of the Central Government etc. After the amendment the words read : An Act to make provision for the Constitution of a special police force in Delhi for the investigation of certain offences in Part C States. Similar changes were also made in the preamble and in Section 3 the reference to Departments of Government was also deleted. The change from 'for the State of Delhi' to 'in Delhi' was the subject of comment in the High Court. To that we shall refer later. In 1956 the Constitution (Seventh Amendment) Act, 1956 was enacted. Previously the Constitution specified the States as Parts A, B and C States and some territories were speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words 'belonging to' mean belonging to a part of India, the expression is equal to a police force constituted to function in an area. In this way the Delhi Police Establishment means a police force constituted and functioning in the Union territory of Delhi. Previously the same force functioned in the Chief Commissioner's Province of Delhi, then in Part C State of Delhi and now it functions in the Union territory of Delhi. (Emphasis is supplied) 136. It will, thus, be seen that there is a clear finding, in Advance Insurance Co. Ltd (supra), that DSPE means a police force, constituted and functioning in the Union Territory and, hence, it would not be appropriate, now, for us to enter into the question of vires of the DSPE Act, 1946, particularly, when we have already held that CBI is not an organ or part of the DSPE, under the DSPE Act, 1946, and we are, therefore, not required to determine the constitutional validity of the DSPE Act, 1946. 137. In other words, irrespective of the fact as to whether the DSPE Act, 1946, is valid or not, the clear conclusion of this Court is that the CBI is not an organ or part of the DSPE and that the CBI has not been constituted under the DSP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government" (Emphasis is supplied) 142. The learned ASG, relying upon the above observations, has submitted that the Supreme Court has held that the CBI is constituted and functioning under Delhi Special Police Establishment Act, 1946. 143. The learned ASG has also referred to the case of M. C. Mehta (Taj Corridor Scam) vs. Union of India and ors, reported in (2007) 1 SCC 110, wherein S.B. Sinha, J, concurring with the directions, which were decided to be issued to the CBI, as regards its investigation, observed as under: "S.B. Sinha, J. (concurring) - This Court entrusted investigation to the Central Bureau of Investigation (CBI) which was constituted under the Delhi Special Police Establishment Act, 1946 (for short, "the Act). It was enacted to make provision for the constitution of a special police force in Delhi for investigation of certain offences in the Union Territories, for the superintendence and administration of the said force and for extension to the other areas of the powers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even obiter dictum. 148. We have already recorded above that, in the present appeal, we raised a pointed query, namely, whether the constitutional validity of the CBI was ever challenged, discussed and/or answered in any of the reported decisions of the Supreme Court ? To the query, so raised, learned counsel for the parties concerned and the learned amicus curiae have agreed that this issue was not raised, discussed and answered in any of the reported decisions of the Supreme Court. 149. Bearing in mind what we have pointed out above, let us, now, turn to the issues, which fell for determination, in Kazi Lhendup Dorji (supra), Committee for Protection of Democratic Rights, West Bengal & Ors (supra), and M. C. Mehta (Taj Corridor Scam) (supra). 150. In the case of Kazi Lhendup Dorji (supra), the issue was entirely different inasmuch as the Supreme Court, in Kazi Lhendup Dorji (supra), observed as under: "This Writ Petition filed under Article 32 of the Constitution raises the question whether it is permissible to withdraw the consent given by the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 (hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: "2. A purported vertical difference of opinion in the administrative hierarchy in CBI between the team of investigating officers and the law officers on one hand and the Director of Prosecution on the other hand on the question as to whether there exists adequate evidence for judicial scrutiny in the case of criminal misconduct concerning the Taj Heritage Corridor Project involving 12 accused including a former Chief Minister has resulted in the legal stalemate which warrants interpretation of Section 173(2) CrPC. *** *** *** *** *** *** Background facts 19. The key issue which arises for determination in this case is: whether on the facts and the circumstance of this case, the Director, CBI, who has not given his own independent opinion, was right in referring the matter for opinion to the Attorney General for India, particularly when the entire investigation and law officers' team was ad idem in its opinion on filing of the charge-sheet and only on the dissenting opinion of the Director of Prosecution, whose opinion is also based on the interpretation of the legal evidence, which stage has not even arrived. The opinion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SPE or if CBI has been validly constituted under the DSPE Act, 1946 ? When such is the situation, what shall be the duty of this Court? 158. On the above aspect of the law, we may refer to the case of Oriental Insurance Company Limited vs. Smt. Raj Kumari & ors. (AIR 2008 SC 403), wherein the Supreme Court has pointed out that the reason or principle, on which a question before a Court has been decided, is alone binding as a precedent. A case is precedent and binding for what it explicitly decides and no more and that the words of the judges, in their judgements, are not to be read as if they are words in an Act. The relevant observations, appearing in Smt. Raj Kumari (supra), in this regard, read as under: "11. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's Theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. (Emphasis is supplied) 160. Again, in Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas & Anr. (AIR 2008 SC 2187), the Supreme Court, while dealing with the doctrine of precedent, has held as under: "19. The judgment of a Court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case." (Emphasis is supplied) 161. The above observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum'. 166. Reference was, then, made, in Mohandas Issardas (supra), to the definition of 'obiter dictum' as found in Stroud's Judicial Dictionary, which is based upon the case of Flower v. Ebbw Vale Steel Iron and Coal Co., 1934-2 KB 132, and the following passage, at page 154, from the judgment of Talbot, J, in Dew v. United British Steamship Co. Ltd., 1928-139 LT 628, was quoted, which read as follows: "..................It is of course perfectly familiar doctrine that obiter dictum though they may have great weight as such are not conclusive authority. Obiter dictum in this context means what the words literally signify namely, statements by the way. If a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case that of course has not the binding weight of the decision of the case and the reasons for the decision." 167. Thereafter, the statement of the law, in Halsbury, Volume XIX, at page 251, was quoted, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and other High Courts, came to the conclusion as follows;-- "Now, an 'obiter dictum' is an expression of opinion on a point, which is not necessary for the decision of a case. This very definition draws a clear distinction between a point, which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum'." (Emphasis is supplied) 171. In the light of the observations made above, in Mohandas Issardas (supra), it becomes clear that, according to the Bombay High Court, in Mohandas Issardas (supra), two questions may arise before a Court for its determination. The Court may determine both, although only one of them may be necessary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the various observations made in it." (Emphasis is supplied) 174. The Supreme Court, in Arun Kumar Aggarwal vs State Of M.P. & Ors. (AIR 2011 SC 3056), has considered the concept of 'obiter dictum' in the following words: "21. At this stage, it is pertinent to consider the nature and scope of a mere observation or obiter dictum in the Order of the Court. The expression obiter dictum or dicta has been discussed in American Jurisprudence 2d, Vol. 20, at pg. 437 as thus: 'Dicta' Ordinarily, a court will decide only the questions necessary for determining the particular case presented. But once a court acquires jurisdiction, all material questions are open for its decision; it may properly decide all questions so involved, even though it is not absolutely essential to the result that all should be decided. It may, for instance, determine the question of the constitutionality of a statute, although it is not absolutely necessary to the disposition of the case, if the issue of constitutionality is involved in the suit and its settlement is of public importance. An expression in an opinion which is not necessary to support the decision reache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case and therefore not precedential (although it may be considered persuasive). -- Often shortened to dictum or, less commonly, obiter. Strictly speaking an `obiter dictum' is a remark made or opinion expressed by a judge, in his decision upon a cause, `by the way' -- that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion.... In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as `dicta,' or`obiter dictum,' these two terms being used interchangeably. 25 The Word and Phrases, Permanent Edition, Vol. 29 defines the expression `obiter dictum' or `dicta' thus: 'Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument or full consideration of the point, are not the professed deliberate determinations of the judge himself; obiter dictum are opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Edition (Reissue), Vol. 26, para. 574 as thus: "574. Dicta. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is unnecessary for the purpose at hand are generally termed 'dicta'. They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a judge are known as 'obiter dictum', whilst considered enunciations of the judge's opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed 'judicial dicta'. A third type of dictum may consist in a statement by a judge as to what has been done in other cases which have not been reported. . Practice notes, being directions given without argument, do not have binding judicial effect. Interlocutory observations by members of a court during argument, while of persuasive weight, are not judicial pronouncements and do not decide anything" 28. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 and Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197, this Court has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or the principles on which a question before a Court has been decided, is alone binding as a precedent. (b) In a given case, two questions may arise before a Court for its determination. The Court may determine both, although only one of them may be necessary for the ultimate decision of the case. The question, which was necessary for the determination of the case would be the 'ratio decidendi'. However, the opinion of the tribunal on the question, which was not necessary to decide the case would be only an 'obiter dictum'. (c) 'Obiter dictum' is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in the particular issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the judge who utters them. 176. Now, coming to the decisions, relied upon by the learned ASG, it appears that the observations, upon which the learned ASG is heavily relying, are not even `obiter dictum' inasmuch as the issue, with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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