Police Station; Md. Yunus Vs. State of Bihar [Patna High Court, 27-09-2016]

Contents

Bihar Police Act, 2007 – No illegality in creation of Economic Offence Unit as police Station.

Criminal Procedure Code, 1973 – S. 2 (s) – A police station established under Section 8 of the Bihar Police Act, 2007 may not be said to be a police station for the purpose of provisions of the Code of Criminal Procedure unless it is declared to be so under Section 2(s) of the Code.

Criminal Procedure Code, 1973 – There is difference between “Police” under Entry 2 of List II of 7th Schedule of the Constitution of India which essentially refers to an organization, set up under the control of the State Government and “police Station” which is primarily entrusted with the investigation of criminal cases in accordance with provisions of the Cr.P. C.

Bihar Police Act, 2007 – the notification not specific as to how and in which cases, Economic Offence Police Station will entertain registration of an FIR – directed the Principal Secretary, Home, Government of Bihar to chalk out and notify a definite mechanism for registration of the First Information Reports by Economic Offence Police Station.

# Police Station


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

Date: 27-09-2016

Criminal Writ Jurisdiction Case No.563 of 2013 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 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 With

Criminal Writ Jurisdiction Case No. 231 of 2016 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 With

Criminal Writ Jurisdiction Case No. 353 of 2016 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 With

Civil Writ Jurisdiction Case No. 1219 of 2016

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 With

Civil Writ Jurisdiction Case No. 6660 of 2016 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. 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

Appearance : (In Cr. WJC No.563 of 2013) For the Petitioner/s : Mr. B.P. Pandey, Senior Advocate, Mr. Rakesh Kumar, Advocate For the Respondent/s : Mr. Kinkar Kumar, SC-27, Ms. Soni Shrivastava, Advocate Mr. Ramakant Sharma, Senior Advocate Mr. Anjani Kumar, AAG-6 (In Cr. WJC No.231 of 2016) For the Petitioner/s : Mr. Md. Shamimul Hoda, Advocate For the Respondent/s : Mr. V.N.P. Sinha, Sr. Advocate, Mr. Rajeev Ranjan Prasad, Advocate Mr. Ramakant Sharma, Senior Advocate Mr. Anjani Kumar, AAG-6 (In Cr. WJC No.353 of 2016) For the Petitioner/s : Mr. Sanjay Kumar Sinha, Advocate For the Respondent/s : Mr. V.N.P. Sinha, Senior Advocate, Ms. Soni Shrivastava, Advocate Mr. Ramakant Sharma, Senior Advocate Mr. Sadanand Paswan , Advocate (In CWJC No.1219 of 2016) For the Petitioner/s : Mr. Sanjay Kumar Singh, Advocate For the Respondent/s : Mr. Lalit Kishore, PAAG (In CWJC No.6660 of 2016) For the Petitioner/s : Mr. Ranjan Kumar Srivastava, Advocate For the Respondent/s : Mr. Anjani Kumar, AAG-6 Mr. V.N.P. Sinha, Senior Advocate

JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

1. The facts of these cases are simple; yet raise some complex issues of Constitutional law and the scope of executive power of the State. The individual allegations against the petitioners need not be gone into in details. However, suffice it would be to state that all the petitioners are being investigated into for alleged commission of offence under the Prevention of Corruption Act, 1988, and the allegations are serious in nature.

2. I have the benefit of reading the judgment of my esteemed brother, Chakradhari Sharan Singh, J., but I find myself unable to agree with the conclusions arrived at, and the decisions reached. I have, therefore, decided to pen down my own judgment.

3. The common feature, in all these cases, is that the cases against the petitioners are being investigated into by “Economic Offences Police Station”, which has been set up by the Government of Bihar to deal with specialized crimes. The validity of creation of the police station called “Economic Offences Police Station”, which has registered the First Information Reports and is investigating the cases, have been challenged in the present set of writ petitions.

4. It would be necessary to give a brief outline on the process of constitution of Economic Offence police station.

5. On 20.11.2008, the Director General of Police, Bihar, submitted a proposal to the State Government for creation of an economic and cybercrime unit. Acting on the proposal, the State Government, in February, 2010, created certain posts for the said Unit and, eventually, on 30.04.2010, the State Government took a decision to constitute the economic and cybercrime Unit. Later, the Director General of Police, Bihar, sent a proposal to the State Government for creation of Economic Offences Police Station by declaring the office of the Superintendent of Police, Economic Offence Unit, Bihar, Patna, as police station having jurisdiction over the entire State of Bihar and, on 15.12.2011, the State Government conveyed its decision to the Accountant General (A & E) to convert the Economic Cyber Crime Unit in the shape of Economic Offences Police Station. On 25.03.2013, vide Gazette Notification, the Government of Bihar, in purported exercise of power conferred under Section 2 (s) of the Code of Criminal Procedure, 1973, declared the Economic Offences Police Station as Economic Offences Police Station, with retrospective effect from 15.12.2011, having its jurisdiction over the whole of the State of Bihar. Case of the petitioners, in brief

6. It has been stated by the petitioners that Bihar Police Act, 2007, does not contemplate creation of special police station to investigate into Economic Offences. It is further stated that power to investigate a crime is traceable to the Code of Criminal Procedure, 1973 (“the Code”), hence, unless a body is vested with statutory power to investigate, any investigation done by it is meaningless and has no legal force in the eyes of law. It has also been stated that though Section 36 of the Bihar Police Act, 2007, provides for creation of special investigating Units, it does not envisage creation of a police station. Even Section 41 of the Act, which deals with creation of special investigation cell for investigation into Economic Offences and other serious and complicated crimes, deals with creation of such cells at district levels and not at the State levels as has been done by the State Government through the impugned notification.

7. The other important contention, raised by the petitioners, is that the subject “police” falls in Entry 2 of List II-State List of the 7th Schedule of the Constitution of India and, in terms thereof, the Bihar Police Act, 2007, has been enacted, which provides for consideration on the basis of which various types of police stations may be set up. In this regard, it has been stated that though Article 162 of the Constitution of India confers co-extensive powers on the State Executive with that of the State Legislature, yet the moment the Legislature of the State has enacted a law on a particular field/subject, it becomes an occupied field and executive power of the State remains, thereafter, confined only to the extent of implementing the said legislation and not going beyond what has been legislated. The argument of the petitioners is that once Section 8 of the Bihar Police Act, 2007, lays down the law for establishing a police station in the State, the Government of Bihar cannot ignore any requirement of Section 8 by any direct or indirect means.

8. The petitioners, therefore, submit that the impugned notification, relating to constitution of Economic Offences Police Station, with retrospective effect, is arbitrary and beyond jurisdiction and is liable to be declared as null and void. The petitioners also submit that First Information Reports against them be also quashed.

Case of the State Government, in brief

9. The State Government, controverting the pleas of the petitioners, states that the decision communicated, vide letter, dated 15.12.2011, regarding conversion of Economic Offences Unit into Economic Offences Police Station cannot be said to be per se illegal. It has been stated by the State of Bihar that a police station can be set up by the State Government by declaration as required under Section 2(s) of the Code and that the Economic Offences Police Station came into existence on 15.12.2011 itself after the State Government declared its decision as contained in its letter, dated 15.12.2011. The State Government also contends that subsequent notification published in the official gazette, dated 25.03.2013, cannot, therefore, be said to be illegal on the ground of its retrospectivity. The plea of the State Government is that that even otherwise, no interference is required in the facts and circumstances of the present cases since the petitioners have not been able to establish any prejudice having caused to them resulting into failure of justice, because of registration of First Information Reports by Economic Offences Police Station or investigation conducted by the officials of the said police station.

Whether it is permissible for the State Government to establish/set up a police station in exercise of its executive power?

10. In order to find an answer to this query, it is necessary that the extent of executive powers of the Union and the State, as have been provided in Article 73 and Article 162 of the Constitution of India respectively, be examined. Since both these provisions, embodied in the Constitution, define the limits of the law making capacity, discussion, on any one of the said provisions, would suffice.

11. The extent of executive powers of the State Government has been prescribed by Article 162 of the Constitution of India, which reads as follows:

“162. Extent of executive power of State.–Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.”

12. A bare reading of Article 162 of the Constitution of India makes it evident that the executive powers of the State extends to all the matters with respect to which the State Legislature has power to make laws; but there are two important fetters, among others, on exercise of such executive powers. First, the exercise of executive powers are subject to the provisions of the Constitution and, secondly, as I would show, the exercise of executive power cannot be stretched to the extent of infringing fundamental rights.

13. What is, now, of great importance to note is that Article 162 of the Constitution of India cannot be read in isolation and it becomes necessary to understand its co- relation with Article 245 and Article 246 of the Constitution of India, which provides for and demarcates the powers of the Parliament and state legislatures. . Though within the powers vested in the Union and the States, each of these entities possesses plenary powers, their powers are, among others, limited by two important barriers, namely, (i) the distribution of powers by the Seventh Schedule and (ii) the Fundamental Rights included in Part III.

14. A combined reading of Article 245 and Article 246 of the Constitution of India shows that Parliament and State Legislatures have Constitutional competence to make laws. However, the subject matter of the laws to be made have been delineated in the form of three lists, namely, Union List, State list and the Concurrent list. In other words, every law made by either Parliament or a state legislature must be covered under the general subject-matter of a particular Entry(s) in the three lists of Schedule 7 of the Constitution. This apart, Parliament has the 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 a matter is a matter enumerated in the State List. In other words, it is within the legislative competence of Parliament to make law, on subjects covered by State List, for those territories, which do not fall within any of the States.

15. For instance, ‘police’ is a subject falling under Entry 2 of List II (State List). In view of Article 246(3) of the Constitution of India, therefore, only a State legislature has exclusive power to make laws relating to ‘police’ by taking recourse to Entry 2 of List II (State List). However, Union Territories are not States within the meaning of Article 246 of the Constitution of India and, hence, Parliament can make laws, on police, for the Union Territories.

16. The Delhi Police Act, 1978, can be cited as one such example. The Delhi Police Act, 1978, was enacted by the Parliament for the Union Territory of Delhi even though ‘police’ is a subject falling under State List.

17. Explaining the concept of the extent of executive powers, the Supreme Court held, in

# Dr. D. C. Wadhwa & Ors. v. State of Bihar, AIR 1987 SC 579

that the executive cannot take away the functions of the Legislature. The relevant observations, made in this regard, being immensely significant, are reproduced below:

“…The law making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and if the executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of re-promulgation without submitting it to the voice of legislature, it would be nothing short of usurpations by the executive of the law making function of the legislature. The executive cannot by taking resort to an emergency power exercising by it only when the legislature is not in session, take over the law making function of the legislature. That would be clearly subverting the democratic process which lies at the core of our Constitutional Scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution, but, by the laws made by the executive. The government cannot bypass the legislature and without enacting the provisions of the Ordinance into Act of legislature, re- promulgate the Ordinance as soon as the legislature is prorogued….

…It is settled law that a

constitutional authority cannot do

indirectly what it is not permitted to do

directly. If there is a constitutional

provision inhibiting the constitutional

authority from doing an act, such

provision cannot be allowed to be

defeated by adopting of any subterfuge.

That would be clearly a fraud on the

Constitution….”

(Emphasis is supplied)

18. Thus, there remains no doubt that though the executive powers are co-extensive with legislative powers of the Union or of the States, as the case may be, this power is to be exercised within the limits prescribed by the Constitution or any law for the time being in force. That apart, once a legislation occupies a field, neither any of the States nor the Union can exercise its executive powers on the same field beyond the relevant legislation inasmuch as enacting laws is the primary domain of the Legislature and not of the Executive; or else, we will be running a Government on the basis of executive fiat and not by legislative mandates.

19. So far as the operational effectiveness of executive action is concerned, the Supreme Court, in the case of

# Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549

while dealing with an argument of violation of fundamental rights, observed that ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Hon’ble Supreme Court considered argument of the petitioners, who were publishers of school books, that by mere notifications the state government could not impose unwarrantable restrictions upon the fundamental rights of the Petitioners to carry on their trade and business and that ‘no restrictions could be imposed upon the petitioners’ right to carry on the trade which is guaranteed under Article 19(1)(g) of the Constitution by mere executive orders without proper legislation and that the legislation, if any, must conform to the requirements of clause (6) of Article 19 of the Constitution.’ The Supreme Court held that ‘there is no fundamental right in the publishers that any of the books printed and published by them should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future.’

20. Elucidating further, the Supreme Court, in Ram Jawaya Kapur (supra), observes that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another and that the Executive can, indeed, exercise the powers of departmental or subordinate legislation, when such powers are delegated to it by the Legislature.

21. The Supreme Court, however, in Ram Jawaya Kapur observed that (supra) that specific legislation may, indeed, be necessary if the Government requires certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus, when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation, sanctioning such a course, would have to be passed.

22. The Supreme Court, in Ram Jawaya Kapur (supra), cautioned that if, by the notifications and acts of the executive Government, the fundamental rights, if any, of the petitioners have been violated, then, such executive actions have to be termed as unconstitutional. I must beneficially refer to following observations of the Hon’ble Supreme Court:-

“17. Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.”

23. The case law, most appropriate to the above aspect of the Constitutional limitations, imposed on the exercise of the executive power, can be found in

# D. Bhuvan Mohan Patnaik v. State of AP, AIR 1974 SC 2092

wherein some prisoners had challenged the installation of live electric wire on the top of jail’s wall as being violative of personal liberty enshrined in Article 21 of the Constitution. The Supreme Court, having questioned the legal authority justifying such installation of live wires, rejected the argument that installing of the live high-voltage wire, on the walls of jail, was solely for the purpose of preventing the escape of prisoners and was, therefore, a reasonable restriction on the fundamental rights of the prisoners.

24. Observed the Supreme Court, in D. Bhuvan Mohan Patnaik (supra), that if the petitioners succeed in establishing that the particular measure, taken by the jail authorities, violated any of the fundamental rights available to them under the Constitution, the justification of the measure must be sought in some ‘law’ within the meaning of Article 13(3)(a) of the Constitution of India. The Supreme Court also observed, in D. Bhuvan Mohan Patnaik (supra), that the installation of the live high-voltage wire lacks statutory basis and seemed to have been devised on the strength of departmental instructions, though such instructions were neither ‘law’ within the meaning of Article 13(3)(a) of the Constitution of India nor do these instructions constitute “procedure established by law” within the meaning of Article 21 of the Constitution of India. Therefore, if the petitioners are right in their contention that the mechanism, in question, constitutes an infringement of any of the fundamental rights available to them, they would be entitled to the relief sought for by them that the mechanism shall be dismantled.

25. The State, in D. Bhuvan Mohan Patnaik (supra), which had acted on executive instructions in installing live high-voltage wire on the walls of the jail, could not justify installation of this mechanism on the basis of a ‘law’ or ‘procedure established by law’ inasmuch as the executive instructions, which had been acted upon, were held by the Supreme Court to be not a ‘law’ within the meaning of Article 13(3)(a) of the Constitution of India nor could these instructions, according to the Supreme Court, fall within the expression, “procedure established by law’, as envisaged by Article 21 of the Constitution of India. The relevant observations, appearing in this regard, in D Bhuban Patnaik (supra), read as follows;

“14. But before examining the petitioners’ contention, it is necessary to make a clarification. Learned counsel for the respondents harped on the reasonableness of the step taken by the jail authorities in installing the high-voltage live- wire on the jail walls. He contended that the mechanism was installed solely for the purpose of preventing the escape of prisoners and was therefore a reasonable restriction on the fundamental rights of the prisoners.

This, in our opinion, is a wrong approach to the issue under consideration. If the petitioners succeed in establishing that the particular measure taken by the jail authorities violates any of the fundamental rights available to them under the Constitution, the justification of the measure must be sought in some “law”, within the meaning of Article13(3)(a) of the Constitution. The installation of the high voltage wires lacks a statutory basis and seems to have been devised on the strength of departmental instructions. Such instructions are neither “law” within the meaning of Article 13(3)(a) nor are they “procedure established by law” within the meaning of Article 21 of the Constitution. Therefore, if the petitioners are right in their contention that the mechanism constitutes an infringement of any of the fundamental rights available to them, they would be entitled to the relief sought by them that the mechanism to be dismantled. The State has not justified the installation of the mechanism on the basis of a law or procedure established by law.”

(Emphasis is added)

26. Moreover, a Constitution Bench of the Supreme Court, in the case of

# State of M.P. v. Thakur Bharat Singh, AIR 1967 SC 1170

has held that the executive action cannot infringe rights of a citizen without lawful authority.

27. Again, in the case of

# Bishambhar Dayal Chandra Mohan v. State of UP, reported in (1982) 1 SCC 39

it has been held that though the executive powers of the State are co-extensive with the legislative powers of the State, no executive action can interfere with the rights of the citizens unless backed by an existing statutory provision. The relevant observations of the Court, appearing at paragraph 27, in Bishambhar Dayal Chandra Mohan (supra), reads as follows:

“27. The quintessence of our Constitution is the rule of law. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In

# State of M.P. v. Thakur Bharat Singh, AIR 1967 SC 1170 : (1967) 2 SCR 454 : (1968) 1 SCJ 173

the Court repelled the contention that by virtue of Article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued. It was observed:

“Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.”

The same principle was reiterated by the Court in

# Satwant Singh Sawhney v. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi, AIR 1967 SC 1836 : (1967) 3 SCR 525, 542 : (1968) 1 SCJ 178

and

# Smt Indira Nehru Gandhiv. Raj Narain, (1976) 2 SCR 347, 524 : 1975 Supp SCC 1

28. It will not be out of place to mention here that the executive powers of the State are to fill up the gaps and not to act as an independent law making agency inasmuch as the function of enacting law, under our Constitution, lies with the Legislature and, therefore, the Executive has to implement laws made by the Legislature and act in furtherance of the spirit and legislative policy as enacted by the legislature. If the State government is permitted to take recourse to its executive powers to make laws, then, we would be governed by the laws not made by the Legislature, but by the Executive. It is only when there is no law occupying a field a state government can take recourse to its executive powers as long as exercise of executive power does not infringe fundamental rights under Part-III of the Constitution of India.

29. In the course of an investigation, since the fundamental rights of a person being investigated are curtailed, such an action, on the part of the State, must be backed by a Statute and not merely by executive instructions, actions and norms.

30. Now, under the Code of Criminal Procedure, the expression police station has been referred to, in Section 154 of the Code of Criminal Procedure, among many other provisions. The emphasis on the expression police station in the Code of Criminal Procedure arises, because the Code provides that a First Information Report can be registered only in a police station and not otherwise. This would mean that a formal investigation can be carried out only pursuant to an information lodged before the Officer-in-Charge of a police station.

31. As to what is the meaning of an investigation has been succinctly laid down in the case of

# H.N. Rishbud v. State of Delhi, AIR 1955 SC 196

wherein the Supreme Court has held that investigation usually starts on information relating to the commission of an offence given to an Officer- in-Charge of a police station and recorded under Section 154 of the Code. From information so received or otherwise, if the Officer-in-Charge of the police station has reason to suspect the commission of an offence, he, or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender.

32. Thus, in the light of the decision in H.N. Rishbud (supra), investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes “all the proceedings under the Code for the collection of evidence conducted by a police officer”.

33. For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer, examining any person in the course of investigation, may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in Section 162 of the Code of Criminal Procedure. Under Section 165 of the Code of Criminal Procedure, the Officer-in-Charge of a police station has the power of making a search at any place for the seizure of anything believed to be necessary for the purpose of the investigation. The search has to be conducted by such officer in person. A subordinate officer may be deputed by him for the purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence. A police officer, making an investigation, is enjoined to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody, he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned. The Supreme Court, in H.N. Rishbud (supra), further observed that if, upon the completion of the investigation, it appears to the Officer-in- Charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he is to take the necessary steps _rganizat under Section 170 of the Code. In either case, on the completion of the investigation, he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form furnishing various details.

34. Thus, according to the decision in H.N.

Rishbud (supra), investigation, under the Code, consists, generally, of the following steps: (1) Proceeding to the spot; (2) Ascertainment of the facts and circumstances of the case; (3) Discovery and arrest of the suspected offender; (4) Collection of evidence relating to the commission of the offence, which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected makes out a case to place the accused before a Magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173. The scheme of the Code also shows that while it is permissible for an Officer-in-Charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the Officer-in-Charge of the police station, it having been clearly provided in Section 168 of the Code of Criminal Procedure that when a subordinate officer makes an investigation, he should report the result to the Officer-in-Charge of the police station. It is also clear that the final step in the investigation, namely, the formation of the opinion, as to whether or not there is a case to place the accused on trial, is to be that of the Officer-in- Charge of the police station.

35. It is apparent, therefore, that investigation infringes the right to personal liberty of persons being investigated and, as such, an investigation cannot be done otherwise than in accordance with the procedure established by law. The procedure established by law is that First Information Report can be lodged only before the Officer-in- Charge of a police station and such police station has to be set up by State Government.

36. Hence, when the State Government proposes to set up a police station, it must trace its power to some statute and not by merely resorting to its executive power without the backing of a statute. In other words, the State Government has no power to set up a police station, competent to register and investigate offences, under its executive power without there being a Statute conferring such an executive power.

37. The question which, now, arises is : whether the legislative power to establish a ‘police station’ would come within the scope and ambit of Entry 2 in List II or within the subject matter of Entry 2 of List III of the Constitution of India.

38. The power of State legislature to enact laws has been enumerated in List II and List III of the Seventh Schedule in the Constitution of India. The power to enact laws, with respect to subject matters enumerated in List II, lies in the exclusive domain of State Legislature. Subject to the provisions of the Constitution, both Union and State Legislatures are conferred with powers to make laws with respect to the subject matters enumerated in List III of the Seventh Schedule to the Constitution.

39. I may, now, consider the substance and contents of relevant entries, so far as subject matter of establishment of a police station is concerned.

Entry 1 of List II (State List) “Public order (but not including [the use of any naval, military or Air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof] in aid of the civil power).”

Entry 2 of List II (State List) “Police (including railway and village police) subject to the provisions of Entry 2A of List I”

40. It may be pointed out that in order to ascertain the legislative competence vis-à-vis a particular subject of legislation, it is necessary that the true character and nature of the legislation be examined. [See

# A.S. Krishna v. State of Madras, AIR 1957 SC 297

To discover the legislative intention behind Section 8 of the Bihar Police Act, 2007, it must be read in harmony with other provisions and the scheme of the Act.

41. In the case of

# Prakash Singh v. Union of India, reported in (2006) 8 SCC 1

the Supreme Court issued, inter alia, six directives to the State Governments in respect of State Security Commission, selection of minimum tenure of Director General of Police, minimum tenure of Inspectors General of Police and other officers, separation of investigation, setting up of Police Establishment Board and setting up of Police Complaint Authority until new legislations were enacted by state legislatures to provide essential and necessary changes with regard to police reforms in the light of the constitutional obligation of the State to provide and protect fundamental rights of citizens and to protect democratic aspirations of the society. The relevant observations of the Court are reproduced hereinbelow:

25. …More than ten years have elapsed since this petition was filed. Even during this period, on more or less similar lines, recommendations for police reforms have been made by other High-Powered Committees as above noticed. The Sorabjee Committee has also prepared a draft report. We have no doubt that the said Committee would also make very useful recommendations and come out with a model new Police Act for consideration of the Central and the State Governments. We have also no doubt that the Sorabjee Committee Report and the new Act will receive due attention of the Central Government which may recommend to the State Governments to consider passing of the State Acts on the suggested lines. We expect that the State Governments would give it due consideration and would pass suitable legislations on recommended lines, the police being a State subject under the Constitution of India. The question, however, is whether this Court should further wait for the Governments to take suitable steps for police reforms. The answer has to be in the negative.

29. The preparation of a model Police Act by the Central Government and enactment of new Police Acts by the State Governments providing therein for the composition of the State Security Commission are things, we can only hope for the present. Similarly, we can only express our hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the rule of law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better criminal justice delivery system. It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments.

(Emphasis is supplied)

42. The legislature of Bihar enacted the Bihar Police Act, 2007,and the Preamble of the Act reads as follows:

“That, promotion and respect of the human rights of individual and protection of their civil, political, social, economic-

and cultural rights is the first responsibility of the law;

And, that, it is the constitutional responsibility of the state to provide an impartial and capable police services for the protection of the interests of the weaker section of the society including the minorities and respect the democratic sentiments of the citizens;

And, that, for such a purpose it is necessary that the police personnel are professionally organized, service oriented free from outside influences and accountable to the law;

And, that, keeping in view the challenges emerging before the police and the security of the state, administration of good governance and the respect of the human rights ,it is necessary to redefine the role of the police, their duties and responsibilities;

And, that, it is necessary to appropriately strengthen the police so that it is capable of working as an efficient ,effective, people friendly and accountable agency;

Therefore, to provide for the establishment and management of the police service, now, it is necessary that a new law is enacted as follows.”

43. The preamble, thus, suggests that the Legislature found it ‘necessary’ to enact ‘a new law’ to provide for ‘establishment and management of the police service’ which must be ‘capable of working as an efficient, effective, people friendly and accountable’ police force and shall discharge their statutory duties in the light of the constitutional responsibility of the State to ‘promote and respect’ constitutional rights and ‘the democratic sentiments’ of the citizens. To achieve this purpose, it was felt ‘necessary to redefine the role of the police, their duties and responsibilities.’

44. Section 31 of the Act is titled as ‘Role, Function and Duty of Police’ and lays down the duties of the police. Section 31 of the Bihar Police Act, 2007, reads thus:-

“(31) -Role, Function and Duty of Police Role and duty of police shall, mainly, be the following:-

a) To follow law and implement them in a fair manner and protect the life, liberty, property and the human rights along with the dignity of the public.

b) To maintain and promote public order.

c) To protect the internal security, prevent and control terrorist activities, activities breaching communal harmony, activities affecting internal security and other subversive activities.

d) To protect road, rail, bridges, important infrastructures and establishments etc. along with public property from riot violence or other kind of attacks.

e) To prevent crime and reduce the chances of commission of offences by their preventive activities and steps and assist and cooperate with other relevant agencies in actions to be taken for preventing offences.

f) To properly file all information sent personally or brought to them by representative of the individual or received through email or other medium and take immediate follow up action after giving acknowledgment of the information.

g) To file compoundable offence brought to their attention through notice and other medium and investigate them and duly provide a copy of the First Information Report to the person filing FIR and arrest offender whenever deemed proper and provide required assistance in prosecuting them.

h) To develop sense of confidence in various societies and maintain them and so far as possible prevent conflict and increase feeling of brotherhood among them.

i) Taking initiative in providing every possible help to the person affected by man-made or natural calamities actively, assists other agencies in relief and rehabilitation work.

j) To help persons having apprehension of physical loss or loss of property and provide necessary assistance and relief to the victims.

k) To regulate orderly transportation of people and vehicle and control and regulate traffic on highway.

l) To gather information relating to the matter connected with public peace and all kind of offence and national security and apart from taking suo motto action, shares such information with other relevant agencies.

m) To take charge of all unclaimed property in their possession as police officer discharging their duty and take action for their secured custody and their disposal as per the prescribed procedure.

n) To provide security to public servants.

o) To perform all such duties and responsibilities, which have been imposed upon them by any authority vested with the power to issue such instructions by the government or by the law for the time being in force.

p) To keep record of habitual

offenders and cognizant offences and

display them in the police station.”

(Emphasis is added)

45. It needs to be carefully noted that the word ‘mainly’, occurring under Clause (a) has a significant effect with regard to the scope of duties to be performed by police.

It suggests that the duties enumerated under Section 31 of the Act are the primary duties of police. The use of the word ‘mainly’ in Section 31 of the Act also indicates that the duties as enumerated in clause (a) to clause (p) of the provisions are inclusive and that the list is not exhaustive.

46. Section 33 of the Act provides and deals with social duties of the Police. Section 34 of the Act deals with duties of police in emergent circumstances.

“Social duties of the Police

33. It shall be the duty of each officer

a) To conduct in a dignified and polite manner while dealing with the member of the public, especially senior citizen, women and children.

b) To guide and assist member of

the public, especially senior citizen,

women, children, poor people and

destitute, physically and mentally

challenged people, who find themselves

helpless or otherwise require assistance and protection.

c) To provide all possible assistance to victims of offences and road accidents and ensure that they get immediate medical assistance without any medico- legal formalities and to assist them in their compensation and other legal claim.

d) To ensure that the conduct of police are in a fair manner and in accordance with the principles of human rights while taking special care of the security of minorities along with weaker sections in all circumstances especially during clash between various communities, classes, castes and political parties.

e) To prevent torture of women and children from indecent and objectionable behaviour, lewd remarks or sufferings along with torture in public places and public transport.

f) To provide all possible assistance to members of the public, especially women, children and poor and the destitute, against any offence or exploitation by any person or cognizant group.

g) To provide legally prescribed food and shelter to each person placed in custody and to provide information of provision of legal assistance schemes being made available to all such persons and also give intimation to the concerned authorities in this regard.

h) To follow and discharge any other responsibilities and duties determined by the government from time to time.”

47. Nature of the duties of a police officer under Section 33 of the Act suggests fundamental change in the purpose of establishment of police force in the light of constitutional obligations of the State and, more specifically, in the light of fundamental rights of the citizens. Section 4 of the Act provides for constitution of the Police Service under the Act and reads as:

“4 (i) For the purpose of this Act, the whole police _rganization shall be treated as one Police Service under the government and shall be formally nominated and shall contain such members of officers and police personnel and police force for special purposes such as categories of Bihar Armed Police or Anti-riot combined force as required necessary for the control of Riots etc. and shall be constituted in such a manner as ordered by the Government from time to time.”

48. Section 4 relates to the structural formation of ‘Police Service’ within the State of Bihar and requires the State government to form and constitute ‘police organization’ (which would include ‘police force’ such as ‘Bihar Armed Police’ or ‘Anti-riot combined force’ comprising ‘officers and police personnel and police force’ for ‘special purposes’, i.e., for controlling riots and for maintaining law and order in distress situations or in a state of adversity.

49. From the plain language of the provisions, embodied in Section 4, especially, the use of expression ‘special purposes’ in Section 4, it becomes clear that the Act casts a duty upon the State government to provide and constitute effective and efficient police organization for performing various ‘special purposes’ to maintain healthy law and order in the State. I must note that the expressions ‘shall be constituted’ and the word ‘ordered’, used in these provisions, suggests that the State government can constitute such category of ‘police service’ as a part of ‘police organisation’ as may be necessary for control of the riots etc, by making a mere ‘order’. Section 7 of the Act provides for establishment of a ‘Police District’ within the meaning of the Act. The expression ‘Police District’ has been defined, in Section 2(m) of the Act, to mean tract notified under Section

7. Section 7 lays down two propositions of law. Firstly, with regard to how a ‘Police District’ is to be formed and, secondly, bestow powers, duties and responsibilities with regard to administration of so declared ‘Police District’ and related matters.

50. It would be necessary to point out here that the expression ‘district’ has been defined in Section 2 (w) of Bihar Police Act to mean revenue land notified as District under Code of Civil Procedure 1908. In contradistinction to the general meaning of expression “district”, the expression “police district” means the tract, notified under Section 7, which is different from revenue district.

51. It may be also pointed out here that under Police Manual made under the Police Act, 1861, a police district corresponded to the revenue districts of the State. Hence, whenever a revenue district was declared by the State government, a police district would also have come into existence.

52. Now, if a police district, when required to be constituted or established at all, under the Act, 2007, it clearly follows that whenever a revenue district comes into existence, a corresponding notification will be required to be issued under the Bihar Police Act, 2007, for creation of a police district along with the revenue district. Further, the Bihar Police Act empowers the State Government to notify a particular tract as police district irrespective of the fact whether such tract has been notified as revenue district or not. Thus, after the enactment of Bihar Police Act, there can be a police district other than a revenue district.

53. The creation of a new police district would not mean that the area, where the police district is proposed, was not under any police administration; but for effective policing, a power has been vested, in the State Government, to create a police district even though the State Government may not be desirous of creating a revenue district for the same area. In other words, within the areas, in which the police administration was corresponding to the general administration of revenue districts, a new district for the purpose of police administration can be created. It is, thus, obvious that the area, which the State Government proposes to notify as police district, would be an area, which may not be a revenue district, though, as envisaged under Section 12 of the Act, the police district shall remain under the general control of the District Magistrate.

54. Section 13, on the other hand, empowers the State Government to create special police districts as well to perform the police work relating to the railway administration under the jurisdiction of their duty and to also perform the duties assigned to them from time to time by the State Government.

55. Thus, whereas Section 7 speaks of general police districts, Section 13 provides for special police district for railway administration.

56. Section 8 of the Bihar Police Act, dealing with a police station, provides that the government, considering the area status of crime, duty in relation to law and order, the distance being covered by the public in reaching the police station, may, by notification, set up as many police stations along with required number of police posts, as it deems expedient. Section 8 (3) also provides that the head of the police station shall be Station House Officer, who shall not be below the rank of Sub Inspector. Section 8 (4) further provides that the number of police personnel, deputed to a police station, shall be as many as may be determined by the Government from time to time through general or special order.

57. A reading of Section 8 would show that the general factors, behind setting up of a police station, are the area status of crime, duty in relation to law and order, the distance being covered by the public in reaching the police station.

58. Thus, behind setting up of a police station lies the solemn responsibility of the State Government in providing safety and security to its subjects. Once the police station is set up, the State Government may also decide the strength of the police personnel required to man the police station. The most striking feature of Section 8 is that it defines the head of the police station as Station House Officer or, in other words, Officer-in-Charge. Such a designation becomes necessary, because the Code of Criminal Procedure requires that a First Information Report can be lodged only before the Officer-in- Charge of a police station.

59. Section 8(1) provides that under certain exigencies, the government, meaning the Government of Bihar, by a notification, set up a police station. These police stations, if they fall within the general police district, remain under the supervision of the Superintendent of Police of the Police district, and if there be no police district for the area of their operation, then, the supervisory jurisdiction lies with the Superintendent of Police of the police district, corresponding to the revenue district.

60. In order to illustrate the concepts of police district and police station, let us assume that under a revenue district, there are 30 police stations under the superintendence of a district Superintendent of Police. If the State Government finds that the administration and supervision of all these 30 police stations under one Superintendent of Police is not effective, it may, by exercising powers under Section 7, create a police district and place 15 police stations within the jurisdiction of a newly appointed Superintendent of Police for the police district. From the date of creation of such a police district the administration of 15 police stations shall come under the new police district; whereas the administration of the other 15 police station shall remain under the supervision of the Superintendent of Police under the revenue district. There will be, thus, two districts, dealing with the police under one revenue districts.

61. Hence, a police station will always remain under a particular revenue district for the purpose of general control of District Magistrate, though, for the purpose of superintendence, it can be under a different police district within the revenue district.

62. On further examination of Bihar Police Act, 2007, it is found that Section 94 and Section 97 confer executive powers on the State Government to enact any Rule for carrying out the purposes of Bihar Police Act, 2007. Thus, not only the Bihar Police Act, 2007, lays down the reasons for setting up of a police station, it also confers powers on the State Government to set up a police station.

63. Having examined the relevant provisions of the Bihar Police Act, 2007, it is equally important to recall the principles of interpretation of various entries in the Lists. In the case of

# United Provinces v. Atiqa Begum, AIR 1941 FC 16

the Federal Court of India considered the scope of various Entries, while dealing with the Schedule 7 of the Government of India Act, 1935, which was similarly structured as the Schedule 7 of the Constitution of India. Gywer C.J. (as he then was) expressed the principle in the following words:-

“The subjects dealt with in the three Legislative Lists are not always set out with scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that List, and Parliament seems to have been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import. In the case of some of these categories, such as “Local Government” “Education”, “Water”, “Agriculture” and “Land”, the general word is amplified and explained by a number of examples or illustrations, some of which would probably on any construction have been held to fall under the more general word, while the inclusion others might not be so obvious. Thus “Courts of Wards” and “treasure-trove” might not ordinarily have been regarded as included under “Land”, if they had not been specifically mentioned in item No. 21. I think however that none of the items in the Lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be sufficient and much wiser to determine each case as and when it comes before this Court.”

(Emphasis is supplied)

64. Similarly, a Constitution Bench of the Supreme Court, in

# Elel Hotels & Investments Ltd. v. Union of India, reported in (1989) 3 SCC 698

while construing the word ‘income’ in Entry 82 of List I, agreed with the proposition that a word used in an Entry broadly indicates the topic or field of the legislation and should not be read in a narrow and pedantic sense, but must be given its widest amplitude and that it should not be limited by any particular definition, which a legislature might have chosen for the limited purposes of that legislation.

65. Again, in

# Express Hotels (P) Ltd. V. State of Gujarat, (1989) 3 SCC 677

a constitutional bench of the Supreme Court reiterated the aforesaid principle in following words:-

“15. We are dealing with an entry in a Legislative List. The entries should not be read in a narrow or pedantic sense but must be given their fullest meaning and the widest amplitude and be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in them.”

66. In view of the constitutional principles on interpretations of various entries in the list vis-à-vis the fields of legislations, when I look at the various provisions of the Bihar Police Act, 2007, it would become transparent that the State Legislature is competent to enact a law on police as provided in Entry 2 List II of Schedule 7 of the Constitution. Such a law must be deemed to include the power to establish a police station as well. This is so, because one of the core functions of police station is to investigate crimes. It is under Entry 2 in List II of Schedule-7, the legislature of Bihar has enacted the Bihar Police Act, 2007.

67. Hence, the existence of a legally constituted ‘Police station’ is a pre-requisite for initiating such criminal proceedings, which are required to withstand the tests of Article 21 of the Constitution of India. I have, therefore, no hesitation in holding that the power to set up a police station to enforce criminal law is essentially a subject-matter covered by the broad subject “police” in Entry 2 in List II of Schedule 7 of the Constitution of India. In view of the fact that full effect has to be given to Entry 2 in List II of Schedule 7 of the Constitution of India one can have no escape from the conclusion that Entry 2 in List II of Schedule 7 of the Constitution of India would include the power of the State Legislature to prescribe the mode of establishment of a police station.

68. As a result whereof, the Legislature of the State of Bihar was constitutionally competent to enact Section 8 of the Bihar Police Act, 2007, and having enacted Section 8 in Bihar Police Act, 2007, which prescribes the mode and manner of setting up of a police station, it is, now, not open to the State Executive of Bihar to deviate from such mode and manner.

69. However, the argument of the learned Additional Advocate General for the respondent State is that Section 2(s) of the Code empowers the State Government to establish a police station. This argument is based upon the presumption that the subject-matter of establishment of a ‘police station’ is also covered by Entry 2 in List III of Schedule Seven of the Constitution. Hence, the question is : whether establishment of a ‘police station’ would also be a subject matter of Entry 2 in List III of the Schedule 7 of the Constitution?

70. Entry 2 in List III of Schedule 7 of the Constitution provides as follows;

“Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of the Constitution.”

71. It needs to be mentioned that the primary purpose of a law prescribing a procedure for enforcement of criminal law, especially in a democracy, established by written constitution, is to provide for a satisfactory adjustment and manner of the administration and execution of the criminal law to the present needs of the people in the light of constitutional obligations of the State. I have purposefully taken into account these considerations in order to explore the scope and extent of the words ‘criminal procedure’ and expression ‘all matters included in the Code of Criminal Procedure’ employed by the founding fathers in Entry 2 in List III of the Constitution. In Clark’s commentary, the expression ‘criminal procedure’ is explained as follows:

“Criminal procedure is the method fixed by law for the apprehension and prosecution of a person who is supposed to have committed a crime, and for his punishment if convicted. The term is really included in the broader term “criminal law,” but the latter refers more particularly to that branch of the law which declares what acts are crimes, and prescribes the punishment for committing them. “In the nature of things,” says Mr. Bishop, “there is a difference between a right and the means by which it is enforced; an obligation, and the legal steps by which the delinquent is made to atone for its violation; the law defining a crime, and the course of the court in punishing it. Out of this distinction grows the law of judicial procedure. It is that division of legal things under which are regulated the steps by which a legal right is vindicated or wrong punished.”

72. The Code of Criminal Procedure, 1898 provided the structure for the Code of Criminal Procedure, 1973.

73. From the language of Entry 2 in List III, it appears that the framers of the Constitution gave wider meaning to the general understanding of the expression ‘Criminal Procedure’ by encompassing into its ambit all subject-matters dealt with by the Code of Criminal Procedure, 1898. Now, if the Code of Criminal Procedure, itself, recognizes the power of the State Government to declare a post or place as police station, it necessarily implies that even though the subject of criminal procedure falls within the ambit of Concurrent list, the subject of setting up of police station has been left to the State Legislature in order to avoid any possible conflict between the Entry 2 List III and Entry 2 List II. As indicated hereinbefore, the power of the State Government to set up a police station does not fall within the ambit of its plenary executive powers; rather, executive power backed by a statute framed in exercise of field of legislation as provided in Entry 2 List II.

74. However, I disagree with the reasoning that there also exists a power to issue a notification under Section 2(s) of the Code of Criminal Procedure, 1973. The power to set up a police station is the executive power of the State exercised under Article 162 of the Constitution of India in tune with a valid legislation enacted under Entry 2 List II of Schedule 7. Now, since the State of Bihar has enacted the Bihar Police Act, 2007, which lays down the procedure and requirements to establish a police station, the State executive is bound by such law and the State government cannot establish any police station in contravention of Section 8 of the Bihar Police Act.

75. What it means is that if there is a legislation, on a given subject, occupying the field, executive power of the State cannot but be exercised in tune with, or in terms of, the legislation and, therefore, executive action of the State cannot go contrary to what the legislation provides.

76. Logically extended, it would mean that if the Bihar Police Act, 2007, has ordained establishment of a police station by means of a notification as provided in Section 8 of the Act, the State Government cannot, in exercise of its power under Article 162 of the Constitution of India, seek to establish police station by making mere declaration by contending that Section 2 (s) of the Code of Criminal Procedure specifies a mere declaration by the State Government sufficient to establish a police station unless it is the case of the State that its legislation, i.e., Section 8, is ultra vires.

77. We specifically made a query from the learned Additional Advocate General if it is the contention of the State that Section 8, which specifies the mode of establishment of a police station by means of issuing notification, is ultra vires. Responding, with great alacrity, to the above query, learned Additional Advocate General, has, in no uncertain words, candidly conceded that it is not the contention of the State that the provisions, embodied in Section 8 of the Bihar Police Act, 2007, specifying the mode of establishment of a police station by means of a notification, is ultra vires.

The next question would be whether any provision of the Bihar Police Act, 2007, is contrary to the provisions of the Code of Criminal Procedure, 1973?

78. Mr. Anjani Kumar, learned Additional Advocate General, has drawn our attention to Article 254 of the Constitution of India. The law is well established in this regard that any conflict between the central statute and the statute enacted by a state legislature shall be resolved in light of Article 254 of the Constitution of India. But such recourse is necessary only if there exists a conflict between provisions of the two statutes in question and the legislation falls within the ambit of List III, i.e., the concurrent list.

79. The impugned notification refers to Section 2

(s) of the Code of Criminal Procedure as the source of power to constitute a police station.

80. Section 2 (s) of the Code of Criminal Procedure defines “Police station” to mean 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.

81. In other words, the Code of Criminal Procedure gives recognition to a place or post as a police station if declared to be a police station by the State Government. The important expression, in Section 2 (s), is declaration by the State Government. A closer reading of Section 2 (s) will show that it does not provide any definition of police station; rather, it only seeks to recognize a police station so declared by the State Government. The reason for such recognition is obvious, because even though the Code of Criminal Procedure is a subject of Concurrent List, yet police is a subject matter of State List. A reference to police station, in the definition section of the Code of Criminal Procedure, was necessary, because the Code of Criminal Procedure envisages an investigation only when an information is laid before the Officer-in-Charge of a police station.

82. Now, since, as have been already discussed hereinbefore, setting up of police station is a State subject, it would not have been possible to foresee, which of the place or post would be declared as police station by the State and how a police station or post would be declared by a State under its exercise of executive power derived from the relevant Statute; hence, in order to avoid any probable conflict between the legislative competence, a convenient definition has been adopted in the Code of Criminal Procedure.

83. Thus, whenever any reference to the expression police station appears in the Code of Criminal Procedure, it would mean and include the police station so declared by the State Government, the mode of declaration having been left to the State Government in accordance with the law made by its legislature.

84. Had section 2(s) of the Code of Criminal Procedure been the source of power to establish a police station, Bihar Police Manual need not have mentioned that the expression police station will have the same meaning as defined in Section 2(s) of the Code of Criminal Procedure. When, however, Bihar Police Act, 2007, specifically mentions that a police station can be established by issuance of gazette notification, it necessarily follows that a police station, in the State of Bihar, can be established only by way of gazette notification and not otherwise. No wonder, therefore, that in recognition of the conclusion that I have reached, the State Government, too, published a gazette notification, on 25.03.2013, giving, of course, retrospective effect to the creation of Economic Offences Police Station.

85. In the Bihar Police Manual, Rule 73 (a) stated that police station is one as defined under Section 2 (s) of Code of Criminal Procedure. Bihar Police Manual, for all purpose, was a delegated legislation being enacted by virtue of powers derived under the Police Act of 1861. With the enactment of Bihar Police Act, 2007, the Police Act, 1861, to the extent of its application in the State of Bihar, has been repealed. When the principal legislation has been repealed, any delegated legislation, made by virtue of such principal Act, cannot survive or, at least, override the new legislation, namely, Bihar Police Act, 2007.

86. Let us assume, for a moment, that Section 2

(s) of the Code of Criminal Procedure is the source of power to set up a police station. On the other hand, Section 8 of Bihar Police Act, 2007, also provides for setting up of a police station under certain circumstances.

87. The question, which, then, would arise is that between the provisions of the Code of Criminal Procedure and the Bihar Police Act, 2007, which law would prevail if there is a conflict in the mode and manner by which a police station can be set up. The conflict lies in the fact that Section 2 (s) of the Code of Criminal Procedure defines “Police station” to mean 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. On the other hand, Section 8 of the Bihar Police Act, 2007, dealing with a police station, provides that the government, considering the area status of crime, duty in relation to law and order, the distance being covered by the public in reaching the police station, may, by notification, set up as many police station along with required number of police posts as it deems expedient.

88. The crucial distinction between the two provisions lies in the expression notification. If I adopt the definition provided in Section 2 (m) of the Code of Criminal Procedure, then, notification means a notification published in the Official Gazette. It may be pointed out that Section 2(2) of Bihar Police Act, 2007, provides that words and expressions used in the 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.

89. Hence, for the purpose of Bihar Police Act, 2007, a notification would mean notification in official gazette.

90. Now, notification is, ordinarily, an act of delegated legislation. The Code of Criminal Procedure does not empower either the Central Government or the State Government to exercise any power of delegated legislation. Though Section 477 of the Code of Criminal Procedure empowers framing of Rules under certain circumstances, such Rules can be framed only by the High Court with the approval of the State Government. The Code of Criminal Procedure being a subject of Concurrent list, the Central and the State Government may, under certain circumstances, effect amendments to the Code of Criminal Procedure; but under no circumstances, an exercise of executive power is permissible under the Code of Criminal Procedure.

91. By Sub-section (2) of Section 97 of the Bihar Police Act, 2007, repeals the Police Act, 1861, to the extent that the same relates to the State of Bihar. However, Section 97(3) provides that any action or proceeding, initiated under the Police Act, 1861, before the Bihar Police Act, 2007, came into force, shall not be challenged for non-compliance with the Bihar Police Act, 2007. Sub-section (4) of Section 97 provides that all references made to provisions of the Police Act, 1861, shall be taken as references to the relevant provisions of the Bihar Police Act, 2007.

92. Coupled with the above, under Rule 73 of the Bihar Police Manual, a police station has been defined with same words as in Section 2(s) of the Code of Criminal Procedure, 1973. Rule 73 further provides that all investigating centres are “police station” for the purpose of police administration. The Bihar Police Act, 2007, came into force on 30.03.2007.

93. So far as the issue of establishment of a ‘police station’ is concerned, Section 8 of the Bihar Police Act, 2007, holds the field and provides the procedure to setup a police station in the State of Bihar. Therefore, after the Bihar Police Act, 2007, has become applicable, i.e., after 30.03.2007, no place or post, since after the enforcement of the Bihar Police Act, 2007, can be considered as a ‘police station’ until the requirements of Section 8 are complied with. One important requirement of Section 8 is the notification declaring such a place or post to be a police station for the purpose of the Code of Criminal Procedure.

94. The State legislature has plenary powers to legislate with respect to ‘police’ and establishment of police administration and police force for the State. The State legislature, in Section 8, has delegated powers upon the State Government to notify any place or post as a police station.

95. It goes without saying that in Bihar Police Act, 2007, the State legislature has deliberately not adopted the definition of ‘police station’ as given in clause (s) of Section 2 of the Code of Criminal Procedure. The position was substantially different under the provisions of the Police Act, 1861.

96. In exercise of powers under Sections 7 and 12 of the Police Act, 1861, the Bihar Police Manual, 1978, was framed and issued with the authority of the State Government. The legislature of the State of Bihar adopted and applied the Police Act, 1861, to the State of Bihar.

97. Therefore, considering the legislative power of the State legislature under Entry-II in List-II of Schedule-7, and executive powers of the State Government under Article 162 of the Constitution, the power to establish a police station was, under the Police Act, 1861, vested in the State Government. However, the State Government, by Rule 73 of the Bihar Police Manual, 1978, adopted the definition of Section 2(s) of the Code and, therefore, under the Police Act, 1861, a police station could be established by a mere ‘declaration’ as prescribed by clause (s) of Section 2 of the Code of Criminal Procedure, 1973. However, since the Bihar Police Act, 2007, has repealed the Police Act, 1861, the State Government cannot but follow the mandate of Section 8 of the legislation in force. Therefore, a notification must be published in the official gazette of the State to declare any place or post as a ‘police station’ for the purpose of the Code of Criminal Procedure, 1973.

98. We have held that, under the allocation of subject-wise legislative powers in Schedule 7 of the Constitution, only the State legislature is competent to make law for establishment of police department and a constitutionally valid police force empowered to ‘investigate’ crimes.

99. In order to appreciate the real meaning of the word notification, it would be proper to discuss the case of Subhash Ramkumar Bind v. State of Maharashtra, reported in (2003) 1 SCC 506, wherein the question before the Supreme Court was whether 9 mm pistol and .38 calibre revolver can be branded as prohibited firearms so as to attract the culpability under Section 27(3) of Arms Act, 1959. In this case, the Central Government had issued an administrative note to all the States to consider 9 mm pistol and .38 calibre revolver as prohibited forearms until the Arms Rules were revised.

100. The appellant had challenged his conviction for the offence under Section 27(3) Arms Act on the count that 9 mm pistol and .38 calibre revolver are, otherwise, not prohibited firearms within the definition of 2(1)(i) of the Arms Act, because a firearm can be termed as prohibited only when the Central Government makes a notification in this regard.

101. The Supreme Court, in Subhash Ramkumar Bind (supra), observed that notification, in common English acceptation, means and implies a formal announcement of a legally relevant fact and in the event of a statute speaking of a notification being published in the Official Gazette, the same cannot but mean a notification published by the authority of law in the Official Gazette. It is a formal declaration and publication of an order and shall have to be in accordance with the declared policies or in the event the requirement of the statute, in accordance therewith. The relevant observations are reproduced as follows;

“20……………Notification in common English acceptation means and implies a formal announcement of a legally relevant fact and in the event of a statute speaking of a notification being published in the Official Gazette, the same cannot but mean a notification published by the authority of law in the Official Gazette. It is on formal declaration and publication of an order and shall have to be in accordance with the declared policies or in the event the requirement of the statute then in that event in accordance therewith.”

(Emphasis is added)

102. With regard to the above, the Supreme Court, in Subhash Ramkumar Bind (supra), had placed reliance on the case of Union of India v. Charanjit S. Gill, reported in (2000) 5 SCC 742. In Chranjit Gill (supra), the Supreme Court, while dealing with the Army Act, 1950, and the Court Martials thereunder, had observed that the “notes” issued by the authorities of the armed forces, for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules, cannot supplement or supersede the statutory rules. It was further held, in Charanjit Gill (supra), that the administrative instructions issued or the notes attached to the Rules, which are not referable to any statutory authority, cannot be permitted to bring about a result, which may take away the rights vested in a person governed by the Act.

103. The Supreme Court, in Subhash Ramkumar Bind (supra), accordingly, held that issuance of an administrative order or a note pertaining to special type of weapons to bring it within the ambit of the Arms Act, 1959, which was hitherto not being included therein, cannot be said to be included in the manner as it has sought to have been so done. It further held that when the statute speaks of a notification, in the Official Gazette, can an administrative note in relation to importation of a prohibited arm be termed to be sufficient so as to come within the ambit of the statutory requirement of a notification in the Official Gazette — the answer cannot but be in the negative. Administrative instructions cannot possibly be a substitute for a notification, which stands as a requirement of the statute. Hence, the question of there being any notification, even in the guise of an administrative order, does not and cannot arise. The requirement of the statute is sacrosanct and since the issue shall have to be dealt with utmost care and caution, without the issuance of a notification, question of a conviction, under Section 27(3) of the Arms Act, 1959, would not arise.

104. Deriving necessary rationale from the judgment of Subhash Ramkumar Bind (supra), when Section 8 of the Bihar Police Act, 2007, is read, it would be seen that it provides that a police station can be set up by a notification and, hence, any other mode of setting up of police station, dehors the mandate of Section 8, would not be proper and such police stations will have to be considered as illegally set up. It also follows that declaration, in the context of notification, is only the intended consequence of notification. Therefore, a ‘declaration’ within the meaning of 2(s), could be made only by way of publishing a ‘notification’ issued under the Authority derived from Section 8 of the Bihar Police Act, 2007, and not otherwise.

105. Consequently, neither the State Government nor the Central Government is competent to notify a place or post as police station within the meaning of Section 2 (s) of the Code of Criminal Procedure. The only source of power, logically traceable to, is Section 8 of the Bihar Police Act, 2007, which does speak of notification as the mode empowering the State Government to exercise its executive function in setting up and declaring a police station.

106. If one still finds a conflict between the provisions of Section 2 (s) of Code and Section 8 of Bihar Police Act, 2007, then, it may be pointed that the scheme of arrangement, whereby setting up of a police station is left to be decided by the State Government, is further fortified by a conjoint reading of Section 4 and 5 of the Code of Criminal Procedure. Section 4 and 5 of the Code of Criminal Procedure are reproduced below :

“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.

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.

5. Saving– Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

107. It would appear that Section 4 provides that the investigation, inquiry and trial of offences under the Penal Code, shall be in accordance with the procedure provided in the Code of Criminal Procedure. Section 4 (2) further provides that investigation, inquiry and trial in connection with penal laws other than Penal Code, shall also be done in accordance with the procedure prescribed in the Code of Criminal Procedure. However, if a special law or local law prescribes any special mode of investigation, inquiry and trial, which is other than the general provisions prescribed by the Code of Criminal Procedure, the special procedure would prevail over the general procedure prescribed in the Code of Criminal Procedure.

108. A succinct elaboration of Section 5 can be found in the case of Maru Ram v. Union of India, reported in (1981) 1 SCC 107, wherein the Supreme Court observed that the anatomy of the savings section (Section 5) is simple, yet subtle. Broadly speaking, there are three components to be separated. Firstly, the Criminal Procedure Code, generally, governs matters covered by it. Secondly, if a special or local law exists covering the same area, the latter law will be saved and will prevail. Now comes the third component, which may be clinching. If there is a specific provision to the contrary, then, that will override the special or local law.

109. The relevant paragraph, in Maru Ram (supra), is reproduced as follows;

“33. The anatomy of this savings section is simple, yet subtle. Broadly speaking, there are three components to be separated. Firstly, the Procedure Code generally governs matters covered by it.

Secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail. The short-

sentencing measures and remission Schemes promulgated by the various States are special and local laws and must override. Now comes the third component which may be clinching. If there is a specific provision to the contrary, then that will override the special or local law.”

110. Again, dealing with Section 4 and Section 5 of the Code of Criminal Procedure, the Supreme Court, in the case of Directorate of Enforcement v. Deepak Mahajan, reported in (1994) 3 SCC 440, held that Section 4(2) of the Code corresponds to Section 5(2) of the old Code. Section 26(b) of the Code corresponds to Section 29 of the old Code except for a slight change. Under the present Section 26(b), any offence, under any other law, shall, when any court is mentioned in this behalf in such a law, be tried by such court and when no court is mentioned in this behalf, may be tried by the High Court or other court by which such offence is shown in the First Schedule to be triable. The combined operation of Sections 4(2) and 26(b) of the Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code, where the enactment, which creates the offence, indicates no special procedure.

111. The Supreme Court, in Deepak Mahajan (supra), further held that Section 5 of the Code, which is for all practical purposes identical with the relevant portion of the corresponding Section 1(2) of the old Code, also deals with special laws. In this regard, the Supreme Court, in Deepak Mahajan (supra), referred to the case of Vishwa Mitter of Vijay Bharat Cigarette Stores v. O.P. Poddar, reported in (1983) 4 SCC 701, wherein it was held as follows;

“… Section 190, thus, confers power on any Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not speak of any particular qualification for the complainant.

Generally speaking, anyone can put the criminal law in motion unless there is specific provision to the contrary. This is specifically indicated by the provision of sub-section (2) of Section 4 which provides that all offences under any other law — meaning thereby law other than the Indian Penal Code — shall be investigated, inquired into, tried and otherwise dealt with according to the provisions in the Code of Criminal Procedure 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. It would follow as a necessary corollary that unless in any statute other than the Code of Criminal Procedure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure.”

112. The Supreme Court, in Deepak Mahajan (supra), also referred to the case of A.R. Antulay v. Ramdas Sriniwas Nayak, reported in (1984) 2 SCC 500, with regard to applicability of Section 4 with reference to the Prevention of Corruption Act, 1947, wherein the Constitution Bench of Supreme Court, while examining the similar question, laid down the law in the following words:

“In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations.”

113. The Supreme Court, in Deepak Mahajan (supra), finally summed up by holding that Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction, but does not nullify the effect of Section 4(2).

114. In short, the provisions of the Code of Criminal Procedure would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4(2) itself limits the application of the provisions of the Code reading, “… 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.”

115. Situated thus, when Section 8 of the Bihar Police Act, 2007, prescribes the ‘manner’ in which a police station is to be set up, the said Act, being a local law providing special procedure, would prevail over the provisions of the Code of Criminal Procedure or, for that matter, on other laws in force.

116. It is, thus, apparent that the source of power to set up a police station lies only in the Bihar Police Act, 2007, and not in Code of Criminal Procedure.

117. Considering the fact that a notification, in terms of Bihar Police Act, 2007, means a gazette notification, it clearly follows that police station, upon coming into force of the Bihar Police Act, 2007, could be set up by the State Government and established not merely by a declaration, but such a declaration has to be published in a gazette notification in exercise of powers under Bihar Police Act, 2007.

118. Hence, an interpretation, which seeks to trace the source of power of the State Government, to create a police station, to Section 2 (s) of the Code of Criminal Procedure would amount to shifting a subject of State List to a Concurrent List, which would be in utter violation of Constitutional scheme of federal structure as envisaged by Article 245 and Article 246 of the Constitution.

119. Hence, I conclude that the provisions of the Bihar Police Act, 2007, holds the field with regard to establishment of a ‘Police station’, within the territories of the State of Bihar. There is no conflict between the provisions of Section 2 (s) of the Code and that of Section 8 of Bihar Police Act, 2007, as the Code only seeks to complement the Bihar Police Act, 2007. As a result, no discussion on the question of repugnancy is called for.

120. Be that as it may, in the present case, it must be noted that the issue is not merely about the definition of police station, the petitioners have challenged the powers of State Government to set up a police station in the nature of Economic Offence police station.

121. Hence, the principal question involved is: whether the State Government is competent to set up a police station in the nature of Economic Offence police station?

122. Having held that the power to set up a police station lies in the Bihar Police Act, 2007, the question, which, now, needs to be answered is: whether a police station, in the nature of Economic Offences Police Station, can be set up by exercising powers under the Bihar Police Act, 2007.

123. Section 8 of the Bihar Police Act, 2007, dealing with a police station, provides that the government, considering the area status of crime, duty in relation to law and order, the distance being covered by the public in reaching the police station may, by notification, set up as many police station along with required number of police posts as it deems expedient.

124. Section 8 (1) of the Bihar Police Act, 2007, provides three basic objectives under which a police station may be set up by the Government. The objectives are as follows;

area status of crime, duty in relation to law and order, the distance being covered by the public in reaching the police station

125. Section 9 of the Bihar Police Act, 2007, deals with police station to prevent atrocities against Scheduled Castes/Scheduled Tribes. Section 13 of the Bihar Police Act, 2007, provides for setting up of Railway Police covering such areas as may be specified by the Government.

126. It will be seen that Section 8 of the Bihar Police Act, 2007, takes care of the logistics issues in dealing with crimes and does not provide for setting up of a police station for economic offences. Section 9 of the Bihar Police Act, 2007, provides for setting up of a police station to prevent atrocities against Scheduled Castes/Scheduled Tribes. Section 13 of the Bihar Police Act, 2007, on the other hand, deals with setting up of a Railway Police. Section 13 of the Bihar Police Act, 2007, also does not deal with economic offences.

127. In the entire Act, apart from Section 8, 9 and Section 13, no other provision can be found, which empowers the State Government to set up a police station other than the ones conceived of by Sections 8, 9 and Section 13 of the Act of 2007.

128. Section 41 of the Bihar Police Act, 2007, provides that 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.

129. A cell is obviously not a police station. It definitely means a section or unit of police, in a district, with special investigation skills to investigate economic offences along with offences of serious and other complex nature. Since the Bihar Police Act, 2007, itself does not define the Special Investigation Cell to be a police station, it becomes obvious that such a cell or unit, at a police station, is incompetent to receive and register an First Information Report as provided under Section 154 of the Code of Criminal Procedure.

130. In the present case, by virtue of the impugned notification, the State Government has notified the Economic Cyber Crime Unit as Economic Offences Police Station and, that too, for the entire State.

131. It may be pointed out that the letter of the State Government, addressed to the Accountant General (A&E), Bihar, Patna, conveying the State Government’s decision of converting Economic and Cyber Crime unit as Economic Offences Police Station, has been relied upon by the State-respondents as a declaration of a police station within the meaning of Section 2(s) of the Code of Criminal Procedure. The relevant portion of the letter, dated 15.12.2011, which has been treated as declaration for establishment of a police station, for the purpose of Section 2(s), reads:

“The State Government after due consideration has decided to convert the aforesaid economic and cyber crime unit into economic offence police station. The available infrastructure of Economic Offence unit shall be utilized by the converted Economic and Cyber crime police station. In this way, it will not incur any additional financial liability and it will also not require creation of further posts. “

(Emphasis is added)

132. A bare reading of what is contend in Clause (3) of the Letter, dated 15.12.2011, aforementioned, cannot, by any means, be treated as a declaration of a police station within the meaning of Section 2(s) inasmuch as it is merely a decision of the Government of converting Economic and Cyber Crime Unit into Economic Offences Police Station. This decision was followed by Gazette Notification, dated 25.03.2013, with retrospective effect, because the First Information Reports, in the present cases, were already registered even before the Gazette Notification, dated 25.03.2013, was published.

133. The relevant portion of the notification, dated 25.3.2013, is reproduced below; “Whereas the State Government communicated its decision regarding creation of “Economic Offence police station” vide Home (Police) Department’s sanction order No. 9085 dated 15.12.2011.

Now, therefore, in exercise of the powers conferred by sub-Section (s) of Section 2 of the Code of Criminal Procedure, 1973, the State Government hereby, declares the aforesaid police station as “Economic Offence police station” with retrospective effect from the date 15.12.2011 …its jurisdiction shall be the whole of State of Bihar. This police station shall investigated those cases which will be taken over by the “Economic Offence Unit”

134. The very reading of the impugned notification would reveal that as on 15.12.2011, there was no declaration or notification of a police station in the nature of Economic Offences Police Station. The declaration was made only on 25.3.2013, whereby the Economic Offences Police Station, claimed to have been created on 15.12.2011, was declared as Economic Offences Police Station with retrospective effect.

135. By giving retrospectivity to the creation of Economic Offences Police Station on 15.12.2011, the State Government sought to validate the setting up of Economic Offences Police Station, created on 15.12.2011, since at that point of time, no declaration of such a police station was made inasmuch as the requisite notification came to be published only on 25.03.2013.

136. Thus, admittedly, the setting up of Economic Offences Police Station, on 15.12.2011, was not in accordance with law and, therefore, incompetent to receive and register First Information Report. The subsequent notification, dated 25.3.2013, whereby the setting up of Economic Offences Police Station, on 15.12.2011, is sought to be validated, was made by tracing the source of power to make such notification in Section 2(s) of Code of Criminal Procedure.

137. As have been elaborately held hereinbefore, Section 2 (s) of the Code of Criminal Procedure does not empower the State Government to issue any notification; rather, the source of power lies in Bihar Police Act, 2007.

138. Hence, the declaration, made by notification, dated 25.3.2013, giving retrospectivity to the setting up of Economic Offences Police Station, was done in a manner not sanctioned by law. As a result thereof, the aspect of retrospectivity, by virtue of notification, dated 25.3.2013, also loses its significance and cannot elevate the decision, dated 15.12.2011, to the status of a declaration of a police station in the nature of Economic Offences Police Station within the meaning of Section 2(s).

What, then, would be the consequences if, by erroneous understanding of the source of power, the State Government creates a police station for special offences, which it, otherwise, has no powers to set up under the Bihar Police Act, 2007. Again, what would be the consequences of investigation carried out by such Investigation agency, when its constitution itself is found to be widely without the sanction of law?

139. As candidly admitted to by Mr. B.P. Pandey, the learned Senior Counsel for the petitioner, a crime would never disappear and it would always remain a subject matter of investigation, but he submits with equal vigour that investigation must be fair, for, an unfair investigation can never be the basis of a fair trial, which an accused person is entitled to.

140. Every investigation culminates into a report under Section 173 of the Code of Criminal Procedure. The report, under Section 173 of the Code of Criminal Procedure, may contain an opinion, under Section 169 of the Code of Criminal Procedure, commonly known as final report or an opinion, under Section 170, commonly known as charge sheet. It is on the basis of the report under Section 173 of the Code of Criminal Procedure, read with Section 190 (1)(b) of the Code of Criminal Procedure, that a Magistrate takes cognizance.

141. Now, Section 2 © of the Code of Criminal Procedure defines police report as a report forwarded by a police officer to a Magistrate under sub-Section (2) of Section 173 of the Code of Criminal Procedure. Section 173 (1) of the Code of Criminal Procedure provides that every investigation, under Chapter XII, shall be completed without unnecessary delay. Section 173 (2) of the Code of Criminal Procedure further provides that as soon as the investigation is completed, the Officer-in-Charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating –

“(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given”

142. It is apparent from a reading of Section 173 (2) of the Code of Criminal Procedure that a Magistrate, empowered to take cognizance on police report, can take cognizance only when the report is submitted by an Officer-in- Charge of a police station and not otherwise. There may be several police forces in the State, for instances, Armed Police, such as, those conceived under Section 4 of the Bihar Police Act, 2007; but as would be seen, these police forces have not been entrusted with the power to investigate offences.

143. In the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Superintendent of Police had directed the Station House Officer of a police station to investigate an offence under the Prevention of Corruption Act even though there was statutory prohibition in such investigation. The Superintendent of Police had given absolutely no reason, in directing the Station House Officer, to investigate and, in these circumstances, the Supreme Court held that the order of the Superintendent of Police is directly in violation of the dictum laid down by Supreme Court. Resultantly, it was held that the Station House Officer was not clothed with the requisite legal authority, within the meaning of the second proviso of Section 5 A(1) of the Act, to investigate the offence under clause (e) of Section 5(1) of the Act.

144. In the ultimate analysis, the Supreme Court, in Bhajan Lal (supra), quashed the commencement as well as the entire investigation on the sole ground that the Station House Officer is not clothed with valid legal authority to take up the investigation and proceed with the same within the meaning of Section 5A(1) of the Prevention of Corruption Act, though in the process the Supreme Court also gave liberty to the State Government to direct an investigation afresh, if it so desires, through a competent police officer empowered with valid legal authority in strict compliance of law.

145. In the present case, not only the process of setting up of Economic Offences Police Station was wrong, but the legal basis of such a police station has also been found to be contrary to law. Consequently, any First Information Report registered by the said police station, either prior to or after the Gazette Notification, dated 25.3.2013, was non est in law and continues to be so. The registration of First Information Reports by the Economic Offences Police Station was wholly without jurisdiction and void ab initio. This apart, under the scheme of Bihar Police Act, 2007, the Economic Offences Police Station cannot be established having jurisdiction all over the State of Bihar. Hence, the Economic Offences Police Station, even by virtue of the Gazette Notification, dated 25.03.2013, cannot, but be held to be ultra vires the Act and, therefore, void ab initio. Resultantly thus, the First Information Report, involving allegations of an offence committed under the Prevention of Corruption Act, 1988, have to be registered and investigated by an ordinary police station. In the case at hand, the establishment of the police station, in question, is ultra vires and investigation carried on was void ab initio. The result of the investigation is, therefore, wholly unenforceable and untenable in law and needs to be interfered with leaving it to the discretion of the State Government to pursue, in accordance with law, the allegations if there is substance in the allegation made against the petitioners.

146. In the result and with the observations made above, the writ petitions stand allowed leaving the parties to bear their own cost(s).

(I.A. Ansari, CJ) Pawan/-

Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

147. The petitioner of Cr. W.J.C. No. 563 of 2013 was initially appointed as Clerk and at the relevant point of time, he was serving as Enforcement Sub-Inspector at Kaimur, under the Transport Department, Government of Bihar. He has been made accused of an offence punishable under Section 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act, 1988 with the allegation that he possesses properties, disproportionate to the known sources of his income to the tune of Rs. 5, 16, 36,623 (Five crores Sixteen lac thirty six thousand six hundred twenty three) which is 11,603.623.73% of his known sources of income. An FIR, being Economic Offence Police Station Case No. 5 of 2013 (Special Case No. 3 of 2013) with the said allegation has been registered with the Economic Offence Police Station, Patna, on 19.02.2013.

148. The petitioner of Criminal Writ Jurisdiction Case No. 231 of 2016 was at the time of institution of the First Information Report posted as District Sub-Registrar at Bhagalpur. With an allegation that he acquired property to the tune of Rs. 1, 64, 49,500/- (One crore sixty four lacs fourty nine thousand five hundred) over and above his known sources of income, Economic Offence Police Station Case No. 23 of 2013 has been registered on 08.06.2013, for the offences punishable under Section 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act, 1988.

149. Petitioner of CWJC No. 6660 of 2016 was posted as Deputy Inspector General of Police, Saran Range. He is an accused in Economic Offences Police Station Case No. 02 of 2013. Allegation against him is that misusing and abusing his office of Deputy Inspector General of Police, he had put a businessman, engaged in trade of liquor, under threat and fear of his implication in a criminal case with intent to extort from him an amount of Rs.10 crores. The said demand was made by him from the informant personally, in presence of a middleman. On an information given by the complainant to the Director General of Police, the matter was enquired into and a trap was laid in which two middlemen, namely, Dipak Kumar Abhisek and Ajay Dubey were arrested. Dipak Kumar Abisekh, who is accused in Economic Offence police Station Case No. 02 of 2013 (Special Case No. 05 of 2013) is the petitioner of Cr. W.J.C. No. 353 of 2015. It is alleged that they have, thus, committed offence punishable under Sections 8 and 9 of the Prevention of Corruption Act and Sections 387, 389 read with Section 109 of the Indian Penal Code.

150. The petitioner of CWJC No. 1219 of 2016 has not disclosed the nature of allegation made against him nor the position which he held or his holding under the State Government of Bihar or any other establishment. He has been implicated in a case registered for offences punishable under Sections 420, 468, 478 and 120B of the Indian Penal Code registered with Economic Offences Police Station vide Economic Offence P. S. Case No. 23 of 2012 registered on 20.10.2012.

151. In all the applications, a common issue has been raised with respect to validity of creation of a police Station called “Economic Offences Police Station” which has registered and investigated all the First Information Reports in question. It is their common case that creation of Economic Offence Police Station itself being in breach of mandatory requirements under Bihar Police Act, 2007 (hereinafter referred to as the Act) and the Code of Criminal Procedure, 1973, (hereinafter referred to as the Code), registration of First Information Reports by such police Station is also incompetent and, therefore, the FIRs and all proceedings arising out of the same need to be quashed.

152. We have heard Mr. B.P. Pandey, learned Senior Advocate appearing on behalf of the petitioner in Cr.W.J.C. No. 563 of 2013, Md. Shamimul Hoda, learned counsel appearing on behalf of petitioner in Cr.W.J.C. No. 231 of 2016, Mr. Sanjay Kumar Sinha, learned counsel appearing on behalf of petitioner in Cr.W.J.C. No. 353 of 2016, Mr. Chakrapani, learned counsel appearing on behalf of petitioner in CWJC No. 1219 of 2016 and Mr. Ranjan Kumar Shrivastava, learned counsel appearing on behalf of petitioner in CWJC No. 6660 of 2016. Mr. Lalit Kishore, learned Principal Additional Advocate General and Mr. Anjani Kumar, Learned Additional Advocate General have represented the State of Bihar, whereas Mr. Vishwanath Prasad Sinha, learned Senior Counsel, Mr. Ramakant Sharma, learned Senior Counsel, Mr. Rajiv Ranjan Prasad, learned counsel and Mrs. Soni Shrivastava, learned counsel have represented the Economic Offences Unit, Bihar.

Background facts relating to creation of Economic Offences Police Station:

153. In order to appreciate the challenge to creation of Economic Offences Police Station I need to first notice the background and the manner in which the Economic Offence Police Station came to be created, whereafter I will be testing, with reference to statutory provisions and submissions advanced on behalf of the parties, legality of the creation of the said police Station.

154. Through a communication, dated 20.11.2008, issued from the Office of the Director General of Police, Bihar, addressed to the Home (Police Department), Government of Bihar, a proposal was initiated for creation of an economic and cyber crime unit. For the said purpose, posts of various types at various levels were required to be sanctioned. It appears that in February, 2010, certain posts were sanctioned for the said Unit and, accordingly, through letter dated 30.04.2010 the State Government communicated its decision regarding creation of posts or constitution of economic cyber crime unit, to the office of the Accountant General (A&E) Bihar, Patna.

Subsequently, the Director General of Police, Bihar, taking into account the rise in Economic Offences, suggested the State Government that there should be an Economic Offence Unit under direct control of the Director General of Police to deal with Economic Offences and Corruption cases. The Director General of Police also sent a proposal to the State Government for creation of Economic Offences Police Station by declaring the office of the Superintendent of Police, Economic Offence Unit, Bihar, Patna, as Police Station, having jurisdiction over the entire State of Bihar. The Director General, in his communication, made it clear that there would be no need to create new posts for proposed Economic Offences Police Station and it could be made functional with resources already available with Economic Offences Unit. After some deliberations, the State Government through Home (Police) Department came out with an order creating Economic Offence Unit under the direct control of the Director General of Police. It was made clear in the said order that Superintendent of Police (Food), Superintendent of Police (Economic Offence/Cyber Crime) and Superintendent of Police (Cooperative Vigilance Cell) shall be part of the Economic Offence Unit, along with their subordinates. A separate building was proposed for the said Unit pending which, a building was decided to be taken on rent, for the said purpose. Thereafter, the Home (Police) Department, Government of Bihar through communication, dated 15.12.2011, conveyed its decision to the Accountant General (A & E) to convert the said Economic Cyber Crime Unit in the shape of Economic Offence Police Station.

155. Nearly 15 months thereafter, the State Government of Bihar came out with a notification, dated 25.03.2013, in exercise of power conferred under Section 2 (s) of the Code of Criminal Procedure, 1973 declaring the aforesaid police Station as Economic Offence Police Station with retrospective effect from the date, when such decision was made and communicated to the Accountant General, Bihar i.e. 15.12.2011; having its jurisdiction over the whole of the State of Bihar. It is mentioned in the said notification that the Police Station shall investigate those cases which will be taken over by the Economic Offences Unit.

Main statutory provisions:

156. Section 2 (s) of the Code gives the definition of a police Station and reads thus:-

“2 (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'”.

157. The State legislature has enacted Bihar Police Act, 2007 which came into force with effect from the date of its publication in official gazette on 30.03.2007. Section 7 of the Act contemplates declaration of an area as a police District, by notification. The Police administration of such police district, the provision mandates, shall be vested in the Superintendent of Police under the general control and superintendence of the District Magistrate. Section 8 of the Act prescribes that the State Government, considering the area, status of the crime, duty and relation to law and order and the distance to be covered by the public in reaching the Police Station may set up as many police stations along with required number of police posts in a police district, as it deem expedient, by way of notification. Section 9 of the Act empowers the State Government to constitute police station to prevent atrocities against Scheduled Caste and Scheduled Tribe. Section 13 of the Act deals with Railway Police and it empowers the State Government to create one or more “special police district” for the said purpose. It empowers the State Government to appoint one Superintendent of Police and one or more Assistant and Deputy Superintendent of Police and other Police Officers in required numbers to perform the police work relating to Railway Administration and to perform such duties as assigned to them from time to time by the State Government. Sub-section 3 of Section 13 of the Act prescribes that any police Officer, who has been assigned power to work under the said provisions through general or special order, may exercise power equivalent to the power of the Station House Officer of any police station in the concerned special district or in a part thereof.

158. Upon examination of Bihar Police Act, 2007, we notice that Section 8 of the Act lays down the manner in which a general police station can be set up. Section 9 empowers the State Government to notify police station(s) to prevent atrocities on Scheduled Caste and Scheduled Tribe. Section 7 of the Act deals with general police district, administration of which is vested in the Superintendent of Police, whereas Section 13 deals with special police district for Railway. Section 14 of the Act refers to State Intelligence and Crime Investigation Department to investigate the inter-state, inter-district and other specified offences. Sub-section 3 of Section 14 of the Act provides that in order to investigate various kinds of offences, on which special attention is required to be given or special consultation is necessary, there shall be a special wing in the Crime Investigation Department, to be headed by the Officer of the rank of the Superintendent of Police.

Grounds of challenge and submissions:

159. It is common plea on behalf of the petitioners that the Bihar Police Act, 2007 enacted by the State legislature does not contemplate setting up of a police Station like Economic Offence Police Station. It is their case that only such police stations which are notified or deemed to have been notified under the Police Act can register a First Information Report. It is their common case that the said Economic Offence Unit could not be declared as Economic Police Station by a communication dated 15.12.2011 without any notification in the official gazette as contemplated under Section 8 of the Act. It is also their case that subsequent notification in official gazette dated 25.03.2013, making creation of Economic Police Station retrospective, with effect from 15.12.2011 is illegal and incompetent. It is also their case that in no event, after enactment of Bihar Police Act, an Economic Offence Police Station could be created, the same having not been conceived under the Act. It is, accordingly, their case that registration of criminal cases and investigation thereof by a body which is not a police Station is wholly without jurisdiction and, therefore, the First Information Reports and the entire proceedings arising thereof deserve to be quashed.

160. It has been brought to our notice that the validity of the same Government notification, dated 25.03.2013, declaring Economic Offence Unit as police station was put to challenge in a proceeding under Article 226 of the Constitution of India, giving rise to CWJC No. 16548 of 2014 (Ramesh Prasad Diwakar and another vs. The State of Bihar and ors.) which was dismissed by a Division Bench of this Court in following terms by an order dated 19.09.2014:-

“The writ petitioners, two Government servants, now under suspension facing prosecution under the Prevention of Corruption Act, have challenged the constitutional validity of the Government notification issued by the State Government in exercise of power under Section 2(s) Cr.P.C. for establishment of an Economic Offences Police Station with retrospective effect from 15th December, 2011.

The learned advocate Mr. Dudhnath Singh has appeared for the petitioners. He has not been able to demonstrate that the impugned notification has been issued in violation of any enactment or of the Constitution of India. The reason for challenge is obvious.

We see no merit in this challenge. Petition is summarily rejected.”

161. Mr. B.P. Pandey, learned Senior Advocate, appearing on behalf of the petitioner, advancing his leading argument, while questioning the legality of the notification in question, has submitted that Bihar Police Act does not contemplate creation of special police station to investigate into Economic offences. According to him, power to investigate into a crime is statutory in nature and unless a body is vested with such statutory power to investigate, any investigation done by it is meaningless has no status in the eyes of law. It has been submitted by him that Section 36 of the Act speaks of creation of special investigating Units but does not envisage creation of a police station. Referring to Section 41 of the Act which deals with creation of special investigation cell for investigating into Economic Offences and other serious and complicated crimes, he has submitted that this provision deals with creation of such cells at district levels and not at the State level, as has been done by the State Government through the impugned notification.

162. Referring to the decision of the State Government as contained in letter dated 15.12.2011 regarding conversion of Economic Offence Unit into a police station and subsequent notification published in official gazette dated 25.03.2013, he has contended that though the notification has been described to have been issued under Section 2(s) of the Code, since the Act does not empower creation of such police station, the notification is contrary to law and therefore not sustainable. It has also been submitted by him that ‘Economic Offences’ as mentioned in the notification is quite vague and uncertain. He submits that there is a well established, duly created police station for investigating into the criminal misconduct committed by the public servants and, therefore, creation of Economic Offence Station without demarcating its subject of operation is a mindless and arbitrary decision of the State Government.

163. Referring to the case of the petitioner Md. Yunus, of Cr. WJC No. 563 of 2013, Mr. Pandey has submitted that in this case, First Information Report has been registered in breach of Section 154 of the Code of Criminal Procedure inasmuch as there is no informant of the case and there is no explanation why his signature was not obtained. He has contended that if an information is received which is unanimous, the Officer-in-charge of a police station instead of registering the First Information Report at once could have first carried out a preliminary enquiry to ascertain the truthfulness or otherwise of the allegation. He has placed reliance on Supreme Court’s decisions in case of Vineet Narayan Vs. Union of India reported in (1998) 1 SCC 226 and in case of Lalita Kumari vs. Government of U.P. reported in (2014) 2 SCC 1.

164. He has also submitted that the letter, dated 15.12.2011, merely conveys a decision of the State Government for conversion of the Economic Offences Unit into a Police Station. The notification, dated 25.03.2013 published in official gazette notifying the Economic Offence Unit as a Police Station is bad also for the reason that it does not indicate location or existence of an earlier Police Station and, therefore, giving the retrospective effect to creation of the Police Station is misleading.

165. He has put much emphasis on various provisions of the Bihar Police Act, 2007 in support of his submission that the said Act does empower the State Government to create Special Investigation Units as contemplated in Chapter V of the Act for effective investigation of crime with the help of scientific techniques. No provision, however, according to him, empowers the State Government for creation of a Police Station like the present one. He has submitted that the notification under challenge does not disclose the class, nature or type of cases or persons and their cases which should be investigated by the said Police Station.

166. Mr. B.P. Pandey, learned Senior Counsel has, however, very fairly submitted that a crime would never disappear and it is never suggested that if the petitioner has committed the offence, he must be absolved, on account of illegalities committed, if any, by the State and its agency. At the same time, he has submitted that if the illegality is pointed out at the earliest opportunity, the Court should not allow the said illegality to continue.

167. Mr. Chakrapani, learned counsel appearing on behalf of the petitioners of CWJC No. 1219 of 2016 has submitted that “Police” falls in Entry 2 or List II-State List of the 7th Schedule of the Constitution of India. Accordingly, according to him, Bihar Police Act, 2007 has been enacted laying down the mode and manner for creation of Police Stations and the types of the Police Station which can be created. He has submitted that the concept of Police Station in the State of Bihar has undergone a radical change with the enactment of the Bihar Police Act, 2007 which was earlier governed by the Bihar Police Manual, 1978. Under Rule 73 of the Bihar Police Manual, reference had been made to Section 2(s) of the Code whereas the Act makes specific provision for Police Station under Section 8 of the Code. He has contended that by virtue of enactment of the Act, wide connotation and definition of police station under Section 2(s) of the Code as well as Rule 73 of the Bihar Police Manual has been restricted and, according to him, the Act contemplates limited types of Police Station as contained under the Act. He has submitted that though Article 162 of the Constitution of India confers co-extensive powers to the State Executive with that of the State Legislature but the moment the Legislature of the State has enacted a law on a particular field/subject, it becomes an occupied field and executive power of the State is thereafter confined only to the extent of implementing the said legislation and State executive cannot go beyond what has been legislated.

168. He has placed reliance on Supreme Court’s decisions in case of Paul Manoj Pandian Vs. Veldurai reported in ( 2011) 5 SCC 214 and in case of State of Jharkhand vs. Jitendra Kr. Srivastava reported in ( 2013) 12 SCC 210 on the point of roles of the State Executive in terms of the occupied field. He has submitted that it was well within the jurisdiction of the State Executive to have adopted the definition of the Police Station as given in Section 2(s) of the Code but since the State Legislature in its wisdom decided to act otherwise and thus, once the State Legislature in spite of existence of power, deemed it fit to exercise it in narrow compass, the State Executive is required to simply fall in line in terms of the legislation and not beyond what has been legislated.

169. He has further submitted that the Police Act being a Special Act will prevail over the General Act, i.e., Code of Criminal Procedure, 1973. He has placed reliance on Supreme Court’s decision in support of his submission reported in

# A.R. Antulay v. R.S. Nayak and ors; (1988) 2 SCC 602(

# and (2007) 9 SCC 179 ( P. Ragheva Kurup vs. V. Ananthekumari)..

He has lastly submitted that the impugned notification relating to constitution of Economic Offence Police Station with retrospective effect is arbitrary and beyond jurisdiction.

170. Per Contra Mr. Anjani Kumar, learned Additional Advocate General representing the State of Bihar has submitted that the decision communicated vide letter, dated 15.12.2011 regarding conversion of Economic Offence Unit into Economic Office Police Station cannot be said to be per se illegal as according to him, Section 2(s) of the Code does not mandate publication of notification in official gazette. He has submitted that a police Station can be set up by the State by declaration as required under Section 2(s) of the Code. According to him, the Economic Offence Police Station came into being since 15.12.2011 itself after the State Government declared its decision as contained in letter dated 15.12.2011. He submits that subsequent notification published in official gazette, dated 25.03.2013 cannot, therefore, be said to be illegal on the ground of its retrospectivity. He has further submitted that even otherwise, no interference is required in the present matters in the facts and circumstances of the cases since the petitioners have not even pleaded nor been able to other establish any prejudice having caused to them resulting into failure of justice, because of registration of FIRs by Economic Offences Police Station or investigations having been conducted by the officials of said police Station.

Main issues involved:

171. After coming into force of Bihar Police Act, 2007, for the purpose of creation of a police station, within the meaning of Section 2(s) of the Code, whether it is mandatory for issuance of a notification in this regard as contemplated under Section 8 of the Act or a declaration as contemplated under Section 2(s) of the Code would satisfy the requirement of creation of police station, is perhaps the first and primal issue which needs to be addressed in order to deal with various submissions advanced on behalf of the parties.

172. Will it be just and proper to quash criminal cases lodged with Economic Offence Police Station and entire proceedings arising thereof, on the ground of absence of notification under Section 8 of the Act, creating such police station; exercising equitable writ jurisdiction of this Court, under Article 226 of the Constitution of India is the second question, which has arisen to be dealt with in the present cases.

173. Thirdly, can it be said that the Police Act, 2007 being Special Act shall prevail over the general enactment, i.e. Code of Criminal Procedure, 1973, applying the doctrine of generalia specialibus non derogant, is also a question of significance requiring consideration.

Discussions and conclusions:

174. Before I begin I need to advert to two Entries in Schedule 7 of the Constitution of India viz. Entry 2 of the List II and Entry 2 of List III.

175. Entry 2 of State List reads as follows:-

“Police (including railway and village police) subject to the provisions of entry 2A of List-I.”

Entry 2 of List III ( Concurrent list) reads thus:-

“Criminal procedure, including all matters included in the Code of Criminal Procedure.”

176. Apparently, thus, whereas the subject ‘Police’ is in the State List, the Code of Criminal Procedure is in the concurrent list. The two Entries are easily distinguishable. The Code of Criminal Procedure, 1973 has been enacted by the Parliament to consolidate and amend the law relating to Criminal Procedure. Section 2(s) of the Code defines a Police Station as 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. Section 4 of the Code mandates that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained therein. Sub-section (2) of Section 4 of the Code prescribes that all offences under any other law (other than Indian Penal Code) 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.

177. Section 4 of the Code is being extracted hereinbelow for the benefit of quick ready reference:-

“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.”

178. It is apparent from the said provision that all offences are generally required to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, subject to any enactment regulating the manner and place of investigation, inquiring into the crime, or otherwise dealing with the offences other than the offence under any other law. Evidently, if no enactment is there prescribing such regulation as envisaged, all the offences under any law including those which are other than the offences punishable under the Indian Penal Code are to be investigated, inquired into and tried in accordance with the provisions of the Code.

179. Chapter XI and Chapter XII of the Code deal with the preventive action of the Police and information to the Police and their powers to investigate. The word “Police Station” figures in Section 154 of the Code and various Sections under Chapter XII of the Code. For example, Section 154 of the Code prescribes that 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 therefore shall be entered in a book to be kept by such Officer in such form as the State Government may prescribe in this behalf. Section 156 of the Code empowers any officer-in-charge of a police station, to 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, without the order of a Magistrate. Sub- section (2) of Section 156 of the Code is relevant and prescribes that 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. Section 157 of the Code prescribes the procedure for investigation and Section 158 prescribes the procedure for submission of report under Section 157 of the Code. Under Section 154 of the Code “officer-in-charge of a police Station is required to receive information relating to commission of a cognizable offence and after reducing it to writing by him or under his direction, to enter it in a book to be kept by such officer. This process is popularly known as registration of First Information Report. Section 156 authorizes an officer in charge of a police station to investigate any cognizable case within his local limits. Apparently, thus, for registration of an FIR of a cognizable offence and investigation of a cognizable case, existence of a police station is a must. As has been noticed above, the police station in question has been notified under Section 2(s) of the Code.

180. It is quite significant to note that definition of “police station” does not find place in Bihar Police Act, 2007 though definition of “police district” is there in Section 2 (M) which reads thus:-

“2 (M). ^^iqfyl ftyk** ls rkRi;Z bl vf/kfu;e ds v/;k; AA ds [k.M 7 ds rgr vf/klwfpr fd, x, Hkw&Hkkx ls gS tks jktLo ftyk ls fHkUu gS;

181. Meaning thereby, a police district means a district notified under Section 7 of Chapter II of the Act which is different from revenue district. Section 7 of the Act enables the State Government to declare any area as a police district through notification. The very next provision, i.e. Section 8 deals with establishment of a police station by the State Government through notification based on population, area, status of crime and law and order situation and distance which the people will be required to traverse to reach the police station. However, there is no definition given of a police station under the Act, though police district has been defined. Section 2(2) of the Act postulates that the words and expressions used in this Act, which have not been specifically defined, shall have the same meaning as defined in General Clauses Act, 1897, Code of Criminal Procedure, 1973 and the Indian Penal Code, 1860. Section 2 of the Act is the definition clause. Sub-section 2 of Section 2 of the Act is relevant and is being extracted hereinbelow:-

Þ2- bl vf/kfu;e esa iz;ksx fd, x, ,sls ‘kCnksa vkSj okD;ka’kks]a ftudh dksbZ fof’k”V O;k[;k ugha nh xbZ gS] dk vk’k; ogh gksxk tks lkekU; [kaM vf/kfu;e 1897] naM izfØ;k lafgrk 1973 vkSj Hkkjrh; naM lafgrk 1860 esa fn;k x;k gSAÞ

182. A careful scrutiny of Sub-section 2 of Section 2 of the Act read with Sections 7 and 8 leads us to one and only irresistible conclusion that definition of a police station even for the purpose of the Bihar Police Act, 2007 shall be the same as occurring in Section 2(s) of the Code. A police station created in exercise of power under Section 8 of the Act cannot be, in my considered view, a police station for the purposes of Criminal Procedure Code, till it is declared to be so under Section 2(s) of the Code.

183. Omission by the State Legislature in not defining “police station” in the Act is, thus intentional and with a purpose. Apparently, the State Legislature in its wisdom decided to follow the definition of police Station as occurring in Section 2(s) of the Code despite providing a procedure in the Act for creation of a police Station. It has to be kept in mind that exercising legislative function with reference to Entry 2 of List II, the State legislature may enact law in relation to the subject ‘police including Railway and village police’. The word “police”, as occurring in Entry 2 of List II in its general sense connote a department of the Government charged with a duty to maintain internal peace and order. Giving definition of a “police station” in the Act other than the definition as given in the Code, which falls in Entry 2 of List III would have been probably hit by the provisions of Article 254 of the Constitution of India. In my view, keeping in mind the provisions under Article 254 of the Constitution of India, the State legislature while enacting the Act, intentionally omitted to prescribe definition of police Station which is explicitly included in the Code of Criminal Procedure. The intention of the State legislature to omit definition of police Station in the Act becomes crystal clear upon reading of sub-Section 2 of Section 2 of the Act, which has been quoted above and which prescribes that the meaning of the words and expressions, which have not been specially given, shall have the same meaning as occurring in the General Clauses Act, 1897, the Code of Criminal Procedure, 1973 and Indian Penal Code, 1860.

184. There is yet another significant aspect which is crucial for deciding the core issue involved in the present matter. With the enactment of Bihar Act, 2007, following enactments have been repealed by operation of sub-sections 2 and 3 of Section 97 of the Act:-

(i) Police Act, 1861 to the extent same relates to State of Bihar.

(ii) Bengal Military Police, Act, 1892.

185. Following actions/proceedings, however, have been saved by virtue of sub-sections 3 and 4 of Section 97 of Act:-

(i) Any act done or any proceeding initiated under the repealed Act.

(ii) All references made to provisions of the repealed Act (Police Act, 1861) shall be taken as reference to the relevant provisions of the present Act, viz, the Bihar Police Act, 2007.

186. Prior to enactment of Bihar Police Act, 2007, the Police Act, 1861 was holding the field. Bihar Police Manual, 1978 was framed and issued with the authority of the State Government under Sections 7 and 12 of the said Police Act, 1861. The preface of Bihar Police Manual read thus:-

“The Bihar Police Manual, 1978 ( Vol. I ( Rules), Vol. II (Forms) and Vol. III ( Appendices) is issued by and with the authority of the State Government under Sections 7 and 12 of the Police Act V, 1861. All the Rules etc. therein are binding on all police officers and are an authoritative guide to other concerned officers of Government.”

187. This is not in dispute that after enactment of the Bihar Police Act, 2007, the provisions of the Bihar Police Manual have neither been superseded nor modified in any manner whatsoever. Essentially therefore, by operation of Section 97 of the Act, reference made to Police Act, 1861 in the Bihar Police Manual will have to be read as Bihar Police Act, 2007, since the directive/scheme/rule etc, contained in the said Police Manual have admittedly not been specifically superseded by any subsequent directive/scheme/rules issued or framed under the Bihar Police Act, 2007.

188. This situation takes me to have a look at Section 27 of the Bihar and Orissa General Clauses Act, 1917 which is pari materia with Section 24 of the General Clauses Act, 1897, which provides that where an enactment is repealed and re-enacted by a Bihar Act with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye-law or form, made or issued under the repeal and enactment shall, so far as it is not inconsistent with the provisions enacted, continue to be in force and be deemed to have been made or issued under the provisions so re- enacted, until and unless it is superseded by any appointment, notification, order, scheme, rule, bye-law or form made or issued under the provisions so re-enacted.

189. Section 27 of the Bihar and Orissa General Clauses Act is being reproduced hereinbelow for quick reference:-

“27. Continuation of orders, etc. issued under enactments repealed and re-enacted.- Where any enactment is repealed and re-enacted by a Bihar and Orissa Act ( for Bihar Act) with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye-law or form, made or issued under the repealed enactment, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, bye-law or form made or issued under the provisions so re-enacted.

190. It is easily discernable from Section 27 of the Bihar and Orissa General Clauses Act, 1917 that upon re-enactment of an Act after repealing previous enactment, notifications, orders, rules, bye- law etc, framed under the previous enactment shall remain operative and shall be deemed to have been made or issued under the provisions so re-enacted, if such notification, order, scheme, rule, bye-law has not been superseded, specifically by any appointment, notification, order, rule etc. The only exception to this general rule is when such notification, order, scheme, rule or bye-law are not inconsistent with the provisions so re-enacted. As I have already noticed above, the Bihar Police Act does not contain any definition for “Police Station”. Rule 73 of the Bihar Police Manual has borrowed the definition of Police Station from Section 2(s) of the Code of Criminal Procedure, 1973. It further, provides that for the purpose of police administration, all investigating centers are known as “Police Station”. I would reiterate that the State legislature was aware, at the time of the enactment of Bihar Police Act, 2007, that the expression “Police Station” finds place in Bihar Police Manual and the Code and that appears to be the legislative intent and reason why it decided not to give another definition to the Police Station, than what is there in the Code, which has been borrowed in the Bihar Police Manual.

191. The plea of any inconsistency between the Bihar Police Act, 2007, Section 2(s) of the Code of Criminal Procedure vis-à-vis Rule 73 of the Bihar Police Manual can not be accepted for the simple reason that in my view, the State legislature considered it fit not to give any definition of a police Station, which exists in the Code and was earlier borrowed in the Police Manual and subsequently in Bihar Police Act, 2007 also by virtue of Section 2(2) of the Bihar Police Act, 2007.

192. For the benefit of quick reference, I am extracting hereinbelow the Rule 73(a) of the Bihar Police Manual, which reads thus:-

“73. Definitions.- (a) A police-stations is defined in Section 2(s), Cr. P. C. A thana is a revenue unit and may include one or more police stations. For purpose of police administration, all investigating centers are known as “Police Stations”.

193. I have refrained myself, from going into the aspect as to whether Rule 73 of the Bihar Police Manual as quoted above can be described as a sub-ordinate legislation or not. However, language of Section 27 of the Bihar and Orissa General Clauses Act is amply clear and refers to all orders, schemes, rules issued under the previous enactment. I am not convinced with the submissions advanced on behalf of the petitioners that the State legislature intended to give a restrictive meaning of Police Station by enacting Section 8 of the Act as in my opinion, the said provision is only for the purpose of police administration and does not control the power of the State executive to declare an investigating center as a police Station, within the meaning of Section 2(s) of the Code.

194. The purpose of the Bihar and Orissa General Clauses Act, is to place in one single Statute different provisions as regards interpretation of words and legal principles which would otherwise have to be specified separately in many different Acts and Regulations and, therefore, the provisions of the General Clauses Act have to be read into every Statute to which it applies for arriving at the meaning of the words or for the purpose of legal principles. Reference can be made in this regard to Supreme Court’s decision in case of

# Chief Inspector of Mines V. Karan Thaper, AIR 1961 SC 838

paragraph 12).

195. Dealing with enactment of Mines Act, 1952 after repealing Mines Act, 1923 and examining as to what would be the effect of repeal and re-enactment on regulations framed under repealed Act, the Supreme Court held in case of Chief Inspector of Mine (supra), in paragraph 20 as follows:-

“20. The true position appears to be that the Rules and Regulations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost. Therefore, with regard to the effect of a repeal of the Act, they continue to be subject to the operation of S.24 of the General Clauses Act.”

196. It cannot be said that Section 8 of the Bihar Police Act, 2007 does not create any confusion over the definition of police Station. Inconsistencies of such nature, however, in my opinion, need to be reconciled keeping in mind the background and the purpose for which the said enactment has been made. The State Government apparently derives power from the Code to declare a place or post as a Police Station for the purpose of proceeding under the Code whereas the Police Station referred to under Section 8 of the Act relates to Police administration, only in the State of Bihar under a police district.

197. As has been noted above, it has been emphatically argued on behalf of the petitioners that the State legislature by enacting the Act in its own wisdom decided to establish only three categories of police Stations, it was not within the jurisdiction of the State executive to declare Economic Offence Unit as a police Station by taking resort to Section 2(s) of the Code. The argument is not acceptable to me for the reason that power of the State executive to declare a police Station for the purposes of the Code of Criminal Procedure cannot be said to have been denuded with enactment of the Act which is confined to the police as an Organization/Department in the State of Bihar.

198. Mr. Chakrapani, learned counsel appearing on behalf of the petitioners has submitted, referring to Supreme Court’s decision in case of Paul Manoj Pandian vs. Veldurari (supra), to buttress his plea that once a law made by the State legislature occupies a field, it will not be open to the State Government in exercise of executive power to act contrary to the law framed by the State legislature. He has submitted that once the field has been occupied, the State Government cannot exercise its executive power under Article 162 of the Constitution of India to occupy the same filed by an executive order. The said decision of Supreme Court is not at all applicable in the present facts and circumstances of the case. In the present case, the State legislature of Bihar while enacting Bihar Police Act, 2007 deliberately decided not to give another definition of Police Station than what is there in the Code of Criminal Procedure, 1973. The State legislature thus, consciously decided that for the purpose of Code of Criminal Procedure, 1973, police station will not be the same as mentioned in the Bihar Police Act, 2007. The field “Police Station” occurring in Criminal Procedure Code enacted by the Parliament with reference to Entry 2 of List II of Schedule 7 of the Constitution of India, cannot be said to have been occupied with the enactment of the Bihar Police Act, 2007, rather, the said field remained untouched by conscious omission by the State Legislature. In my view, therefore, the said Supreme Court’s decision in case of Paul Manoj Pandian (supra) shall have no application in the facts and circumstances of the case.

199. Reference in this regard, can be made to a decision of Supreme Court in case of Ukha Kolhe Vs. The State of Maharashtra (AIR 1963 SC 1531), wherein the Supreme Court had the occasion to consider Sections 129A and 129B of the Bombay Prohibition Act, 1949 in relation to trial of offence under Section 66 (1) (b) of the said Act. A plea that on enactment of Sections 129A and 129B of the said Act, the provisions of Section 510 (old) of the Code stood repealed in its application to offences under Section 66(1) of that Act by virtue of the provisions under Article 254(2) of the Constitution of India, came to be turned down with the following observations:-

“20……………. It is true that power to legislate on matters relating to Criminal Procedure and evidence falls within the Third List of the Seventh Schedule to the Constitution and the Union Parliament and the State Legislature have concurrent authority in respect of these matters. The expression “criminal Procedure” in the legislative entry includes investigation of offences, and Ss. 129A and 129B must be regarded as enacted in exercise of the power conferred by Entries 2 and 12 in the Third List. The Code of Criminal Procedure was a law in force immediately before the commencement of the Constitution, and by virtue of Article 254(2) legislation by a State Legislature with respect to any of the matters enumerated in the Third List repugnant to an earlier law made by Parliament or an existing law with respect to that matter if it has been reserved for the consideration of the President and has received his assent, prevails in the State. Bombay Act No. 12 of 1959 was reserved for the consideration of the President and has received his assent: Ss. 129A and 129B will prevail in the State of Bombay to the extent of inconsistency with the Code, but no more. That they so prevail only to the extent of the repugnancy alone and no more is clear from the words of Art.254.”

200. The distinguishing feature in the present case is that it is not the case of the petitioners that the Act made by the State legislature has been either reserved for consideration of the President or has received his assent so as to make the said Act prevail over earlier enactment (Code of Criminal Procedure, 1973) made by the Parliament in order to make out a case that the State Act shall prevail to the extent of its repugnancy with the Central Act. In the present case, there is no repugnancy between the law made by the Parliament and that of the State legislature. On the other hand, the State legislature while enacting the Bihar Police Act, 2007, has taken due care by not defining police Station in a manner different from its definition given in the Code so as to preserve the authority of the executive to declare a post or place as police station within the meaning of Section 2(s) of the Code.

201. It is one of the basic rules that a Court while interpreting a statutory provision is required to examine each and every word of the Statute as a whole and in its context. The intendment of the legislature is to be gathered from the language used in the said Statute. Subject to certain exceptions, the Court does not add or substitute a word nor reject a word as meaningless unless it becomes essential to save the constitutionality of the statutory provisions or if plain reading of the statutes leads to some absurdity, while interpreting statutory provisions. What I find in the present enactment is that the definition of word “police Station” is missing in the definition Clauses though police district has been defined. While omitting the definition of the police Station in the definition clauses of the Act, it has been specifically prescribed that meaning of the words and expressions not defined in the Act shall have the same meaning as occurring in the Code of Criminal Procedure, 1973 and other provisions as mentioned therein. Legislative intent can be easily gathered from omission of “police Station” in definition Clauses of the Act and reference of Criminal Procedure Code, 1973 in Sub-Section 2 of Section 2 for the purpose of defining a word or expression, not specifically defined therein. The intention to omit police Station from the definition Clause of the Act is obvious and well thought of as the said enactment was being enacted on a subject falling under Entry 2 of List II, i.e. “police and Railway Police including village police”. Upon taking into account the various provisions of the Bihar Police Act, 2007, I find that it deals with the police as a department and Organization of the State Government, defining generally hierarchy, duties and responsibilities of Police officials, augmenting training and investigation etc. None of the provisions of the Bihar Police Act, 2007, in my view, can be said to be in any manner altering or modifying the provisions as contained in the Code of Criminal Procedure, 1973. I may again point out that though definition of “Police District” occurs in definition clause of the Act but the definition of the Police Station is not there, which is an intentional omission, in conformity with constitutional requirement under Article 254 of the Constitution of India.

202. In my view, therefore, the State executive did not lose its power to declare a place or post as police Station within the meaning of Section 2(s) of the Code of Criminal Procedure, 1973 for the purposes mentioned in the said Code, upon enactment of Bihar Police Act, 2007 for institution of First Information Reports, for the purpose of lodging of cases of specific nature (Economic Offence). Provisions of Bihar Police Act, 2007 cannot be said to be controlling in any manner, power of the State executive under the provisions of the Code of Criminal Procedure, 1973. If any other interpretation is given to the provisions of Bihar Police Act, 2007, constitutionality of the provisions to the extent, they are treated to be repugnant to the provisions of the Code may become questionable.

203. The doctrine of occupied field has no role to play in the present controversy. It has been argued that the Code has not prescribed the kinds of Police Station which State executive could establish. In that background, it has been contended that once the State legislature enacted law making provisions for the kinds of police Station which could be established, it occupied the said field which must prevail in the State of Bihar and a notification issued by the State executive contrary to the provisions under the Bihar Police Act would be ultra vires. The plea has no force in view of what I have discussed above, since in my view the Bihar Police Act, 2007 has been enacted by the State legislature under Entry 2 of List II of Scheduled 7 of the Constitution of India. The said Entry has nothing to do with the “Criminal Procedure or Code of Criminal Procedure” which falls under Entry 2 of List III of the said Schedule of the Constitution of India. Declaration of Economic Offence Police Station by the State executive under Section 2(s) of the Code, cannot be held to be illegal on the ground that such declaration is in conflict with the provisions of the Bihar Police Act, 2007. This is to be noted that Mr. Chakrapani, learned counsel, in his submission has contended that it was well within the jurisdiction of the State executive to have adopted the definition of the police Station as given in Section 2(s) of the Code but since the State legislature in its wisdom decided to act otherwise and thus, once the State legislature in spite of existence of power, deemed it fit to exercise it in narrow compass, the State executive is required to simply act in terms of the legislation and not beyond what has been legislated. Learned counsel has overlooked the mandate of sub section 2 of Section 2 of the Bihar Police Act, 2007, which refers to provisions of the Code of Criminal Procedure for the purposes of defining such words or expressions which have not been specifically defined under the Act. Reliance placed in support of the said contention on Supreme Court’s decisions in case of Paul Manoj Pandian (supra) and in case of State of Jharkhand (supra), is wholly misconceived. The submission is, accordingly, rejected.

204. As has been observed above, the doctrine of occupied field on the ground of act of State legislation with the enactment of Bihar Police Act, 2007, has no application at all in present set of facts. As a matter of fact, the State legislature consciously excluded such matters which, fell under Entry 2 of List III of Schedule 7 of the Constitution of India, i.e. the Code of Criminal Procedure, 1973 which was enacted much before enactment of the Police Act.

205. Coming to the submissions advanced on behalf of the petitioners that the Bihar Police Act being Special Act should be allowed to prevail over the provisions of the Code of Criminal Procedure, applying the maxim generalia specialibus non derogant, I am of the considered view that the said two provisions operate in different fields altogether and their subject matter fall in different entries of List II and List III of Schedule 7 of the Constitution of India. Further, the doctrine shall have an application only if there is conflict between the general provision and special provision, which is not there in the present case. In any view of the matter, the said maxim does not lay down absolute rule of statutory interpretation.

206. I may gainfully refer to the Supreme Court’s decision in case of

# Commissioner of Income-Tax, Patiala and Ors. v. M/s Shahzada Nand and Sons and others reported in AIR 1966 SC 1342

wherein their Lordships laid down in paragraph 8 as follows:-

“8. … To this may be added a rider : in a case of reasonable doubt, the construction most beneficial to the subject is to be adopted. But even so, the fundamental rule of construction is the same for all statutes, whether fiscal or otherwise. “The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient.” The expressed intention must guide the Court. Another rule of construction which is relevant to the present enquiry is expressed in the maxim, generalia specialibus non derogant, which means that when there is a conflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Craies on Statute Law, 5th Edn., at p. 205, thus :

“The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.”

But this rule of construction is not of universal application. It is subject to the condition that there is nothing in the general provision, expressed or implied, indicating an intention to the contrary; see Maxwell on Interpretation of Statutes, 11th Edn., at pp. 168-169. When the words of a section are clear but its scope is sought to be curtailed by construction, the approach suggested by Lord coke in

# In re; Heydon’s case, (1584) 3 Co. Rep. 7a

yields better results :

“To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act; to consider, according to Lord Coke :

1. What was the law before the Act was passed;

2. What was the mischief or defect for which the law had not provided;

3. What remedy Parliament has appointed; and

4. The reason of the remedy.”

207. In relatively recent decision in case of

# Commercial Tax Officer, Rajasthan v. Binani Cements Limited and another, reported in (2014) 8 SCC 319

the Supreme Court has held in paragraph 47 that it is not an absolute rule of construction of statutory provisions that special governs the general, though it may be merely a strong indication of statutory meaning that can be overcome by textual indication that point in other direction. The Court held that the said maxim is applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions.

208. The Supreme Court referring to several judicial pronouncements held in paragraph 47 as follows:-

“47. Having noticed the aforesaid, it could be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relation to a specific, defined and descript able subject is regarded as an exception to and would prevail over a general provision relation to a broad subject.”

209. In the present case, as I have already noticed, the provisions of Bihar Police Act, 2007 do not, in any manner intend to alter or modify the provisions of the Code, rather, it refers to the Criminal Procedure Code for the purpose of defining police station which is not defined in the Bihar Police Act, 2007. A plea can be taken that though police station has not been specifically defined in Sub Section 2 of Section 2 of the Act, it stands defined upon reading of Section 8 of the said Act and, therefore, the said definition will prevail over the definition of police station under Section 2(s) of the Code. The submission is fit to be rejected for the simple reason that “Police District” has been defined in Sub Section (1) of Section 2 of the Act which refers to a police station as established in terms of Section 7 of the Act. Had it been the intention of the State legislature to define police station in similar manner, with reference to Section 8 of the Act, it could have been easily done. Omission is obvious, deliberate and well intended, if it is read with Sub-Section (2) of Section 2 of the Code.

210. Situated thus, I do not find any illegality in constitution of Economic Offence Police Station, with issuance of the communication, dated 15.12.2011 and subsequent notification, published in official gazette, dated 25.03.2013, declaring the same to be a police station with retrospective effect from 15.12.2011.

211. With substantial vehemence, learned counsel for the petitioners have submitted that as on 15.12.2011, no Economic Offence Police Station can be said to have been established in the absence of same having been notified in official gazette.

212. In my view, the Economic Offence Police Station was created by the State Government in terms of Section 2(s) of the Code. Section 2(s) of the Code does not mandate notification for declaration of a place or post as a police station. Mere declaration by the State executive is enough for creation of a police station within the meaning of Section 2(s) of the Code. In my view, therefore, registration of the First Information Reports against the petitioners on that basis cannot be quashed, exercising equitable writ jurisdiction under Articles 226/227 of the Constitution of India. In any view of the matter, the State Government came out with a notification, dated 25.03.2013 declaring the aforesaid police station as Economic Offence Station with retrospective effect from 15.12.2011, having its jurisdiction over the whole of the State of Bihar.

213. Coming to the challenge to creation of Economic Offence Police Station with reference to Section 8(1) of the Bihar Police Act, 2007, on the premise that a police station cannot be established, having jurisdiction throughout the State of Bihar, as has been done in the present case and a police station can only be established in a Police District, I am of the considered opinion that the Bihar Police Act, 2007 deals generally with the organization of the State Police and does not control the executive power of the State to declare a place or post as police station, within the meaning of Section 2(s) of the Code.

214. I would, thus, sum up my answer to the challenge to notification relating to creation of Economic Offence Police Station on the ground of it being in teeth of the provisions of the Bihar Police Act, 2007 by holding that the said Act has been enacted under Entry 2 of List II of Schedule 7 of the Constitution of India which relates to the ‘police’ as ‘a department’ and an organization under the State executive. A police station declared in terms of Section 2 (s) of the Code cannot be held to be illegal by referring to the provisions under Bihar Police Act, 2007.

215. In response to a query made by us, learned Senior Counsel representing the Economic Offence Police Station, has supplied us the details with respect to number of First Information Reports lodged at Economic Offence Police Station in 2011 and their status which is as under:-

“The details of FIR instituted, Charge-sheet submitted and Cognizance taken by the Court, since the inception of Economic Offences PS in 2011 Total No. of Total No. Of Total No. of Total No. of Cases in Cases Charge-sheet Accused which cognizance has reported with submitted in against been taken by the EO PS the Court. whom Court. charge-sheet submitted 128 92 318

1. Out of charge-sheeted 11 trap cases, cognizance has been taken in 11 cases.

2. Out of 02 charge-sheeted DA cases, cognizance has been taken in 02 cases.

3. The data regarding cognizance taken by the other than vigilance Court is being updated.”

216. There is another aspect of the matter. The petitioners have questioned the registration of the First Information Report and have sought for quashing of the First Information Reports and the proceeding arising out therefrom on the ground that the Economic Offence Police Station was not validly constituted.

There is no pleading on record nor have they made any effective legal submissions that investigation conducted by the officials of the police station did in any manner cause any prejudice to the petitioners resulting into failure of justice. I have already pointed out that the said police station is manned by senior police officials and other police personnel. The said Organization has all the trappings of a police Station. In such circumstance, in my view, plea taken by the petitioners for quashing of the First Information Reports on the ground of alleged irregularity in the constitution of police station, lacks bonafide.

217. In any view of the matter, in my opinion, on the grounds taken on behalf of the petitioners, First Information Reports itself need not be quashed exercising extraordinary inherent jurisdiction of this Court under Articles 226/227 of the Constitution of India or under Section 482 of the Code of Criminal Procedure, 1973. Such powers are vested in the superior Courts to prevent abuse of any process of Court or otherwise secure ends of justice. As has been noted in the opening paragraphs, allegations against the petitioners, who are public servants, are of indulging into acts of corruption by misusing their official position. In my opinion, the irregularities as are being pointed out by the petitioners even if accepted for the sake of argument only, the same shall not affect the competence and jurisdiction of the Court for trial of the offences and where cognizance of the case has, in fact, been taken, the same shall not stand vitiated, unless miscarriage of justice is shown to have been caused.

218. The Supreme Court in case of

# State of West Bengal v. Narayan K. Patodia reported in (2000) 4 SCC 447

deprecated quashing of the First Information Report by the High Court on the ground that under the extant provision, the persons who had forwarded the complaint to the Police had no authority to do so. The Supreme Court observed that while quashing the First Information Report, the High Court did not achieve any one of the factors, viz, “to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” Paragraph 19 of the said decision is relevant and is being reproduced hereinbelow:-

“19.That apart, how could the FIR be quashed if the investigating agency should have been different? By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If the High Court was of the opinion that investigation had to be conducted by the Bureau then also there was no need to quash the FIR. Anyway, we take the view that as offences under the Indian Penal Code are also involved, efficacious investigation can be conducted by entrusting it to the police investigating agency. The inherent powers of the High Court as recognized in Section 482 of the Code are reserved to be used “to give effect to any orders under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” It is quite unfortunate that learned Single Judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegations of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving the ends of criminal justice, the impugned order would achieve the reverse of it.”

219. Considering the said decision of the Supreme Court, I am of the view that First Information Reports lodged against the petitioners, in the facts and circumstances of the case, cannot be quashed.

220. This is not in dispute that the offences are being investigated by the persons who are police officers posted in the Economic Offence Unit of the State of Bihar. The whole purpose of an investigation is to collect material in support of the criminal misconduct alleged against an accused. It has, therefore, been prescribed under Section 156 (2) of the Code that no proceeding of a police officer in any case shall at any stage be called in question on the ground that the case was one of which such officer was not empowered under this Section to investigate. I do not mean to say that the officials of the Police Station of the Economic Offence Unit Police Station are not empowered to investigate, and their action need to be protected by invoking Sub-section (2) of Section 156 of the Code. I am of the view that even if it is accepted, that cannot be a ground for quashing of an FIR registered for cognizable offences. My view is fortified by Supreme Court’s decisions in case of

# Bhanuprasad vs. State of Gujarat, AIR 1968 SC 1323

# Sailendranath v. State of Bihar, AIR 1968 SC 1292

and

# State of U.P. vs. O.P. Sharma reported in (1996) 7 SCC 705

wherein the Supreme Court indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution, exercising its inherent power under Section 482 of the Code or under Articles 226 and 227 of the Constitution of India, as the case may be, and should allow the law to take its own course.

221. Similar view has been taken by the Apex Court in case of

# State of Himachal Pradesh Vs. Shri Pirthi Chand and another reported in (1996) 2 SCC 37

paragraphs 12 and 13 of which read as under:-

“12. It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence- the Court may embark upon the consideration thereof and exercise the power.

13. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. The accused involved in an economic offence destabilizes the economy and causes grave incursion on the economic planning of the State. When the legislature entrusts the power to the police officer to prevent organized commission of the offence or offences involving moral turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be borne in mind by the High Court when it exercises its inherent power. Otherwise, the social order and security would be put in jeopardy and to grave risk. The accused will have filed day in destabilizing the economy of the State regulated under the relevant provisions.”

222. Investigation has been defined under Section 2(h) of the Act which includes all the proceedings other than the Court for the collection of evidence conducted by a police Officer or any person other than Magistrate who is authorized by a Magistrate on his behalf. I have already pointed out that the persons who are said to have conducted the investigation are indisputably police officers working under the Economic Offence Unit of the State of Bihar. It is being disputed that the Unit to with which they are attached cannot be said to be Police Station within the meaning of Section 8 of Bihar Police Act. In my view, in the background of the discussions as above, the said Unit has been validly declared as a Police Station within the meaning of Section 2(s) of the Code. The Unit was declared as Police Station through a communication dated 15.12.2011. A notification was thereafter published in official gazette dated 25.03.2013 with respect to declaration of the said police station with retrospective effect from 15.12.2011. As I have already discussed, Section 2(s) of the Code does not require publication of any notification much less in official gazette for declaring a place or post to be a police station. Therefore, on the ground that as on 15.12.2011, no notification was issued and subsequently a notification was issued on 25.03.2013, registration of the FIRs prior to the said notification i.e. 25.03.2013 cannot be quashed.

223. I find force in the submission advanced on behalf of the petitioners, however, that neither the communication, dated 15.12.2011 nor subsequent notification, dated 25.03.2013 are specific about the nature of cases which can be registered and investigated into by Economic Offence Police Station. It has been argued, without any dispute being raised by the respondent, that there is a Vigilance police Station for the whole State of Bihar which has jurisdiction to register cases of similar nature, which are being registered by the Economic Offence Police Station. No guideline has been shown to us which demarcates the jurisdiction of the said Vigilance Police Station and the Economic Offence Police Station. If this be so, apparently, two agencies are having parallel power to register an FIR. This may lead to anomalous situation which needs to be corrected by the State Government of Bihar.

224. Before I conclude I must take note of Chapter XXXV of the Code of Criminal Procedure, 1973 which deals with irregularities which do not vitiate proceedings and those which do. Section 460 of the Code provides, inter alia, that if any Magistrate not empowered by law to take cognizance of an offence under Clause (a) or Clause (b) of sub-section (1) of Section 190, takes cognizance erroneously in good faith, his proceedings shall not be set aside merely on the ground that he was not empowered by law to take cognizance. Section 462 prescribes that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in wrong sessions divisions, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. If the irregularity of the nature as indicated above does not lead to vitiating a proceeding, I do not find any reason to accept the plea of the petitioners as taken on their behalf, for quashing of the First Information Reports.

225. As a matter of fact, no argument has been advanced on behalf of the petitioners that investigation by the Economic Offence Unit/Police Station into the offences allegedly committed by them has caused prejudice to them of any nature and has occasioned failure of justice. The plea taken in these proceedings for quashing of the First Information Report lodged against the petitioners and proceedings pending against them arising out of the said First Information Report are, for that reason also, not worth being entertained and, are, accordingly, rejected.

226. The plea taken on behalf of Md. Yunus, petitioner of Cr.WJC No. 563 of 2013 that before registration of the First Information Report a preliminary enquiry ought to have been carried out to ascertain the truthfulness or otherwise of the allegation as the First Information Report does not bear the name of the informant, deserves to be rejected for the reason that it is evident on perusal of the contents of the First Information Report that the same was registered after enquiry and verification. The case came to be registered on verification with respect to the properties acquired by the petitioner, which is evident from the First Information Report. The Supreme Court’s decision in case of Vineet Naraian vs. Union of India (supra), and Lalita Kumari Vs. Government of U.P. (supra), have no application in the present case.

# Summary

227. In view of the discussions as above, I summarize as follows:-

(i) Code of Criminal Procedure, 1973 and Bihar Police Act, 2007 have been enacted under Entry 2 of List III of 7th Schedule of the Constitution of India by the Parliament, whereas Bihar Police Act, 2007 has been enacted by the State legislature with reference to Entry 2 of List II of the 7th Schedule of the Constitution of India. The two provisions operate in different field altogether. Whereas the Code of Criminal Procedure, 1973 lays down the procedure for investigation into criminal cases, enquiry in such cases and trial thereof, the Police Act deals with the “Police as an organization”. There is difference between “Police” under Entry 2 of List II of 7th Schedule of the Constitution of India which essentially refers to an organization, set up under the control of the State Government and “police Station” which is primarily entrusted with the investigation of criminal cases in accordance with provisions of the Cr.P. C.

(ii) Even after enactment of Bihar Police Act, 2007, power of the State Government to declare a place or post as “Police Station” under Section 2(s) of the Code does not stand denuded or altered in any manner. A police station established under Section 8 of the Bihar Police Act, 2007 may not be said to be a police station for the purpose of provisions of the Code of Criminal Procedure unless it is declared to be so under Section 2(s) of the Code.

(iii) I do not find any illegality in creation of Economic Offence Unit as police Station with issuance of communication dated 15.12.2011 and subsequent notification, dated 25.03.2013.

(iv) In any event, the First Information Reports which disclose serious offences, as have been noticed need not be quashed exercising equitable inherent jurisdiction of this Court under Articles 226/227 of the Constitution of India or Section 482 of the Code of Criminal Procedure, 1973. However, the communication, dated 15.12.2011 or the notification dated 25.03.2013 are not specific as to how and in which cases, Economic Offence Police Station will entertain registration of an FIR, there being no dispute about the fact that for investigation into similar offence, there exists a police station in the name of Vigilance Police Station. I would, accordingly, direct the respondents, particularly, the Principal Secretary, Home, Government of Bihar to chalk out and notify a definite mechanism for registration of the First Information Reports by Economic Offence Police Station.

228. In view of the discussions and the conclusions recorded as above, I do not find any merit in these applications, which are, hereby, dismissed, with the only direction as indicated above in sub – paragraph (iv) of the preceding paragraph.

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