New Delhi, Nov 7 (IANS): The centre will move the Supreme Court to challenge the Gauhati High Court order holding as unconstitutional the government (home ministry) order under which the Central Bureau of Investigation was set up in 1963.

"While we decline to hold and declare that the DSPE (Delhi Special Police Establishment) Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a 'police force' constituted under the DSPE Act, 1946," said Justice Iqbal Ahmed Ansari and Justice Indira Shah of Gauhati High Court in their judgment Wednesday.

Having held that CBI was not a police force under the DSPE Act, the high court said, "We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted."

The court quashed the executive order issued in 1963 for establishing the CBI under DSPE Act while addressing eight questions it had framed for its consideration that included whether CBI - created by a resolution of the home ministry in exercise of its executive power - was a constitutionally valid police force empowered to "investigate" crimes.

Another poser, which the high court addressed was "...is it permissible for the Executive to create a 'police force' with power to 'investigate' crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21?"

Describing the judgment as "totally erroneous", Additional Solicitor General P.P. Malhotra told IANS that the formation of the CBI has been held valid by the Supreme Court by its number of judgments, the latest being in 2010, when the apex court ruled that courts can order a CBI probe without the consent of the states.

The apex court ruling by the five-judge constitution bench had upheld the power of the courts to order CBI probe as it rejected the plea by the West Bengal government and others that the CBI could not conduct probe in other states without the consent of the concerned state government.

Malhotra, who had appeared for the centre before the Gauhati High Court, said that the constitutional validity of the Act and the formation of the CBI was also upheld way back in 1970 in an advance insurance case.

Malhotra said he was awaiting the copy of the Gauhati High Court judgment and soon after receiving it he would move the apex court challenging it and seeking suspension of its operation.

Holding that the high court verdict would not adversely affect the working of the investigating agency in ongoing investigations, Malhotra was hopeful of moving the apex court Monday, when it opens after the Diwali vacation.