Patna High Court - Orders
Md. Kamal Ashraf & Ors vs The State Of Bihar Through The Director ... on 8 March, 2017
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.563 of 2013
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Md. Yunus, S/o Late Md. Siddique @ Sadique Resident Of Village-
Chandanpatti, P.S- Sakra, District- Muzaffarpur (Bihar).
.... .... Petitioner.
Versus
1. The State of Bihar through the Director General of Police, Bihar, Patna.
2. The Joint Secretary, Department of Home Police, Bihar, Patna.
3. The Under Secretary, Department of Home Police, Bihar, Patna.
4. The Inspector General of Police (Economic Offence Unit),Bihar, Patna.
5. The Deputy Inspector General of Police (Economic Offence Unit),
Bihar, Patna.
6. The Superintendent of Police, Economic of Offence Unit-3, Bihar,
Patna.
7. The Deputy Superintendent of Police-cum-Station House Officer,
Economic Offence Unit, Bihar, Patna.
8. The Senior Deputy Superintendent of Police-cum- Investigating Officer,
Economic Offence Unit, Bihar, Patna.
9. The Deputy Inspector General of Police, Vigilance, Bihar, Patna.
.... .... Respondents.
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WITH
Criminal Writ Jurisdiction Case No.231 of 2016
Arising Out of PS.Case No. -null Year- null Thana -null District- PATNA
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1. Md. Kamal Ashraf, son of Late Md. Nayim Ashraf alias Syed Abdul
Nayim
2. Naghma Shadab, wife of Md. Kamal Ashraf Both resident of A/8 Ali
Nagar, Anisabad, Police Station- Gardanibagh, District- Patna.
3. Md. Wali @ Mohammad Wali, son of Md. Ali resident of 216 B/1-B
Ali Nagar Colony, Anisabad, Police Station- Gardanibagh, District-
Patna.
4. Md. Ziyaullah @ Zeyaullah, son of Md. Jamaluddin, resident of Flat
No.103, Devdut Mansion, Pandoi Kothi, Boring Road, Police Station-
S.K. Puri, District- Patna.
5. Md. Ameem Alam @ Ameen Alam, son of Md. Jawed Alam, resident
of C/o Sarfaraj Alam, Akhlaque Lodge, Moharrampur, Bakarganj,
Police Station- Gandhi Maidan, District- Patna. .... .... Petitioners.
Versus
1. The State of Bihar through the Director General of Police, Bihar, Patna.
2. The Joint Secretary, Department of Home (Police), Bihar, Patna.
3. The Under Secretary, Department of Home (Police), Bihar, Patna.
4. The Inspector General of Police (Economic Offence Unit), Bihar, Patna.
5. The Deputy Inspector General of Police (Economic Offence Unit), Bihar,
Patna.
6. The Superintendent of Police, Economic Offence Unit-3, Bihar, Patna.
7. The Deputy Superintendent of Police-cum-Station House Officer,
Economic Offence Unit, Bihar, Patna.
8. The Deputy Inspector General of Police, Vigilance, Bihar, Patna.
9. The Senior Deputy Superintendent of Police, Economic Offence Unit-
cum-I.O. of the case, Bihar, Patna. .... .... Respondents.
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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WITH
Criminal Writ Jurisdiction Case No.353 of 2016
Arising Out of PS.Case No. -null Year- null Thana -null District- PATNA
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Deepak Kumar Abhishek, S/o Late Rajendra Prasad Srivastava, resident of
M.O.-East Ashok Nagar Road No.-14. at present residing at Chaudhari
Niwas, C/o Bhikhari Chaudhary, East Ashok Nagar, P.S.-Kankarbagh,
District-Patna. .... .... Petitioner.
Versus
1. The State of Bihar through the Director General of Police, Bihar, Patna.
2. The Joint Secretary, Cum Department of Home (Police) Bihar, Patna.
3. The Under Secretary, Department of Home (Police), Bihar, Patna.
4. The Inspector General of Police (Economic Offence Unit), Bihar, Patna.
5. The Deputy Inspector General of Police (Economic Offence Unit),
Bihar, Patna.
6. The Superintendent of Police (Economic Offence Unit), Bihar, Patna.
7. The Deputy Superintendent of Police-Cum-S.H.O. (Economic Offence
Unit), Bihar, Patna.
8. The Deputy Superintendent of Police-Cum-Investigating Officer
(Economic Offence Unit), Bihar, Patna.
9. The Deputy Inspector General of Police Vigilance, Bihar, Patna.
.... .... Respondents.
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WITH
Civil Writ Jurisdiction Case No.1219 of 2016
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Sunil Kumar Son of Sri Basudeo Yadav resident of village - Shankarpur,
Post - Gajpatti, Police Station - Hasanpur, District - Samastipur.
.... .... Petitioner.
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar,
Patna.
2. The Principal Secretary, Department of Home, Government of Bihar,
Patna.
3. The Director General of Police, Bihar, Patna.
4. The Superintendent of Police, Economic Offence Cell, Bihar, Patna.
5. The Station House Officer, Economic Offence Cell, Bihar, Patna.
.... .... Respondents.
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WITH
Civil Writ Jurisdiction Case No.6660 of 2016
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Alok Kumar, Son of Late Ram Chandra Prasad, Resident of House No-274,
Patliputra Colony, Police Station- Patliputra Colony, Police Station-
Patliputra, District- Patna. .... .... Petitioner.
Versus
1. The State of Bihar through Principal Secretary to Govt. Home
Department Patna, Bihar.
2. The Director General of Police, Bihar, Patna.
3. The Joint Secretary, Department of Home Police, Bihar, Patna.
4. Under Secretary, Department of Home Police, Bihar, Patna.
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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5. The Inspector General of Police, Economic Offence Unit, Bihar, Patna.
6. The Superintendent of Police, Economic Offence Unit, Bihar, Patna.
7. The Senior Deputy Superintendent of Police, Economic Offence Unit,
Bihar, Patna.
8. Station House Officer (SHO) Economic Offence Police Station Patna.
.... .... Respondents.
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Appearance :
(In Cr. WJC No.563 of 2013)
For the Petitioner : Mr. B.P. Pandey, Sr. Adv.
Mr. Rakesh Kumar, Adv.
For the State : Mr. Rakesh Dwivedi, Sr. Adv.
Mr. Anjani Kumar, AAG-4.
Mr. Kinkar Kumar, SC-9.
For the EOU : Mr. V.N.P. Sinha, Sr. Adv.
Mrs. Soni Srivastava, Adv.
(In Cr. WJC No.231 of 2016)
For the Petitioners : Mr. B.P. Pandey, Sr. Adv.
Mr. Chakrapani, Adv.
Md. Shamimul Hoda, Adv.
Mr. Ambuj Nayan Chaubey, Adv.
Mr. Ranjan Kumar Srivastava, Adv.
For the State : Mr. Rakesh Dwivedi, Sr. Adv.
Mr. Anjani Kumar, AAG-4.
For the EOU : Mr. Akhileshwar Pd. Singh, Sr. Adv.
Mr. Rajeev Ranjan Prasad, Adv.
(In Cr. WJC No.353 of 2016)
For the Petitioner : Mr. Sanjay Kumar Sinha, Adv.
For the State : Mr. Rakesh Dwivedi, Sr. Adv.
Mr. Anjani Kumar, AAG-4.
For the EOU : Mr. V.N.P. Sinha, Sr. Adv.
Mrs. Soni Srivastava, Adv.
(In CWJC No.1219 of 2016)
For the Petitioner : Mr. Chakarapani, Adv.
Mr. Sanjay Kumar Singh, Adv.
Mr. Dipak Kumar, Adv.
Mr. Madhuresh Singh, Adv.
Mr. Ashutosh Kumar, Adv.
For the State : Mr. Rakesh Dwivedi, Sr. Adv.
Mr. Anjani Kumar, AAG-4.
For the EOU : Mr. V.N.P. Sinha, Sr. Adv.
Mrs. Soni Srivastava, Adv.
(In CWJC No.6660 of 2016)
For the Petitioner : Mr. Y.S. Lohit, Adv.
Mr. Ranjan Kumar Srivastava, Adv.
Mr. Rajeshwar Prasad, Adv.
For the State : Mr. Rakesh Dwivedi, Sr. Adv.
Mr. Anjani Kumar, AAG-4.
For the EOU : Mr. V.N.P. Sinha, Sr. Adv.
Mrs. Soni Srivastava, Adv.
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
C.A.V. JUDGMENT
There being a difference of opinion amongst the two
Hon‟ble Judges of this Court, comprising the Division Bench, of the
then Hon‟ble the Chief Justice, Hon‟ble Mr. Justice I.A. Ansari and
Hon‟ble Mr. Justice Chakradhari Sharan Singh, these cases have been
referred to this Court.
2. The primal question involved in these group of writ petitions
is, whether the exercise carried on by the State Government in
establishing "Economic Offence Police Station" is an exercise in futility
or not, because based thereon what would be the effect on the F.I.R. so
registered, police investigation, charge-sheet, trial and conviction?
3. The then Hon‟ble the Chief Justice held that steps taken by the
State Government, being not in accordance with the Bihar Police Act,
2007, the registration of the F.I.R., investigation would all be nullity and
no prosecution could be based thereon. Whereas, Hon‟ble Mr. Justice
Chakradhari Sharan Singh held that the declaration of police station was
a matter completely covered by the Code of Criminal Procedure, 1973
and as such there was no illegality enuring to the benefit of the writ
petitioners, who are sought to be prosecuted, consequent to F.I.R. lodged
with the said police station and investigated through it.
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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4. Having perused the two conflicting opinions and heard the
parties at length, in my view, the opinion of Hon‟ble Mr. Justice
Chakradhari Sharan Singh appears to be correct. I give hereunder the
reasons for the same.
5. To begin with one has to note the relevant provisions of the
two legislations, i.e. the provisions of the Code of Criminal Procedure
and the Bihar Police Act, 2007, then to note the constitutional provisions
and its effect in respect of the two legislations. For ready reference, the
relevant provisions of the Code of Criminal Procedure, 1973 and the
provisions of Bihar Police Act, 2007 are being quoted hereunder, with
emphasis supplied where necessary:
Code of Criminal Procedure, 1973
2. Definitions - In this Code, unless the
context otherwise requires: -
(a) .............
(b) .............
(c) "cognizable offence" means an offence
for which, and "cognizable case" means a
case in which, a police officer may, in
accordance wit the First Schedule or under
any other law for time being in force, arrest
without warrant.
(d) ............
(h) "investigation" includes all the
proceedings under this Code for the
collection of evidence conducted by a police
officer or by any person (other than a
Magistrate) who is authorized by a
Magistrate in this behalf:
(j) "local jurisdiction", in relation to a Court
or Magistrate, means the local area within
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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which the Court or Magistrate may exercise
all or any of its or his powers under this
Code [and such local area may comprise the
whole of the State, or any part of the State,
as the State Government may, by
notification, specify];
(m) "notification" means a notification
published in the Official Gazette ;
(n) "offence" means any act or omission
made punishable by any law for the time
being in force and includes any act in
respect of which a complaint may be made
under section 20 of the Cattle - trespass Act,
1871 ( 1 of 1871);
(s) "police station" means any post or
place declared generally or specially by
the State Government, to be a police
station, and includes any local area
specified by the State Government in this
behalf ;
(t) "prescribed" means prescribed by rules
made under this Code;
4. Trial of offences under the Indian
Penal Code and other laws - (1) All
offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into,
tried, and otherwise dealt with according to
the provisions hereinafter contained.
(2) All offences under any other law shall
be investigated, inquired into, tried, and
otherwise dealt with according to the same
provisions, but subject to any enactment for
the time being in force regulating the
manner or place of investigating, inquiring
into, trying or otherwise dealing with such
offences.
36. Powers of superior officers of police -
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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Police officers superior in rank to an officer
in charge of a police station may exercise
the same powers, throughout the local area
to which they are appointed, as may be
exercised by such officer within the limits
of his station.
154. Information in cognizable cases. - (1)
Every information relating to the
commission of a cognizable offence, if
given orally to an officer in charge of a
police station, shall be reduced to writing
by him or under his direction, and be read
Over to the informant; and every such
information, whether given in writing or
reduced to writing as aforesaid, shall be
signed by the person giving it, and the
substance thereof shall be entered in a book
to be kept by such officer in such form as
the State Government may prescribe in this
behalf.
(2) A copy of the information as recorded
under sub-section (1) shall be given
forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on
the part of an officer in charge of a police
station to record the information referred to
in subsection (1)may send the substance of
such information, in writing and by post, to
the Superintendent of Police concerned
who, if satisfied that such information
discloses the commission of a cognizable
offence, shall either investigate the case
himself or direct an investigation to be made
by any police officer subordinate to him, in
the manner provided by this Code, and such
officer shall have all the powers of an
officer in charge of the police station in
relation to that offence.
156. Police officer's power to investigate
cognizable case. - (1) Any officer in charge
of a police station may, without the order of
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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a Magistrate, investigate any cognizable
case which a Court having jurisdiction over
the local area within the limits of such
station would have power to inquire into or
try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any
such case shall at any stage be called in
question on the ground that the case was
one which such officer was not empowered
under this section to investigate.
(3)Any Magistrate empowered under
section 190 may order such an investigation
as above-mentioned.
158. Report how submitted. - (1) Every
report sent to a Magistrate under section 157
shall, if the State Government so directs, be
submitted through such superior officer of
police as the State Government, by general
or special order, appoints in that behalf.
(2) Such superior officer may give such
instructions to the officer in charge of the
police station as he thinks fit, and shall,
after recording such instructions on such
report, transmit the same without delay to
the Magistrate.
Bihar Police Act, 2007
2 (2). Words and expressions used in this
Act shall have the same meaning as defined
in General Clauses Act, 1897, The Code of
Criminal Procedure, 1973 and The Indian
Penal Code, 1860.
3. Police Service of the State
For the purpose of this Act under the
government the whole police organization
shall be treated as one police service. The
members of Police Service may be posted in
any branch, including special branches of
the Police Service in the State.
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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8. Police Station
(1)The government, considering the area
status of crime, duty in relation to law
and order and the distance being covered
by the public in reaching the police
station may by notification setup as many
police stations along with required
number of police posts, as it deem
expedient.
(2)For the purpose of control and
supervision two or more police station may
be placed under one police circle.
(3)The head of the police station shall be the
Station House Officer, who shall not be
below the rank sub-inspector of police.
However, the large police station may be
placed under the supervision of the officer
of the rank of Inspector of Police.
(4) The number of police personnel deputed
in the police station shall be as much as
determined by the government from time to
time through the general or special order.
(5) For filing of complaint of crime
committed against women and children and
for performing the duty related to the
administration of special legislation
connected with women and children there
shall be a women and children protecting
desk staff in each police station, wherein as
far as possible, women police personnel
shall be deputed.
(6) Each police station shall clearly display
the guidance issued by the Supreme Court,
departmental order connected with arrest
and details of persons arrested and put in
lock up, along with relevant information
which are required to be made public.
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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9. Police Station to prevent atrocities
against Scheduled Castes/Scheduled
Tribes
(1)The Government, through notification,
may constitute police stations to prevent
atrocities on scheduled castes/scheduled
tribes, as required.
(2)Investigation of cases filed in such police
station, shall be conducted by a police
officer not below the rank of Deputy
Superintendent of Police.
36. Constitution of special investigation
unit.
The government shall, constitute special
offence investigation unit in crime infested
areas, which shall be headed by police
officer not below the rank of police sub-
inspector of the states cadre which shall
have assistance by required number of
officers and staff for investigation of
economic and heinous offences, except with
the written permission of the Director
General of Police except in extraordinary
circumstances personnel deputed in this unit
shall not be engaged in other work.
41. Creation of special investigation cell
In order to investigate economic offences
along with offences of serious and other
complex nature one or more special
investigation cell shall be created in each
district which shall have such number of
officers and staff as the government deems
proper. Such cell shall be in control and
supervision of Additional Superintendent of
police.
43. Crime investigation department
The crime investigation department of the
state shall initiate investigation of inter
state, inter district and other offences of
serious nature as notified by the government
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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from time to time or specially handed over
to it by the director general of police in
accordance with the prescribed process and
norms.
97. Repeal and Saving
1. The Police Act, 1861 so far as it relates to
the State of Bihar is hereby repealed.
2. The Bengal Armed Police Act, 1892 (V
of 1892), so far as it relates to the State of
Bihar is hereby repealed. However, in spite
of such repeal, the existing class and grade
of Armed Police Officer under chapter V of
the Act, 1892, shall remain in existence till
a new Bihar Armed Police Act is not
framed.
3. In spite of such repeal, any act done or
any action taken or any action initiated
under this rule shall be deemed to be the act
done or action taken or action initiated
under this Act.
4. All the context of any section of any of
the provisions of this Act, which may have
been repealed, shall be deemed as the
context of the concerned provisions of this
Act.
6. On behalf of the writ petitioners, it is submitted that in terms
of Section 8 (1) of the Bihar Police Act, 2007, being Bihar Act 1 of
2007, the State Government, upon consideration of the matters as
contained in the said Section, may by notification set up police stations.
Thus, initially, there being no notification issued by the State
Government setting up Economic Offence Police Station, it cannot be
said to have legally come into existence, even though the government
Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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order dated 15th December, 2011 purported to do the same. It was then
submitted that subsequent gazette notification dated 25th of March, 2013
could not be made to operate retrospectively with effect from
15.12.2011and the said notification having not complied with the provisions of the Bihar Police Act, 2007 could not be taken to be a notification creating "Economic Offence Police Station".
7. To the contrary, on behalf of the State, it is submitted that Police Station is not only defined, but the procedure for its creation is contained in Section 2 (s) of the Code of Criminal Procedure, 1973 (hereinafter in short as „Cr.P.C.‟). Section 2 (s) of the Cr.P.C., inter alia, provides that the State Government may declare any post or place, generally or specially, to be a Police Station. It does not provide for the Police Station to be created by a notification, which term has been separately defined in Section 2 (m) of the Cr.P.C. and consciously not used in Section 2 (s).
8. Code of Criminal Procedure deals with the effect of creating a Police Station, how an F.I.R. would be lodged and registered at the Police Station, who from the Police Station would investigate, who would submit charge-sheet and on basis whereof the trial is to be conducted by the Criminal Court. Therefore, Cr.P.C. is a complete Code in itself. It is a Parliamentary legislation referable to Entry-2 List-III (Concurrent List) of the 7th Schedule to the Constitution of India. Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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Whereas, the Bihar Police Act would be an Act of the State Legislature referable to Entry-2 List-II (State List) of the 7th Schedule to the Constitution of India and as such the Bihar Police Act could deal with matters, which are not within the legislative field already covered by the Cr.P.C. Accordingly, Section 8 (1) of the Bihar Police Act (hereinafter referred to as the „Act‟) has to be harmoniously construed, by reading it down, to bring in conformity with Section 2 (s) of the Cr.P.C., in view of the constitutional mandate contained in Articles 246 (2) and 246 (3) of the Constitution, otherwise Section 8 (1) of the Bihar Act would be ultra vires in view of Article 254 of the Constitution, the Bihar Act not having been reserved for the consideration of the President and not having received his assent. Thus read, Police Station has not to be set up by the notification in the official gazette, as contemplated by Section 8 (1) of the Act, but could be constituted by a declaration by the State Government, either generally or specially, in terms of Section 2 (s) of the Cr.P.C. Thus, being the constitutional position, State would submit that the steps taken by the State to declare Economic Offence Police Station culminating in the order dated 15.12.2011 completed the exercise and the notification dated 25th of March, 2013 was only an exercise by way of abundant caution.
9. In effect, in the opinion, of the then Hon‟ble the Chief Justice is that once the State Legislature, in view of Entry-2 List-II of the Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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7th Schedule enacted the Bihar Police Act, 2007, a Police Station could be created only by virtue of Section 8 (1) of the Act thereof and that too by a notification in the official gazette, and not with reference to Section 2 (s) of the Code. His further opinion was that establishment of the Police Station had to take into account the area, status of crime, distance being covered by the public in reaching the Police Station. Section 9 of the Act specially provided for constituting Police Station to prevent atrocities on Scheduled Castes and Schedule Tribes as such under the Bihar Police Act, 2007, there was no scope of creation of Economic Offence Police Station much less without a notification in the official gazette. I am unable to subscribe this view. In view of the submissions as made on behalf of the State by Mr. Rakesh Dwivedi, learned Senior Counsel, clearly the then Hon‟ble Chief Justice, for whom I have high regards, failed to notice the constitutional scheme in the right perspective in these regards.
10. A reference to Section 2 (s) of the Cr.P.C. clearly shows that any post or place could be declared generally or specially by the State Government to be a Police Station and would include any local area specified by the State Government in this behalf. The Legislature has consciously used the expression "declared". If the Legislature intended to use or intended to convey that this act could be done by a notification in the official gazette then Section 2 (m) of the Cr.P.C., Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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having defined notification, they would have used the expression notified instead of declared. This departure cannot, but, be intentional. Once, the Parliament in exercise of field of legislation covered by Entry- 2 List-III of the 7th Schedule has so provided in the Code in respect of the Police Station, which is then used exhaustively in the Cr.P.C. then all aspects of the matter in relation to Police Station, would be covered by the central legislation in the Concurrent List. If this be so then the question would be, what would be the field of legislation that is covered by Entry-2 of the State List, i.e., "Police".
11. In order to determine this, it is first necessary to recall that the Entries in the three Lists, as contained in the 7th Schedule to the Constitution are fields of legislations and each entry has to be given the widest import. This would invariably lead to substantial overlapping of the fields covered by one entry in the List and another entry in another list. The resolution of this is provided by Articles 246 and 254 of the Constitution. Article 246 deals with the scope of legislative fields in respective lists whereas Article 254 deals with concurrent legislations appertaining to the Concurrent List. For ready reference, Articles 246 and 254 of the Constitution are quoted hereunder:
246. Subject-matter of laws made by Parliament and by the Legislatures of States. - (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States - (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.
12. Plainly understood Article 246 (1) of the Constitution, in effect, provides that the field of legislation, as contained in List-I would be exclusive. Meaning thereby, that if there were subjects within the field of legislation in List-I, which were also to be found in List-II and List-III as well, they would be excluded from List-II and List-III and would be fully contained in List-I. This is the principle of Parliamentary supremacy. Therefore, Parliamentary legislation is of superior efficacy. Article 246(2) of the Constitution then provides that subject to the field of legislation, as contained in List-I and notwithstanding the subject of field of legislation as contained in List-II, the field of legislation in respect of matters referred to List-III, the field of legislation in Concurrent List, would be exclusive. In other words, anything that is not covered by List-I and is covered in List-III would be excluded from List-II if it is to be found therein. Article 246 (3) then provides that in respect of maters in List-II, the field of legislation would be limited to the extent not covered by List-I or List-III. All this is of course subject to permissible incidental encroachments, not in pith and substance. Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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These propositions are culmination of series of judgments of the Apex Court.
13. Now, coming to Article 254, it refers to matters where the legislative field in respect of matters are available to both, the Parliament and the State Legislative, List-III of the 7th Schedule. Both have concurrent jurisdiction. Here again is the principle of Parliamentary supremacy, which can only be taken away by State legislation by complying with the requirements of Article 254(2), i.e., presidential ascent otherwise Parliamentary legislation prevails.
Seventh Schedule List II - State List
2. Police (including railway and vigilance police) subject to the provisions of entry 2- A of List I. List III - Concurrent List
2. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.
14. Keeping this constitutional scheme in mind, Entry-2 List- III, the Concurrent List, we notice that it talks of "criminal procedure, including all matters included in the Cr.P.C." The Code of Criminal Procedure is an expression nomen juris, as Code of Criminal Procedure existed at the time when Constitution was drafted. That Code of Criminal Procedure, i.e. Code of Criminal Procedure, 1898 was then repealed and replaced by the present Code of Criminal Procedure, 1973. Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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Thus seen, all the matters that have been dealt with and to the extent they are so dealt in the Code of Criminal Procedure would fall within the field of legislation covered by Entry-2 List-III, the Concurrent List, including the manner of establishment of Police Station. The moment it is so, then, by virtue of Article 246 (2) these matters stand excluded from any entry contained in List-II, the State List. Therefore, when Entry-2 of List-II talks of Police, the field of legislation available there- under would cover matters relating to "police", but not in relation to matters, which are covered by the Code of Criminal Procedure. Thus, any legislation by the State in respect of "police" by virtue of Entry-2 List-II could not be with regard to Police Station or its establishments for these matters are covered by the Cr.P.C. In other words, the field of legislation in respect of "police" under Entry-2 List-II would be the police administration and its duties to the extent not covered by the Code of Criminal Procedure. Thus seen, Section 8 (1) of the Bihar Police Act would encroach upon the field of legislation reserved in Entry-2 List-III, the Concurrent List, and the Code of Criminal Procedure. This is not mere incidental encroachment. Accordingly, where, in contradiction to a mere declaration required to set up a Police Station in terms of Section 2 (s) of the Cr.P.C., the procedure as prescribed in Section 8 (1) of the Police Act, being a notification in the official gazette, this procedure would clearly be ultra vires the State‟s Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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legislative competence. We have thus to read Section 8 (1) of the Bihar Police Act in harmony with Section 2 (s) of the Cr.P.C. and the expression "notification" used therein has to be read down as "declaration" by the State. As noted above, the Legislature, while enacting the Parliamentary legislation, being conscious of the import of the expression "notification", which is defined in Section 2 (m) of the Code, deliberately omitted to use the same in Section 2 (s) of the Cr.P.C., the concept of "notification" in the official gazette cannot be introduced therein.
15. Looked in a different manner, the result would be the same. The Code of Criminal Procedure, as noted above, is a Parliamentary legislation, with respect to the field of legislation covered by Entry-2 List-III, the Concurrent List. The State Legislature is not denuded of its legislative power in respect of matters in the Concurrent List and, therefore, it has legislative competence to enact laws in respect of matters covered in the Concurrent List, which includes Code of Criminal Procedure. But, if the field of legislation has been occupied by a central legislation, in the present case, Code of Criminal Procedure, then for the State legislation covering the same field to be valid, it has to comply with Article 254 (2) of the Constitution for it to be valid. The State Legislature was competent to amend Section 2 (s) of the Cr.P.C. either directly or impliedly, but the validity of the State legislation would Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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depend on the fact whether the legislation was reserved for the assent of the President and received his assent in terms of Article 254 (2), in absence whereof the State legislation would be void. In the present case, what the State has done by Section 8 (1) of the Bihar Act is, it had tried to encroach upon the field of setting up of police station covered by the central legislation by virtue of Section 2 (s) of the Cr.P.C. but, while doing so, it did not refer the matter for the consideration of the President nor did its legislative action receive the assent of the President. Thus, Section 8 (1) of the Act to the extent, it provides for a "notification" instead of a "declaration" cannot be said to be a valid piece of legislation to that extent.
16. Here, I may refer to the Constitution Bench judgment of the Apex Court in the case of State of Orissa Vs. M.A. Tulloch & Company since reported in AIR 1964 Supreme Court 1284 and, in particular, what is held in paragraph-15 thereof, is being quoted hereunder:
15. ......The test of two legislation containing contradictory provisions is not, however, the only criterion of repugnancy, for, if a competent legislature, with a superior efficacy, expressly or impliedly, evinces by its legislation an intention to cover the whole field, the enactments of the other legislature, whether passed before or after, would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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two statutes, but by the mere existence of the two pieces of legislation....
17. Some what nearer to the present controversy is the Constitution Bench judgment in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others since reported in (2014) 2 Supreme Court Cases 1 and this what their Lordships observed in paragraphs 68, 69 and 70 of the reports, quoted hereunder, which, in my view, settles the position, I have indicated above.
68. In view of the above, it is useful to point out that the Code was enacted under Entry 2 of the Concurrent List of the Seventh Schedule to the Constitution which reproduced below:
"2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution."
On the other hand, the Police Act, 1861 (or other similar Acts in respective States) were enacted under Entry 2 of the State List of the Seventh Schedule to the Constitution, which is reproduced below:
"2. Police (including railway and village police) subject to the provisions of Entry 2- A of List I."
69. Now, at this juncture, it is pertinent to refer to Article 254 (1) of the Constitution, which lays down the provisions relating to inconsistencies between the laws made by Parliament and the State Legislatures.
Article 254 (1) is reproduced as under:
"254. Inconsistency between laws made by Parliament and laws made by the legislatures of States.- (1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void."
Thus, it is clear from the mandate of Article 254 (1) of the Constitution that if there is any inconsistency between the provisions of the Code and the Police Act, 1861, the provisions of the Code will prevail and the provisions of the Police Act would be void to the extent of the repugnancy.
70. If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, FIR is to be recorded in the FIR book, as mandated under Section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as FIR.
18. It is for this reason, in my view, that the opinion of the then Hon‟ble the Chief Justice cannot be accepted, where he has categorically held that after the Bihar Act, the police station could only be set up in Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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accordance with Section 8 (1) of the Act thereof by a notification and only after taking into account the factors mentioned there in and not otherwise. In my view, Section 8 (1) of the Act has to be read down harmoniously to bring in conformity with Section 2 (s) of the Cr.P.C. I find and hold accordingly.
19. In view of the aforesaid, the argument of the writ petitioners that creation or setting up of Economic Offences Police Station, having not been notified in the official gazette with effect from 15.12.2011, it cannot be said to have been established, in absence of the notification in the official gazette, cannot be sustained.
20. At this stage itself, I may notice another argument of the writ petitioners, which apparently found favour with the then Hon‟ble the Chief Justice in his opinion. According to them, the Bihar Police Act laid down conditions and parameters for declaration of Police Station. These are contained in Sections 8, 9 and 41 of the Bihar Act and these would control and qualify the exercise of discretion, as conferred on the State Government by the Parliamentary legislation, as contained in the Cr.P.C. and particularly Section 2 (s) of the Cr.P.C. For the reasons discussed above, when the Parliamentary legislation gives discretion to the State to declare a police station, either generally or specially, and the said Code, being referable to the legislative field, as contained in Entry-2 List-III of the 7th Schedule to the Constitution, the same cannot be Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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controlled or whittled down by the State legislature legislating with respect to field covered by Entry-2 List-II of the 7th Schedule to the Constitution and any such exercise by the State Legislature would have to be read down, to be brought in conformity to the parameters as specified in Section 2 (s) and other provisions of the Cr.P.C. The Parliamentary legislation in respect of matters, as provided in the Concurrent List, cannot be controlled or whittled down by the State Legislature either in exercise of the field available to it under the State List or even in exercise of the field of legislation available to it under the Concurrent List, except when such State legislation, in terms of Article 254 (2) of the Constitution, is reserved for the consideration and assent of the President and has received the same. That being so, the exercise carried out by the State and its validity has to be judged with reference to Section 2 (s) and other Sections of the Cr.P.C. and not the Bihar Act.
21. Now, I may refer to the facts leading to declaration and establishment of "Economic Offence Police Station". On 20.11.2008, the Director General of Police, Bihar vide letter no.1477 requested the Special Secretary, Home (Police), Department, Government of Bihar for sanction of post for creation of Economic and Cyber Crime Unit under the Criminal Investigation Department. The request was considered in the meeting of the Chief Secretary, Principal Secretary (Personnel), Principal Secretary (Finance) and the Development Commissioner and, Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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accordingly, various posts for the economic and cyber crime unit, which were created, were sanctioned on 17.02.2010. The creation of the unit and the posts in relation thereto were then on 30.03.2010 approved and sanctioned by the State Cabinet, as per Item No.10 of the said Cabinet meeting. Upon the approval of the State Cabinet, as aforesaid, on 30.04.2010, the Department of Home (Police), Government of Bihar vide memo no.3579 informed the Accountant General, Bihar in respect to the said decision clearly pointing out that Cabinet approval had been received for the same. Accordingly, the Economic Offence and Cyber Crime Unit under the Criminal Investigation Department started functioning.
22. On 25.10.2011, the Director General of Police then wrote to the Secretary, Department of Home (Police), Government of Bihar pointing out that in view of development in the economic activities in the State, there had been noticeable change in the pattern of economic offences. The beneficial schemes of the State Government in which there were increased financial implications, organized economic offences were increasing, affecting the balance and development. Bank frauds, counterfeit notes smuggling and the narcotic and drugs smuggling was rising. The State intended to give priority for control of this menace and, as such, it was decided that under the direct control of Director General of Police, Bihar an "economic offence unit" be created Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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with its jurisdiction extending to whole of State of Bihar to take up investigations of economic offences. For this, various budgetary allocations, posts had been sanctioned. A headquarter needed to be established in government premises, which in the beginning till sanctioned to be made, will be located in rental accommodation. These be sanctioned accordingly. It was specifically pointed out, that to make the unit more effective, the unit should be converted into an Economic Offence Police Station having jurisdiction over the entire State. Thereafter, by letter no.106 dated 25.10.2011, the Director General of Police, Bihar wrote to the Secretary, Department of Home (Police), Government of Bihar clearly pointing out that creation of an Economic Police Station was required and, therefore, recommended that the office of the Superintendent of Police, Economic Offence Unit, Bihar, Patna be declared as the Economic Offence Police Station, which would exercise jurisdiction throughout the State of Bihar.
23. Having received the same, the matter appears to have been considered by the government and having received the approval of the Secretary, Department of Home (Police) office order was issued on 01.12.2011, clearly stating that on review of the position by the State Government in respect of necessity to control economic offences, the Economic Offence Unit is established whose jurisdiction would be entire State of Bihar. It would investigate all or any economic offences. It Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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pointed out that Economic Offence Police Station would also exercise jurisdiction in respect of Food Department, cyber crime as well Co- operative Department under the direct control of the Director General of Police Vigilance Unit and such other unit would also be under its jurisdiction. It would operate from rented premises till its own premises are created. Thereafter, the decision of the State Government to create the Economic Offence Police Station was communicated to the Accountant General vide communication dated 15.12.2011, clearly stating that the State Government, having reviewed the situation, had taken a decision granting approval to convert the Economic Offence Unit into an Economic Offence Police Station to deal with economic offences and cyber crime offences. It would have jurisdiction over the entire State of Bihar.
24. It may be relevant to notice that these decisions, i.e. the order dated 01.12.2011 and the communication dated 15.12.2011, were duly sent to apart from others the IT Manager, Home Department for being uploaded on the government website. Accordingly, the Economic Offence Police Station, upon the aforesaid declaration, became functional. Cases were registered at the Economic Offence Police Station and various other cases were taken up for investigation. In some cases, upon completion of investigation, final reports were filed sending up various people for trial. Trials were taken up which has resulted on Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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conviction of some of the persons and several trials are pending involving public servants and others including some of the petitioners.
25. It appears that some of the persons then sought information, whether the Economic Offence Police Station had been notified in the official gazette and this question was raised in certain writ petitions filed in this Court as well. Apparently and obviously, by way of abundant caution, the State Government then decided to notify the creation of Economic Offence Police Station by gazette notification dated 25.03.2013, published in gazette on 26.03.2013, clearly stating that in exercise of powers under Section 2 (s) of the Cr.P.C., State Government declares the Economic Offence Police Station, as referred to in the Home (Police) Department sanction order dated 15.12.2011. It would exercise jurisdiction for the whole of the State of Bihar and would investigate cases which have been taken over or which are to be taken over by the Economic Offences Unit. It would be effective retrospectively with effect from 15.12.2011.
26. Based on these sequences of events and facts, on behalf of the writ petitioners, it is submitted that undisputedly there was no gazette notification issued in respect of Economic Offence Police Station prior to 26.03.2013, which was mandatory requirement as per Section 8 (1) of the Bihar Police Act, 2007. That being so any action taken prior thereto including, all F.I.R. registered and investigations taken up or Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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actions taken in furtherance thereto including charge-sheets filed trials undertaken would stand vitiated. This was rank illegality and not mere irregularity. Their further submission would be that there could no retrospective validation of an illegal Act, as an illegal Act cannot be ratified. The last submission, which has already been noted and rejected, was that Economic Offence Police Station could only be created in terms of State legislation, i.e. the Bihar Police Act and that not having been done, the exercise of powers with reference to Section 2 (s) of the Cr.P.C. was an exercise in futility.
27. As noted earlier, Mr. Rakesh Dwivedi, learned Senior Counsel appearing for the State of Bihar, submitted that under the constitutional scheme, as noted earlier in this judgment, what was required was compliance to the provision of Section 2 (s) of the Cr.P.C. and a declaration having been made and the same having been put on the website and communicated to various authorities, there was sufficient compliance of the provisions of Section 2 (s) of the Cr.P.C., which could not be whittled down or controlled by the State Act. I have already noted this part and accepted the submission of the State.
28. The only issue left is, whether this exercise done by the State would amount to valid declaration within the meaning of Section 2
(s) of the Cr.P.C. I see no reason to hold otherwise. Section 2 (s) of the Cr.P.C. clearly confers jurisdiction upon the State to make a declaration Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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either generally or specifically in relation to creation of a Police Station. It is purely an administrative act and the consequences which follow are stipulated in the Cr.P.C. itself. The order of the State Government dated 01.12.2011 read with that of 15.12.2011 is a clear declaration in terms of Section 2 (s) of the Cr.P.C. It is not denied that these decisions were taken by the Secretary, Department of Home (Police), Government of Bihar, who under the Rules of the Executive Business of the State of Bihar, was competent to take. Both these decisions were put on the website of the State Government and accessible to public at large. As already held that there is no requirement in law that such a Police Station can only be created by a gazette notification. That being so, the requirements of Section 2 (s) of the Cr.P.C. having been complied, it is futile on the part of the writ petitioners to urge that Economic Offence Police Station was not legally established with effect from 15.12.2011, when the decision was communicated to other persons, departments and on the website, and once the order was sent out, it became a final order/decision of the government. No doubt, it would have been better if they were notified in the official gazette, but as already indicated that, not being requirement of law and the requirement of law being mere declaration and that having been complied with, the establishment of Economic Offence Police Station cannot be questioned.
29. Needless to say that it is not a rank illegality, for, in my Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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view, it is not even an irregularity, for the compliance of law being there, no objections could be taken by the writ petitioners. Moreover, it is well settled even otherwise that an irregularity in investigation would not vitiate the trials unless serious prejudice is shown by the writ petitioners. The writ petitioners do not have the liberty of choice of investigating agency, which is the prerogative of the State, in its sovereign function to control and investigate criminal offences and ensure prosecution of the offenders.
30. In the first case, i.e., Cr.W.J.C. No.563 of 2013, Md. Yunus, an Enforcement Sub Inspector Transport, posted at Kaimur is being prosecuted for having disproportionate assets, disproportionate to his known sources of income, Economic Offence Police Station Case No.5 of 2013 (Special Case No.3 of 2013) registered on 19.02.2013 for the offences under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988.
31. In the second case, i.e., Cr.W.J.C. No.231 of 2016 Md. Kamal Ashraf and others are being prosecuted. Md. Kamal Ashraf was appointed as Sub Registrar in the year 1987 and, at the relevant time, was posted as District Sub Registrar, Bhagalpur. He and his relations are being prosecuted in respect of Economic Offence Police Station Case No.23 of 2013 dated 18.06.2013 (Special Case No.33 of 2013) registered under Section 13 (2) read with Section 13 (1) (e) of the Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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Prevention of Corruption Act, 1988.
32. In the third case, i.e., Cr.W.J.C. No.353 of 2015, the petitioner is being prosecuted in Economic Offence Police Station Case No.2 of 2013 (Special Case No.5 of 2013), instituted on 19.01.2013, for offences under Sections 378/389/109 of the Indian Penal Code and Sections 8 and 9 of the Prevention of Corruption Act, 1988. Petitioner, though not named in the F.I.R., has subsequently been charged in the said case upon trap laid for demand and acceptance of bribe.
33. In the fourth case, i.e., C.W.J.C. No.1219 of 2016, the petitioner is being prosecuted in relation to Economic Offence Police Station Case No.23 of 2012, registered on 20.10.2012, instituted for the offences under Sections 420, 416, 478 and 120-B of the Indian Penal Code. Petitioner was not originally named in the F.I.R. but, in course of investigation, his name having been figured, is being charged in the said case.
34. In the fifth case, i.e., C.W.J.C. No.6660 of 2016, the petitioner is an I.P.S. Officer of the Cadre of Jammu and Kashmir and was, at the relevant time, D.I.G., Saran Division, at Chapra. He is being prosecuted in relation to Economic Offence Police Station Case No.2 of 2013 instituted on 19.01.2013 along with the petitioner in the third case. It may be stated that though initially the petitioner was not named in the F.I.R. as accused but in course of investigation he has now been roped in Patna High Court Cr. WJC No.563 of 2013 (53) dt.08-03-2017
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the case.
35. All these petitioners, being prosecuted pursuant to F.I.Rs. registered with the Economic Offence Police Station, challenge the registration of F.I.R., investigation and their prosecution on the ground, as noticed above, i.e., the Economic Offence Police Station not having been duly established, all proceedings based on the F.I.R., so registered wrongly, are consequently vitiated. This being the primal challenge and having been negatived, as above, all the writ petitions fail and, in my opinion, rightly held so by brother Justice Chakradhari Sharan Singh. I agree with the views of brother Justice Chakradhari Sharan Singh and would commend it. Accordingly, all the writ petitions are dismissed.
36. The reference is answered accordingly.
(Navaniti Prasad Singh, J.) Trivedi/-
AFR/NAFR AFR CAV DATE 22.02.2017 Uploading Date 08.03.2017 Transmission NA Date