Citing Gauhati HC judgment, Raja seeks stay on proceedings but Special Court says ‘no’

A day after the Gauhati High Court quashed the Union Home Ministry’s resolution by which the Central Bureau of Investigation was constituted in 1963, Union Law Minister Kapil Sibal on Friday said the Centre would file an appeal.

Mr. Sibal told reporters here that the Department of Personnel and Training (DoPT) would move the Supreme Court. The Department discussed the issue with him; thereafter the decision to appeal was made.

The High Court held that the CBI was neither an organ nor part of the Delhi Special Police Establishment, therefore it could not be treated as a “police force” constituted under the DSPE Act.

Several legal experts termed the ruling “hyper-technical.”

In the ORF Issue Brief, ‘Legally Empowering the Sentinels of the Nation,’ written in August 2009, Member of Parliament and Supreme Court lawyer Manish Tewari had nevertheless argued: “Why does not the government enact a straight and simple law empowering the CBI rather than let it function on the basis of a dubious piece of legislation whose basic legality is open to question….the CBI has no independent standing in law.”

However, eminent lawyer Anupam Gupta told The Hindu: “I have read the judgment and I do not agree with it at all. The court is alive to the constitutional nuances, but has overlooked the fact that DSPE is synonymous with the CBI and nowhere has it been claimed that it applies to any investigating body other than the CBI. The agency has also never invoked its existence under any law but DSPE, a pre-constitutional statute like several other substantive and procedural statutes including the Indian Penal Code and the Evidence Act. The verdict is over-nuanced and has, in effect, rendered the whole statute redundant.”

Meanwhile, the former Telecom Minister, A. Raja, and other accused in the 2G scam case asked for a stay, during proceedings in a Delhi court on Friday, citing the Gauhati High Court ruling.

Lawyer Majeed Memom, appearing for Swan Telecom promoter Vinod Goenka, said going ahead with the proceedings would amount to contempt of court. Counsel for Mr. Raja also raised the issue. However, the Special CBI Judge rejected their pleas.

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