High Court
Case Details
WA 119/2008 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE DR. (MRS) JUSTICE INDIRA SHAH JUDGMENT AND ORDER (IA Ansari, J) (cid:28)When the people fear the government, there is tyranny. When the government fear s the people, there is liberty. (cid:29) Thomas Jefferson, the principal author of the Declaration of Independence (1776) and the third President of the United States (1801-1809) 2. Article 21 is one of the most cherished provisions in our Constitution, which prohibits the State from depriving a person of his life and liberty except according to the procedure established by law. However, what happens if by the State’s action, which has been neither sanctioned by a legislation nor has been taken in valid exercise of its executive powers, the ineffaceable mandate of Art icle 21 gets smudged. This is precisely the issue, which the appellant has been , for almost a decade of litigation, urging the court to decide. Having been uns uccessful in his attempt to convince the Court in his writ petition of the corre ctness and righteousness of his contentions, the appellant is, now, before us, s eeking 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 consti tutionally valid police force empowered to ’investigate’ crimes? (ii) Could a ’police force’, empowered to ’investigate’ crimes, have been create d and constituted by a mere Resolution of Ministry of Home Affairs, Government o f 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 ch arge-sheet and/or prosecute alleged offender? (iv) Whether CBI is a ’police force’ constituted under the Union’s Legislative p owers conferred by List I Entry 8? (v) Do Entry 1 and 2 of the Concurrent List empower the Union Government to rais e a ’police force’ and that, too, by way of Executive instructions of Union Home Ministry? (vi) Whether Delhi Special Police Establishment Act, 1946, empowers the Union Ho me Ministry to establish a ’police force’ in the name of CBI? (vii) Above all, is it permissible for the Executive to create a ’police force’ with power to ’investigate’ crimes in exercise of its executive powers, when exe rcise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21? 3. The present appeal has arisen out of the judgment and order, dated 30-11 -2007, passed, in Writ Petition (Civil) No. 6877 of 2005, by a learned Single Ju dge of this Court dismissing the writ petition, whereby the writ petitioner had sought for, inter alia, (i) quashing of the impugned Resolution No. 4/31/61-T, d ated 01-04-1963, whereunder the Central Bureau of Investigation stands establish ed, as ultra vires the Constitution of India and (ii) quashing of the criminal p roceeding/prosecution, which originated from the FIR/RC No. 39(A)/2001/CBI/SIL a nd is presently pending against the petitioner, in the Court of Special Judge (C .B.I), Assam, at Guwahati. 4. The material facts, which have given rise to the present appeal, may, in brief, be set out as under: A criminal case being RC No. 39(A)/2001/CBI/SIL was registered, on 31-07-2001, under Sections 120B IPC/420 IPC and Section 13(1)(d) read with Se (i) ction 13(2) of the Prevention of Corruption Act, 1988, in the office of the Supe rintendent of Police, Central Bureau of Investigation (hereinafter referred to a s ’CBI’), Silchar, Assam, against the petitioner, who is an employee of Mahanaga r 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, CB
Facts
I, Assam, Kamrup, Guwahati. (ii) With the help of the writ petition, bearing WP(C) No. 6877 of 2005 afore mentioned, the constitutional validity of the very formation of the CBI and its powers to carry out the functions of police, namely, registration of First Infor mation Report (in short, ’FIR’) under Section 154 of the Code of Criminal Proced ure (hereinafter referred to as the ’Cr.P.C’), arrest of a person, as an accused , investigation of offences, filing of charge-sheets against alleged offenders a nd to prosecute them were put to challenge. (iii) ollows: (cid:28)(i) quash the impugned Resolution No. 4/31/61-T, dated 01-04-1963, as ultra vir es 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 i n the nature of certiorari. (cid:29) The two substantive prayers, made by the petitioner-appellant, were as f (iv). The constitutional validity of the formation of the CBI and its powers t o investigate and function as a police force and/or its powers to prosecute an o ffender 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 u nder an Executive Order/Resolution No. 4/31/61-T, dated 01-04-1963, of the Minis try of Home Affairs, Government of India, though police is a State subject withi n the scheme of the Constitution of India inasmuch as it is only a State Legisla ture, which, in terms of Entry No. 2 of List-II (State List) of the Seventh Sche dule to the Constitution of India, is competent to legislate on the subject of p olice and, therefore, the Central Government could not have taken away the power , which so belongs to State legislatures, and create or establish an investigati ng agency, in the name of CBI, adversely affecting or offending the fundamental rights, guaranteed under Part III of the Constitution of India. To substantiate the above contention, reliance was placed on the Constit (v). uent Assembly debates, dated 29-08-1949, wherein Dr. BR Ambedkar had clarified t hat the word ’investigation’, appearing in Entry 8 of List I (Union List) of the Seventh Schedule, which read, (cid:28)Central Bureau of Intelligence and Investigation (cid:29), would not permit making of an ’investigation’ into a crime by the Central Gov ernment inasmuch as ’investigation’ would be constitutionally possible only by a police officer under the Cr.P.C., police being exclusively a State subject and the word ’investigation’, appearing in Entry 8 of List I (Union List), would, in effect, mean making of merely an ’enquiry’ and not ’investigation’ into a crime as is done by a police officer under the Code of Criminal Procedure. The word ‘ investigation’ is, therefore, according to the Constituent Assembly Debates, int ended to cover general enquiry for the purpose of finding out what is going on a nd such an investigation is not an investigation preparatory to the filing of a charge-sheet against an offender, because it is only a police officer, under the Criminal Procedure Code, who can conduct ’investigation’. (vi). In the writ petition, the Union of India did not file any response; but the CBI, as respondent No. 2, filed an affidavit, wherein it claimed that it had been exercising functions and powers of police under the Delhi Special Police E stablishment Act, 1946. In its affidavit, filed in the writ petition, the CBI fu rther submitted that the CBI has had been functioning for more than four decades , but its constitutional validity has never been challenged by any one and, henc e, this settled position may not be unsettled. (vii). By the impugned judgment and order, dated 30-11-2007, a learned Single J udge of this Court dismissed the writ petition holding thus, (cid:28).................. Aggrieved by the order, dated 30-11-2007, aforementioned, the writ petit
Legal Reasoning
While considering the question, framed above, it is worth noticing that 39. 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 resolutio n ought to have been issued by the Central Government in exercise of powers ves ted 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 c ould have been treated as having been created by way of delegated legislation. T here is, however, nothing, either in the DSPE Act, 1946, or in the impugned Reso lution, dated 01.04.1963, to show that the CBI is a creation of a delegated piec e of legislation. In order to exercise powers under delegated legislation, it is necessary that the Statute itself empowers the Executive to issue notification/ resolution to meet the exigencies of time; whereas no such power is vested in th e Central Government by the DSPE Act, 1946. 40. ive powers, as endowed by the DSPE Act, 1946, can be pointed as follows: Section 2:- Central Government may constitute special police force called DSPE f or Union Territory of Delhi. Section 3:- Central Government may notify the offences, which may be investigate d by the DSPE Section 5:- Central Government may notify the areas, where DSPE can exercise jur isdiction meaning thereby that if Central Government has not extended the operat ion of DSPE to the State of Assam, then even if the State of Assam consents to a n investigation by the DSPE, the DSPE would not be in a position to investigate. 41. The following aspects may be culled out on an analysis of the scheme of the DSPE Act, 1946: 42. In essence, the DSPE was established only to exercise unrestricted power of investigation in the Union Territory of Delhi. It can investigate offences i n a State, other than Delhi, provided that the State Government consents thereto and the relevant notification, under Section 5, has been issued by the Central Government. 43. Secondly, the name of the establishment, created by the DSPE Act, 1946, is Delhi Special Police Establishment and not CBI; whereas it is the impugned Re solution, which has created the CBI as a police force for investigation of offen ces preparatory to filing of charge-sheets. If a statute gives a specific name to an organization, created by the statute, it is not permissible to confer a ne w name on the organization by any executive instructions. Subject to the validit y of the DSPE Act, 1946, only Delhi Special Police Establishment can be termed a s statutory body created by the DSPE Act, 1946, and not the CBI. 44. Thirdly, if CBI were part of the DSPE, the Resolution, dated 1.4.63, wou ld have made a mention to the effect that Central Government is issuing the impu gned Resolution in exercise of powers vested in it by the DSPE Act, 1946. Howeve r, a reading of the Resolution would make it evident that it does not reflect th e source of executive power. Since it is found that the Resolution, which create 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 t o produce the records relating to creation of the CBI. It is relevant to note t hat despite directions, the respondents did not file the original records; rathe r they produced a certified copy of the records received from the National Archi ves. 46. However, even perusal of the entire records makes it clear that the Reso lution was neither produced before the President of India nor did it ever receiv e 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 u p of Central Bureau of Investigation and creation of various posts. We would li ke to point out certain notings, at page 11, 20, 21, 23, 25, 26, 103, 104 and 10 5, which read as follows: (cid:28)The setting up of a Central Bureau of Investigation seems to be necessary for t he following reasons: 1. e is, at present, no Inter-State Agency. (cid:29) Inter-State Crime Investigation has become most important. In India ther At Page 20, there is a letter dated 20.8.1962, of the Director General o 47. f Special Police Establishment, which reads as follows: (cid:28)I forward herewith, for what it may be worth, a note giving certain suggestions of implementing the decision of the Home Minister to constitute and set up a Ce ntral Bureau of Investigation (cid:29) At page 21: I think there was some discussion previously whether the setting up of this Bur eau of Investigation required the consent of the States or not. Now under the D efence of India Regulations, the Centre can perhaps set up this bureau as an eme rgency measure. At page 23:- In the ‘summary’ placed below, the previous history of the proposal for the re-o rganisation of the Central Intelligence Bureau into the Central Bureau of Intell igence and Investigation has been briefly brought out. This question was examine d in 1949-51 and a suitable provision enabling the Parliament to legislate for t he establishment of a Central Bureau of Intelligence and Investigation was made in the draft Constitution. Thereafter, it was proposed to undertake legislation for this purpose and State Governments were consulted on the scope and function s of the Bureau. There was a large measure of agreement among the State that off ences pertaining to Central Acts, affecting the interest of the Central Governme nt and inter-state crime may be handled by Central Bureau, and investigation of other crimes may also be taken up by it at the request of the State Government c oncerned. The proposal was not pursued beyond this stage. At page 25 the following notings were made to give legal basis to the CBI: State Government may be informed of this and also of our intention to sponsor le gislation in due course to give legal basis to the Bureau and to bring within it s purview other crimes originally envisaged. 48. It is strange, as discernible from the notings at page 26, that the Cen tral Government did not want the States to know its intention of expanding the s cope of the Bureau in due time, which is apparent from the following notings: &..But it is for consideration whether, while communicating the scheme t o the State Governments, we should not also tell them of our intentions of expan ding its scope in due course to its original conception and that this would req uire suitable legislation by Parliament which would be undertaken at the appropr iate 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) ral Bureau of Investigation? Whether it is necessary to consult the States before setting up the Cent (ii) Whether it is necessary to have a new comprehensive Act to define the fu nctions 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) tion? What items of work should be allotted to the Central Bureau of Investiga 2. If States are to be consulted and if a new comprehensive Act has to be p assed 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 do ubts might be expressed by some States and the process of resolving them will ne cessarily take time. Some difficulties might also arise from the standpoint of t he spheres of responsibility of the Centre and the States. 3. When these questions are examined in the light of existing arrangements betwe en the Centre and the States and of the legal provisions that are already availa ble, it does not appear to be necessary to have consultation with the States and to promulgate a new comprehensive Act before constituting the Central Bureau of Investigation. 4. There is already a provision in the Constitution for setting up a Centra l Bureau of Investigation. The States and their Chief Ministers would have been consulted and all aspects of the matter would have been examined and taken into consideration by the framers of the Constitution before this provision was inco rporated. It would, therefore, be perfectly legal and within the ambit of the Co nstitution to constitute and set up a Central Bureau of Investigation. Moreover, it is understood that even after the Constitution was passed the States were co nsulted on this issue and there was general agreement on the need for setting up a Central Bureau of Investigation. 5. If the functions and the items to be allotted to the C.B.I. are only tho se which are already being attended to by one Agency or another under the Centra l government, there should be no need for fresh consultation with the States. Su ch consultation might be necessary if new items of work are to be given to the C .B.I. but that need not be done at present. At Page 103 It would appear from the above discussion that it is possible to give ef fect to the decision of the Home Minister and to set up a Central Bureau of Inve stigation without having prior consultation with the States and without going to Parliament for fresh legislation. Even within the ambit of the existing legal p rovisions and of the accepted arrangements with the States it is possible to all ot the essential and important items of work to the C.B.I. and to enable it to f unction effectively and usefully. 9. Later, other functions could be added to the Central Bureau of Investiga tions with the consent of the States and the scope of its activities enlarged. A t that stage the questions of framing a new comprehensive Act could also be cons idered. Even otherwise it would be better to frame a new Act after the C.B.I. ha s been 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 ea sier 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 t he lines contemplated is not free from difficulties. Very great care will have t o be taken to frame the proposed Act in such a way as not to infringe on the pro visions of the Constitution. Even with all the care in drafting and preparing th e 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 le gal points arising from it. On the other hand, it might be mentioned that the De lhi Special Police Establishment Act has already gone through this process. Its provisions have been debated in courts from all possible angles and it has withs tood onslaughts from all directions. Even the highest courts have upheld the val idity 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 di fficulty that this involves and with the risk that it is likely to entail. At Page 105: 12. From a consideration of the points mentioned in the foregoing paragraphs it would appear that all that is necessary to implement this proposal is to iss ue administrative orders - (i) ed for in the Constitution; constituting and setting up a Central Bureau of Investigation as provid (ii) it and under its administrative control; declaring the S.P.E. to be a wing of the C.B.I. and an integral part of 49. At page 126, various posts and pay scales are mentioned. 50. It is apparent from the notings, which we have referred to above, that t he Central Government had set up altogether a new body known as CBI by the impug ned Resolution. It is further found that the Union Home Ministry was working on the assumption that there is already provision in the Constitution for creation of the CBI. Admittedly, at that time, no legislation was made to set up the CBI and the source of power were being traced to Entry 8 of Part I (Union List), whi ch reads, (cid:28)Central Bureau of Intelligence and Investigation. (cid:29). 51. Coming, now, to the argument of learned ASG that the CBI may be found to be treated to have been created by way of an executive instruction, the source of power being traceable to Entry 8 of List I (Union List), it may noted that En try 8 of List I (Union List) reads, ’Central Bureau of Intelligence and Investig ation’. It is the submission of the appellant that the word, ’investigation’, w hich appears in the expression, ’Central Bureau of Intelligence and Investigati on’ under Entry 8 of List I of the Union List, does not mean ’investigation’, wh ich is, ordinarily, carried out by a police force under the CrPC, preparatory to the filing of charge-sheet, against an offender. 52. Support for the above submission is sought to be derived by the appellan t referring to the debates of the Constituent Assembly, which took place on 29.0 8.1949, wherein the functions of the Central Bureau of Intelligence and Investig ation had been discussed in the Constituent Assembly and explained by Dr. B. R. Ambedkar. The meaning and importance of the word, ’investigation’, which appear s within the expression ’Central Bureau of Intelligence and Investigation’, were explained by Dr. Ambedkar as under: Dr. B. R. Ambedkar: The idea is this that at the Union office there should b e a sort of bureau which will collect information with regard to any kind of cri me 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 th em 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 themselv es be in a ’position to exercise their Police powers in a much better manner tha n 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 i nterest between the States, on the one hand, and the Union Government, on the ot her, and raised, in the Constituent Assembly, question about the implications an d the use of the word, ’investigation’, appearing within the expression ’Central Bureau of Intelligence and Investigation’, in the following words: (cid:28)Mr. Nazimuddin Ahmad: Mr. President, Sir I beg to move: (cid:28)That in amendment No.1 for List I (Sixth Week) in the proposed entry 2 of List I, the words ’and investigation’ be deleted. (cid:29) Then I move my next amendment which is an alternative to the first: (cid:28)That in amendment No.1 of List I (Sixth Week) in the proposed entry 2 of List I for the word ’investigation’ the words ’Central Bureau of Investigation’ be sub stituted. (cid:29) The original entry was (cid:28)Central Intelligence Bureau (cid:29). The redrafted entry is (cid:28)Ce ntral Bureau of Intelligence and Investigation. The words (cid:28)and Investigation (cid:29) se em to me to appear to give an ambiguous effect. I submit that the duty of the Un ion Government would be to maintain a Central Intelligence Bureau. That is all r ight. Then we have the words (cid:28)and Investigation (cid:29) and we do not know what these w ords really imply. Do these words (cid:28)and investigation (cid:29) mean that the Bureau of In vestigation was merely to carry out the investigation? They will mean entirely d ifferent things. If it is to enlarge the scope of the Central Intelligence Burea u as well as the Bureau of Investigation, that would have been a different matte r but Dr. Ambedkar in answer to a question put by Mr. Mahavir Tyagi has said tha t the Central Government may think it necessary to carry on investigation. Sir, I submit the effect of this amendment, if that is the kind of interpretation to be given to it, would be extremely difficult to accept. We know that investigati on of crime is a provincial subject and we have, already conceded that. If we no w allow the Central Government also to investigate, the result would be that for a single crime there must be two parallel investigations, one by the Union Gove rnment and other by the State Government. The result of this would be that there will be a clash and nobody will know whose charge-sheet or final report will be acceptable. The Union Government may submit a final report and the Provincial G overnment may submit a charge-sheet, and there may be a lot of conflict between these two concurrent authorities. If it is to carry on investigation, then it wi ll not be easy to accept it. It was this suspicion that induced me to submit thi s amendment, though without any hope of being accepted, at least to explain to t he House my misgivings and these misgivings are really substantiated by Dr. Ambe dkar himself. I would, like to know whether it is possible at once to accept thi s implication, to give the Central Government power to investigate crimes. My fi rst amendment is intended to remove the words (cid:28)and investigation (cid:29). If you keep t he investigation within this entry it should be the Central-Bureau of Intelligen ce, as well as Bureau of Investigation. If there are two Bureaus only there, cou ld 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 lim it to the hunger of the Central Government to take more and more powers to thems elves 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 s pur of the moment; it is easy for them to accept it as it is easy for them to op pose it and the entry does not seem to be what it looks. (cid:29) 54. Dr. Ambedkar, in response to the doubts, expressed by Mr. Nizamuddin, ha d clarified and assured the House, in no uncertain words, that the Central Gover nment cannot and will not have the powers to carry out investigation into a crim e, which only a police officer, under Cr.P.C., can do. The response of Dr. Ambe dkar is extracted below: The Honourable Dr. B. R. Ambedkar: The point of the matter is, the word (cid:28)in vestigation (cid:29) here does not permit and will not permit the making of an investiga tion into a crime because that matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has n o place in the Union List. The word (cid:28)investigation (cid:29) therefore is intended to cov er general enquiry for the purpose of finding out what is going on. This investi gation is not investigation preparatory to the filing of a charge against an off ender which only a police officer under the Criminal Procedure Code can do. 55. The learned ASG, on the other hand, argues, that if the language of an A ct is unambiguous and clear, no reliance can be placed on the Parliamentary deba tes and one may look to the Statement & Objects and Reasons and not to the Parli amentary debates. 56. In support of the above contention, the learned ASG has relied upon the decision, in Anandji Haridas & Co. (P) Ltd. Vs. Engineering Mazdoor Sangh (1975 ) 3 SCC 862, wherein the relevant observations, appearing at para 9, reads, (cid:28)9. We are afraid what the Finance Minister said in his speech cannot be importe d into this case and used for the construction clause (e) of section 7. The lan guage of that provision is manifestly clear and unequivocal. It has to be constr ued as it stands, according to its plain grammatical sense without addition or d eletion of any words. 10. As a general principle of interpretation, where the words of a statute a re plain, precise and unambiguous, the intention of the Legislature is to be ga thered from the language of the statute itself and no external evidence such as parliamentary debates, reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the frame rs of the Act is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susc eptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circu mstances which led to the passing of the statute may be looked into for the purp ose of ascertaining the object which the Legislature had in view in using the wo rds in question. (cid:29) 57. It is necessary to point out here that the intent of embodying the Const ituent Assembly debates is to gather an idea behind the general law making proce ss. In any view of the matter, the debates quoted above, becomes relevant and un avoidable 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 o f List I of the Union List, which provides for creation of ’Central Bureau of In telligence and Investigation’. It is an admitted position that no independent law exists on Central Bur 58. eau 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, h as created the CBI. But then, Entry 8 List I (Union List) definitely empowers th e Parliament to enact a law in the form of ’Central Bureau of Intelligence and I nvestigation’. Such a legislative competence is preserved under Art. 246 (1), wh ich reads, (cid:28)Notwithstanding anything in clauses (2) and (3), Parliament has excl usive 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 (cid:28)Union List (cid:29)). Having enacted a law, under Entry 8 of List I (Union List), if the Centr 59. al Govt, decides to extend its operation in other States, then, it is necessary that the said law be amended in terms of Entry 8 of list I (Union List) so as to enable the Central Government to extend the operation of the law with the conse nt of the Government concerned. 60. Coupled with the above, if the debates, in the Constituent Assembly, are borne in mind, the word, ’investigation’, became a subject matter of debate, pr imarily, for the reason that it would amount to encroachment into the realm of t he subject matter of State List. The word, ’investigation’, appearing within the expression, ’Central Bureau of Intelligence and Investigation’, was sought to b e justified, in the Constituent Assembly, contending that Police is exclusively a State subject and it has no place in the Union List. The word ’investigation’ was, therefore, according to the Constituent Assembly, intended to cover general ’enquiry’ for the purpose of finding out what is going on and this ’investigati on’ is not an ’investigation’ preparatory to the filing of a charge-sheet agains t an offender, which only a police officer, under the Criminal Procedure Code, c an do. 61. Learned ASG further argues that the expression Intelligence appearing in Entry 8 may be read in the Central Bureau of Investigation even though in gener al the expression in not used in its designation. 62. It is necessary to point out here that the intent of embodying the Const ituent Assembly debates is to gather an idea behind the Constitution making proc ess relating to Entry 8 of List I (Union List) providing for creation of ’Centra l Bureau of Intelligence and Investigation’ and the meaning of the term ’investi gation’, appearing within the expression ’Central Bureau of Intelligence and Inv estigation’ as had been construed by the Constitution-makers. 63. In the above view of the matter, the debates, quoted above, become relev ant and unavoidable, when it is contended, on behalf of the respondents, that th e creation of the CBI can be traced to the Union Government’s power embodied in Entry 8 of List I (Union List), which provides for creation of ’Central Bureau o f Intelligence and Investigation’. 64. It is an admitted position that no independent law exists on Central Bur eau of Intelligence and/or Investigation, though it is the alternative contentio n of the learned ASG that authority to constitute CBI may be traced to Entry 8 o f 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 Intellig ence and Investigation’. Such a legislative competence is preserved under Art. 2 46 (1), which reads, (cid:28)Notwithstanding anything in clauses (2) and (3), Parliamen t 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 (cid:28)Uni on List (cid:29). 66. Coupled with the above, if the debates are borne in mind, it becomes abu ndantly clear that the word, ’investigation’, appearing within the expression (cid:28)C entral Bureau of Intelligence and Investigation (cid:29) became a heated subject matter of debates, in the Constituent Assembly, primarily, for the reason that empoweri ng 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 Sta te List, though ’police’ is a subject, which falls in the State List. The inclusion of the word, ’investigation’, appearing within the expres 67. sion, ’Central Bureau of Intelligence and Investigation’, was sought to be justi fied, in the Constituent Assembly, by contending that police remains exclusively a State subject and it has no place in the Union List. The word ’investigation’ was, therefore, according to the Constituent Assembly debates, intended to cove r general ’enquiry’ for the purpose of finding out what was going on and this ’i nvestigation’, which amounts to a mere ’enquiry’, is not an ’investigation’ pre paratory to the filing of charge sheet against an offender, for, such an ’invest igation’ can be carried on by only a police officer, under the Criminal Procedur e Code, and none else. This apart, it is State legislature, which is entitled to constitute a ’police force’ for the purpose of conducting ’investigation’ into crime. 68. From the above discussion, which took place in the Constituent Assembly, it becomes crystal clear that the Parliament cannot, by taking resort to Entry 8 of List I (Union List), make any law empowering a police officer to make ’inve stigation’ in the same manner as is done, under the Criminal Procedure Code, by a police officer, while conducting an ’investigation’ into an offence for the pu rpose of bringing to book an offender. In the above view of the matter, the impugned Resolution, dated 01.04.19 69. 63, constituting the CBI, as an investigating agency, in order to carry out ’inv estigation’ into commission of offences in the manner as is done by a police off icer under the Criminal Procedure Code, cannot be traced to Entry 8 of List I (U nion List). In other words, the source of power to create CBI as an investigating ag 70. ency cannot be traced to, or be said to be located in, Entry 8 of List I (Union List). This apart, from the fact that while the law existing, prior to the comin g into force of the Constitution of India, is protected in terms of the mechanis m introduced by Article 372 and Article 372A of the Constitution of India, no am endment to any such law, if made after the Constitution of India has already com e into force, be saved or protected by taking resort to Article 372 and 372A if the provisions, embodied in the Constitution, run counter to the scheme of our C onstitution. 71. It is also necessary, in the above context, to take note of the preamble of the DSPE Act, 1946, which reads as follows: (cid:28)An Act to make provision for the constitution of a special police force [in Del hi for the investigation of certain offences in [the Union territories]], for th e 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 regar d 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 provi sion for the superintendence and administration of the said force and for the ex tension to other areas [***] of the powers and jurisdiction of the members of t he 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], [***]. (cid:29) A careful reading of the preamble to the DSPE Act, 1946, would make it e 72. vident 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 respect of Union Territories. 73. Thus, though police is a State subject, Parliament is competent to make laws, on the subject of police, for the Union Territories only inasmuch as Union Territories do not have any legislative assembly of their own. 74. Again, a reading of Sec. 1 of the DSPE Act, 1946, would show that the DS PE Act, 1946, extends to whole of India meaning thereby that it is an embodiment of Entry 80 of List I (Union List), which enables Parliament to make law permit ting extension of the operation of a police force to another State. It is in t his light that Sections 5 and 6 of the DSPE Act, 1946, need to be read toge ther inasmuch as a combined reading of Sections 5 and 6 of the DSPE Act, 1946, m akes it clear that the Central Government is empowered to extend the activities of the DSPE to any other State with, of course, the consent of the State concern ed. 75. Apprehending that his argument that CBI can be said to have been constit uted, in exercise of power under Entry 8 of List I (Union List), may not, in the light of the Constituent Assembly debates, cut much ice with this Court, the le arned ASG has submitted, perhaps, as a precautionary measure, that if constituti on of the CBI cannot be traced to the Parliament’s power under Entry 8 of List I (Union List), CBI may be validly safeguarded by virtue of Entry 80 of List I (U nion List) inasmuch as CBI can be said to have been constituted in exercise of p ower under Entry 80 of List I (Union List). 76. Let us, now, examine, in the light of the provisions embodied in Entry 8 0 of List I (Union List), the correctness of the above submissions. Entry 80 of List I (Union List), we notice, reads as follows: (cid:28)Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that Stat
Arguments
not only the Delhi Special Police Establishment Act is a valid piece of legisla tion, as originally enacted, but the same has been validly continued after comin g into force of the Constitution and is in harmony with the provisions thereof a nd, therefore, the said legislation validly continues to hold the field (cid:29) 5. ioner has preferred the present writ appeal. 6. We have heard Dr. LS Choudhury, learned counsel for the appellant, and M r. PP Malhotra, learned Additional Solicitor General of India, appearing on beha lf of the respondents. We have also heard Mr. N Dutta, learned Senior counsel, w ho has appeared as Amicus Curiae. SUBMISSIONS ON BEHALF OF THE PETITIONER: It is submitted by Dr. LS Choudhury, learned counsel for the appellant, 7. 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 Ho me Affairs, Government of India, and not by making any legislation. 8. According to Dr. Choudhury, learned counsel for the appellant, in the ab sence 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, ar rests of persons, ’investigation’ of crimes, filing of charge sheets and prosecu tion of the offenders cannot be permitted, for, allowing the CBI to do so would offend the fundamental rights guaranteed under Article 21 of the Constitution of India, which expressly provides that no person shall be deprived of his life an d liberty except according to the procedure established by law. 9. The word ’law’, within the meaning of Article 21, would, according to th e learned counsel for the appellant, mean legislation and not executive instruct ions or executive fiat, such as, the one, whereunder the CBI has been created an d established inasmuch as no executive instructions can be acted upon if any suc h instructions violate or offend the fundamental rights guaranteed under Part II I of the Constitution of India. 10. It is the submission of the learned counsel for the appellant that at be st, the CBI may be treated to have been constituted by the Central Government un der Entry 8 of the List-I (Union List); but there is no co-relation between the Entry 8 of List I and Entry 2 of List II inasmuch as Entry 8 of List I does not, in the light of the Constituent Assembly Debates, permit ’investigation’ of a c rime in the manner as is, ordinarily, done by the police; whereas Entry 2 of Lis t II permits enactment of laws relating to police. According to the learned coun sel for petitioner, both these entries are separate and distinct from each other and that the framers of the Constitution were well aware of the fact that they were enabling the Centre and State to create two separate authorities, one, whic h would be covered by Entry 8 of List I, and the other, which would be covered b y Entry 2 of List II, and while ’investigation’, under Entry 2 of List II, would mean an ’investigation’ preparatory to the filing of a police report, commonly called charge-sheet or final report, under Section 173 (2) (i) of the Cr.PC, the other ’investigation’ would be in the form of merely an enquiry and not an inve stigation, which is conducted by a police officer under the Cr.PC. Support for t hese submissions, as mentioned hereinbefore, is sought to be derived by Mr. Chou dhury from the debates of the Constituent Assembly. 11. In short, what is contended, on behalf of the appellant, by Dr. LS Choud hury, learned counsel, is that though 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, cannot carry out functions of police inasmuch as the Constitutional scheme does not permit the Central Gov ernment to carry out functions of police and the police functions, according to Dr. LS Choudhury, lies within the exclusive domain of the State Government conce rned. 12. Yet another leg of argument of Dr. Choudhury, learned counsel for the pe titioner, 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 legis lature, reiterates Mr. Choudhury, which can make, or could have made, law, on po lice 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 conti nuance violates the basic Constitutional scheme. 13. Reverting to the Constitution, Dr. LS Choudhury submits that though Parl iament, too, is competent to make law on any of the subjects/entries mentioned i n List-II, yet, such laws can be made only for Union Territories inasmuch as the se territories do not have their own legislature and according to Article 239 of the Constitution of India, the laws, enacted by Parliament for Union Territorie s, are to be administered through an administrator. It is submitted by Mr. Chou dhury, learned counsel, that the power to make laws is one thing and the adminis tration of those laws is quite another and it is not vice versa. Though Parliame nt may make law, for Union Territories, on the State subjects, the fact remains that the administration of these laws, reiterates Dr. Choudhury, has to be throu gh an administrator appointed under Article 239 and not by the Central Governmen t. 14. Learned counsel for the petitioner, while drawing an analogy with the po lice administration in Delhi, submits that Section 3 of Delhi Police Act, 1978, which is an Act of the Parliament, provides that there shall be ’one’ police for ce for whole of Delhi and, thus, according to Dr. LS Choudhury, there cannot be more than one police force functioning in Delhi, particularly, when, points out Dr. Choudhury, the police forces, functioning in Delhi, immediately before comme ncement of this Act (i.e., Delhi Police Act, 1978), shall, in the light of the p rovisions of Section 150 of Delhi Police Act, 1978, be deemed to have come under the Delhi Police Act, 1978; whereas the CBI is, admittedly, not a ’force’ funct ioning under the Delhi Police Act, 1978. At least, since after coming into force of Delhi Police Act, 1978, the CBI cannot, in the light of the provisions of Se ction 150 of Delhi Police Act, 1978, legally function as a police force and cond uct any ’investigation’ preparatory to filing of charge sheets as envisaged by t he Code of Criminal Procedure. 15. Dr. Choudhury points out that in terms of Section 4 of Delhi Police Act, 1978, the Administrator is the executive Head of police in Delhi and the laws, relating to police, are required to be administered through him. The Central Gov ernment has, therefore, according to Mr. Choudhury, no role to play in the day t o day functioning of the police in Delhi. 16. Seeking to derive strength from the debates of the Constituent Assembly, as reflected above, it is the submission of Dr. Choudhury, learned counsel for the petitioner, that even if the CBI is considered to be a validly constituted b ody, 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, col lect information by making ’enquiries’ to assist any investigation carried out b y a local police. SUBMISSIONS OF THE CBI Resisting the writ petition, what the learned ASG, appearing on behalf o 17. f 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; That the CBI is only a change of the name of the DSPE and the CBI is, th B) erefore, 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 inv estigate 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 exercis e 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 (Union List) of the Seventh Schedule to the Constitution of India inasmuch as the expression, (cid:28)Central Bureau of Intelligence and Investigation (cid:29), occurring in Entry 8 of List I (Union List), may be read to mean two different a gencies, namely, Central Bureau of Intelligence and Central Bureau of Investigat ion and, for this purpose, the word (cid:28)and (cid:29), appearing in the expression, (cid:28)Central Bureau of Intelligence and Investigation (cid:29), may be read as (cid:28)or (cid:29). E) Under Article 73 of the Constitution of India, the executive powers of t he Union extends to matters with respect to which Parliament has the power to ma ke laws and the resolution, dated 01.04.1963, whereunder CBI has been constitute d, can be treated to have been issued by virtue of Union of India’s executive po wers as embodied in Article 73; F) That the Central Government can also be treated to have constituted the CBI by taking recourse to its powers as specified in Entry 1 and 2 of List -III (Concurrent List) of the Seventh Schedule to the Constitution of India; G) That the Constitutional validity of Delhi Police Establishment Act, 1946 , has already been upheld by the Supreme Court in Advance Insurance Co. vs. Guru dasmal, reported in (1970) 1 SCC 633, and the history of formation of the CBI h as been highlighted by the Constitution Bench, in State of West Bengal & Ors. Vs . Committee for Protection of Democratic Rights, West Bengal & Ors. reported in (2010) 3 SCC 571, and also by a three Judge Bench in M.C. Mehta (Taj Corridor S cam) Vs. Union of India and others, reported in (2007) 1 SCC 110; That since the CBI has been functioning for the last 50 years under the H) DSPE Act, 1946, it may not be sound or proper exercise of discretion to unsettle the settled law and thereby create turmoil ’unnecessarily’; (I) Repelling the plea of the respondents that the CBI is constituted under Delhi Special Police Establishment Act, 1946, Dr. LS Choudhury, learned counsel for the petitioner, submits that the plea is not tenable for the following reaso ns: i) First, there is no co-relation between the DSPE Act, 1946, and CBI. In D SPE Act, the word ’CBI’ is, nowhere, mentioned, even though the DSPE Act has und ergone several amendments. This apart, even the Executive Order, dated 1st April , 1963, does not disclose that the CBI has been constituted under DSPE Act. Had it been so, the impugned Resolution would have so mentioned. 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 ment ions, under Section 2, that the police force, constituted under the DSPE Act, sh all be called (cid:28)Delhi Special Police Establishment (cid:29). Hence, when the DSPE Act its elf defines the name of the force, which the DSPE Act, has created and establish ed, 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 introdu ced into the DSPE Act. iii) Thirdly, though Union of India’s executive powers may, in the light of A rticle 73, be co-extensive with its legislative powers, the fact remains that th e executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropria te legislation; but, in the cast at hand, the resolution, dated 01-04-1963, wher eunder CBI has been constituted, is not backed by any legislation. SUBMISSIONS OF THE AMICUS CURIAE Mr. N. Dutta, learned Amicus Curiae, has submitted that the impugned Res 18. olution, dated 01.04.1963, clearly shows that the CBI has been constituted for a chieving six specified purposes as have been mentioned in the Resolution itself and till date, no statute has been enacted by Parliament establishing a body cal led CBI. Since there is no legislation constituting the CBI, the CBI’s constitut ional validity, according to the learned Amicus Curiae, has to be tested in the light of the provisions embodied in the Constitution of India. 19. It is also submitted by the learned Amicus Curiae that the CBI and the D SPE are not one and the same thing, but everybody appears to have proceeded on t he basis that the CBI and DSPE are one and the same thing. Whereas DSPE has been established under the DSPE Act, 1946, the CBI, points out learned Amicus Curiae , has been constituted by a mere executive fiat. 20. It has been further submitted by the learned Amicus Curiae that though t he CBI has been empowered under the impugned Resolution, dated 01.04.1963, to ’i nvestigate’ crimes, no power has been specifically provided for ’prosecution’ of offenders by the CBI. In fact, points out the learned Amicus Curiae, even under the DSPE Act, 1946, DSPE can merely ’investigate’ a case and lay charge-sheet a nd, hence, the CBI’s role shall come to an end once ’investigation’ is complete. 21. Referring to the case of Vineet Narayan, Mr. Dutta, learned Amicus Curia e, points out that in Vineet Narayan’s case (supra), the Supreme Court has recom mended establishment of an independent directorate of prosecution for the CBI an d till such time, a directorate is so established, the Supreme Court has directe d that the Attorney General of India shall nominate a panel of advocates to cond uct the prosecution. However, notwithstanding the directions, so given, prosecut ion, contends the learned Amicus Curiae, is being conducted by the CBI, through its appointed advocates, though it lacks jurisdiction to do so. It has been pointed out by the learned Amicus Curiae that in terms of Se 22. ction 36 of the Cr.PC, police officers, superior in rank to an officer-in-charge of a police station, may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. It has also been pointed out by the learned Amicus Curiae that under Section 2(c) of the DSPE Act, 1946, a member of the DSPE may, subject to a ny order, which the Central Government may make in this behalf, exercise any pow er of the Officer-in-Charge of a police station in the area, which he is, for th e 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 t o be an Officer-in-Charge of a police station discharging the function of an off icer within the limits of his station. If the expression, (cid:28)Officer-in-Charge of a police station (cid:29), appearing in Section 2(c) of the DSPE Act, 1946, is read toge ther with Section 36 of the Cr.P.C, then, it would become clear, according to le arned 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 virt ue 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 supe rior police officers of the police station within whose local jurisdiction he, a s a CBI officer, may be investigating a case. After hearing the parties as well as the learned Amicus Curiae this cour QUERIES RAISED BY THE COURT 23. t raised the following queries: If a Pre-constitutional law was made on a subject, which is, now, covere 1) d by State List, whether the law will be valid after the Constitution has come i nto force bearing in mind Article 372? 2) Whether a law can be made by Parliament, on a subject covered by the Sta te List, in respect of a Union Territory, after the Constitution has come into f orce? 3) The Executive power of the State is co-extensive with its legislative po wer. Is it, therefore, possible to constitute an investigating agency by a State taking recourse to State’s executive Power ? 4) Delhi was a Part-C State under the Govt. of India Act. On coming into fo rce of the Constitution, it was made a Union Territory and it has, now, the stat us of a State, but some of its powers, under the State List, are exercised by Pa rliament. The Court wants to know details of the legislative history of the pres ent status of Delhi, as a State, and its legislation making process. (Emphasis added) 24. In response to the queries raised by the Court, the appellant as well as the CBI have filed their respective written replies/submissions. The CBI has al so filed an additional affidavit stating, at para 6 thereof, that vide resolutio n, dated 01.04.1963, the DSPE has been made an integral part of the CBI. The sai d para 6 is reproduced hereinbelow: (cid:28)6. That in exercise of its executive powers vide Resolution NO.4/31/61-T dated 1st April, 1963 of Ministry of Home Affairs, the Government of India set up an organization named Central Bureau of Investigation consisting of 6 (six) Divisio ns. One of the division of the organization is Investigation and Anti-Corruption Division (Delhi Special Police Establishment). Thus, the DSPE by way of this re solution has been made an integral part of CBI in its original form as establish ed under the DSPE Act, 1946. (cid:29) 25. As this Court noticed that the Central Bureau of Investigation was claim ed to have been created by a Resolution, dated 01.04.1963, of the Government of India, Ministry of Home Affairs, but it was not, however, clear if the impugned Resolution had received the assent of the President of India, this Court, vide i ts order, dated 20.01.2013, directed the respondents to produce the records rela ting to the creation of the CBI. Though the relevant records have not been produ ced, in original, a copy thereof has been produced by the learned Additional Sol icitor General and has been perused by the Court and the parties concerned inasm uch 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 part ies 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 petitio n, with regard to the Constitutional validity of the CBI, can be found to have b een raised in any decision of any Court, the learned ASG as well the learned Ami cus Curiae, with commendable fairness, have admitted that in the light of the re ported decisions, this issue has never been raised, in any case, in any other Hi gh Court or the Supreme Court. 27. The points, which, now, falls for determination, is: whether CBI is esta blished under the DSPE Act, 1946, or is an organ of the Delhi Special Police Est ablishment Act and, if not, whether a force, with the object of investigation of crimes preparatory to filing of charge-sheet for prosecution of offender, can b e created by the Central Government by way of an Executive order/Resolution and whether the CBI can be said to be validly created by the Central Government by w as of an Executive order/Resolution. Let us consider the first question, namely, whether CBI is established u 28. nder the DSPE Act, 1946, or is an organ of the Delhi Special Police Establishmen t Act. WHETHER CBI IS A NON-STATUTORY BODY ? A statutory body, as the name suggests, is a body, which has a legislati 29. ve sanction. In other words, a body or agency can be termed as statutory only wh en it is created by a statute to carry out certain functions. 30. The petitioner submits that the CBI has not been constituted under any l aw; rather, the same has been created by the Central Government by way of Execut ive Order/ Resolution No. 4/31/61-T, dated 01.04.1963. It is further submitted by the petitioner that the Central Government cannot create CBI by way of an Ex ecutive Order and such an agency cannot carry out police functions, i.e., to reg ister FIR under Section 154 Cr.P.C., arrest the persons, raid their premises, in vestigate crimes and file charge-sheets against the offenders and/or to prosecut e them in the Court without being supported by legislation. 31. The learned ASG, appearing on behalf of CBI, has, on the other hand, sub mitted that though the CBI has been constituted by way of Resolution No. 4/31/61 -T, dated 01.04.1963, it derives its powers from the Delhi Special Police Establ ishment Act, 1946, and the impugned Resolution merely gives a new name, namely, CBI, DSPE, inasmuch as the CBI is an organ or part of the DSPE in terms of the D SPE Act, 1946. 32. The learned Amicus Curiae has fairly submitted that the Government of In dia by an executive order, dated 01.04.1963, has constituted a body called (cid:28)CBI (cid:29) for six specific purposes as mentioned in the said executive order; but till da te, there is no statute to give legal sanction to the body called (cid:28)CBI (cid:29) and, hen ce, validity of the executive order has to be tested under Article 246 and 252 o f the Constitution of India. 33. Considering the fact that it has not been in dispute that the CBI came i nto existence by the Resolution No. 4/31/61-T, dated 01.04.1963., issued by the Government of India, Ministry of Home Affairs, the impugned Resolution, being re levant, is reproduced below: (cid:28)No. 4/31/61-T GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS New Delhi, the 1st April, 1963 R E S O L U T I O N The Government of India have had under consideration the establishment o f a Central Bureau of Investigation for the investigation of crimes at present h andled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-m arketing 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 Bure au connected with the International Criminal Police Organization; the maintenanc e of crime statistics and dissemination of information relating to crime and cri minals; 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 t he coordination of laws relating to crime. As a first step in that direction, t he Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, name ly:- (i) (DELHI SPECIAL POLICE ESTABLISHMENT). INVESTIGATION AND ANTI-CORRUPTION DIVISION. (ii) TECHNICAL DIVISION. (iii) CRIME RECORDS AND STATISTICS DIVISON. (iv) RESEARCH DIVISION. (v) LEGAL DIVISON & GENERAL DIVISION. (vi) ADMINISTRATION DIVISION. The Charter of function of the above-said Divisions will be as given in the Anne xure. The assistance of the Central Bureau of Investigation will also be availa ble to the State Police Forces on request for investigating and assisting in the investigation of interstate crime and other difficult criminal cases. Sd/- (V. VISWANATHAN) Secretary to the Government of India (cid:29) The expression (cid:28)As a first step in that direction (cid:29), appearing in the imp 34. ugned Resolution, dated 01-04-1963, goes to show that the CBI was constituted as an ad hoc measure to deal with certain exigencies. This measure, taken by the U We have read and read many a times the impugned Resolution, dated 01.04. nion Government, was not in the form of any Ordinance; rather, constitution of t he CBI was an executive decision and that too, without citing, or referring to, the source of power. 35. 1963. 36. On a careful reading of the contents of the impugned Resolution, what be comes evident is that the Resolution does not refer to, as already indicated abo ve, any provisions of the DSPE Act, 1946, as the source of its power. In other w ords, deriving strength from the DSPE Act, 1946, the CBI has not been constitute d. One cannot, therefore, treat the CBI as an organ or part of the DSPE either. A cautious reading of the provisions, embodied in the DSPE Act, 1946, as 37. a whole, clearly reveals that this Act empowers the Central Government to const itute a separate police force to be called as Delhi Special Police Establishment for investigation of offences, which may be notified under Section 3 thereof. T hus, the police force, which may be constituted by the Central Government derivi ng power from the DSPE Act, 1946, is, in the light of the provisions of the DSPE Act, 1946, can be called Delhi Special Police 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 t o have been established or constituted as an organ or part of the DSPE or is a s pecial 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 . On a reading of the various provisions of the DSPE Act, 1946, the execut