1. This is a rule which I issued on the 14th June 1956 at the instance of the State against an order made by Special Jude I. M. Lal on the 21st April 1956.
2. The opposite party Yash Pal who was aprosecuting Sub-Inspector was being tiled by theSpecial Judge for an offence under Section 5(2) of thePrevention of Corruption Act, and I am informedthat two points were taken against the prosecu-tion by the learned Judge himself: (11) that thesanction given under S 6 of the Prevention ofCorruption Act was bad in law. and (2) that theIndian Police Act wag no longer a valid Act asfar as the State of the Punjab was concerned.
3. On the first point the learned Jude referred to North West Frontier Province v. Suraj Narain Anand AIR 1949 PC 112 (A). In the present case it is admitted by the opposite party that he was appointed by an Assistant Inspector-General of Police who ranks with the Superintendent of Poilce, and in the present case the sanction was given by the Deputy inspctor-General of Police Mr, Sham-sher Singh. Under Section 6(1) to - and the present case falls under this section-previous sanction has to be obtained from the authority competent to remove a public servant from his office. The appointment in the present case was by a person of the rank of a Superintendent of Police & the sanction given is by a person who ranks higher than the Superintendent of Police, i.e., the Deputy Inspector-General of Police.
I do not think that any attack can be levelled on the ground of the sanction not being proper. In AIR 1949 PC J12 (A), a person was appointed by the Inspector-General Of Police but was dismissed by the Deputy Inspector-General of Police before the rule was changed in regard to the power of appointments and dismissals and their Lordships of the privy Council held that the dismissal was bad on that ground.
4. In my opinion, the sanction given does not contravene the provisions of section 6(1)(c) and I am of the view that the learned Judge took an erroneous view of the matter and no objection can be taken on the ground of sanction.
5. The other point which the learned Judgehas taken is that the Police Act is not applicableto the State of Punjab. The Police Act no doubtwas passed in 1861 when there was no representa-tive Government in India, but all laws which werein force in the territory of India upon the commencement of the Constitution of 1950 continued to remain in force under Article 372(1) of the Constitution of India, and Article 246 does not apply to any Act which was already in existence.
The Allahabad High Court in Sagar Mal v. The State, AIR 1951 All 816 (B), held that the distribution of legislative powers under Article 246 of the Constitution does not affect the laws which were in existence and in force previous to the coming into force of the Constitution. In that case it was the constitutionality of the Essential Supplies Act which was challenged on the ground that it being a central Act was not binding on the State of U. P., but this contention was negatived. Malik C. J. who delivered the judgment of the Court said at page 817:
'Article 246 of the Constitution distributes the legislative powers between the Parliament of the Union and the State Legislature. It has nothing to do with laws already made and, if those laws are not contrary to any provisions of the Constitution, in cannot be said that those laws are not valid. The words 'subject to the other provisions of this Constitution,' in Article 372, do not mean that laws which had been passed by the Central Legislature before 26-1-1950 automatically cease Co have effect because the subject has now been made a State subject.'
I am in respectful agreement with the decision of the Allahabad High Court and I would hold that the learned Judge has taken an erreteous view on this point also. I would therefore allow this petition, set aside the order of the Special Judge and remit the case for trial in accordance with law I direct that the case be tried by the learned Sessions Judge Mr. Hans Raj Khanna himself.
6. The parties are directed to appear beforeMr. Hans Raj Khanna on the 17th September 1956.