TARUN KUMAR SENGUPTA Vs. UNION OF INDIA

JUDGEMENT

(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 Under Article: 372 of the Constitution all laws in force prior to the Constitution would continue until repealed or altered by competent authority.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:--

(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:--

(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.