SHREE RANJIT NARAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The change brought about in the language of section 7 of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as the old Code) by the Code of Criminal Procedure, 1973 (hereinafter to be called the new Code), to which a detailed reference will be made hereinafter at an appropriate place has given rise to the construction of the much talked of term "after consultation with" in this application under Article 226 of the Constitution. While the petitioner challenges the legality and validity of the State Government notification dated 6th April, 1978 (copy marked annexure 1 to the petition) as being without any consultation with the High Court in consonance with the provisions of section 7 (2) and (3) of the new Code, the stand of respondent no. 1 has been that the statutory requirement of consultation with the High Court has been fulfilled, making annexure 1 immune from any legal attack. But before going into this question, the facts, admitted as they are, culminating in the impugned nontification must be noticed.

(2.) On 9th November, 1976 the State Government issued a notification transferring Kuseshwar Asthan Police Thana from Samastipur sessions division to Darbhanga sessions division with effect from 1st December, 1976. This was admittedly done after consultation with the High Court. A copy of this notification has been annexed with the counter-affidavit filed on behalf of respondent no. 1 and marked annexure A. Even before the ink was dry on the notification aforementioned, on 26th September, 1977 the Principal Secretary to the State Government in the Personnel and Administrative Reforms Department (District Reorganisation Branch) wrote to the Registrar of this High Court intimating that the proposal for retransferring Kusheshwar Asthan Police Thana from Darbhanga to Samastipur district was under consideration of the State Government and that the State Government wanted that it should be re-transferred to Samastipur district. The opinion of the High Court was solicited on this proposal. A copy of the letter has been marked Annexure D to the counter affidavit. In response to the letter, the Registrar of this High Court, wrote to the Principal Secretary on 23rd November, 1977 (copy marked annexure E) stating that from the point of view of Administration of Criminal and Civil Justice Kuseshwar Asthan police station should remain tagged with Benipur sub-division of Darbhanga district ; the proposal of the State Government was not acceptable to the High Court. Soon thereafter the Principal Secretary wrote back to the Registrar on 17th December, 1977 (copy marked Annexure F) stating that the present State Government thought that the police station concerned ought to remain in the Samastipur district as before the issuance of the notification dated 9-11-76 (Annexure A) as the files in the Patna Secretariat did not show any substantial reason for transference of Kuseshwar Asthan police station from the Samastipur sessions division to the Darbhanga sessions division. I he only reason advanced in (Annexure F) was that keeping in view the sentiments of the people in general the State Government desired to re-transfar Kuseshwar Asthan police station from Darbhanga sessions division to Samastipur session division. As pieces of further correspondence, the Registrar wrote back to the Principal Secretary on 7th February, 1978 (copy marked annexure G) stating "I am directed to enquire as to whether there are any fresh and good reasons for suggesting revision......" Replying to the Registrar's letter (Annexure G) the Principal Secretary wrote back only 3 days later on 10th February, 1978 (copy marked annexure J) stating that the reason given in (annexure F) was the only reason and that the State Government had nothing more to say on the subject. On 11th March, 1978 the Registrar communicated the opinion of the High Court (copy marked Annexure K) stating that the High Court sticks to its earlier decision. Then on 6th April, l978 the impugned notification (annexure 1) was issued by the State Government re-transferring Kuseshwar Asthan police station from Darbhanga sessions division to Samstipur sessions division. There is no controversy about these facts.

(3.) In view of the respective contention of the parties with regard to the compliance or otherwise with ths requirements of section 7 of the new Code, it is worthwhile to take note of the provision of sections 7 and 9 of the old Code and compare them with those of the new Code. The relevant portions of sections 7 and 9 of the old Code are reproduced hereunder:-