Two former High Court judges Mukul Mudgal and R S Sodhi said the Gauhati High Court order appeared to be correct and it was right in striking down the resolution by which CBI was created. (Agencies)
However, Mudgal felt it was not a sagacious decision in view of the fact that business of CBI has been going on for decades and the court should have given some time for the judgement to take effect.
In a bid to take advantage of the High Court's decision, some high profile accused in CBI cases relating to 2G spectrum and 1984 anti-Sikh riots approached courts seeking stay of the cases citing the ruling.
Legal experts, including senior advocates K T S Tulsi and Mukul Rohatgi, said till the decision is stayed by the Supreme Court, CBI would not be in a position to register fresh cases or make any arrest and all the pending cases would become "illegal".
Further, convictions in CBI cases since its inception would become "void", another senior advocate said. Rohatgi, a former Additional Solicitor General, said "CBI cannot do anything" unless Centre moves the Apex Court and the verdict is stayed.
"As of today, CBI cannot register any case, it cannot interrogate anyone. Whomsoever they have arrested will have a right to go to court and seek release, in the present situation," said Rohatgi, who is representing several corporate executives in the 2G case and other high profile matters.
A leading senior advocate, who is representing CBI in one of the most high profile cases in recent times, on condition of anonymity, said, "If the Supreme Court does not stay the Gauhati High Court judgement, it will be disastrous because it would mean that CBI has no power to record statement, register a case, file charge sheet or probe the case. All this will be treated as illegal."
"CBI probe will have no legal sanctity in the court of law. This means all the convictions obtained by CBI till now would be void. The gates of prisons will be left open and the convicts in CBI cases will be let off scot-free," he said.
Former Law Minister and senior lawyer Shanti Bhushan also echoed the view expressed by other top legal experts saying, "prima facie the judgement is totally wrong and it will be reversed by the apex court very soon."
"CBI has been recognized by the Supreme Court and if a high court passes such an order, it is rather surprising and the judgement is flawed. It is not a well thought judgement," a senior advocate said.
Justice Mudgal, who retired as the Chief Justice of the Punjab and Haryana High Court, said the judgement which came as a "surprise" appears to be "legally correct".
"It has come as surprise. Legally it appears to be correct. The high court in exercise of its power should have given some time to the government in pointing out the defect. This (CBI) has functioned for 50 years," he said.
"As far as stay is concerned, I think government counsel there should have asked the high court to stay its hand for two years, should have asked for two weeks at least, so that they can seek order from Supreme Court," Justice Mudgal said adding "Government did not realize what the impact could be.
Justice Sodhi, who retired as a judge of the Delhi High Court, shared the views of Justice Mudgal. "I agree with Justice Mudgal. By notification the Central Government may appoint. There is no notification, it’s a resolution on the same as notification, for this will have to be decided by the Supreme Court," he said.
"The high court was quite right in striking it down. But there this is all within the facts we all know. I have not read the full judgement and not aware of it," Justice Sodhi said.
Two former High Court judges Mukul Mudgal and R S Sodhi said the Gauhati High Court order appeared to be correct and it was right in striking down the resolution by which CBI was created.