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

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