Madras High Court
N.S.Ganeswaran vs The Union Of India on 28 January, 2016
Bench: V.Ramasubramanian, N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 28.01.2016
Orders Reserved on: 19.01.2016
Orders Pronounced on: 28.01.2016
Coram
THE HONOURABLE Mr.JUSTICE V.RAMASUBRAMANIAN
and
THE HONOURABLE Mr.JUSTICE N.KIRUBAKARAN
Writ Petition (MD) Nos.1043 of 2016
to 1045 of 2016
and
WMP(MD)Nos.856 to 861 of 2016
N.S.Ganeswaran ... Petitioner in
all the WPs
vs.
1.The Union of India,
through its Secretary,
Department of Personnel, Public Grievances &
Pensions, North Block,
New Delhi-110 001.
2.The Inspector of Police,
SPE:CBI:ACB:,
Shastri Bhavan, III-Floor,
Chennai. ... Respondents in
all the WPs
Common Prayer:
Writ petitions under Article 226 of the Constitution of India,
praying for issuance of a writ of declaration, declaring the provisions of
Sections 5 and 6 of Delhi Special Police Establishment Act, 1946 is illegal,
unconstitutional, ultravires which affects the petitioner and the 2nd
respondent having no jurisdiction to conduct the investigation in the State
of Tamil Nadu and further forbearing the 2nd respondent not to conduct any
investigation under the above said provisions of the Act.
!For Petitioner : Mr.S.D.Dwarakanath
in all the WPs
For Respondents : Mr.Mr.G.R.Swaminathan,
in all the WPs Asst.Solicitor General.
:ORDER
(Order of the Court was made by V.RAMASUBRAMANIAN,J) The petitioner, who is one of the accused in three criminal cases in C.C.Nos.13 of 2006, 16 of 2006 and 2 of 2015, now pending on the file of the Special Court for CBI Cases, Madurai, has come up with the above three writ petitions praying for the issue of a writ of declaration, to declare the provisions of Sections 5 and 6 of the Delhi Special Police Establishment Act, 1946 as illegal and unconstitutional and ultra vires.
2. We have heard Mr.S.D.Dwaraganath, learned counsel appearing for the petitioner. Mr.G.R.Swaminathan, learned Assistant Solicitor General, takes notice for the respondents.
3. The petitioner herein is the second accused in C.C.No.13 of 2006 on the file of the Special Court for CBI Cases, Madurai, for the alleged offences under Sections 120-B, read with 420 IPC and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. He is also the third accused in C.C.No.16 of 2006 on the file of the Special Court for CBI Cases, Madurai, for the alleged offences under Sections 120-B read with 420 read with 471 IPC and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. In C.C.No.2 of 2015 on the file of the very same court, the petitioner is the second accused for the very same offence alleged in C.C.No.16 of 2006.
4. Without going into the minute details, it can be stated that the transactions which formed basis of the criminal cases in which the petitioner was implicated related to the sanctioning of certain limits by two nationalised banks, namely Punjab National Bank and State Bank of Travancore. The allegations revolved around the creation of fictitious entities, sanctioning of cash credit limits, etc. The cases are now pending before the Special Court. In the meantime, the petitioner has come up with a challenge to Sections 5 and 6 of the Delhi Special Police establishment Act, 1946.
5.At the outset, even from the averments contained in the affidavits in support of the writ petitions, it will be clear that the writ petitions are not maintainable. In paragraphs 3 to 9 of the affidavits in support of the writ petitions, the petitioner has stated that there are conflicting decisions of the Supreme Court on the question of the definition of the word 'State' between (i) Management of Advance Insurance Co.Ltd. v. Shri Gurudasmal & Others - [1970] 3 SCR 881, and (ii) Shiv Kirpal Singh v. V.V.Giri - 1971(2) SCR 197 and New Delhi Municipal Corporation v. State of Punjab - (1997) 7 SCC 339. Contending that the Supreme Court has delivered conflicting decisions in Management of Advance Insurance Co.Ltd. vs. Shri Gurudasmal & Others, Shiv Kirpal Singh vs. Shri V.V.Giri and New Delhi Municipal Corporation vs.State of Punjab, the petitioner has claimed that the law on the point has to be settled by resolving the conflict between these decisions.
6.In other words, the petitioner is asking the High Court to resolve the conflict between the two decisions of the Supreme Court. We do not know how we are competent to do so. All that we can do is to provide a ticket on 'Thatkal' to the petitioner to enable him to take it to the Supreme Court.
7.The main contention of Mr.S.D.Dwarakanath, learned counsel for the petitioner is that in Management of Advance Insurance Co.Ltd., the Supreme Court held that the amended definition of the word 'State' in Section 3(58) of the General Clauses Act would apply to the interpretation of the Constitution, by virtue of Article 372-A and that the word 'State' appearing in Entry 80 of List-I of the Seventh Schedule of the Constitution must be read as respects any period after the commencement of the Seventh Amendment, so as to include Union Territories. But, in Shiv Kirpal Singh, the Supreme Court held that the definition of 'State' in Section 3(58) of the General Clauses Act would apply to interpretation of all laws of Parliament, but it would not apply to the interpretation of the Constitution. In New Delhi Municipal Corporation, the Court held that the new definition of the word 'State' that includes Union Territories, appearing in Section 3(58) of General Clauses Act, is inapplicable to Article 246(4) of the Constitution. Therefore, the contention of the petitioner is that Sections 5 and 6 of the Delhi Special Police Establishment Act are null and void.
8.We have carefully considered the above submissions.
9.Sections 5 and 6 of the Delhi Special Police Establishment Act, 1946 read as follows:
"5.Extension of powers and jurisdiction of special police establishment to other areas.--(1)The Central Government may by order extend to any area (including Railway areas), in a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3.
(2)When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf discharge the functions of a police officer in that area and shall while so discharging such functions be deemed to be a member of the police force of the area and be vested with the powers, functions and privilege and be subject to the liabilities of a police officer belonging to that police force.
(3)Where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-
Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.
6.Consent of State Government to exercise of powers and jurisdiction.-- Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory of Railway, area, without the consent of the Government of that State."
10.We do not think that the contentions of the petitioner are sustainable. This is not the first time that the question as to the vires of Sections 5 and 6 of the Delhi Special Police Establishment Act are raised. In Kazi Lhendup Dorji vs. Central Bureau of Investigation ? 1994 Supp.(2) SCC 116, an argument was advanced on behalf of the State of Sikkim, as could be seen from paragraph 11 of the judgment, that the Parliament does not have legislative competence to make a law providing for extension of powers and jurisdiction of members of a police force belonging to a Union Territory to any area outside the Union Territory. While repelling the said contention, the Supreme Court stated in paragraph 13 of its decision as follows:
"13.The contentions urged by Shri Hegde about the legislative competence of Parliament to enact Section 5 and 6 of the Act stands concluded by the decision of the Constitution bench of this Court in Advance Insurance Co. Ltd. v. Gurudasmal wherein the expression "State" in Entry 80 of List I in the Seventh Schedule to the Constitution has been construed to include "Union Territory" in view of the definition of "State"contained in Section 3(58) of the General Clauses Act and it has been held that members of police force belonging to the Union Territory can have their powers and jurisdiction extended to another State provided the Government of that State consents."
Therefore, the decision in Advance Insurance Company was followed in Kazi Lhendup Dorji, without noting any conflict between the said decision and Shiv Kirpal Singh.
11.Again in State of West Bengal vs. Committee for Protection of Democratic Rights ? (2010) 3 SCC 571, a Constitution Bench of the Supreme Court considered the decision in the Management of Advance Insurance Company and Kazi Lhendup Dorji. It was contended before the Supreme Court in State of West Bengal that the Delhi Special Police Establishment Act was enacted in exercise of the power conferred by the Government of India Act, 1935 read with Entry 39 of List-I (Federal Legislative List) of the Seventh Schedule. This Entry 39 actually became Entry 80 of List-I of the Seventh Schedule of the Constitution. After referring to Entry 2 of List-II, which confers exclusive jurisdiction on the State Legislature with regard to the Police Force, it was contended before the Supreme Court that the exclusive jurisdiction of a State Legislature cannot be encroached upon. It was also argued that if the Parliament were to pass a law that authorises the police of one State to investigate in another State, such a law would be pro tanto invalid and would offend the Federal Structure.
12.All the above arguments were raised in State of West Bengal for the purpose of showing that the third organ of the State, namely Judiciary, cannot direct the Central Bureau of Investigation to do something in respect of a State subject without the consent of the concerned State Government. But, after taking note of Entry 80 of List-I and Entry 2 of List II, the Supreme Court upheld the power of the Constitutional Courts to direct CBI to take up the investigation of any crime even without the consent of the State Government. The Court held in paragraph 68(iv) as follows:
?If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of the power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.?
13.Therefore it is clear that the provisions of Sections 5 and 6 of the Delhi Special Police Establishment Act have already come to be interpreted by the Supreme Court in a particular manner. Despite the fact that Section 6 mandates the consent of a State to be obtained before a member of the Delhi Special Police Establishment Act exercises the powers and jurisdiction in any area, the Supreme Court has upheld the power of the Constitutional Courts. Therefore, it is needless to point out that a provision of law which came to be interpreted in several decisions of the Supreme Court cannot be taken to be unconstitutional. Hence, the writ petitions are liable to be dismissed.
14.Moreover, we do not know as to how the petitioner seeks to draw support from Section 3(58) of the General Clauses Act. As we have pointed out earlier, the Delhi Special Police Establishment Act, 1946 is a pre-Constitution Enactment. It was enacted in terms of Entry 39 of List-I of the Seventh Schedule of the Government of India Act, 1935. At the time when the 1946 Act was enacted, what was in existence was a Federation of India, comprising of (i) the provinces, and (ii) the Indian States, which have acceded or which may accede to the Federation. Entry 39 of the Federal Legislative List, namely List-I of the Seventh Schedule under the Government of India Act, 1935, read as follows:
?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 not so as to enable the police of one part to exercise powers and jurisdiction elsewhere without the consent of the Governor 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.?
15.When the Constitution was adapted, the country was supposed to be a Union of States as seen from Article 1(1) of the Constitution. It was only by the Constitution (7th Amendment) Act, 1956, that clauses (2) and (3)(b) were substituted for the existing provisions of Article 1. Simultaneously, the expression 'State' appearing in Section 3(58) of the General Clauses Act, 1857 was amended by the Adaptation of Laws (No.1) Order, 1956.
16.Under Article 372(1) of the Constitution, it was declared that notwithstanding the repelling of the Government of India Act, 1935 and the Indian Independence Act 1947 by virtue of Article 395, all the laws in force in the territory of India immediately before the commencement of the Constitution would continue in force, until altered or repealed or amended by a competent legislature or other competent authority. Only for bringing any provision of any law in force in the territory of India in accord with the provisions of the Constitution, the President was empowered under Article 372(3) to make such adaptations and modifications as may be necessary for expedient.
17.Article 372-A was inserted only by Constitution (7th Amendment) Act, 1956 for the purpose of bringing the provisions of any law in force in India, immediately before the commencement of the 7th Amendment in accord with the provisions of the Constitution. Therefore, the purported conflict of opinion, as sought to be projected by the learned counsel on the basis of Article 372-A, is only illusory.
18.Hence, we find no merits in the writ petitions. Therefore, the writ petitions are dismissed. No order as to costs. Connected WMPs are also dismissed..