The Police Act of 1861 can be brought into force in any area by a notification issued by the State Government under Section 46 of the Act.

WANCHOO, C. J.

( 1 ) THIS is a reference by the Sub-Divisional Magistrate of Fatehpur under Section 432, Criminal P. C. The question raised before him was that the Police Act (5 of 1861) was not legally enforced in Rajasthan. He has, therefore, referred the question whether the Police Act (5 of 1861) is legally enforced in Rajasthan and is thus a valid piece of legislation in Rajasthan.

( 2 ) A preliminary objection has been taken on behalf of the State that the reference is invalid as the Sub-Divisional Magistrate has not said in so many words that his opinion is that the Act is not legally enforced and is not a valid piece of legislation so far as Rajasthan is concerned. There is no doubt that he has not said so in so many words, but a reading of his reference order shows that he was inclined that way and under these circumstances, we over-rule the preliminary objection.

( 3 ) THE manner in which the Police Act (5 of 1861) came to be applied to Rajasthan is this : On 24-1-1950 the Rajasthan Adaptation of Central Laws Ordinance (4 of 1950) was promulgated by His Highness the Rajpramukh. A number of Central acts were adapted to Rajasthan by virtue of Section 3 of the Ordinance read with the Schedule. The Police Act (5 of 1861) was, however, not included in the Schedule when this Ordinance was passed. Section 4 of the Ordinance gave power to the Rajpramukh by order notified in the rajasthan Gazette, to add to, amend or vary the schedule to this Ordinance. Subsections (2) and (3) of Section 4 of this Ordinance provided what would be the effect of additions, amendments and variations in the Schedule. On 26-1-1950 the constitution of India came into force in Rajasthan. On 18-7-1950, the Rajpramukh purporting to act under Section 4 of the Rajasthan adaptation of Central Laws Ordinance (4 of 1950) added the Police Act of 1861 in the Schedule to the Ordinance as No. 10a, with the notification that the second paragraph of Section 21 was omitted. The question that falls for consideration is whether by this notification the Police Act came into force from the date of tiie notification in Rajasthan.

( 4 ) THE main argument on behalf of Babulal in this connection is that after the coming into force of the Constitution, Section 4 of the Rajasthan Adaptation of central Laws Ordinance (4 of 1950) was impliedly repealed as the Constitution provided specifically the manner in which laws would be enacted in Part b States in Article 385 read with Article 212-A. As in fact this notification of July, 1950 was enacting a law, it could not be done by virtue of the power conferred under Section 4 of the Ordinance and it could only be done in the manner provided Articles 385 and 212-A of the Constitution. There is, in our opinion, force in this argument that after the Constitution came into force, laws could only be enacted in the manner provided in Articles 385 and 212a of the Constitution and could not be enacted by virtue of the power conferred by section 4 of the Ordinance. However if the matter stood there, it could be said that the Police Act of 1861 was not properly enacted and therefore could not be enforced in Rajasthan. But we find that the Police Act of 1861 is a piece of legislation which though in existence, does not come into force in any area by itself. It has to be brought into force by virtue of the provision of Section 46 of the Act. That section reads as follows:

"this Act shall not by its own operation take effect in any presidency, province, or place. But the State Government by an order to be published in the official Gazette may extend the whole or any part of this act to any presidency, province or place and the whole or such portion of this Act as shall be specified in such order shall thereupon take effect in such Presidency, State or place. "

Thus the Police Act of 1861 can be brought into force by any State by means of a notification and it is open to the State making the notification to apply the whole of it or