ISHWAR DAS MALHOTRA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal, by special leave, is directed against the judgment of the Jammu and Kashmir High Court holding that the Delhi Special Police Establishment Act, 1946, (25 of 1946) was validly extended to the State of Jammu and Kashmir by the Jammu and Kashmir (Extention of Laws) Act, 1956 hereinafter referred to as the Extension Act. The High Court decided this question on a reference made by the Special Magistrate, under S. 432 of the Code of Criminal Procedure, before whom the challan had been filed under the Ranbir Penal Code on November 29, 1967. The only question involved in this appeal before us is as to the validity of the aforesaid extension.

(2.) In order to appreciate the contentions of the learned counsel in this respect, it is necessary to give an account of the constitutional provisions applicable to the State of Jammu and Kashmir. On January 26, 1950 the Constitution of India came into force. In exercise of the powers conferred by cl. (1) of Art. 370 of the Constitution of India, the President, in consultation with the Government of the State of Jammu and Kashmir, made the Constitution (Application to Jammu and Kashmir) Order, 1950. This order was superseded by another order in 1954. By that order, one of the entries on which Parliament could make laws was entry 80 of List I of the Seventh Schedule of the Constitution. This entry reads as follows: "Extension of the powers and jurisdiction of member of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside the State."

(3.) By the Extension Act, which received the assent of the President on September 25, 1956, the Delhi Special Police Establishment Act, 1946, was extended to the State of Jammu and Kashmir in the following manner. Section 1 (2) of the Extension Act provided that "it shall come into force on such date as the Central Government may, be notification in the Official Gazette, appoint." Section 2 provided as follows: