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SC stays Gauhati HC verdict holding CBI unconstitutional

New Delhi, Nov 9, 2013 (PTI):
File photo of Chief Justice of India Justice P Sathasivam. PTI

In a huge relief to the Centre and the CBI, the Supreme Court today stayed the Gauhati High court verdict declaring the agency as "unconstitutional",  saying accused in "sensational cases" have sought halting of the criminal proceedings based on that judgement.

The apex court relief came on an urgent petition filed by the Department of Personnel and Training, the nodal ministry for CBI, from a bench headed by Chief Justice P Sathasivam, which heard the appeal at an extraordinary hearing in his residence.

"In the meantime, there shall be a stay of operation of the final judgement and the impugned order dated November 6, 2013 passed by the Gauhati High Court," said the bench also comprising  Justice Ranjana Prakash Desai.


It rejected the objections raised by the counsel for Navendra Kumar, on whose petition the High Court had passed the verdict, that DoPT was not authorised to file the Special Leave Petition as it was not a party in the High Court.

"Respondent 1 (Kumar) is permitted to raise all objections in his proposed reply," the bench said in its order asking his lawyer L S Chaudhary, who accepted the notice, to file it  within two weeks after which the Centre will respond with its rejoinder.

Posting  the matter for hearing on December 6, the bench rejected the contention of Kumar's lawyer that the Centre's plea is a "collusive petition" as, instead of the CBI and the Ministry of Home Affairs, it has been filed by the DoPT which was not a party in the High Court. "The DoPT is an appropriate department. The CBI will file a separate appeal. We can't dismiss DoPT's appeal in limine," the bench said while taking note of the Attorney General G E Vahanvati's submission that CBI and the Ministry of Home will file their separate appeals.

Questioning the findings of the High Court, the Attorney General said the judgement was based on wrong question and presumptions that led to a wrong conclusion.
"You did not implead proper respondents before the high court," the bench told Kumar's lawyer.

"We read in the newspapers that many people are seeking stay (of proceedings based on this judgement). We have to stay (high court's order). You have read that the two accused in two sensational cases (of CBI) have sought stay of the trial.
"You file your objections. We will consider everything. Notice does not mean that we are rejecting your plea," it said.

"We are concerned about all other cases (of CBI)," the bench observed.
After a 10-minute-long hearing, the bench stayed the November 6 verdict of the High Court which virtually crippled the agency from performing its investigating and prosecuting functions in thousands of cases across the country.At the outset, Vahanvati said, "It is a serious matter with which the DoPT is concerned and the CBI will file its appeal later."

He contended the division bench framed "wrong questions and proceeded on wrong presumption and arrived at a wrong conclusion".

The AG questioned the High Court  finding that CBI is not constituted under the law and created by Central government under the executive order.

He also referred to the findings of the high court which quashed the 1963 Resolution as it does not refer to section 2 of the DSPE Act.

At this point, the bench reminded the government's top law officer, "No follow up actions were taken after the Resolution."

The Attorney General said "the reasoning given by the high court are unacceptable. It is a  total misunderstanding of the principle of administrative law.

"How does the concept of delegated legislation apply here? This shows complete misunderstanding of the concept of delegated legislation. There is a distinction between delegated legislation and conferment of executive powers."

The bench said, "We will consider (the appeal of the Centre). We will have to go through it."

The AG said the high court reasoning that the Delhi Special Police Establishment Act  (DSPE) is not applicable to the CBI is a "convoluted logic".

Vahanvati said thousands of cases are pending. "I am told there are 9,000 cases pending and there are 6,000 people in the CBI. The judgement came on November 6 and its copy came to us yesterday."

The day witnessed hectic activities with the government first filing its appeal in the court registry and seeking an urgent hearing at CJI's residence.
The rival side, which had filed the caveat in the matter, also rushed to CJI's residence.

5, Krishna Menon Marg, the CJI residence, was the centre of attention where media persons, including TV crew and photographers, were stationed since morning tracking the story.

The announcement about the evening hearing was made by a staff member of CJI at 12.50 pm when he reached his residence after attending a conference.

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