Sabyasachi Mukharji, J. - (1.) Two questions are involved in this application under Article 226 of the Constitution namely,-- (i) whether the Central Reserve Police Force Act 1949 is valid law and (ii) whether the petitioner has any locus standi to maintain this application. The Central Reserve Police Force Act, 1949 was enacted by the Constituent Assembly by virtue of Section 8 (1) of the Indian Independence Act, 1947. Under Sub-section (2) of Section 8 of the said Act the Constituent Assembly while exercising the powers of legislation had only the powers that the Federal Legislature had under the Government of India Act, 1935. Under Article: 372 of the Constitution all laws in force prior to the Constitution would continue until repealed or altered by competent authority. Therefore in order to be law in force the said law must have been valid law when it was enacted. The main question, therefore, that requires consideration is whether the Federal Legislature had the powers under the Government of India Act, 1935 to enact the Central Reserve Police Force Act, 1949. It is, therefore necessary to refer to the relevant provisions of the Government of India Act, 1935. Part V of the Government of India Act, 1935 deals with legislative powers, chapter I contains sections on the distribution of the powers. Section 99 deals with the extent of Federal and Provincial laws. Section 100 provides as follows:-- "100. (1) Notwithstanding anything in the two next succeeding sections, the Federal Legislature has and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the "Federal Legislative List"). (2) Notwithstanding anything in the next succeeding sub-section, the Federal Legislature, and, subject to the preceding sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter) called the "Concurrent Legislative List"). (3) Subject to the two preceding sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the "Provincial Legislative List)". (4) The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof." Section 101 deals with the powers of the Federal Legislature to legislate for States, Section 102 provides for the power of Federal Legislature to legislate in case of emergency, Section 103 deals with the power of the Federal Legislature to legislate for two or more Provinces by consent. Section 104 of the Act states- "104. (1) The Governor-General may by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act, including a law imposing a tax not mentioned in any such list, and the executive authority of the Federation or of the Province, as the case may be, shall extend to the administration of any law so made, unless the Governor-General otherwise directs." Section 106 of the Act makes provisions as to legislation for giving effect to international agreements. Section 107 states- "107. (1) If any provision of a Provincial Law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian Law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section the Federal Law, whether passed before or after the Provincial law, or as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void. (2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to the matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General has received the assent of the Governor-General, the Provincial law shall in the Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter." The Seventh Schedule contains the different lists. List I is the Federal Legislative List and has 59 entries. Entry 1 as substituted by the India (Provisional Constitution) Order, 1947 provides as follows:-- "1. The naval, military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion: and armed forces which are not forces of the Dominion but are attached to or operating with any of the forces of the Dominion; central intelligence bureau; preventive detention for reasons of Stale connected with defence or external affairs." List II is the Provincial List and has 54 entries. Entry I of the said fist as modified by the Indian (Provisional Constitution) Order 1947, is to the following effect:-- "1. Public Order, the administration of justice, constitution and organisation of all courts, except the Federal Court, and fees taken therein, preventive detention for reasons connected with the maintenance of pub lie order; persons subjected to such detention." Entry 3 provides:-- "3. Police, including railway and village) police." List III is the Concurrent List and has two parts containing in total 36 entries. Entries 1 and 2 are as follows:-- "1. Criminal law, including all matters included in the Indian Penal Code at the date of the passing of this Act but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of His Majesty's naval, military and air forces in aid of the civil power.
(2.) Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act." 2. The Central Reserve Police Force Act, 1949 came into effect from the 28th December, 1949, after being passed by the Constituent Assembly acting as the Federal Legislature. It was adopted by the Adoption of Laws Order, 1950. It was an Act to provide for the constitution and regulation of an armed Central Reserve Police Force. The preamble of the Act states that whereas it was expedient to provide for the constitution and regulation of an armed Central Reserve Police Force, the Act was being passed. Section 2 provides definitions. Section 3 provides for the constitution of the force, Section 4 deals with appointment and powers of superior officers, Section 5 with enrolment, Section 6 with resignation and withdrawal from the Force. Section 7 deals with general duties of the members of the Force. Section 7 is as follows:-- "General duties of members of the Force:-- (1) It shall be the duty of every member of the Force promptly to obey and to execute all orders and warrants lawfully issued to him by any competent authority, to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist. (2) Every member of the Force shall be liable to serve without and beyond, as well as within, the territory of India." Sections 8 to 15 deal with the superintendence, control and administration of the Force and internal discipline of the Force. Section 16 deals with the powers and duties conferrable and imposable on members of the Force. Section 16 is as follows:-- "16. Powers and duties conferrable on members of the Force:-- (1) The Central Government may, by general or special order, confer or impose upon any member of the Force any of the powers or duties conferred or imposed on a police officer of any class or grade by any law for the time being in force. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the Central Government may invest the Commandant or an Assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the Force and punishable under this Act, or any offence committed by a member of the Force against the person or property of another member: Provided that- (i) when the offender is on leave or absent from duty or (ii) when the offence is not connected with the offender's duties as a member of the Force, or (in) when it is a petty offence, even if connected with the offender's duties as a member of the Force, the offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed, so directs, be inquired into or tried by an ordinary Criminal Court having jurisdiction in the matter." Section 17 provides for protection for acts of members of the Force. Section 18 gives the power to make rules. Section 19 deals with validation of acts done before commencement of the Act.
(3.) Counsel for the petitioner submitted that the police was a provincial subject and the Federal Legislature under the Government of India Act, 1935, was incompetent to legislate on the subject of the police. It was urged that the Central Reserve Police Act, 1949 was in essence and in pith and substance a legislation dealing with the police. It was also pointed out that the name of the Act and the Force constituted under the Act was also significant. It was an Act to constitute a Police Force. My attention was also drawn to the fact that the expenses in connection with the said police are met from the Civil Budget. For the reasons aforesaid, counsel for the petitioner submitted that the Act was ultra vires the powers of the Constituent Assembly when it enacted the impugned law. Learned Advocate-General on the other hand contended that Constitution of an armed Police Force was permissible under Entry 1 of List I of the Government of India Act, 1935. In view of the expression "any other armed forces", learned Advocate-General further submitted that the Constitution of the Central Reserve Police Force was valid, the conferment of powers on that Police Force was also valid in view of the Entry 1 and Entry 2 of List III of the Government of India Act, 1935. It was urged that "criminal law" or in any event "criminal procedure", were wide enough concepts to include within their ambit the powers given to the Central Reserve Police Force. It was submitted that for dealing with offences, defined crimes to be defined by any proper authority later if power and authority were given to certain body of persons, that came within the expression "criminal procedure". Reliance was placed on Section 40 of the Indian Penal Code and Sections 54, 55, 59, 62, 149, 151 and 152 of the Code of Criminal Procedure and also on Section 1 of the Police Act, 1861. My attention was also drawn to Clause (38) of Section 3 of the General Clauses Act. It was submitted that the powers given by Section 23 of the Police Act, 1861 were procedural and would be covered by Entry 2 in List III of the Government of India Act, 1935. It was also urged by the learned Advocate-General that the fact that the "Police" was a State subject did not prevent the Government of India from maintaining or recruiting the cadre of the officers under the Indian Police Service. In the premises it was submitted that the Central Reserve Police Force was a valid piece of legislation. Learned Advocate-General further submitted that the petitioner in any event had no locus standi to maintain this application under Article 226 of the Constitution. Reliance was placed on certain decisions to which reference will be made later.;