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IN THE HIGH COURT OF PATNA
NAVANITI PRASAD SINGH, J.
Md. Yunus, S/o Late Md. Siddique @ Sadique - Petitioner
Versus
The State of Bihar through the Director General of Police, Bihar, Patna - Respondent
CWJC No. 1219, 6660 of 2016, Cr.WJC No. 231, 353 of 2016, Cr. WJC No. 563 of 2013
Decided on : 08-03-2017.
(A) Criminal Procedure Code, 1973 – Section 2(s) – Bihar Police Act, 2007 – Section 8 – Establishment of Economic Offence Police Station – Legality – Police Station has not to be set up by notification in official gazette as contemplated by Section 8 (1) of Act, but could be constituted by a declaration by State Government, either generally or specially, in terms of Section 2 (s) of the Cr.P.C. – Once, Parliament in exercise of field of legislation covered by Entry-2 List-III of 7th Schedule has so provided in the Code in respect of Police Station which is then used exhaustively in Cr.P.C. then all aspects of matter in relation to Police Station would be covered by central legislation in Concurrent List – Field of legislation in respect of “police” under Entry-2 List-II would be police administration and its duties to the extent not covered by Cr.P.C. – Section 8(1) of Bihar Police Act would encroach upon field of legislation reserved in Entry-2 List-III, Concurrent List and Cr.P.C. – Where, in contradiction to a mere declaration required to set up a Police Station in terms of Section 2(s) of Cr.P.C., procedure as prescribed in Section 8 (1) of Police Act, being a notification in official gazette, this procedure would clearly be ultra vires State’s legislative competence – Section 8 (1) of Act has to be read down harmoniously to bring in conformity with Section 2 (s) of Cr.P.C. (Paras 8, 10, 14 and 18)
(B) Bihar Police Act, 2007 – Section 8 – Criminal Procedure Code, 1973 – Section 2(s) – Establishment of Economic Offence Police Station – Legality – Section 2(s) of Cr.P.C. clearly confers jurisdiction upon State to make a declaration either generally or specifically in relation to creation of a Police Station – It is purely an administrative act and consequences which follow are stipulated in Cr.P.C. itself – There is no requirement in law that such a Police Station can only be created by a gazette notification – Requirements of Section 2(s) of Cr.P.C. having been complied, it is futile on part of writ petitioners to urge that Economic Offence Police Station was not legally established – Parliamentary legislation in respect of matters as provided in Concurrent List, cannot be controlled or wittled down by State Legislature either in exercise of field available to it under State List or even in exercise of field of legislation available to it under Concurrent List except when such State legislation, in terms of Article 254 (2) of Constitution, is reserved for consideration and assent of President and has received the same – That being so, exercise carried out by State and its validity has to be judged with reference to Section 2 (s) and other Sections of Cr.P.C. and not Bihar Act – Requirement of law being mere declaration and that having been complied with, establishment of Economic Offence Police Station cannot be questioned – Writ petitions dismissed. (Paras 20, 28 and 35)
(C) Criminal Law – Crime Investigation – Irregularity in investigation would not vitiate trials unless serious prejudice is shown by writ petitioners – Writ petitioners do not have liberty of choice of investigating agency which is prerogative of State in its sovereign function to control and investigate criminal offences and ensure prosecution of offenders. (Para 29)
Navaniti Prasad Singh, J.
There being a difference of opinion amongst the two Hon'ble Judges of this Court, comprising the Division Bench, of the then Hon'ble the Chief Justice, Hon'ble Mr. Justice I.A. Ansari and Hon'ble Mr. Justice Chakradhari Sharan Singh, these cases have been referred to this Court.
2. The primal question involved in these group of writ petitions is, whether the exercise carried on by the State Government in establishing "Economic Offence Police Station" is an exercise in futility or not, because based thereon what would be the effect on the F.I.R. so registered, police investigation, charge-sheet, trial and conviction?
3. The then Hon'ble the Chief Justice held that steps taken by the State Government, being not in accordance with the Bihar Police Act, 2007, the registration of the F.I.R., investigation would all be nullity and no prosecution could be based thereon. Whereas, Hon'ble Mr. Justice Chakradhari Sharan Singh held that the declaration of police station was a matter completely covered by the Criminal Procedure Code, 1973 and as such there was no illegality enuring to the benefit of the writ petitioners, who are sought to be prosecuted, consequent to F.I.R. lodged with the said police station and investigated through it.
4. Having perused the two conflicting opinions and heard the parties at length, in my view, the opinion of Hon'ble Mr. Justice Chakradhari Sharan Singh appears to be correct. I give hereunder the reasons for the same.
5. To begin with one has to note the relevant provisions of the two legislations, i.e. the provisions of the Code of Criminal Procedure and the Bihar Police Act, 2007, then to note the constitutional provisions and its effect in respect of the two legislations. For ready reference, the relevant provisions of the Code of Criminal Procedure, 1973 and the provisions of Bihar Police Act, 2007 are being quoted hereunder, with emphasis supplied where necessary:
Criminal Procedure Code, 1973
2. Definitions - In this Code, unless the context otherwise requires: -
(a) .............
(b) .............
(c) "cognisable offence" means an offence for which, and "cognisable case" means a case in which, a police officer may, in accordance wit the First Schedule or under any other law for time being in force, arrest without warrant.
(d) ............
(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf:
(j) "local jurisdiction", in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code [and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify];
(m) "notification" means a notification published in the Official Gazette ;
(n) "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle - trespass Act, 1871 ( 1 of 1871);
(s) "police station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf ;
(t) "prescribed" means prescribed by rules made under this Code;
4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
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