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2013 (11) TMI 500 - HC - Indian LawsIs 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.
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