Judgment

HIDAYATULLAH, C.J.I. :- On a complaint, January 30, 1968 by the Income-tax Officer (Section X Central) Bombay, of the Commission of Offences under Sections 409, 477A and 120B read with Section 409 of the Indian Penal Code a case was registered by the Superintendent of Police, Special Police Establishment, New Delhi. Investigation was entrusted to an Inspector under the Establishment. It was to be made in Maharashtra State. The appellant, which is a limited company, called the Management of Advance Insurance Company Limited, thereupon filed a petition under Article 226 of the Constitution in the High Court at Delhi challenging the right of the Special Police Establishment to investigate the case. This petition was disposed of on October 18, 1968 by the High Court ordering its dismissal. The present appeal is by certificate granted by the High Court.

2. Before the High Court many questions were mooted. Shortly stated the argument is that the Delhi Special Police Establishment is not constitutional and that it has no jurisdiction to investigate the cases in other States. This argument has many facets which will presently appear. Before we consider them it is necessary to say something about the original constitution of this Special Police Establishment.

3. We are concerned today with the Delhi Special Police Establishment Act of 1946 (XXV of 1946). This Act succeeded two Ordinances which had been earlier passed by the Governor-General and it had been amended from time to time by way of adaptation and modification. It was passed when the Government of India Act, 1935 was in force. Entry No. 3 of the Provincial Legislative List in the 7th Schedule to the Government of India Act, 1935 read "police including railway and village police". Entry 39 of the Federal Legislative List was as follows:

"39. Extension of the powers and jurisdiction of members of a police force belonging to any part of British India to any area in another Governor s Province, or Chief Commissioner s Province, but not so as to enable the police of one part to exercise powers and jurisdiction elsewhere without the consent of the Government of the Province or the Chief Commissioner as the case may be; extension of the powers and jurisdiction of members of a police force belonging to any unit to railway areas outside that unit."

It was substituted by the India (Provisional Constitution) Order 1947, as follows:

"39. Extension of the powers and jurisdiction of members of a police force belonging 1128 to any province to any area in another province, but not so as to enable the police of one province exercise powers and jurisdiction in another province without the consent of the Government of that Province; extension of powers and jurisdiction of members of a police force belonging to any unit to railway areas outside that unit.

In this entry "province" includes a Chief Commissioner s province."

The explanation which was included in this last entry was to obviate the implication of the definition of a Province in Section 46 (3) of the Act which read:

"In this Act the expression "Province" means unless the context otherwise requires, a Governor s Province, and "Provincial" shall be construed accordingly." The implication of the explanation was to apply Entry 39 to the Chief Commissioner s Province in addition to Governor s Province. In this way the jurisdiction exercisable under Entry 39 was made co-extensive again with what was formerly British India, which, by Section 311 (1) of the Act, meant both kinds of provinces. The prior history of the Act may be shortly noted. It has little bearing upon the questions in hand.

4. On July 12, 1943 the Governor-General enacted an Ordinance (XXII of 1943) in exercise of his powers conferred by Section 72 of the Government of India Act which was continued in the Ninth Schedule to the Government of India Act, 1935. An emergency had been declared owing to World War II and the powers were exercisable by the Governor-General. The ordinan