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News updated at 12:16 PM IST

Apex court stays HC order on CBI

New Delhi, Nov 9, 2013, DHNS: 2:33 IST

Gauhati HC fiat will hit many cases: Govt

P Sathasivam

The Supreme Court on Saturday stayed a Gauhati High Court order that described the creation of the Central Bureau of Investigation (CBI) as “unconstitutional.”

The high court order had put a question mark on the very existence of the premier investigation agency.

In a rare sitting at his residence, Chief Justice P Sathasivam in a bench, also comprising Justice Ranjana Prakash Desai, put a stay on the operation of the high court judgment passed on November 6.

In a day marked by hectic activities, Attorney General G E Vahanvati rushed to the 5 Krishna Menon Marg residence of the chief justice of India in the evening after filing a special leave petition challenging the verdict. The Centre, in its petition, claimed the judgment would have large-scale ramifications and adverse impact on thousands of criminal cases pending across the country.

The petition filed by Vahanvati himself pointed out that about 9,000 trials were currently underway and about 1,000 investigations were being carried out by the CBI. Allowing Vahanvati’s plea for immediate stay, the court observed: “We read in the newspapers that many people are seeking a stay (of pending cases). We have to stay. Two accused in two sensational cases have sought stay of the trial.”

The court’s obvious reference was to the 2G scam case and 1984 anti-Sikh riots cases against Sajjan Kumar. Former telecom minister A Raja and Kumar, ex-MP of the Congress from Delhi, had urged trial courts to quash the proceedings against them in view of the high court verdict.

“There shall be a stay on the operation of the final judgment,” the court said in its two-page order. “We are concerned about all other cases.”

The apex court issued notice to Navendra Kumar, on whose plea the Gauhati High Court had passed the order, and posted the matter for hearing for December 6.

During the hearing, the court rejected the preliminary objections raised by Kumar’s counsel that the Department of Personnel and Training (DoPT) was not authorised to file appeal in the matter.

“We will consider everything. Notice does not mean that we are rejecting your plea,” the court told L S Chaudhary, counsel for Kumar.

The court said it would go through the petition filed by the DoPT and also sought response from the Ministry of Home Affairs and the CBI in the matter. Vahanvati said in his submission, “It is a serious matter with which the DoPT is concerned and the CBI will file its appeal later.”


He said the high court proceeded on a wrong presumption and arrived at a wrong conclusion. “The reasonings 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,” he contended.

During the 10-minute hearing, Vahanvati referred to the Section 2 of the Delhi Special Police Establishment Act (DSPE) Act to claim that it empowers the Central government to constitute a special police force. He said the high court wrongly quashed the 1963 resolution on the CBI.

Earlier in the day, the DoPT filed the petition claiming that the high court judgment and order, was “ex-facie erroneous, contrary to the express provisions of the Constitution and the DSPE Act of 1946.”

The Centre also claimed that validity of the formation of the CBI had been dealt by the Rajasthan High Court in 1985 and 1986 and both petitions were then dismissed. One of the matters was later taken up to the apex court which had upheld the high court order in 1994.

It also said that the resolution made in 1963 for setting up the CBI, being executive actions under Article 77, was in the name of President only.

The government claimed the high court order would have “serious and severe consequences” on cases being investigated and prosecuted by the CBI having about 6,000 staff.

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