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Management of the Advance Insurance Co. Ltd. Vs. Gurudasmal, Supdt. of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 365 of 1968
Judge
Reported inAIR1969Delhi330; ILR1969Delhi426
ActsGovernment of India Act, 1935 - Sections 2(2), 3, 4(1), 5(1) and 6, 72, 94(3), 100, 100(1), (2) and (4), 175(3) and 311(1); Delhi Special Police Establishment Act, 1946 - Sections 2(3), 5, 5(3) and 46(3); Delhi Special Police Establishment (Amendment) Act, 1952; Constitution of India - Articles 77(2), 166, 166(1), (2) and (3), 227, 239, 239(1), 245, 246(4), 278, 358, 372, 372-A(1), 372-A and 385; Constitution (Seventh Amendment) Act, 1956; Adaptation of Laws Order, 1956; General Clauses Act, 1897 - Sections 3(58) and (60), 8; Code of Criminal Procedure (CrPC) - Sections 54, 58, 156, 160, 161, 165, 166(1) and (3); Evidence Act, 1872 - Sections 56, 57, 62 and 63; Indian Penal Code (IPC), 1860 - Sections 120-B, 405, 409 and 477-A; Insurance Act, 1938 - Sections 104 and 105; Bombay Police Ac
AppellantManagement of the Advance Insurance Co. Ltd.
RespondentGurudasmal, Supdt. of Police and ors.
Appellant Advocate A.K. Sen,; Porus A. Mehta,; B. Dutta and;
Respondent Advocate C.K. Daphtary, ; R.L. Mehta and ; Brij Bans Kishore, Ad
Cases ReferredState of Bombay v. S. L. Apte
Excerpt:
constitution - distribution of legislative powers - 7 the schedule of constitution of india and government of india act, 1935 - whether delhi special police establishment act comes within entry 80 - distribution of legislative power in constitution remained same inasmuch as entry 80 of list 1 of constitution was same as entry 39 of federal legislative list of government of india act - delhi special police establishment was also police force belonging to part c state as contemplated by entry 80 of union list of 7 the schedule of constitution - question answered in affirmative. - - under section 311(1) 'british india' meant all territories comprised within the governors' provinces as well as the chief commissioners' provinces. section 2(2) thereof conferred the same jurisdiction and.....v.s. deshpande, j.1. on the complaint dated 30-1-1968 by shri s. vanchinath, income-tax officer, section x (central), bombay, against the petitioner company alleging commission of offences punishable under sections 120b read with 409 and 409 and 477a of the indian penal code, a case for investigation was registered by the first respondent and investigation thereon started by the second respondent acting under the provisions of the delhi special police establishment act, 1946 (hereinafter called the act).the petitioner has challenged the legality of this investigation on the following grounds, viz.,(1) the delhi special police establishment is nto a police force belonging to any state within the meaning of entry 80 of the union list of the 7th schedule of the constitution and, thereforee,.....
Judgment:

V.S. Deshpande, J.

1. On the complaint dated 30-1-1968 by Shri S. Vanchinath, Income-tax Officer, Section X (Central), Bombay, against the petitioner company alleging commission of offences punishable under Sections 120B read with 409 and 409 and 477A of the Indian Penal Code, a case for investigation was registered by the first respondent and investigation thereon started by the second respondent acting under the provisions of the Delhi Special Police Establishment Act, 1946 (hereinafter called the Act).

The petitioner has challenged the legality of this investigation on the following grounds, viz.,

(1) The Delhi Special Police Establishment is nto a police force belonging to any State within the meaning of Entry 80 of the Union list of the 7th Schedule of the Constitution and, thereforee, they could nto function under the Act.

(2) Assuming that the Delhi Special Police Establishment was a police force for the Chief Commissioner's province, later the Part C State of Delhi, and thus able to function under the original Act, the amendment of the Act made by Parliament by Act No. 26 of 1952 changed the nature of the Delhi Special Police Establishment and thereafter, at any rate, they could nto be regarded as a police force belonging to a State.

(3) Consequent on the 7th Amendment of the Constitution, the Adaptation of Laws Order- (No. III) of 1956 substituted the expression 'Union Territories' for the expression 'Part C States' in the Act, A Union Territory nto being a State the Delhi Special Police Establishment cannto thereafter be regarded as a police force belonging to a State within the meaning of Entry 80 of the Union List of the 7th Schedule of the Constitution.

(4) In so far as Section 3 of the Act enables the Central Government to specify the offences or classes of offences to be Investigated by the Delhi Special Police Establishment this amounts to delegation of legislative policy to the Central Government by Parliament. As there are no guide-lines or standards laid down by Parliament for the exercise of this policy by the Central Government, Section 3 'and, thereforee, the whole of the Act is void on account of the excessive delegation of legislative policy.

(5) Assuming that the Act Is valid its provisions properly construed do nto enable the Delhi Special Police Establishment to investigate an offence which has no territorial nexus to the Union Territory of Delhi. The offences in the present case being alleged to have taken place in Bombay, they cannto be investigated by the Delhi Special Police Establishment.

(6) No legal consent to the investigation by the Delhi Special Police Establishment in the State of Maharashtra could be given in view of the provisions of the Bombay Police Act, 1951 or was given under Section 6 of the Act of 1946 and

(7) Sections 104 and 105 of the Insurance Act, 1938, punish offences similar to those as are punishable under Sections 405, 409 and 477-A of the Indian Penal Code. The prosecution under the Insurance Act cannot, however, be launched except with the sanction of the Advocate General of the State. The Delhi Special Police Establishment cannot, thereforee, investigate this case under the provisions of the Indian Penal Cede with a view to by-pass the requirement of sanction required by the Insurance Act.

Point NO. (1):--

2. In considering the first point we have first to read entry 39 of the Federal Legislative List in the 7th Schedule of the Government of India Act, 1935, which Is as below:--

'Extension of the powers and jurisdiction of members of a police force belonging to any part of British India to any area in another Governor's Province or Chief Commissioner's Province, but nto Eo as to enable the police of one part to exercise powers and jurisdiction elsewhere without the consent of the Government of the Province or the Chief Commissioner, as the case may be; extension of the powers and jurisdiction of members of a police force belonging to any unit to railway areas outside that unit.'

3. We have also to read Entry 3 of the Provincial Legislative List therein which was as follows:--

'Police, including railway and village police.' Under Section 100(1) of the Government of India Act, 1935, the Central Legislature had the exclusive power to make laws with respect to matters enumerated in the Federal Legislative List Under Section 100(2), the Central Legislature had also power to make laws with respect to matters enumerated in the concurrent legislative list. Under Section 100(4) of the said Act, the Central Legislature had power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof. Section 46(3) stated that the expression 'Province' meant a Governor's Province. thereforee, the Central Legislature had power to make laws on any matter with respect to the Chief Commissioners' Provinces. The Delhi Special Police Establishment Act, 1946, was enacted by the Central Legislature in exercise of the powers given to them by the abovementioned provisions of Section 100 of the Act. Under Section 311(1) 'British India' meant all territories comprised within the Governors' Provinces as well as the Chief Commissioners' Provinces.

4. Since we are considering the mature and the legality of the operation of the Delhi Special Police Establishment, the most pertinent point to enquire into would be as to how this Special Police Force came to be first constituted. The first constitution of the Force appears to have been made under Ordinance No. Xxii of 1943 promulgated on the 12th July 1943 during the currency of the Emergency under Section 72 of the 9th Schedule of the Government of India Act. The termination of the Emergency was followed by the next Ordinance No. Xxii of 1946, i.e., the Delhi Special Police Establishment Ordinance of 1946. This was followed by the Act. Both the Ordinance and the Act were of 1946. They purported to constitute a Special Police Force for the Chief Commissioner's Province of Delhi. Section 2(2) thereof conferred the same jurisdiction and powers on this Special Police Force in the Chief Commissioner's Province of Delhi as were enjoyed by the ordinary police force of the said Province. This meant that the Special Police Force was located in the Chief Commissioner's Province of Delhi and that it was in addition to the ordinary police of Delhi which already existed therein. The superintendence and control of the Delhi Special Police Establishment vested in the Central Government by virtue of Section 4(1) of the Act. This would show that it was a Central Police Force located in Delhi.

In so far as this Special Police Force was to operate in the Chief Commissioners' Provinces, there was no limitation on the power of the Central Legislature in constituting the same. However, the Act provided for the extension of the powers and jurisdiction of this Police Force to other areas in Governors' Provinces and that could be done by the Central Legislature only under Entry 39 of the Federal Legislative List. The Central Legislature, thereforee, obviously regarded that this Special Police Force could be regarded as 'belonging to' the Chief Commissioner's Province of Delhi inasmuch as it was nto only located there, but was primarily to operate there before its powers and jurisdiction were extended to other areas outside the Chief Commissioner's Province of Delhi. The meaning of the expression 'belonging to' occurring in Entry 39 of the Federal Legislative List being decisive of the controversy relating to the first three questions for decision formulated above, both Shri Ashok Sen for the petitioner and the Attorney General for the respondents de-Voted a good part of their arguments to the construction of this expression. Shri Sen pointed out that the Police Act of 1861 already existed and was known to the Central Legislature when the Act of 1946 was enacted by it. The Central Legislature was also aware that 'Police' was a Provincial subject under Entry 3 of the Provincial Legislative List The Police Act, 1861, contemplated that the State Police Force belonged to that State. That is to say, that it was employed by the State Government. thereforee, the expression 'belonging to' in Entry 39 of the Federal Legislative List must have meant that this Special Police Force constituted by the Act of 1946 was employed by the Government of a Governor's Province or that of a Chief Commissioner's Province. As the Delhi Special Police Establishment was nto employed by any of these Governments, the Central Legislature was nto competent to constitute it by the Act of 1946.

The Attorney General, on the other hand, sought to construe the expression 'belonging to' as having only a territorial significance. It referred to the location of the police force and nto to its employment by a political authority. He pointed out that the police force had to belong to 'any part of British India'. It did nto have to belong either to the Provincial Government or to the Government of a Chief Commissioner'6 Province, Similarly, the extension of the powers and the jurisdiction of the Special Police Force was contemplated to be to 'any area in another Governor's Province or Chief Commissioner's Province.' The use of the words 'any part of British India' and 'to any area in another Governor's Province' shows that the Force had to belong to one area and its powers and jurisdiction were to be extended to another area. The Delhi Special Police Establishment belonged to the Chief Commissioner's Province of Delhi because it was constituted there, located there, and functioned there. The Act of 1946 was, thereforee, completely intra virus the Entry 39 of the Federal Legislative List.

5. The contention put forth by the petitioner, if accepted, would make entry 39 of the Federal Legislative List to read as follows:--

'Belonging te i.e., employed by a part of British India i.e., a Governor's Province or Chief Commissioner's Province.'

It is obvious that the concept of employment 'by' a political unit does nto fit in with the words 'belong to' it. The former emphasise only the political element while the latter clearly refer to the territorial character of the Special Police Force. This territorial character of the Special Police Force has, however, to be properly understood. It does nto mean mere residence of the Police Force in particular area. For, unlike private person, traveller or tourist, Police Force is an organized body which has certainly to be employed and paid for by a Government or an authority. thereforee Policemen on a holiday or temporarily residing or traveling in an area but nto working there would nto belong to it. The main characteristic of the Police Force with which we are concerned is the area In which the Police Force is located nto merely for residence but for actually working in the official discharge of their duties. It is true that a Police Force is always employed by a Government or an authority. But it is connected with an area only because it La working there and nto because it is employed by the political authority of the area. thereforee the words 'belonging to' really signify the part of British India in which the Police Force is constituted and located nto for residence but for working and functioning.

6. It further appears to us that the expression 'belonging to' nto being a word of art has to be construed in its general sense. Like most words, this expression has more than one meaning. The question to be decided by us is. which particular meaning may rightly be given to this expression. It is an elementary rule of construction that these words have to be construed primarily according to their context and the nature of the subject-matter. Their context is the context of the Act itself. When the Act of 1946 was enacted this Special Police Force already existed under the power and superintendence of the Central Government. It was from its very inception a Central Government Police Force, It was at no time a police force employed by the Government of a Governor's Province. Nor could it be said to be employed by the Government of the Chief Commissioner's Province of Delhi though under Section 94(3) of the Government of India Act, 1935, the Chief Commissioner's Province Was to be administered by the Governor-General acting to such extent as he thought fit through a Chief Commissioner to be appointed by him in his discretion. For, the Special Police Force was in addition to the ordinary police which already existed in the Chief Commissioner's Province of Delhi. It was, thereforee a police force which was under the superintendence and control of the Central Government as the Government of India and particularly as the Central Government which was also administering the Chief Commissioner's Province of Delhi. As the Central Legislature was aware of the fact that this Special Police Force was already a Central Government Police Force, it must have intended to constitute this Special Police Force as one 'belonging to' a part of British India within the meaning of Entry 39 of the Federal Legislative List. The Central Legislature obviously, thereforee, used the words 'belonging to' as referring only to the constitution and functioning of the police force.

7. The argument for the petitioner that the expression 'belonging to' must mean 'employed by a Provincial Government' would lead to consequences which could nto have been intended by the Central Legislature. For, the Special Police Force had already been employed by the entral Government. There is absolutely nothing to show that a violent change in his respect was intended by the Central Legislature and that the Act of 1946 was meant to have the effect that this Special Police Force was nto to belong to the entral Government but was to belong only to the Government of a Governor's Province or to the Government of a Chief Commissioner's Province as distinct from the Central Government. Even if we regard the Ordinance and the Act of 1946 as an amendment of the Ordinance of 1943, there is nothing to show that the difference in the provisions of the two was meant to change the very nature of the Special Police Force in this manner. In M.K. Ranganathan v. Government of Madras : [1955]2SCR374 , their Lordships of the Supreme Court cited the following passage from Maxwell on Interpretation of Statutes, 10th Edition, at page 81, with approval:--

'One of these presumptions is that the legislature does nto intend to make any substantial alteration in the law beyond what it explicitly declares, either Sn express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.....'

Their Lordships further pointed out that this statement of law was also approved by the Privy Council in Murugiah v. Jainudeen (1954) 3 Wlr 682. Their Lordships further referred to the observations of Lord Goddard in National Assistance Board v. Wilkinson (1952) 2 Q. B. 648 to the following effect:--

'But it may be presumed that the legislature does nto intend to make a substantial alteration in the law beyond what it expressly declares. In Minet v. Leman (1855) 20 Beav. 269 Sir John Romilly, M. R. stated as a principle of construction which could nto be disputed that 'the general words of the Act are nto to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched.'

In our view, the observations cited above fully apply to the question before us and we respectfully follow the same.

8. The function of the Court being to find out the intention of the law-makers, the Court has to discover that particular meaning of a given word in an enactment which the law-makers intended it to be given. In case of older statutes a know: ledge of the historical facts relating to them becomes indispensable for understanding the meaning of ambiguous words and expressions used in them, 'For the purpose of appreciating the scope and object of an old statute and for explaining its language which may be susceptible of different meaning', observed Mukerjee, J, 'it may be useful to remember the well-known historical facts that led to the passing of the enactment.' Mukerjee, J, proceeded to say: 'It is a settled canon of construction that the interpreter should place himself as far as possible in the position of those whose words he is interpreting and the meaning of certain words and terms used in an ancient document or a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted or the document was written.' (Auckland Jute Co. Ltd. v. Tulsichandra .

9. The system which existed prior to the Act of 1946 was that a Central Government Police Force was constituted in the Chief Commissioner's Province of Delhi and was functioning there. One meaning of the expression 'belonging to' would be that the said Police Force was constituted and was functioning in the Chief Commissioner's Province of Delhi and in that sense it belonged to Delhi. Of course, the Police Force is an organiseed body of persons and it must be employed and paid for by some Government. From this fact it is argued for the petitioner that another meaning of the expression 'belonging to' would be that the said Police Force must be employed by the Government of a Governor's Province or that of a Chief Commissioner's Province as distinct from the Central Government. However in view of the context indicated above, the first alternative construction is clearly the right one. Even if it is assumed for the sake of argument that both the alternative constructions are equally open, still the choice will have to be in favor of the former construction. For, as observed by Lord Shaw in Shannon Realties Ltd. v. (Ville de) St. Michel (1924) Ac 185 :

'Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of. the system.'

There are further pertinent observations in Maxwell on Interpretation of Statutes, llth Edition, at pages 17 and 18, which are also worth noting. They are as below:--

'The equivocation or ambiguity of words and phrases, and especially such as are general, is said by Lord Bacon to be the great sophism of sophisms (Lord Bacon, Advancement of Learning, b. 2). They have frequently more than one equally obvious and popular meaning. Words used with reference to one subject-matter or set of circumstances may convey a meaning quite different from that which the same words used with reference to another set of circumstances and another subject-matter would convey. General words admit of indefinite extension or restriction, according to the subject to which they relate, and the scope and object in contemplation.'

This is why the general words 'belonging to' have only the particular meaning of 'being constituted in and functioning in' a particular area in the context of our case. The suggestion that the words 'belonging to' must mean that the Police Force must be employed by a Provincial Government is not, thereforee, admissible in the context noted above. Another observation in Maxwell at pages 19 and 20 is also apposite. It says:

'Extrinsic evidence of the circumstances or surrounding facts in which a will or contract has been made, so far as they throw light on the matter to which the document relates, and on the condition and position and course of dealing of the persons who made it or are mentioned in it, is always admitted as indispensable for the purpose nto only of identifying such persons and things, but also of explaining the language, whenever it is latently ambiguous or susceptible of various meanings or shades of meaning, and of applying it sensibly to the circumstances to which it relates.'

External evidence in our case is the existence of a Central Government Police Force prior to the enactment of the Act of 1946. As the Act does nto say that the said Police Force was thereafter to be a Provincial Force, the expression 'belonging to' cannto be interpreted to mean that the said Police Force must thereafter belong to a Provincial Government. To the same effect is the observation of Lord Halsbury in Herron v. Rathmines and Rathgar Improvement Commissioners (1892) Ac 498, which runs as follows:--

'The subject-matter with which the Legislature was dealing and the facts existing at the time with respect to which the Legislature was legislating are legitimate topics to consider in ascertaining what was the object and purpose of the Legislature in passing the Act.'

The state of things existing at the time of the passing of the Act as showing the circumstances in which it was passed was taken into account as a relevant consideration in several other cases such as R. v. Dean of Hereford (1870) Lr 5 Qb 196, in Green v. The Queen (1876) 1 Ac 513, and Mayor Alderman, Citizens of the City of Manchester v. Lyons (1882) 22 Ch D 287 .

10. How the existence of a fact preceding the legislation influenced the interpretation of the legislation is further illustrated by the Supreme Court decision in Messrs Bridge and Roof Co. v. Union of India : (1962)IILLJ490SC . In that case, the contribution to the Employees Provident Fund by the Company was to be a certain percentage of the 'basic wages' paid by it to its employees. The definition of 'basic wages' excluded 'bonus'. On behalf of the employees, it was argued that 'bonus' meant only the profit bonus, that is to say the share in the profits which is given by the employer to the employees by way of bonus. It was, however, brought to the notice of the Court that when the Employees Provident Funds Act, 1952, was passed, several other kinds of bonus were known as being paid by employers to the employees. The kinds of bonus other than the profit bonus then being paid were the production bonus, the festival bonus and the customary bonus. The Supreme Court observed that the legislature could nto have been unaware that the different kinds of bonus were being paid when it passed the Act in 1952. thereforee, the contention of the employees that the word 'bonus' used in the Act would mean only the profit bonus could nto be accepted. In the context of the circumstances and the facts in which the legislation was passed, the word 'bonus' must have applied to all kinds of bonus which were being paid at the time the Act of 1952 was passed. On the same reasoning it must be said that the Delhi Special Police Establishment as a Central Government Police Force was known to the Central Legislature as existing prior to the passing of the Delhi Special Police Establishment Act,' 1946. The Central Legislature, thereforee, must have regarded it as a police force belonging to a part of British India within the meaning of entry 39 of the Federal Legislative List of the Government of India Act.

11. The nature and the subject-matter of the Act is the extension of the jurisdiction and powers of the Special Police Force to other areas of British India. The offences to be investigated by the Delhi Special Police Establishment are to be notified by the Central Government under Section 3. Similarly, the extension of these powers and jurisdiction to other areas in British India outside the Chief Commissioner's Province of Delhi was to be done by the Central Government under Section 5(1). The fact that the exclusive power in these respects is given to the Central Government would show that the Delhi Special Police Establishment was always intended to be a Central Government Police Force. If, as [argued for the petitioner, the Delhi Special Police Establishment was to be in the employment of a Provincial Government, then it is nto understood how the Central Government could be expected to issue a Notification under Section 3 and an Order under Section 5(1) in respect of a police force which is of a Provincial Government. Under Section 4(1) the Superintendence of the Delhi Special Police Establishment is also vested in the Central Government. This also negatives the argument that this special police force was intended to belong to the Provincial Government or to the Government of a Chief Commissioner's Province which is nto the Central Government-if any such thing was at all possible under the Government of India Act in view of Sections 94(3) and 100(4) thereof. Further, the jurisdiction and powers o/ the said Special Police Force could nto be extended outside the Chief Commissioner's Province of Delhi except with the consent of the Provincial Government concerned. This would also show that the Delhi Special Police Establishment was nto to belong to any Provincial Government or any other Chief Commissioner's Province other than the Chief Commissioner's Province of Delhi. The external circumstances as well as the internal evidence of the provisions of the Act itself would show that the expression ''belonging to' in entry 39 of the Federal Legislative List did nto mean that the police force contemplated therein must be under the employment of a Provincial Government or of a Chief Commissioner as distinct from the Central Government.

12. Under Section 2 of the Police Act, 1861, the entire police establishment under a Provincial or State Government shall be deemed to be one police force. The Central Legislature in 1946 was, thereforee, aware that the use of the word 'under' showed the employment of the police establishment by the Provincial or the State Government. This concept may perhaps be said to be embodied in entry 3 of the Provincial Legislative List but entry 39 of the Federal Legislative List did nto describe the police force as being 'under' the Provincial Government On the other hand, it used the words 'belonging to any part of British India'. Apparently, thereforee, the concept of being employed by a particular Government was nto to be the basis of entry 39 of the Federal Legislative List. The use of different words shows that the basis was also to be different. For the reasons stated above, the most appropriate meaning to be given to the words 'belonging to' would be 'constituted in and functioning in' a part of British India. These words leave the question as to who was to be the employer of the police force open. The circumstances existing before 1946 were however, that the police force was actually employed by the Central Government The Ordinance and the Act of 1946, thereforee, dealt with the Central Government Police Force on the footing that it could be constituted and be functioning as a police force contemplated by entry 39 of the Federal Legislative List. Another consideration in construing the Legislative List is that they have to be construed broadly and nto in a nsrrow or pedantic sense. This rule has been established by the Federal Court decision in re: C. P. & Berar Sales of Motor Spirit and Lubricants Taxation Act , and has been reiterated by the Supreme Court in several decisions including the decision in Waverly Jute Mills Co., v. Raymon and Co., India (P) Ltd. : [1963]3SCR209 . All that is necessary, thereforee, is to consider whether the words 'belonging to a part of British India' were capable of bearing the meaning 'constituted in and functioning in' a part of British India. If they were capable of being so construed and if this construction fitted with the existing fact, we are left with no option but to hold that this was the meaning of the said words. The final consideration is the presumption in favor of the constitutionality of a legislative enactment.

The Delhi Special Police Establishment Act, 1946, is now 22 years old and its validity has never been doubted though thousands of investigations and prosecutions must have taken place there under If the argument for the petitioner is to be accepted, then, from the very inception, it was illegal for the Central Government to employ a Special Police Force and such a police Force could nto be constituted in and could nto function in Delhi. We see no reason at all to give our support to such an astounding proposition leading to such absurd results. In Ram Krishna Dalmia v. Justice S.B. Tendolkar, : [1959]1SCR279 Das, C. J. observed as follows :--

'In order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.'

In Mahomed Hanif Quareshi v. State of Bihar, : [1959]1SCR629 , where the Supreme Court considered the constitutionality of various State legislations banning slaughter of certain animals, references were made to religious books, reports of committees, five year plans, memoranda etc. and the above observation in Dalmia's case was reiterated at p. 741. In Hamdard Dawakhana v. Union of India : 1960CriLJ671 the above observation was reiterated and the facts and circumstances existing at the time of the legislation under consideration were taken into account in determining its constitutionality. We, thereforee, find that the Delhi Special Police Establishment, from its very inception, was a Police Force belonging to a part of British India within the meaning of Entry 39 of the Federal Legislative List of the Government of India Act, 1935.

Point NO. (2):--

13. The matters considered under the first point very much reduce the discussion under the second point. On the commencement of the Constitution, entry 80 of the Union list in the 7th Schedule of the Constitution took the place of entry 39 of the Federal Legislative List of the 7th Schedule of the Government of India Act, 1935. In the place of the Governors' Provinces and the Chief Commissioners' Provinces of the Government of India Act, 1935, were substituted Part A and Part C States, by the Constitution. thereforee, the word 'State' came to replace the words 'Governor's Province' and 'Chief Commissioner's Province' in entry 80 of the Union List. This change was merely nominal. In substance, entry 80 of the Union List is the same as entry 39 of the Federal Legislative List of the Government of India Act. To bring the provisions of the Delhi Special Police Establishment Act, 1946 along with other enactments in accord with the provisions of the Constitution the Adaptation of Laws Order, 1950, was issued under Article 372 of the Constitution. This substituted the words 'Part A States' for the 'Governor's Province' and the words 'Part C States' for the 'Chief Commissioner's Province in the Act. This was nto meant to be a substantial difference at all. Then we come to the amendment in the Act effected by Act No. 26 of 1952. The amendments were:--

The substitution of the words for 'the State of Delhi for the investigation of certain offences committed in connection with matters concerning Departments of the Central Government' by the words 'in Delhi for the investigation of certain offences in Part C States.'

In Section 2, for the words 'in that State' the words 'in any part C State' shall be substituted. In Section 2(2) and 2(3) for the words 'the State of Delhi' the words 'any Part C State' shall be substituted. In Section 3 the words 'Committed in connection with matters concerning Departments of the Central Government' shall be omitted.

14. Each of the amendments may now be considered. The first change was the substitution of the words 'in Delhi' for the words 'for the State of Delhi.' It was argued for the petitioner that the words 'for the State of Delhi' had meant that the Delhi Special Police Establishment were a police force of the State of Delhi which corresponded to former Chief Commissioner's Province of Delhi. While it is true that the Act of 1946 had constituted the Delhi Special Police Establishment for the Chief Commissioner's Province of Delhi. It had never meant that the Delhi Special Police Establishment was a police force of the Chief Commissioner's Province of Delhi, On the contrary, the Act of 1946 constituted a police force under the superintendence and control of the Central Government for the Chief Commissioner's Province of Delhi. We have already stated that the Delhi Special Police Establishment was a Central Government Police Force. It, however, belonged to Delhi inasmuch as it was constituted and functioned in Delhi. In respect of its political or governmental character, it was under the control of the Central Government. In respect of its constitution and functioning, it was located in Delhi. thereforee, the words 'for the State of Delhi' or 'for the Chief Commissioner's Province of Delhi' which existed in the Act prior to, the amendment of 1952 had never meant that the Delhi Special Police Establishment was a police force of the State off Delhi or of the Chief Commissioner's Province of Delhi in the sense that it was under the control of the Chief Commissioner of the Part C State of Delhi or of the Chief Commissioner's Province of Delhi. thereforee, the substitution of the words 'in Delhi' for the words 'for the State of Delhi' did nto in any way change the constitution and the functioning or the nature of the Delhi Special Police Establishment, They remained the same.'

14A. The reason for the above-mentioned change is to be found in the substitution of the words 'the State of Delhi' by the Words 'in any part C State'. The purpose of the amendment was to give the Delhi Special Police Establishment the original jurisdiction and powers nto only in the Part C State of Delhi but in all Part C States. As Parliament had plenary power of legislation for any matter whatever under Article 246(4) in respect of Part C States, this change was within the legislative competence of Parliament: Mithan Lal v. State of Delhi : [1959]1SCR445 . Parliament could create a police force or a Special Police Force in addition to the existing police force for the Part C State of Delhi and for all the Part C States. So long as such a police force was given the original jurisdiction and powers only in respect of the Part C States, no objection could be taken to such a legislation. As the words 'belonging to any State' in Entry 80 of the Union List have been construed by us as meaning 'constituted in and functioning in any State' and as the original jurisdiction of the Delhi Special Police Establishment would after the amendment exist in all the Part C States instead of Delhi alone; the change cannto be considered to be contrary to entry 80 of the Union List in any way. For, the Delhi Special Police Establishment even after the amendment of 1952 continued to be-long to Delhi in the sense that it wag constituted in Delhi and was primarily functioning there and in other Part C States. It could function even as a State Police Force in the Part C States inasmuch as under Article 239 of the Constitution, the administration of the Part C States was to be carried on by the President and Parliament had full powers of legislation for Part C States under Article 246(4) of the Constitution. This is why according to Section 3(a) and (b) of the General Clauses Act, 'State Government' as respects anything done before the commencement of the Constitution or after the commencement of the Constitution but before the Constitution (Seventh Amendment) Act, 1956, meant 'in a Part C State,' the Central Government.

15. The learned counsel for the petitioner has in this connection argued that the Part C States were legal entities distinct from the Central Government. In support of this proposition he relied on the Supreme Court decision in State of Madhya Pradesh v. Moula Bux, 0043/1961 : [1962]2SCR794 and in Satya Dev Bushahri v. Padam Dev : [1955]1SCR549 . But it may be pointed out with great respect that the above-mentioned decisions were given in a totally different context and circumstances. Their Lordships of the Supreme Court were nto considering the question whether for all purposes, a Part C State was a distinct entity separate from the Union of India. Further, the Part C States were to be administered by the President under Article 239(1) of the Constitution. Under Sections (8) (a) and (b) of the General Clauses Act, the Central Government prior to the commencement of the Constitution meant the Governor-General-in-Council and after the commencement of the Constitution meant the President. In Jawantilal Amratlal v. F. N. Rana, : [1964]5SCR294 , the Supreme Court speaking through Shah, J. observed that there was a distinction between functions which vested in the Union of India and those which vested in the President as such and the latter were nto the powers of the Union Government. It is to be noted that in the enumeration of the powers of the President as such in the paragraph (12) of the report, the Supreme Court did nto mention Article 239 of the Constitution. The Court apparently regarded the powers of the President under Article 239 and the powers of the Union Government. thereforee, the powers to govern the Part C States were vested under Article 239(1) in the Union Government or the Central Government. It is unnecessary for the purpose of this case to consider whether the Central Government in administering Part C States had a different capacity than the capacity of the Central Government in administering the rest of India. Whatever its capacity the fact remains that the Central Government had the fullest executive and the legislative power in respect of the Part C States. Even when Parliament passed the Government of Part C States Act, 1951, creating legislative assemblies for them, Section 21 thereof provided that the legislative assembly of the State of Delhi shall nto have power to make laws with respect to public order, police including railway police and the offences against laws with respect to any of the matters enumerated in the State List and the Concurrent List. Similarly, under S. 39 of the said Act, the Consolidated Fund of the Part C States consisted only of revenues received by the State in relation to any matter with, respect to which the legislative assembly of the said Part C States had power to make laws. The moneys out of the Consolidated Fund were to be appropriated only in accordance with the Act. It follows, thereforee, that the executive, legislative and financial powers regarding the police in the Part C State of Delhi remained vested in the Central Government throughout. The Delhi Special Police Establishment could thereforee be lawfully constituted and operated only by the Central Government.

16. Another change made by the Act of 1952 was that the functions of the Delhi Special Police Establishment were nto restricted to offences committed in connection with Departments of the Central Government. No constitutional significance can be attached to this change. It was open to Parliament to enlarge the original jurisdiction and powers of the Delhi Special Police Establishment in the Part C States. Our conclusion, thereforee, is that the Act of 1952 did nto make any change in the Delhi Special Police Establishment Act, 1946, which could be said to conflict with Entry 80 of the Union List of the 7th Schedule of the Constitution or with any other provision of the Constitution.

Point NO. (3):--

17. Point No. 3 arises only because of the changes made in the Constitution by the Constitution (7th Amendment) Act, 1956. Inter alia, the Part C States were abolished and their place was taken by the Union Territories. As Entry 39 of the Federal Legislative List of the Government of India Act, 1935, had referred to a police force belonging to any part of British India including nto only the Governors' Provinces but also the Chief Commissioners' Provinces, Entry 80 of the Union List of the 7th Schedule of the Constitution should have, strictly speaking, referred to Part A and Part C States. Since all these were States, the word 'State' was perhaps thought sufficient to denote the whole of India inasmuch as the Governor's Provinces and the Chief Commissioner's Provinces of the Government of India Act, 1935, were completely covered by the three kinds of States under the Constitution. However, the Constitution (7th Amendment) Act, 1956, for the first time created two kinds of territories in India, viz., the territory of States and the territories of the Union, viz., the Union Territories. While the Part C States were at least in name 'States', their successors were 'Union' territories even in name. So far as the Constitution was concerned, a Union Territory was no longer a State.

In our recent Judgment In C. W. No. 543 of : AIR1969Delhi246 H. L. Rodhey etc. v. Delhi Administration etc. delivered on the 14th August 1968, we had occasion to point out that the General Clauses Act as adapted under Article 372 of the Constitution only applied to the interpretation of the Constitution. The changes introduced in the said Act by the subsequent adaptation made under Article 372A consequent on the Constitution (7th Amendment) Act, 1956, were nto applicable to the interpretation of the Constitution. Consequently, the definition of a 'State' in Section 358(b) of the General Clauses Act whereby a Union Territory is included in the definition of 'State' after the commencement of the Constitution (7th Amendment) Act, 1956, is nto applicable to the interpretation of the Constitution. As pointed out by us, in our decision referred to above, this distinction between the adaptations made in the General Clauses Act under Articles 372 and 372A of the Constitution was unfortunately nto brought to the notice of the Supreme Court. This was why in T.M. Kanniyan v. Income Tax Officer, Pondicherry, : [1968]68ITR244(SC) relying on Ram Kishore Sen v. Union of India, : [1966]1SCR430 , it was assumed that the definition of the General Clauses Act in Section 3(58) (b) including Union Territories into 'States' was applicable to the interpretation of the Constitution. We may, however, for the purpose of the case before us concede straightway in favor of the petitioner that the meaning of the word 'State' used in Entry 80 of the Union List of the 7th Schedule of the Constitution excludes Union Territory. The learned counsel for the petitioner, thereforee, urges that the Delhi Special Police Establishment is a police force now belonging to a Union Territory of Delhi and nto to any State. thereforee, its continuance after the commencement of the Constitution (7th Amendment) Act, 1956, is contrary to the provisions of Entry 80 of the Union List of the 7th Schedule of the Constitution. The existence of the Delhi Special Police Establishment thereafter became unconstitutional with the result that it cannto exercise any powers under the Delhi Special Police Establishment Act, 1946.

In considering this argument we have to first remember that the change in the Act whereby 'Union Territories' are substituted for 'Part C States' has been brought about nto by any legislation of Parliament but merely by the Adaptation of Laws Order (No. III) of 1956 promulgated by the President in exercise of the powers conferred on him by Article 372-A(l) of the Constitution which runs as follows:--

'For the purposes of bringing the provisions of any law in force in India or in any part thereof, immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956, into accord with the provisions of the Constitution as amended by that Act, the President may by order made before the 1st day of November, 1957, make such-adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall as from such date as may be specified in the order have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall nto be questioned in any Court of law.'

The first question, thereforee. Is whether the change in the Act of 1946 was validly made by the Adaptation. It would be seen that the change had to be made to bring the Act into accord with the provisions of the Constitution as amended by the Constitution (7th Amendment), Act, 1956. For, the Part C States had been substituted by the Union Territories and, thereforee, it was no longer possible for the Act of 1946 to refer to Part C States thereafter. This being the case the ending words of Article 372-A(1) ensure that 'any such adaptation or modification shall nto be questioned in any Court of law.' We have, thereforee, to consider whether the Act of 1946 so adapted is in any way in conflict with the provisions of Entry 80 of the Union List. At the outset, it may be stated that the very purpose of the Adaptation was to bring the Act into accord with the provisions of the Constitution as amended by the Constitution (7th Amendment) Act, 1956. We have also seen that the Part C States having been substituted by the Union Territories, the Adaptation was properly made and that cannto be called into question in any Court of law. It would, thereforee, be strange and prima facie unacceptable contention that because of this very adaptation, the Act of 1946 now conflicts with Entry 80 of the Union List of the Constitution.

18. The contention of the petitioner is based on a fundamental confusion of thought which has to be clarified for the proper understanding of the correct legal position. The contention of the petitioner firstly ignores the whole history of the Constitution and the Act of 1946. We know that the Act of 1946 was validly enacted under Entry 39 of the Federal Legislative List of the Government of India Act. For, it constituted a police force belonging to a part of British India there under. We also know that on the commencement of the Constitution, the Act of 1946 continued to be valid in view of Article 372(1) of the Constitution. Even if the distribution of legislative power under the Constitution had been different than the one under the Government of India Act in this respect, nevertheless the Act of 1946 would have continued to be valid. It is now well established that the words 'subject to the other provisions of this Constitution' do nto refer to the distribution of the legislative powers in the three lists of the 7th Schedule of the Constitution. However, the distribution of legislative powers in the Constitution in this respect remained the same inasmuch as Entry 80 of List 1 of the Constitution was in the same terms as Entry 39 of the Federal Legislative List of the Government of India Act, and thereforee, the Delhi Special Police Establishment was also a police force belonging to a Part C State as contemplated by Entry 80 of the Union List of the 7th Schedule of the Constitution. This is why Parliament was competent to legislate to amend the Act in 1952. It cannto be disputed, thereforee, that the Act as amended in 1952, thereforee, continued to be a valid enactment.

19. Secondly, it is necessary to remember that in 1956 Parliament did nto amend the Act. The substitution of the words 'Union Territories' in place of the words 'Part C States' in the Act was made by the President acting under Article 372-A by the Adaptation of Laws (No. III) Order, 1956. The adaptation had to be made as the words 'Part C States' would have been meaningless and had to be substituted by the words 'Union Territories' after the commencement of the Constitution (7th Amendment) Act, 1956. The adaptation actually brought the Act into accord with the Constitution and cannot, thereforee, be challenged in any Court of law.

20. We must pause here to consider what is the grievance of the petitioner. Its grievance is that the Delhi Special Police Establishment is nto entitled to exist and operate under the Act of 1946 To succeed in this contention, the petitioner was bound to prove that the legislation of 1946 enacting the Act and that of 1952 amending the Act were ultra virus the Constitution. The petitioner has nto succeeded in doing so. The petitioner cannto validly contend that the continuance of the Delhi Special Police Establishment in any way depended on the adaptation made in 1956. The adaptation was made to bring the Act into conformity with the Constitution inasmuch as the Part C States were replaced by Union Territories in the Constitution. It cannto be said, thereforee, that this adaptation itself brought the Act into conflict with Entry 80 of List 1 of the 7th Schedule of the Constitution. It is only if Parliament were in need of legislating to constitute a Special Police Force belonging to a Union Territory that such legislation would have met with the objection that Entry 80 of List 1 contemplates only a special police force belonging to a State and nto to a Union Territory. But this question does nto arise as Parliament had no occasion to legislate after the Adaptation of 1956 to constitute a special police force belonging to Union Territories. The Special Police Force already existed. Its existence and continuance is nto invalidated by the fact that the Part C States to which it belonged were henceforth called Union Territories.

In S. I. Corporation (P) Ltd. v. Secretary, Board of Revenue : [1964]4SCR280 the Supreme Court had to consider the contention that an agreement which was validly entered into under Article 278 of the Constitution was automatically invalidated by the deletion of that Article and that the agreement was thereafter contrary to the Constitution, in particular to Article 277 thereof. The contention was repelled by their Lordships of the Supreme Court in the following words:--

'An obvious fallacy underlies this ingenious argument. The validity of an agreement depends upon the existence of power at the time it was entered into. Its duration will be limited by its terms or by the conditions imposed on the power itself. Article 278 conferred a power upon the Union and the B State to enter into an agreement which would continue in force for a period nto exceeding ten years from the commencement of the Constitution. The agreement in question fell squarely within the scope of the power. That agreement, thereforee, would have its full force unless the Constitution (Seventh Amendment) Act, 1956, in terms avoided it. The said amendment was only prospective in operation and it could nto have affected the validity of the agreement. We, thereforee, hold that the impugned assessment orders were nto yalid-ly made by the sales-tax authorities in exercise of the power saved under Article 277 of the Constitution.'

21. In this connection, it would be instructive to refer to the following decisions. In Bihar Mines Ltd. v. Union of India, : [1967]1SCR707 the majority held that the mineral lease, though granted prior to the Mines and Minerals (Regulation and Development) Act, 1948, was nto an existing lease within the meaning of that Act inasmuch as it vested in the State in 1949 and thereupon became a new lease. The majority did not, thereforee, consider the further question-whether the terms of the said lease could be modified under the Mining Leases (Modification of Terms) Rules, 1956 but the minority held that the lease continued to be an existing lease in spite of its vesting in this State. The minority, thereforee, considered the question whether the lease could be modified under the 1956 Rules. Counsel for the appellant had submitted that the 1956 Rules were invalid as they were laws with respect to acquisition of property for State purposes which could be made only by the State Legislature in view of Entry 36 of the State List as it stood before the Constitution (7th Amendment) Act. 1956, and as they did nto provide for payment of compensation. This contention was, however, repelled by the following observation (at page 892):--

'The Central Government professed to make the Rules in exercise of its powers under Section 7 of the pre-Constitution 1948 Act. The power to make the Rules was conferred on the Government by Section 7 of the 1948 Act and nto by Entry 36, List Ii of the Constitution. As the Rules did nto provide for payment of compensation in cases of reduction of the terms of the lease in conformity with Section 7(2)(b), they might nto have been originally valid; but they purported to have been made under the 1948 Act In view of Section 29 of the 1957 Act, the Rules, must now be deemed to have beep made under the 1957 Act as if that Act was in force when the Rules were made. The validity of the Rules, must now be judged with reference to the 1957 Act. As the Rules are in conformity with the 1957 Act they must be regarded as validly made under it.'

It would follow, thereforee, that the Notifications issued by the Central Government under Sections 3 and 5 of the Act and the consent given by the State Governments under Section 6 of the Act are to be considered under the provisions of the Act which is valid and nto with reference to adaptation made therein in 1956.

21A. In Inder Singh v. State of Rajasthan, : [1957]1SCR605 , the question was whether the Notification issued under Ordinance No. 9 of 1949 was valid. This Ordinance had been promulgated by the Rajpramukh whose power to legislate came to an end under Article 385 of the Constitution when the legislature of the State was constituted. On the date of the Notification, the Raipramukh had ceased to have the power to make the Ordinance. The Supreme Court upheld the Notification in the following words:--

'It cannto be contended that the Notification dated 20-6-1953 is bad, because after the Constitution came into force, the Raipramukh derived his authority to legislate from Article 385, and that under that Article his authority ceased when the legislature of the State was constituted. A Notification issued under Section 3 of the Ordinance was nto an independent piece of legislation such as could be enacted only by the then competent legislative authority of the State, but merely an exercise of a power conferred by a Statute which had been previously enacted by the appropriate legislative authority. The exercise of such a power is referable not' to the legislative competence of the Rajpramukh but to Ordinance No. Ix of 1949, and provided Section 3 is valid, the validity of the Notification is co-extensive with that of the Ordinance. If the Ordinance did nto come to an end by reason of the fact that the authority of the Raipramukh to legislate came to an end neither did the power to issue a Notification which was conferred therein. The true position is that it is in his character as the authority on whom power was conferred under Section 3 of the Ordinance that the Raipramukh issued the impugned Notification and nto as the legislative authority of the State.'

22. It is well established that a pre-Constitution law made by a competent authority will nto become invalid after the Constitution merely because it could nto have been enacted under the Constitution because of a change in the distribution of legislative powers. This is why numerous pre-Constitution Acts are still in force though under the distribution of legislative powers in the Constitution they could nto have been enacted by the same legislative authority after the Constitution. thereforee, the validity of the Act of 1946 as adapted in 1956 is nto to be judged by the test whether such legislation would now be competent to be undertaken by Parliament. The question is nto whether Parliament can now enact such a legislation. The question is whether the legislation which has already been enacted validly prior to 1956 becomes invalid merely because of the adaptation made into it by the President under Article 372A of the Constitution. So put, the question can have only one answer and that is, that the adaptation of 1956 cannto make the Act unconstitutional.

23. Alternatively, even as a matter of textual interpretation, the adaptation made in 1956 is nto contrary to Entry 80 of List 1. It is true that Section 3(58)(b) of the General Clauses Act does nto apply to the intepretation of the Constitution and hence the word 'State' in Entry 80 of List 1 cannto be construed to include 'Union Territories' relying on the definition of 'State' introduced therein by the adaptation of 1956. But the said definition applies to the construction of the Act of 1946 as adapted in 1956. What is the effect? Even if the adaptation lad nto been made in the Act of 1946, the word 'State' therein would have included 'Union Territories' because of the above-mentioned definition. If 'States' according to Section 3(58)(b) of the General Clauses Act include the 'Union Territories', the converse also must be true and a Union Territory must be included in a State. thereforee, a Special Force belonging to a Union Territory would be construed as belonging to a State. So viewed, the adaptation does nto conflict with Entry 80 of List 1.

24. That the converse use of definitions in the General Clauses Act, in the manner made above, is permissible will be shown by the following two decisions. In Union of India v. A.L. Rallia Ram, : [1964]3SCR164 paragraph (12), the correspondence constituting the contract was in the name of the Government of India and was nto expressed to be in the name of the Governor-General as required by Section 175(3) of the Government of India Act, 1935. Nevertheless, the Supreme Court held that the requirements of Section 175(3) were substantially complied with and observed as follows:

'The correspondence between the parties ultimately resulting in the acceptance note, in our judgment, amounts to a contract expressed to be made by the Government and thereforee, by the Governor-General, because it was the Governor-General, who had invited the tender through the Director of Purchases, and it was the Governor-General who through the Chief Director of Purchases accepted the tender of the respondent subject to the conditions prescribed therein.'

The equation of the Government with the Governor-General was obviously based on the definition of the 'Central Government' in Section 3(8)(a) of the General Clauses Act which stated that the Central Government in relation to anything done before the commencement of the Constitution meant the Governor-General. Similarly, in Ram Chander Singh v. State of Punjab, , the order was expressed to be in the name of the Governor as required by Article 166(2) of the Constitution. Nevertheless, the order was held to have substantially complied with the provisions of Article 166(2) apparently because the State Government is defined in Section 3(60) of the General Clauses Act to mean the Governor.

25. We, thereforee, hold that the Act of 1946 continued to be valid in spite of the adaptation made therein by the Adaptation of Laws Order (No. 3) of 1956.

Point NO. (4):--

26. The scheme of the Act of 1946 Is that it would apply to only such offences as would be notified under Section 3 of the Act by the Central Government. Without such a notification, the Act would nto have any real application at all. It is urged for the petitioner that the authority given to the Central Government is unfettered and unchannalised. It is pointed out that the original preamble of the Act of 1946 contained the words 'for the investigation of certain offences committed in connection with matters concerning Departments of the Central Government.' But, these words were omitted by the Amendment of 1952. Thereafter, there was no indication by the legislature as to what offences were to be notified by the Central Government under Section 3. the effect is that the Central Government can notify all possible offences there under and thus enjoy an arbitrary and unfettered power. This delegation, contends the petitioner, is excessive and, thereforee, unconstitutional.

27. In reply the learned Counsel for the respondents pointed out firstly that Section 3 is an instance of conditional legislation as distinguished from delegated legislation and that secondly even if it is delegated legislation it is nto excessive. In appreciating the precise, nature of Section 3, it is to be remembered that the Act of 1946 creates a Special Police Force in addition to the ordinary police force which already existed. The ordinary police force had several functions to discharge under the Police Act of 1861. Out of these several functions, only one function, viz., investigation of offences is conferred on this Special Police Force. Even this function is nto to extend to all the offences which the ordinary police force is to investigate but only to those offences which are notified by the Central Government under Section 3. It will be seen, thereforee, that even in the Union Territories the investigation by the Special Police is limited only to the notified offences and that the Special Police is nto concerned with any other functions of the ordinary police. As far as the States are concerned, the extension of the jurisdiction and powers of the police is dependent entirely on the consent of the State Government under Section 6. Such a consent can presumably be withdrawn by a State Government. The jurisdiction of the Special Police will nto continue after the withdrawal of the consent. The power of the Central Government is, thereforee, limited at both ends, viz., in conferring the initial jurisdiction and powers and in extending them to the States.

28. If, 'in the case of conditional legislation the power of legislation is exercised by the legislature conditionally, leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend' (Per Kapur, J. in : 1960CriLJ671 ) then, the power given by the legislature to the Central Government in Section 3 relates to the manner in which the Act is to be applied. That is to say, it is for the Central Government to decide what offences should be investigated by the Special Police in the Union Territories and for the State Governments to decide what offences should be investigated by this Special Police in their respective States by giving consent to such investigation under Section 6 of the Act. In numerous instances, the Courts have upheld the grant of such a power to the executive by the legislature. In the State of Bombay v. Narothamdas, : [1951]2SCR51 , Section 4 of the Bombay City Civil Court Act had empowered the Provincial Government to invest the City Court by notification with jurisdiction of such value nto exceeding rupees twenty-five thousand as may be specified in the notification. The Supreme Court held it to be conditional legislation and as such valid.

It is true that the upper limit of rupees twenty-five thousand was laid down by the legislature in that case. But in our case also the Act of 1946 creates only the Special Police keeping the ordinary police intact In the nature of things, thereforee, only such offences would be notified for inves-r-tigation by the Special Police as could nto be equally well investigated by the ordinary police, This is a built-in limitation on the power of the Central Government. In the Delhi Laws Act case Air 1951 Sc 332, the Central Government had been empowered to select such State laws as they might find suitable for application to Part C States and to apply such laws to the Part C States by notification. There was no indication in the Act as to what laws should be applied to the Part C States by the Central Government and apparently there was no limit on the power of the Central Government as to what laws should be so applied. Nevertheless, the Supreme Court upheld the power on the ground that the legislative policy underlying the Act was that Part C States were small areas which did nto have constitutional legislatures and it would nto be possible for- Parliament to go on legislating for them in respect of subjects included in the State list. It was, thereforee, more convenient to give the power to the Central Government to apply the Provincial laws to the Part C States.

It would be seen that the power given to the Central Government under Section 3 of the Act of 1946 is much more limited than the power given to the Central Government by the Delhi Laws Act. The powers to extend the life of an Ordinance given to the Rajpramukh was also held to be conditional legislation in : [1957]1SCR605 . In Basant Kumar v. Eagle Rolling Mills Ltd., : (1964)IILLJ105SC , the Central Government was empowered by the Employees' State Insurance Act, 1948, to decide to what factories the Act should apply in the same way as the Central Government is empowered under Section 3 of the Delhi Special Police Establishment Act, 1946, to decide what offences should be investigated by the Special Police. The Supreme Court held that this was conditional legislation and was, thereforee, valid. Assuming that there was an element of delegation, the Court held that there was enough guidance given by the relevant provisions of the Act and the very scheme of the Act itselt. In The Empress v. Burah. (1877) 5 I.A 178 (PC), the Lt, Governor of Bengal was given the power to extend all or any of the provisions contained in a statute to a certain district at such time he considered proper. The Privy Council held that the proper legislature had exercised its judgment as to place, persons, laws, powers and result of that judgment had been to legislate conditionally as to those things. The legislation was, thereforee, valid as conditional legislation. In Baxter v. Ahway (1909) 8 Clr 626, tht executive was given the power to notify to which goods the prohibition of imports was to apply just as the Central Government in our case is given the power to notify which offence would be investigated by the Special Police. This was held to be conditional legislation by the High Court of Australia.

29. Recently a Bench of seven Judges of the Supreme Court reviewed the whole case law on the subject of delegated legislation in the Delhi Municipal Corporation v. Birla Cotton Spinning & Weaving Mills Ltd. Ca 1857 and 1858 of 1967 D/- 23-2-1968 : [1968]3SCR251 . The question was whether Section 150 of the Delhi Municipal Corporation Act suffered from the vice of excessive delegation. Chief Justice Wanchoo speaking for the majority stated that the safeguards against the arbitrary exercise of the powers under the said Section were to be found in various provisions of the Act itself. Such implied guidance was sufficient to validate the delegation of the legislative powers.

30.' We are, thereforee, of the view that firstly Section 3 of the Act of 1946 is an instance of conditional legislation. Secondly, even if it is assumed to be delegated legislation, the safeguards and limitations on the power of the Central Government to be exercised under Section 3 are to be found in the fact that the ordinary police already existed to investigate the ordinary offences and, thereforee, the offences to be notified by the Central Government would only be such offences as cannto be well investigated by the ordinary police. Lastly, the investigation by the Special Police cannto be done in the States at all except by the consent of the State Governments. We, thereforee, hold that Section 3 of the Act is valid.

Point NO. (5):--

31. The original jurisdiction of the Delhi Special Police Establishment under Section 2(2) extends throughout the Union Territories in connection with the investigation of offences committed therein. Under Section 2(3), the Investigating Officer is to exercise all the powers of the officer-in-charge of a police station in the area in which he is for the time beinfl and he shall be deemed to be officer-in-charge of a police station discharging the functions of such an officer within the limits of his station. Under Section 156 of the Code of Criminal Procedure, the original jurisdiction of an Investigating Officer is confined to the investigation of the offences taking place in the local area or having a territorial nexus to it in precisely the same way as the local jurisdiction of a criminal Court is restricted in accordance with the provisions contained in Chapter Xv of the Code of Criminal Procedure. As distinguished from the jurisdiction, the powers of the Investigating Officer are nto restricted to any such local area. Under Section 54, a Police Officer may arrest certain persons anywhere. Under Section 58, a Police officer may pursue an offender into other jurisdictions. Section 165 enabling search and seizure also does nto restrict these powers of the Police to any local area. Under Section 166(1) and (3), the police can enter other local areas for investigation. Sections 160 and 161 also do nto place any restrictions as to local areas on the power of the police to examine witnesses. thereforee, the Special Police operating under the Delhi Special Police Establishment Act, 1946, are already possessed of powers to investigate anywhere in India an offence taking place in or having territorial nexus with a Union Territory.

The enactment of Section 5 would nto have been necessary if it had merely intended to give a power to the Special, Police to go beyond the Union Territories to investigate an offence provided it is committed within a Union Territory or Is connected with it. For, such powers were already available in the Code of Criminal Procedure. The language of Section 5 makes it clear that it enables the Special Police to investigate an offence which has been committed outside the Union Territory. For, Section 5(1) says that the Central Government may extend beyond the Union Territories the powers and the jurisdiction of the Special Police to investigate an offence notified under Section 3. It does nto say that the offence should have been committed within the Union Territories. Section 5(2) says that when the jurisdiction and powers of the Special Police is so extended to any such area (meaning an area beyond the Union Territories) the Special Police may discharge the functions of a Police Officer in that area (meaning beyond the Union Territories) and shall while so discharging such functions be deemed to be a member of the police force of that area and be vested with the powers of a police officer belonging to that police force (that is to say, a police force belonging to an area outside the Union Territories). Section 5(3) confers the powers of an officer-in-charge of a police station situated outside the Union Territories on the Special Police investigating an offence within the limits of such a police station. Nothing can be clearer to show that Section 5 confers the same powers on the Special Police as are enjoyed by the ordinary police of the local area outside the Union Territories in which the offence is being investigated including the power of an officer-in-charge of the police station. We have, thereforee, no difficulty in rejecting the contention that Section 5 does nto enable the Special Police to investigate an offence nto committed within a Union Territory.

Point NO. (6):--

32. The Bombay Police Act, 1951, no doubt consolidates the police forces of the different parts of the State into one common police force. It could not, however, repeal the Delhi Special Police Establishment Act, 1946, authorising the Special Police to go into the State of Maharashtra with the consent of the Maharashtra Government to investigate an offence which has been committed there. The consent given by the Government of Maharashtra under Section 6 of the Act is in the form of a letter dated 2nd July 1960 from the Government of Maharashtra acting through Shri J.C. Agarwal, Deputy Secretary to that Government in the Home Department. It is Annexure L at page 141 of the paper-book. It is addressed to the Secretary, Government of India, Ministry of Home Affairs and says that the Government of Maharashtra consents to the Delhi Special Police Establishment exercising powers and jurisdiction in the State of Maharashtra for the investigation of offences specified in the Notifications of the Government of India issued under Section 3 of the Delhi Special Police Establishment Act, 1946. Out of the four notifications which are mentioned in the said letter, we are concerned with the very first Notification, viz., Notification No. 7-5-55-AVD dated the 6th November 1956, which is reproduced as Annexure R2/B at page 204 of the paper-book. The offences involved in the present case, viz.. Sections 409 and 477-A of the Indian Penal Code, and conspiracies to commit those offences are all Included in the Notification of the 6th November 1956 issued by the Ministry of Home Affairs under Section 3 of the Delhi Special Police Establishment Act. It is true that the letter of consent itself does nto set out the offence to the investigation of which the consent was given, But it is a legitimate method of describing the offences to refer to the Central Government Notification under Section 3 of the Act dated the 6th November 1956 and to say that the offences described therein are the offences to the investigation of which the consent is given. In adopting this method of describing the offences, the letter of consent incorporated the description of the offences committed in the letter dated the 6th November, 1956 into the consent letter itself.

33. Learned counsel for the petitioner further argued that the said Notification issued under Section 3 has since then been repealed and superseded by another Notification though in the new Notification also all the offences which are being investigated in the present case are included. Learned counsel, however, argues that the repeal of the Notification under Section 3 which was referred to in the consent letter prevents the Special Police, from investigating this case. We see no force in this argument. The principle of Section 8 of the General Clauses Act would apply here. The letter of consent referred to the Notification under Section 3 which was in force when the consent letter was issued. The repeal of the said Notification and the issue of a new one in supersession of it would be like the repeal and re-enactment of a statute. Under Section 8, the reference to the repealed enactment thereafter is to be construed as a reference to the re-enacted provisions. For the same reason, the reference in the consent letter would have to be construed as a reference to the Notification which has repealed the Notification referred to in the consent letter. It would be contrary to all principle to take the view that the State Government has to go on issuing new letters of consent merely because the Central Government chose to issue new Notifications under Section 3. In fact, the State Government may refuse to issue a new letter of consent on the ground that it wanted the consent to be restricted to the offences mentioned in the Notification referred to in the consent letter. The superseding Notification may contain additional offences to the investigation of which the State Government may nto wish the consent. In our opinion, thereforee, the letter of consent con tinues to be valid and it is so valid in the present case.

34. The giving of consent by the State Government was no doubt an exercise of the executive power of the Government. Ordinarily, such an order or instrument expressing the consent has to be expressed in the name of the Governor and has to be authenticated by an authorised person under Article 166(2) of the Constitution. Though the letter of consent is nto expressed to be in the name of the Governor, it is expressed in the name of the Government of Maharashtra. A State Government is defined in Section 3(60)(c) of the General Clauses Act to be the Governor. The provisions of Article 166(2) corresponding to the provisions of Article 77(2) have been held to be directory and nto mandatory. The legal position on a review of the Supreme Court decisions on this point has been stated by a Division Bench of the Punjab High Court in paragraph (25) as follows:--

'The analysis of the law laid down by the Supreme Court in the various judgments referred to above would show that it is by now settled:

(1) That the provisions of Article 166 of the Constitution are directory and nto mandatory. They are merely enabling provisions.

(2) That Clauses (1), (2) and (3) of Article 166 have to be read together. Clause (1) should nto be read divorced from Clause (2) as an independent provision, The requirements of Clause (2) have to be fulfillled in accordance with the rules of business framed under Clause (3).

(3) When an order or instrument containing or referring to an executive action of the Government of a State complies with the requirements of Clauses (1) and (2) of Article 166, it would be immune from attach in Court of law on the ground that the order or the instrument had nto in fact been made or executed by the Governor of the State.

(4) That non-compliance with the provisions of either or both of first two clauses of Article 166 of the Constitution would only result in the order losing the protection contained in Clause (2) which it would have enjoyed if the order had been expressed in the manner required by Clause (1) and authenticated in accordance with the rules of business framed under Clause (3):

(5) That if the protection contained in Clause (2) of Article 166 of the Constitution is nto available in respect of any particular order or instrument and the order or instrument is challenged in a Court of law on the ground that it wag not, in fact, made by the Governor of the State, the burden of proof would shift to the State authorities to prove affirmatively that the order or instrument was, in fact, made or executed by the Governor: and

(6) That in order to see whether the requirements of Article 166 of the Constitution have or have nto been satisfied in a particular case, it is the substance of the Article which has to be kept in view and if the substance of the requirements of the Article are satisfied, the protection given by that Article should be allowed to be invoked even though the expression used in the order or the instrument is nto exactly identical in every respect with the wording of that Article.'

35. Applying the above-mentioned. principles, the Punjab High Court held that the order of the State Government, nto expressed in the name of the Governor, but only in the name of the Govern-, ment, was in substantial compliance with! Article 166(2) of the Constitution. According to this reasoning, the consent letter dated 2nd July 1960 substantially complies with Article 166(2) and is valid. The respondents have, however, filed an affidavit by Shri S.P. Agashe, Undersecretary to the Government of Mahara-shtra, which is at page 211 of the paper-book, in which Shri Agashe stated as follows:--

'In or about June, I960, the then Chief Minister of the State of Maharashtra was in charge of the Home Department. The papers underlying letter No. Dpe 1260/6554-V dated the 2nd July 1960 regarding the consent under Section 6 of the Delhi Special Police Establishment Act, 1946, of the State Government to the functioning of the Delhi Special Police Establishment in the State of Maharashtra, were placed before the Chief Minister, prior to the said letter being issued. After reading and careful consideration of those ropers, the Chief Minister passed the order granting consent. Under the Rules of Business he was competent to pass the said order. Thereafter the said consent was conveyed to the Government of India under the above-said letter. The letter was signed by Shri J.C. Agarwal who was then Deputy Secretary to the Government of Maharashtra in the Home Department and was as such authorised to sign such letters.'

36. It Is contended for the petitioner that firstly the Rules of Business of the: Government of Maharashtra have nto been produced. The Rules of Business made under Article 166(3) of the Constitution would be statutory rules. Judicial notice would have been taken of the same. They are nto a fact which has to be proved by primary evidence. Certified copies of the same also would have been admissible in evidence. Learned counsel for the respondents offered to produce a copy of the Rules. The respondents should ' have done this before the stage of the arguments. But we are nto prepared to be so technical as to hold that the Rules of Business did nto authorise the Chief Minister of the State to give the consent. We, thereforee, accept the affidavit of the officer of the State Government that the Chief Minister was so authorised. On that view we do nto think that the non-production of the Rules of Business should raise an adverse inference against the respondents that the Rules of Business either did nto exist or that, if produced, they would be against the case of the respondents. Such an adverse inference could have been raised only if the affidavit of Shri Agashe would not' have been filed. In view of the affidavit, we do nto think that such an adverse inference can be raised.

37. The next contention of the petitioner was that the order of the Chief Minister itself or his noting on the file should have been produced. It is well known that the orders on the noting on the file are never produced either for public inspection or in Courts of law. What is produced is the orders or the letters which are meant to be communicated to the public. The letter dated 2nd July 1960 is the communication of the Maharashtra Government on the subject and it is sufficient that a copy of it has been produced. The affidavit of Shri Agashe says that Shri Agarwal was authorised to sign the consent letter. The authority is also given under Article 166(2) of the Constitution by a Notification, which also being a statutory notification was a public document of which judicial notice could be taken. In view of the affidavit, no adverse inference can be drawn against the respondents for the non-production of the Notification under Article 166(2) giving authority to the Deputy Secretary Shri Agarwal to authenticate an order on behalf of the Governor. It is well known that all officers from Under Secretary to the Secretary of the Central and State Governments are ordinarily authorised by Notifications under Arts. 77(2) and 166(2) of the Constitution to act on behalf of the President and the Governor in exercise of the executive power of the State, In view of this well-known position, we have no doubt that Shri Agarwal as the then Deputy Secretary must have been authorised to sign the consent-letter on behalf of the Government of Maharashtra.

38. If the petitioner had really intended to take the stand that, in fact, no con-' sent was given by the Government oi Maharashtra or that Shri Agarwal was nto entitled to sign the consent letter on behalf of the Government of Maharashtra then the petitioner should have made a definite pleading and sworn an affidavit to that effect. Without such a pleading and affidavit pointedly raising such an issue, the Court is nto bound to go into it at all, as was observed by the Supreme Court recently in Ishwarlal v. State of Gujarat : [1968]2SCR267 . We, thereforee, hold that the consent of the State Government has been properly proved.

Point NO. (7):--

39. A perusal of Sections 104 and 105 of the Insurance Act makes it clear that they are nto identical with the offences punishable under Sections 405 and 409, Indian Penal Code, for which the petitioner is being prosecuted. In the State of Bombay v. S. L. Apte, : 1961CriLJ725 , the Supreme Court has also specifically held that the offence under Section 409, Indian Penal Code, is nto identical with the offence under Section 105 of the Insurance Act. Further, the offence to conspiracy punishable under Section 120-B of the Indian Penal Code is nto re produced in the Insurance Act. The respondents could not, thereforee, be expected to prosecute the petitioner under Section 105 of the Insurance Act rather than under Sections 405, 409 and 120-B of the Indian Penal Code, if the latter offences were more suitable to the facts of the case. There is nothing to show at all that the facts of the case are better covered by Section 105 of the Insurance Act and that they are nto covered by Sections 405, 409 and 120-B of the Indian Penal Code. thereforee, the question of the respondents trying to by-pass the requirement of sanction under the Insurance Act does nto arise at all. We find so.

40. The learned counsel for the petitioner did nto press the contentions regarding mala fides and discrimination. It is well known that the question of mala fides does nto arise if the respondents have the power to investigate the offences against the petitioner and if there is nothing to show that they are influenced by irrelevant considerations in doing so. The question of discrimination also does nto arise inasmuch as the Delhi Special Police Establishment is precisely in the same position as the ordinary police in investigating the offencea against the petitioner. No prejudice is caused to the petitioner by the fact that the investigation is done by the Special Police rather than by the ordinary police. No question of discrimination, thereforee, arises. In view of the above findings, we dismiss the writ petition with costs. Counsel's fee Rs. 1000/-.

41. Petition dismissed.


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