A. SYED IBRAHIM Vs. STATE

JUDGEMENT

(1.) This Criminal Revision Case has been filed by the petitioner to set aside the order, dtd. 24/9/2021, made in Crl.M.P.No.15471 of 2021 in S.C.No.34 of 2020 by the learned Special Judge No.I for trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai (trial Court) and consequently, direct the learned Judge to refer the legal questions raised by the petitioner to this Court to take final decision.

(2.) The primary ground on which the petitioner put forth his case is that whether the Union Government Resolution No.4/31, 61-T, dtd. 1/4/1963, under which the Central Bureau of Investigation formed, ultra-vires Article 14 and 21 of the Constitution of India is neither decided by the High Court of Madras under which the trial Court is Subordinate nor by the Hon'ble Supreme Court of India finally. The Hon'ble Apex Court is to decide the question finally in view of the High Court of Gauhati in the case of "Sh Navendra Kumar Versus Union of India & others in W.A.No.119 of 2008, dtd. 6/11/2013" had quashed the notification. The Apex Court in SLPS.No.Ac/Ac/Ac of 2013, dtd. 9/11/2013 had stayed the order of Gauhati High Court order. In view of the same, the petitioner has filed a petition before the trial Court invoking Sec. 395 Cr.P.C., in Crl.M.P.No.15471 of 2021 in S.C.No.34 of 2020 and the same was dismissed, by order, dtd. 24/11/2021, against which the present petition.

(3.) The learned counsel for the petitioner submitted that the trial Court failed to consider the Union Government Resolution No.4/31, 61-T, dtd. 4/1/1963 cannot be considered as Indian Law under Ss. 3(29) and 3(50) of General Clauses Act, 1897. The trial Court failed to consider that it has no jurisdiction or competency under Sec. 395 Cr.P.C., to decide legal issue regarding the maintainability of petition filed under Sec. 395 Cr.P.C., in Crl.M.P.No.15471 of 2021 in S.C.No.34 of 2020. Since it involves substantial question of law under Article 288 of Constitution of India and Ss. 395 and 396 Cr.P.C., the trial Court ought to have referred the legal issue regarding the maintainability of petition filed under Sec. 395 Cr.P.C. He further submitted that the respondents 1 and 2 are not constitutionally formed Police force empowered to investigate the crime under the Code of Criminal Procedure. The Central Bureau of Investigation would not be termed as a Police force empowered to investigate the crime in as much as it has been created and constituted by a mere resolution of Ministry of Home Affairs, Government of India under their executive powers. In view of the same, the Central Bureau of Investigation is not a Police force and got no power to conduct search, seizure and investigate the crimes, submitting charge sheet, prosecuting the offenders. The creation and constitution of the Central Bureau of Investigation by the executive force is against the dictum of the Constitutional Bench in case of "Menaka Gandhi Versus Union of India reported in 1978 SCC (1) 248".