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Tarun Kumar Sengupta Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 489 (W) of 1971
Judge
Reported inAIR1973Cal56
ActsCentral Reserve Police Force Act, 1949 - Sections 3, 6 and 16; ;Constitution of India - Articles 226 and 372
AppellantTarun Kumar Sengupta
RespondentUnion of India (Uoi) and anr.
Appellant AdvocateA.P. Chatterjee and ;Samar Dutt, Advs.
Respondent AdvocateGouri Mitter, Adv. General, ;Soumen Bose, ;Bhagbati Prosad Banerjee, ;Paritosh Kumar Mukherjee and ;Sujit Sinha, Advs.
DispositionPetition allowed
Cases ReferredVenkata Rao v. State of Andhra Pradesh
Excerpt:
- ordersabyasachi mukharji, j.1. two questions are involved in this application under article 226 of the constitution namely,--(i) whether the central reserve police force act 1949 is valid law and (ii) whether the petitioner has any locus standi to maintain this application. the central reserve police force act, 1949 was enacted by the constituent assembly by virtue of section 8 (1) of the indian independence act, 1947. under sub-section (2) of section 8 of the said act the constituent assembly while exercising the powers of legislation had only the powers that the federal legislature had under the government of india act, 1935. under article: 372 of the constitution all laws in force prior to the constitution would continue until repealed or altered by competent authority. therefore in.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. Two questions are involved in this application under Article 226 of the Constitution namely,--

(i) whether the Central Reserve Police Force Act 1949 is valid law and (ii) whether the petitioner has any locus standi to maintain this application. The Central Reserve Police Force Act, 1949 was enacted by the Constituent Assembly by virtue of Section 8 (1) of the Indian Independence Act, 1947. Under Sub-section (2) of Section 8 of the said Act the Constituent Assembly while exercising the powers of legislation had only the powers that the Federal Legislature had under the Government of India Act, 1935. Under Article: 372 of the Constitution all laws in force prior to the Constitution would continue until repealed or altered by competent authority. Therefore in order to be law in force the said law must have been valid law when it was enacted. The main question, therefore, that requires consideration is whether the Federal Legislature had the powers under the Government of India Act, 1935 to enact the Central Reserve Police Force Act, 1949. It is, therefore necessary to refer to the relevant provisions of the Government of India Act, 1935. Part V of the Government of India Act, 1935 deals with legislative powers, chapter I contains sections on the distribution of the powers. Section 99 deals with the extent of Federal and Provincial laws. Section 100 provides as follows:--

'100. (1) Notwithstanding anything in the two next succeeding sections, the Federal Legislature has and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the 'Federal Legislative List').

(2) Notwithstanding anything in the next succeeding sub-section, the Federal Legislature, and, subject to the preceding sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter) called the 'Concurrent Legislative List').

(3) Subject to the two preceding sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the 'Provincial Legislative List)'.

(4) The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.'

Section 101 deals with the powers of the Federal Legislature to legislate for States, Section 102 provides for the power of Federal Legislature to legislate in case of emergency, Section 103 deals with the power of the Federal Legislature to legislate for two or more Provinces by consent. Section 104 of the Act states-

'104. (1) The Governor-General may by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act, including a law imposing a tax not mentioned in any such list, and the executive authority of the Federation or of the Province, as the case may be, shall extend to the administration of any law so made, unless the Governor-General otherwise directs.' Section 106 of the Act makes provisions as to legislation for giving effect to international agreements. Section 107 states-

'107. (1) If any provision of a Provincial Law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian Law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section the Federal Law, whether passed before or after the Provincial law, or as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

(2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to the matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General has received the assent of the Governor-General, the Provincial law shall in the Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter.'

The Seventh Schedule contains the different lists. List I is the Federal Legislative List and has 59 entries. Entry 1 as substituted by the India (Provisional Constitution) Order, 1947 provides as follows:--

'1. The naval, military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion: and armed forces which are not forces of the Dominion but are attached to or operating with any of the forces of the Dominion; central intelligence bureau; preventive detention for reasons of Stale connected with defence or external affairs.' List II is the Provincial List and has 54 entries. Entry I of the said fist as modified by the Indian (Provisional Constitution) Order 1947, is to the following effect:--

'1. Public Order, the administration of justice, constitution and organisation of all courts, except the Federal Court, and fees taken therein, preventive detention for reasons connected with the maintenance of pub lie order; persons subjected to such detention.' Entry 3 provides:--

'3. Police, including railway and village) police.' List III is the Concurrent List and has two parts containing in total 36 entries. Entries 1 and 2 are as follows:--

'1. Criminal law, including all matters included in the Indian Penal Code at the date of the passing of this Act but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of His Majesty's naval, military and air forces in aid of the civil power.

2. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act.'

2. The Central Reserve Police Force Act, 1949 came into effect from the 28th December, 1949, after being passed by the Constituent Assembly acting as the Federal Legislature. It was adopted by the Adoption of Laws Order, 1950. It was an Act to provide for the constitution and regulation of an armed Central Reserve Police Force. The preamble of the Act states that whereas it was expedient to provide for the constitution and regulation of an armed Central Reserve Police Force, the Act was being passed. Section 2 provides definitions. Section 3 provides for the constitution of the force, Section 4 deals with appointment and powers of superior officers, Section 5 with enrolment, Section 6 with resignation and withdrawal from the Force. Section 7 deals with general duties of the members of the Force. Section 7 is as follows:--

'General duties of members of the Force:-- (1) It shall be the duty of every member of the Force promptly to obey and to execute all orders and warrants lawfully issued to him by any competent authority, to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist.

(2) Every member of the Force shall be liable to serve without and beyond, as well as within, the territory of India.'

Sections 8 to 15 deal with the superintendence, control and administration of the Force and internal discipline of the Force. Section 16 deals with the powers and duties conferrable and imposable on members of the Force. Section 16 is as follows:--

'16. Powers and duties conferrable on members of the Force:--

(1) The Central Government may, by general or special order, confer or impose upon any member of the Force any of the powers or duties conferred or imposed on a police officer of any class or grade by any law for the time being in force.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the Central Government may invest the Commandant or an Assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the Force and punishable under this Act, or any offence committed by a member of the Force against the person or property of another member:

Provided that- (i) when the offender is on leave or absent from duty or (ii) when the offence is not connected with the offender's duties as a member of the Force, or (in) when it is a petty offence, even if connected with the offender's duties as a member of the Force, the offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed, so directs, be inquired into or tried by an ordinary Criminal Court having jurisdiction in the matter.' Section 17 provides for protection for acts of members of the Force. Section 18 gives the power to make rules. Section 19 deals with validation of acts done before commencement of the Act.

3. Counsel for the petitioner submitted that the police was a provincial subject and the Federal Legislature under the Government of India Act, 1935, was incompetent to legislate on the subject of the police. It was urged that the Central Reserve Police Act, 1949 was in essence and in pith and substance a legislation dealing with the police. It was also pointed out that the name of the Act and the Force constituted under the Act was also significant. It was an Act to constitute a Police Force. My attention was also drawn to the fact that the expenses in connection with the said police are met from the Civil Budget. For the reasons aforesaid, counsel for the petitioner submitted that the Act was ultra vires the powers of the Constituent Assembly when it enacted the impugned law. Learned Advocate-General on the other hand contended that Constitution of an armed Police Force was permissible under Entry 1 of List I of the Government of India Act, 1935. In view of the expression 'any other armed forces', learned Advocate-General further submitted that the Constitution of the Central Reserve Police Force was valid, the conferment of powers on that Police Force was also valid in view of the Entry 1 and Entry 2 of List III of the Government of India Act, 1935. It was urged that 'criminal law' or in any event 'criminal procedure', were wide enough concepts to include within their ambit the powers given to the Central Reserve Police Force. It was submitted that for dealing with offences, defined crimes to be defined by any proper authority later if power and authority were given to certain body of persons, that came within the expression 'criminal procedure'. Reliance was placed on Section 40 of the Indian Penal Code and Sections 54, 55, 59, 62, 149, 151 and 152 of the Code of Criminal Procedure and also on Section 1 of the Police Act, 1861. My attention was also drawn to Clause (38) of Section 3 of the General Clauses Act. It was submitted that the powers given by Section 23 of the Police Act, 1861 were procedural and would be covered by Entry 2 in List III of the Government of India Act, 1935. It was also urged by the learned Advocate-General that the fact that the 'Police' was a State subject did not prevent the Government of India from maintaining or recruiting the cadre of the officers under the Indian Police Service. In the premises it was submitted that the Central Reserve Police Force was a valid piece of legislation. Learned Advocate-General further submitted that the petitioner in any event had no locus standi to maintain this application under Article 226 of the Constitution. Reliance was placed on certain decisions to which reference will be made later.

4. In order to determine the controversy raised in this case, it would be necessary to reiterate certain principles regarding the interpretation and construction of constitutional provisions of the Government of India Act, 1935. In the case of Prafulla Kumar Mukherjee v. Bank of Commerce, Ltd.. Khulna, 74 Ind App 23 (AIR 1947 PC 60), the Judicial Committee observed that in distinguishing between the powers of the divided jurisdictions under Lists I, II and III of the Seventh Schedule to the Government of India Act, 1935, it was not possible to make a clean cut between the powers of the various legislatures. They were bound to overlap from time to time, and the rule which had been evolved by the Judicial Committee whereby an impugned statute was examined to ascertain its pith and substance or its true nature and character for the purpose of determining in which particular list the legislation fell, applied to the Indian as well as to Dominion legislation. The extent of the invasion by the provincial legislature into subjects enumerated in the Federal List was material for the purpose of determining what was the pith and substance of the impugned Act. The Judicial Committee quoted with approval the observations of Sir Maurice Gwyer, C. J., in Subramanyan Chettiar v. Muttuswami Goundan . In the case of R. M. D. C. v. Union of India : [1957]1SCR930 the Supreme Court observed that in order to determine whether an act was valid or not, it was necessary to find out the aim, scope and object of the Act. In the case of the State of Rajasthan v. G. Chawla : 1959CriLJ660 , the Supreme Court was concerned with the validity of Ajmer (Sound Amplifiers Control) Act under the Constitution of India. The Supreme Court observed the legislatures in our country possessed plenary powers of legislation. That was so even after the division of legislative powers subject to this that the supremacy of the legislatures was confined to the topics mentioned in the Entries in the Lists conferring respectively powers on them. These entries, though meant to be mutually exclusive, were sometimes not really so. They occasionally overlapped and were to be regarded as enumeratio simplex of broad categories. The Supreme Court also observed where in an organic instrument such enumerated powers of legislation existed and there was a conflict between the rival lists, it was necessary to examine the impugned legislation in its pith and substance and only if that pith and substance fell substantially within an Entry or Entries conferring legislative powers, was a legislation valid, a slight transgression upon a rival list, notwithstanding. The Supreme Court also observed that in order to find out the pith and substance, it was necessary to examine the language and purpose of the legislation. In the case of Balaji v. Income-tax Officer, : [1961]43ITR393(SC) , the Supreme Court observed that it was well settled that the Entries in the Lists were not powers but were only fields of legislation and that widest import and significance should be given to the language used by the Parliament in the various entries. It was held that the Entry 54 in the Federal List should be read not only as authorising the imposition of a tax but also as authorising an enactment which prevented the tax imposed being evaded. In the case of Calcutta Gas Company (Proprietary) Ltd., v. State of West Bengal, : AIR1962SC1044 the Supreme Court observed that in the matter of construing entries in the lists given in the Seventh Schedule of the Constitution certain rules were well settled. The power to legislate was given to the appropriate legislature by Article 246 of the Constitution. (In the Government of India Act, 1935 corresponding to Article 246 of the Constitution, Section 100 of the Government of India Act, 1935 gives the power to legislate). The Supreme Court further observed that the entries in these lists were only legislative heads or fields of legislation, they demarcated the area over which the appropriate legislatures could operate. It was also settled that widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list might overlap and sometimes might also appear to be in direct conflict with each other. It was then the duty of the Court according to the Supreme Court, to reconcile the entries and bring about harmony between them. The Supreme Court laid down that the underlying principle in such cases was that general power ought not to be so construed as to make a nullity of a particular power conferred by the same Constitution and operating in the same field, when by reading the former in a more restricted sense effect could be given to the latter in its ordinary and natural meaning. Thus, every attempt should be to harmonize the apparently conflicting entries not only of different Lists but also of the same List and to reject that construction which would rob one of the entries of its entire content and make it nugatory. Entries in the different lists should be construed liberally and with all their implications. Chief Justice Marshal of the American Supreme Court observed in the case of McCulloch v. Maryland, (1819) 4 Wheat 316 'A constitution, to contain an accurate detail of all the sub-divisions of which its great powers will admit and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. Its nature, therefore, requires that only the great outlines should be marked, its important objects designated and minor ingredients which compose those objects be deduced from the nature of the objects themselves.' While construing the several entries widely and with implications it is important to bear in mind that the aim of the Government of India Act, 1935 was to make the different lists as exhaustive as possible. It was observed by the Judicial Committee in the case of Governor-General v. Province of Madras regarding the Government of India Act, 1935 that the lists were made as exhaustive as to leave little or nothing in the residuary field. In the case of C. P. Officer v. K. P. Abdulla and Bros., : [1971]2SCR817 , the Supreme Court observed a legislative entry did not merely enunciate powers, it specified a field of legislation and the widest import and significance should be attached to it. Power to legislate on a specified topic included the powers to legislate in respect of matters which might fairly and reasonably be said to be comprehended therein. A taxing entry, therefore, conferred power upon the legislature to legislate for matters ancillary or incidental including provision for preventing evasion of tax. But the power conferred by Sub-section (3) of Section 42 of Madras General Sales Tax Act to seize and confiscate and levy penalty in respect of all goods which were carried from one State to another in a vehicle whether the goods were sold or not was not incidental or ancillary to the power to levy sales tax. Furthermore, in view of the controversy in this case it is necessary to remember that the principle of ejusdem generis is applicable in construing the several entries in the different lists of the 7th Schedule of the Government of India Act, 1935. In the case of State of West Bengal v. S. K. Sirajuddin Batley, : [1954]1SCR378 the principle was applied by the Supreme Court in interpreting The Indian Independence (Rights, Property and Liabilities) Order 1947. But the said principle should not be normally applied in interpreting the constitutional provisions and should only be applied with caution.

5. With the above principles in mind it is necessary to examine the provisions of the Central Reserve Police Force Act, 1949 to find out to which entry or entries of the three lists of the 7th Schedule of the Government of India Act, 1935 properly and appropriately belonged. Section 3 of the Central Reserve Police Force Act, 1949 states that there shall continue to be an armed force maintained by the Central Government which shall be called the Central Reserve Police Force. Entry 1 of List 1 of the 7th Schedule of the Government of India Act, 1935 speaks of 'The Naval, military and air force of the Dominion and any other armed forces raised or maintained by the Dominion ..................'. Central Reserve Police Force is certainly an armed force raised or maintained by the Central Government. But two questions arise here, namely, whether the principle of ejusdem generis has any application here, and whether the Central Reserve Police Force Act, 1949 in pith and substance is an Act to maintain an armed force raised by the Central Government. If general word follows particular and specific words of the same nature as itself takes its meaning from them, then it is presumed to be restricted to the same genus as those words. In other words the general words are to be read as comprehending only things of the same kind as those designated by the specific words, unless of course, there be something to show, that a wider sense was intended, as for instance a proviso specifically excepting certain classes clearly not intended within the suggested genus. Reliance may be placed on Maxwell on Interpretation of Statutes, 11 Ed. p. 326, 327. This is known as the doctrine of ejusdem generis. But there is no scope of the application of this doctrine unless there is a genus or category. In the instant case Entry 1 List I of the 7th Schedule of the Government of India Act, 1935, the expressions 'the naval, military and air forces of the Dominion' are followed by the expression 'any other armed forces maintained by the Dominion'. The naval, air and military forces form one category these connote the armed forces of the country for its defence. Therefore the expression 'any other armed forces' tend to indicate those forces which belong to the category of forces as army, navy and air force and those forces which are for the defence of the country. By the application of the doctrine of the ejusdem generis it should be inappropriate to include a civil armed force created for the public order and for the prevention and detection of crimes in the category of 'any other armed forces' in Entry I of List I of the 7th Schedule of the Government of India Act, 1935. This is an important factor which has to be borne in mind but it would be inappropriate to exclude the Central Reserve Police Force from the category of the 'any other armed forces' in Entry I of List I of the 7th Schedule of the Government of India Act, 1935 solely or mainly on this ground. It is, therefore, necessary to examine the pith and substance of the Central Police Force Act, 1949. The said Act brings into existence a body of men known as the Central Reserve Police Force. It extends to the whole of India. All human institutions are supposed to be for certain purposes, these do not exist independently of the purposes. The Central Reserve Police Force Act, 1949 has 19 sections -- most of the sections deal with the set up and discipline of the force and only two sections namely Section 7 and Section 16 deal with the duties of the members of the Force. These have been set out before. Under Section 7 the duties are -- (1) to promptly obey and execute all orders and warrants, lawfully issued to him by any competent authority, (ii) to detect and bring offenders to justice and (iii) to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist. Sub-section (2) of Section 16 deals with the authority and power of the commandant and assistant commandant of the Force with the members of the Force. Sub-section (1) of Section 16 cm-powers the Central Government, by special or general order, to confer and impose upon any member of the Force any of the powers or duties conferred or imposed on a police officer of any class or grade for the time being in force. Under Entry 3 of List II of the 7th Schedule to the Government of India Act, 1935 'Police' was a subject on which the provincial legislature had the exclusive jurisdiction to legislate. In the Oxford Dictionary, the word 'Police' has been defined in the following manner -- 'The department of Government which is concerned with the maintenance of public order and safety, and the enforcement of law; the extent of its functions varying greatly in different countries and at different periods. The Civil Force to which is entrusted the duty of maintaining public order, enforcing regulations for the prevention and punishment of breaches of the law, and detecting crime.' In the case of State of Punjab v. Barkat Ram, : [1962]3SCR338 the Supreme Court observed as follows:--

'The Police Act, 1861 (Act V 1861), is described as an Act for the regulation of police, and is thus an Act for the regulation of that group of officers who come within the word 'police' whatever meaning be given to that word. The preamble of the Act further says: 'whereas it is expedient to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime, it is enacted as follows. 'This indicates that the police is the instrument for the prevention and detection of crime which can be said to be the main object and purpose of having the police. Sections 23 and 25 lay down the duties of the police officers and Section 20 deals with the authority they can exercise. They can exercise such authority as is provided for a police officer under the Police Act and any Act for regulating criminal procedure. The authority given to police officers must naturally be to enable them to discharge their duties efficiently. Of the various duties mentioned in Section 23 the more important duties are to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorised to apprehend. It is clear, therefore, in view of the nature or the duties imposed on the police officers, the nature of the authority conferred and the purpose of the Police Act, that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order.'

The Supreme Court observed at p. 289 of the report as follows:--

'Shortly stated, the main duties of the police are the prevention and detection of crimes. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually begins to operate on different subjects. Various Acts dealing with Customs, Excise, Prohibition, Forest, Taxes, etc., came to be passed, and the prevention, detection and investigation of offences created by those Acts came to be entrusted to officers with nomenclatures appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime? If he does, he will be a police officer.'

6. The Police Act, 1861 as amended as modified by the different provincial and State legislatures regulates and controls the police. In the preamble to the said Act it had been stated that it was passed as it was expedient to reorganise the Police and make it a more efficient instrument for the prevention and detection of crime. Section 23 of the Police Act is in the following terms:--

'23. Duties of Police officers. It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances; to detect and bring offenders to justice, and to apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient grounds exist; and it shall be lawful for every police officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking shop, gaming-house on other place of resort of loose and disorderly characters.'

7. It should be observed that the essential functions and duties of the Police Officers under the Police Act as well as the members of the Central Reserve Police Force under the Central Reserve Police Act 1949 are identical, namely, (i) to obey and execute all orders and warrants lawfully issued to them by any competent authority, (ii) to detect and bring offenders to justice, (iii) to apprehend all persons whom they are legally authorised to apprehend and for whose apprehension sufficient grounds exist. All these duties arc essential duties for the detection and prevention of crimes and maintenance of public law and order. As mentioned, hereinbefore, the Central Reserve Police Force Act, 1949 also authorised the Central Government to confer all the powers of the Police Officers of any Grade on the members of the Central Reserve Force. It appears to me that in pith and in substance, the Central Reserve Police Force Act, 1949 was an Act dealing with the subject of Police. The aim, object and purpose of the said Act were to create a body of men for performance of the functions which are performable by the members of the Police. The only difference is that all the members of the Central Reserve Police Force are armed and the various sections of the Act authorised and imposed a strict military discipline for the members of the Central Reserve Police Force. But the object for their creation appears to be the performance of the functions perform-able by the police in a more efficient manner. Police, as mentioned, hereinbefore, was a Provincial subject under the Government of India Act, 1935. It has been held and, with respect in my opinion rightly, in the case of Pooran v. U. P. State, : AIR1955All370 that the word 'police' was wide enough to empower the State Legislature to create an armed constabulary.

8. As mentioned hereinbefore, learned Advocate-General first contended that the impugned legislation would be valid under Entry 1 of List III of the 7th Schedule of the Government of India Act, 1935. I am unable to accept this position. Criminal Law would mean and include legislation creating new offences or new crimes. The expression 'Criminal Law' does not cover a legislation which docs not create any offence or any crime as such. The creation of a force OB a body of men for the prevention and detection of crime docs not, in my opinion, come within the ambit of the expression 'criminal law' however liberally and widely that expression might be construed. Criminal Law connotes only the quality for such acts or omissions as arc prohibited under the appropriate penal provision by the authority of Haw. Reliance may be placed on the observations of the Judicial Committee in the case of Proprietary Association v. Attorney General, AIR 1931 PC 99 of the report Reliance may also be placed on the observations of the Privy Council in the case of In re: The Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919 (1922), 1 AC 191 at p. 199 of the report.

9. It was then contended that the impugned legislation so far as the conferment of powers on the members of the Central Reserve Force by Section 7 and Section 16 of the Act were concerned, would be covered by the expression 'criminal procedure' in Entry II of List III of the 7th Schedule of the Government of India Act, 1935. In this connection, as mentioned hereinbefore, learned Advocate-General, referred to the various provisions of the Code of Criminal Procedure in support of the proposition that the powers which have been given to the various police officers under the Code of Criminal Procedure are for the detection and prevention of crimes. The argument was that though the members of the Central Reserve Police Force had the powers to deal with the powers and duties of the Police Officers as members of the Central Reserve Police Forces, these powers and duties were still the subject-matter of the 'Criminal Procedure Code' and as such were covered by Entry II of List III of the 7th Schedule of the Government of India Act, 1935. It is true that various powers have been given by the Code of Criminal Procedure itself to the Police Officers for the prevention and detection of crimes. It is also true that the expression 'procedure' in its widest connotation would include all stages involved for the detection, prevention and prosecution of crimes and offences. But it has to be borne in mind that the expression 'procedure' has also a restrictive connotation. In the case of State of Seraikella v. Union of India : [1951]2SCR474 the expression 'procedure' was construed to mean the successive steps in litigation. See also the observations in the case of Colonial Sugar Refining Co. v. Irving, 1905 AC 369. Criminal Procedure Code, as mentioned, hereinbefore, deals with the various sections and various powers have been given to the Police Officers and others thereby for the prevention and detection of crimes and for execution of all lawful warrants. But it appears to me that in case of an Act which deals only with the creation of a body of men for certain specified purposes and the purposes being prevention and detection of crimes and maintenance of law and order, it is not possible to construe or to consider such a legislation as falling within the ambit of the expression 'Criminal Procedure'. It has to be emphasised that the Central Reserve Police Force Act, 1949 creates no offence, imposes no obligation as such upon the citizen but only creates an armed body of men to perform the identical functions performable by the members of the Police Force. Therefore, this legislation, in my opinion, has to be construed differently from other legislations whereby offences are created and incidentally for the proper detection and prevention of such offences, certain procedural powers identical with the powers of the Police Officers are given to the persons charged with the administration of those legislations. It is also different from an act which deals mainly with the matters of procedure of litigations, criminal or civil, and incidentally gives certain authority and jurisdiction to the Police Officers or give certain authority or jurisdiction to others similar to those enjoined by the Police Officers. Furthermore, as has been observed by the Supreme Court, in the case of : AIR1962SC1044 that the general power ought not to be so construed as to make a nullity of a particular power conferred in the same field, when by reading the former in a more restricted sense effect could be given to the latter in its ordinary and natural meaning. Therefore, the effect should be given to the expression 'police' appearing in Entry III of List II of the 7th Schedule of the Government of India Act, 1935 and that expression would be robbed of its meaning and content if it is held that by virtue of expression 'any other armed forces' in Entry I list I of the 7th Schedule or 'Criminal Procedure' of Entry II of List III of the 7th Schedule, an Act could have been passed for the creation of a body of men for the performance of the functions of the police in an efficient and effective manner. The question can also be looked at from another point of view. Could the provincial legislature have passed a similar Act like the Central Reserve Police Act, 1949 for the province under the head 'Police' in Entry III of List II of the Government of India Act, 1935? In my opinion it could have passed such a legislation. It has further to be borne in mind that 'Public order' was a provincial subject.

10. For the reasons aforesaid, I have, therefore, come to the conclusion that in pith and substance in view of its aim, scope and purpose, the Central Reserve Police Act 1949 is an Act dealing with the 'Police' and comes within the expression 'police' in Entry 3 of List II of the 7th Schedule of the Government of India Act, 1935. In the premises the said legislation was ultra vires and beyond the competence of the Constituent Assembly acting as the Federal Legislature. In the premises, it was an invalid law at the time when it was enacted and as such it could not have been law in force when the Constitution came into force.

11. It has to be emphasised that the question might have been different if the impugned legislation had been passed by the Parliament under the Constitution of India. It has to be remembered that the Article 248 of the Constitution gives the residuary powers of the Constitution (sic) is significantly differently worded from the Section 104 of the Government of India Act, 1935 which dealt with the residuary powers of legislation. My attention was not drawn to any notification empowering the Federal Legislature in terms of the Section 104 of the Government of India Act, 1935 to enact the impugned legislation. It has to be noted, further, that Entry 97 of the List I of the Constitution of India deals with the residuary powers of the Parliament There was no such corresponding entry in the Government of India Act, 1935. It is therefore not necessary for me to consider the principles which the Supreme Court had occasion to consider in the case of Union of India v. Harbasan Singh Dhillon : [1972]83ITR582(SC) . It is also necessary to point out that under the Constitution of India Entry I of List II of the 7th Schedule deals with the public order but excludes from the concept of public order the use of naval, military or armed force or any other armed force of the Union in aid of the civil powers. But in Entry I of List II of the Government of India Act, 1935 the concept of public order did not exclude the use of 'any other armed force'. In view of the fact that the Central Reserve Police Act, 1949 applies to the whole of India the question whether the impugned legislation was otherwise valid under Sub-section (4) of Section 100 of the Government of India Act 1935 does not fall for consideration.

12. Learned Advocate-General contended that the fact that 'police' was a provincial subject did prevent continuance of an All India Police Service, That is so but that is because of Section 244 of the Government of India Act, 1935 and Article 312 of the Constitution of India. This argument therefore cannot support the proposition contended for by the learned Advocate-General.

13. Counsel for the petitioner drew my attention to the fact that expenses for the Central Reserve Police were met out of Civil Budget. That in my opinion is not a relevant consideration for the determination of the question whether the Act was valid or not. Counsel also relied on the name of the force in support of his argument. Name is a factor but not a decisive or an important factor in adjudicating the validity of the Act.

14. The next question that requires consideration, is whether the petitioner has any locus standi to maintain this application. The petitioner, admittedly was not arrested or had not been inflicted any punishment by the members of the Central Reserve Police Force. The petitioner is a citizen of India. He is a resident of West Bengal. He was formerly a member of the Legislative Assembly. It has been further stated that the members of the Central Reserve Police Force have been stationed in different parts of West Bengal. The petitioner has alleged certain wrongful acts on the part of the members of the Central Reserve Police Force. It is not necessary for me to determine whether those alleged acts took place or not or whether the said acts were justified or not. Affidavits have been filed on behalf of the respondents controverting the allegations made on behalf of the petitioner. The petitioner had made this application on behalf of the people of West Bengal. He sought for leave under Order 1, Rule 8 of the Code of Civil Procedure but he was not granted such leave. The petitioner belongs to the Communist Party of India (Marxist) and claims that he resides at Dum Dum Police Station. According to the petitioner, on the 13th January, 1971, a procession of workers belonging to his Party led by the petitioner was halted and dispersed by the Central Reserve Police Force. The last allegation was however made by the petitioner in his affidavit-in-reply which the respondents had no occasion to controvert. The question is, upon these facts, has the petitioner any locus standi to maintain this application. Learned Advocate-General drew my attention to the case of : AIR1962SC1044 (supra) in support of the submission that the petitioner had no legal right. The Supreme Court observed in the aforesaid decision that Article 226 of the Constitution in terms did not describe the classes of persons entitled to apply thereunder, but it was implicit for the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right was the foundation for the exercise of jurisdiction of the High Court, under Article 226. The legal right that could be enforced under Article 226 of the Constitution should ordinarily be the right of the petitioner himself who complained of infraction of such right and approached the court for relief. The right that could be enforced under Article 226 also should ordinarily be personal or individual right of the petitioner himself. It appears that in the case of Venkata Rao v. State of Andhra Pradesh : [1966]2SCR172 , the Supreme Court had occasion to consider the question and the Supreme Court observed at page 833 of the report as follows:--

'Has the appellant a right to fib the petition out of which the present appeal has arisen? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Centre. The said committee collected Rupees 10,000/- and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the- location of the Primary Health Centre at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorised to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Article 226 of the Constitution. This Court held in the decision cited supra that 'ordinarily' the petitioner who seeks to file an application under Article 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest: it can also relate to an interest of trustee. That apart, in exceptional cases as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Article 226 of the Constitution at his instance is, therefore, maintainable.'

It appears to me that it is true that unless the impugned legislation is enforced against a particular person that person has no right to challenge the validity of the Act. It however is clear that maintenance of law and order is a matter in which all citizens are affected and regulations imposed by such legislations, which empower Police Officers to perform the various duties for the maintenance of law and order and for the detection and prevention of crimes, become enforceable against all. It has to be also borne in mind that the petitioner is connected with certain political party. In this country political parties often take the method of agitation. Those who enforce law and order come in direct contact often with those who are in active agitational public life. The members of the Central Reserve Police Force have been deployed in the different parts of West Bengal. The petitioner has stated about a procession being halted by the members of the Central Reserve Force which was being led by the petitioner. Though the petitioner made this allegation in the affidavit in reply -- respondents did not seek any opportunity to file any affidavit to controvert this particular allegation. In the premises in my opinion it cannot be said that the petitioner has not been prejudiced by the impugned legislation and its enforcement in West Bengal. Petitioner's prejudice was not problematic or remote but actual and immediate. In the premises I am of the opinion that the petitioner has locus standi to maintain this application.

15. The petitioner is obviously one of those who does not like the presence of the Central Reserve Police in West Bengal. I am not oblivious to the fact that there are sections of people in West Bengal who want the continuance of the Central Reserve Police Force in West Bengal. But the views of either of these sections and my personal views, whatever they may be and if there be any, about the desirability of the continuance of the Central Reserve Force in West Bengal are not relevant at all in determining the validity of the impugned legislation.

16. For the reasons mentioned hereinbefore I must hold that the Central Reserve Police Force Act, 1949 was ultra vires the Government of India Act, 1935 and as such was not law in force within the meaning of Article 372 of the Constitution. The respondents are, therefore, directed to forbear from giving effect to the Central Reserve Police Force Act, 1949 in West Bengal, and further directed not to enforce the said Act in the State. Let writ in the nature of mandamus issue accordingly. The Rule is made absolute to the extent indicated above. There will be no order of the costs of this application. In view of the fact that this legislation has continued for a considerable length of time, I stay the operation of the order passed today for a period of twelve weeks to enable the respondents to take such steps as they may be advised.


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