PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF BOMBAY. DATE OF JUDGMENT: 08/10/1954 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> MAHAJAN, MEHAR CHAND (CJ) <NAME>, B.K. JAGANNADHADAS, B. CITATION: 1954 AIR 752 1955 SCR 799 CITATOR INFO : RF 1956 SC 676 (39) F 1957 SC 458 (20) R 1959 SC 648 (29) RF 1967 SC1091 (11) R 1979 SC 898 (28) F 1983 SC 150 (16) R 1983 SC1019 (66) R 1985 SC1729 (10) R 1987 SC1837 (33,35) R 1988 SC1708 (24) R 1990 SC 104 (11) F 1990 SC 548 (14) RF 1990 SC2072 (14,46) ACT: Constitution of India, Art. 254(2 ), Government of India Act, 1935, s. 107(2)-Principle embodied therein--Essential Supplies (Temporary Powers) Act (XXIV of 1946) s. 7 as amended by Act LII of 1950-Bombay Act XXXVI of 1947-S. 2- Subject matter of legislation identical-Repugnancy-Repeal by necessary intendment. HEADNOTE: Article 254(2) of the Constitution is, in substance, a reproduction of s. 107(2) of the Government of India Act, 1935, the concluding portion whereof is incorporated in a proviso with further additions. The principle embodied therein is that when there is legislation covering the same ground both by the <ORG> and by the <ORG>, both of them being competent to enact the same, the law of the <ORG> should prevail over that of the <ORG>. Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, was amended in 1948 and 1949 and thereafter by Act LII of 1950. Held, that Act LII of 1950 is a legislation in respect of the same matter as Bombay Act (XXX VI of 1947) within the meaning of Art. 254(2) of the Constitution and therefore s. 2 of Bombay Act XXXVI of 1947 cannot prevail as against s. 7 of the Essential Supplies (Temporary Powers) Act as amended by Act LII of 1950. It is a well-settled rule of construction that if a later statute again describes an off once created by a previous one and imposes a different punishment or varies the procedure, the earlier statute is repealed by the later statute. Attorniey-Geneeral for Ontario v. Attorney-General for the Dominion  A.C. 348, <NAME> v. <NAME>  1. K.B. 518, and <NAME> v. <NAME> (I El. & El. 267, 274) referred to. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 31 of 1953.

Under article 132(1) of the Constitution of India from the Judgment and Order dated 20-1-1953 of <ORG> in Criminal Revision Application No. 642 of 1952,

1<NAME> and <NAME> for the appellant. <NAME>, Attorney-General of India (<NAME> and <NAME>, with him) for the respondent. 1954. October 8. The Judgment of the Court was delivered by VENKATARAMA <NAME> is an appeal against the judgment of <ORG> dismissing a revision petition filed by the appellant against his conviction under section 7 of the Essential Supplies (Temporary Powers) Act No. XXIV of 1946.

The charge against the appellant was that on 6th April, 1951, he had transported 15 maunds of juwar from his village of Khanjroli to Mandvi without a permit, and had thereby contravened section 5(1) of the Bombay Food Grains (Regulation of Movement and Sale) Order, 1949. The Resident First Class Magistrate of Bardoli who tried the case found him guilty, and sentenced him to imprisonment till the rising of the <ORG> and a fine of Rs. 500. The conviction and sentence were both affirmed by the Sessions Judge, Surat, on appeal. The appellant thereafter took up the matter in revision to the High <ORG> of Bombay, and there for the first time, took the objection that the Resident First Class Magistrate had no jurisdiction to try the case, because under section 2 of the Bombay Act No. XXXVI of 1947 the offence was punishable with imprisonment, which might extend to seven years, and under the Second Schedule to the Criminal Procedure Code , it was only the Sessions <ORG> that had jurisdiction to try such offence. The answer of the <ORG> to this contention was that subsequent to the enactment of the Bombay Act No. XXXVI of 1947, the Essential Supplies (Temporary Powers) Act bad undergone substantial alterations, and was finally recast by the Central Act No. LII of 1950; that the effect of these amendments was that Act No. XXXVI of 1947 had become inoperative, that the governing Act was Act No. LII of 1950, and that as under that Act the maximum sentence for the offence in question was three years, the Resident First Class Magistrate had jurisdiction over the offence.

The revision petition was heard by a Bench consisting of <NAME> and <NAME>. <NAME> J. was of the opinion that the amendments to the Essential Supplies (Temporary Powers) Act including the re-enactment of section 7 in Act No. LII of 1950 did not trench on the field covered by the Bombay Act No. XXXVI of 1947, which accordingly remained unaffected by them. <NAME>, on the other hand, held that both Act No. XXXVI of 1947 and Act No. LII of 1950 related to the same subject-matter, and that as Act No. LII of 1950 was a Central legislation of a later date, it prevailed over the Bombay Act No. XXXVI of 1947. On this difference of opinion, the matter came up under section 429 , Criminal Procedure Code , for hearing before <NAME>, who agreed with <NAME>, that there was repugnancy between section 7 of Act No. LII of 1950 and section 2 of the Bombay Act No. XXXVI of 1947, and that under article 254(2 ), the former prevailed ; and the revision petition was accordingly dismissed. Against this judgment, the present appeal has been preferred on a certificate under article 132 (1 ), and the point for determination is whether contravention of section 5(1) of the Bombay Food Grains (Regulation of Movement and Sale) Order, 1949, is punishable under section 2 of the Bombay Act No. XXXVI of 1947, in which case the trial by the Resident First Class Magistrate would be without jurisdiction ; or whether it is punishable under section 7 of the Essential Supplies (Temporary Powers) Act, as amended by Act No. LII of 1950, in which case, the trial and conviction of the appellant by that Magistrate would be perfectly legal.

It is now necessary to refer in chronological sequence to the statutes bearing on the question. We start with the Essential Supplies (Temporary Powers) Act No. XXIV of 1946 enacted by <ORG> by virtue of the powers conferred on it by 9 and 10, George VI, Chapter 39. It applied to the whole of British India. Section 3 of the Act conferred power on <ORG> to issue orders for regulating the production, supply and distribution of essential commodities, and under section 4 , this power could be delegated to <ORG>. Section 7(1) provided for punishment for contravention of orders issued under the Act, and ran as follows:

"If any person contravenes any order made under section 3 , he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, and if the order so provides any <ORG> trying such contravention may direct that any property in respect of which the <ORG> is satisfied that the order has been contravened shall be forfeited to His Majesty:

Provided that where the contravention is of an order relating to foodstuffs which contains an express provision in this behalf, the <ORG> shall make such direction, unless for reasons to be recorded in writing it is of opinion that the direction should not be made in respect of the whole or as the case may be, a part of the property."

The State of Bombay considered that the maximum punishment of three years' imprisonment provided in the above section was not adequate for offences under the Act, and with the object of enhancing the punishment provided therein, enacted Act No. XXXVI of 1947. Section 2 of the said Act provided (omitting what is not material for the present purpose) that "Notwithstanding anything contained in the Essential Supplies (Temporary Powers) Act, 1946, whoever contravenes an order made or deemed to be made under section 3 of the said Act shall be punished with imprisonment which may extend to seven years, but shall not, except for reasons to be recorded in writing, be less than six months, and shall also be liable to fine." This section is avowedly repugnant to section 7(1) of the Essential Supplies (Temporary Powers) Act. Section 107 (2) of the Government of India Act, which was the Constitution Act then in force, enacted that, "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 <ORG> law or an existing law with respect to that 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 that Province prevail, but nevertheless the <ORG> Legislature may at any time enact further legislation -with respect to the same matter. " On the footing that the subject-matter of Act No. XXXVI of 1947 fell within the Concurrent List, <ORG> obtained the assent of the Governor-General therefor, and thereafter it came into force on 25th November, 1947. The position therefore was that by reason of section 107(2) of the Government of India Act, Act No. XXXVI of 1947 prevailed in Bombay over section 7 of the Essential Supplies (Temporary Powers) Act; but at the same time, it was subject under that section to all and any "further legislation with respect to the same matter", that might be enacted by <ORG>.

The contention of the State is that there was such further legislation by <ORG> in 1948, in 1949 and again in 1950, and that as a result of such legislation, section 2 of the Bombay Act No. XXXVI of 1947 had become inoperative. In 1948 there was an amendment of the Essential Supplies (Temporary Powers) Act, whereby the proviso to section 7(1) was repealed and a new proviso substituted, which provided inter alia that, " Where the contravention is of an order relating to foodstuffs which contains an express provision in this behalf, the <ORG> shall direct that any property in respect of which the order has been contravened shall be forfeited to His Majesty, unless for reasons to be recorded in writing it is of opinion that the direction should be made not in respect of the whole, or as the case may be, a part of the property. "

The Essential Supplies (Temporary Powers) Act was again amended in 1949. Under this amendment, the proviso to section 7(i) was repealed, and a new clause substituted in the following terms:

" (b) Where the contravention is of an order relating to foodstuffs, the <ORG> shall (i) sentence any person convicted of such contravention to imprisonment for a term which may extend to three years and may, in addition, impose a sentence of fine, unless for reasons to be recorded, it is of opinion that a sentence of fine only will meet the ends of justice; and

(ii)direct that any property in respect of which the order has been contravened or a part thereof shall be forfeited to His Majesty, unless for reasons to be recorded it is of opinion that such direction is not necessary to be made in respect of the whole, or, as the case may be, a part of the property. "

Then came Central Act No. LII of 1950, under which the old section 7 was repealed and a new section enacted in the following terms:

" (1) If any person contravenes any order under section 3 relating to cotton textiles he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine; and any property in respect of which the order has been contravened or such part thereof as to the <ORG> may seem fit shall be forfeited to the Government.

(2)If any person contravenes any order under section 3 relating to foodstuffs,--

(a)he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine, unless for reasons to be recorded the Court is of opinion that a sentence of fine only will meet the ends of justice ; and

(b)any property in respect of which the order has been contravened or such part thereof as to the <ORG> may seem fit shall be forfeited to the Government, unless for reasons to be recorded the <ORG> is of opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property: Provided that where the contravention is of an order prescribing the maximum quantity of any foodgrain that may lawfully be possessed by any person or class of persons, and the person contravening the order is found to have been in possession of foodgrains exceeding twice the maximum quantity so prescribed, the <ORG> shall-

(a)sentence him to imprisonment for a term which may extend to seven years and to a fine not less than twenty times the value of the foodgrain found in his possession, and

(b)direct that the whole of such foodgrain in excess of the prescribed quantity shall be forfeited to the <ORG>. Explanation:-A person in possession of foodgrain which does not exceed by more than five maunds the maximum quantity so prescribed shall not be deemed to be guilty of an offence punishable under the proviso to this sub-section. (3)If any person contravenes any order under section 3 relating to any essential commodity other than cotton textiles and food-stuffs, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both, and if the order so provides, any property in respect of which the Court is satisfied that the order has been contravened may be forfeited to the <ORG>.

(4)If any person to whom a direction is given under sub- section (4) of section 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both." It must be mentioned that while the amendments of 1948 and 1949 were made when section 107(2) of the Government of India Act was in force, the Constitution of India Act had come into operation, when Act No. LII of 1950 was enacted. Article 254(2) of the Constitution is as follows: " Where a law made by the <ORG> of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by <ORG> or an existing law with respect to that matter, then, the law so made by the <ORG> of such State shall,, if it has been reserved for the consideration of - the President and has received his assent, prevail in that State :

Provided that nothing in this clause shall prevent <ORG> from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by <ORG> State."

This is, in substance, a reproduction of section 107(2) of the Government of India Act, the concluding portion thereof being incorporated in a proviso with further additions. Discussing the nature of the power of <ORG>, in relation to that of <ORG>, in a situation similar to that under section 107(2) of the Government of India Act, it was observed by Lord <NAME> on in Attorney-General for Ontario v. Attornery- General for the Dominion(1), that though a law enacted by <ORG> and within its competence would override Provincial legislation covering the same field, <ORG> bad no authority conferred upon it under the Constitution to enact a statute repealing directly any Provincial statute. That would appear to have been the position under section 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List. Now, by the proviso to article 254(2) the Constitution has enlarged the powers of <ORG>, and under that proviso, <ORG> can do what <ORG> could not under section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the <ORG>, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution <ORG> can, acting under the proviso to article 254(2 ), repeal a <ORG> law. But where it does not expressly do so, even then, the <ORG> law will be void under that provision if it conflicts with a later "law with respect to the same matter" that may be enacted by <ORG>.

In the present case, there was no express repeal of the Bombay Act by Act No. LII of 1950 in terms of the proviso to article 254(2). Then the only question to be decided is whether the amendments made to the Essential Supplies (Temporary Powers) Act by <ORG> in 1948, 1949 and 1950 are "furthers (1)  A.C. 348.

<NAME>

legislation" falling within section 107(2) of the Government of India Act or "law with respect to the same matter" falling within article 254(2). The important thing to consider with reference to this provision is whether the legislation is "in respect of the same matter." If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then article 254(2) will have no application. The principle embodied in section 107(2) and article 254(2) is that when there is legislation covering the same ground both by the <ORG> and by the Province, both of them being competent to enact the same, the law of the <ORG> should prevail over that of the <ORG>.

Considering the matter from this standpoint, the first question to be asked is, what is the subject-matter of the Bombay Act No. XXXVI of 1947? The preamble recites that it was "to provide for the enhancement of penalties for contravention of orders made under the Essential Supplies (Temporary Powers) Act, 1946." Then the next question is, what is the scope of the subsequent legislation in 1948, 1949 and 1950 ? As the offence for which the appellant has been convicted was committed on 6th April, 1951, it would be sufficient for the purpose of the present appeal to consider the effect of Act No. LII of 1950, which was in force on that date. By that Act, section 7(1) of the Essential Supplies (Temporary Powers) Act as passed in 1946 and as amended in 1948 and 1949 was repealed, and in its place, a new section was substituted. The scheme of that section is that for purposes of punishment, offences under the Act are grouped under three categories-,those relating to cotton textiles, those relating to foodstuffs, and those relating to essential commodities other than textiles or foodstuffs. The punishments' to be imposed in the several categories are separately specified. With reference to foodstuffs, the punishment that could be awarded when the offence consists in possession of foodgrains exceeding twice the maximum prescribed is imprisonment for a term which may extend to seven years, with further provisions for fine and forfeiture of the commodities. In other cases, there is the lesser punishment of imprisonment, which may extend to three years. Section 7 is thus a comprehensive code covering the entire field of punishment for offences under the Act, graded according to the commodities and to the character of the offence. The subject of enhanced punishment that is dealt with in Act No. XXXVI of 1947 is also comprised in Act No. LII of 1950, the same being limited to the case of hoarding of foodgrains. We are, therefore, entirely in agreement with the opinion of <NAME> and <NAME> that Act No. LII of 1950 is a legislation in respect of the same matter as Act No. XXXVI of 1947.

<NAME> who came to the contrary conclusion observed, a-.id quite correctly, that to establish repugnancy under section 107(2) of the Government of India Act, it was not necessary that one legislation should say "do" what the other legislation says "don't", and that repugnancy might result when both the legislations covered the same field. But he took the view that the question of enhanced penalty under Act No. XXXVI of 1947 was a matter different from that of punishment under the Essential Supplies (Temporary Powers) Act, and as there was legislation in respect of enhanced penalty only when the offence was possession of foodstuffs in excess of twice the prescribed quantity, the subject-matter of Act No. XXXVI of 1947 remained untouched by Act No. LII of 1950 in respect of other matters. In other words, he considered that the question of enhanced punishment under Act No. XXXVI of 1947 was a matter different from that of mere punishment under the Essential Supplies (Temporary Powers) Act and its amendments; and in this, with respect, he fell into an error. The question of punishment for contravention of orders under the Essential Supplies (Temporary Powers) Act both under Act No. XXXVI of 1947 and under Act No. LII of 1950 constitutes a single subject. matter and cannot be split up in the manner suggested by the learned Judge. On this principle rests the rule of construction relating to statutes that "when the punishment or penalty is altered in degree but not in kind, the later provision would be considered as superseding the earlier one." (Maxwell on Interpretation of Statutes, 10th Edition, pages 187 and 188). "It is a well settled rule of construction", observed <NAME> in <NAME> v. Benabo(1), "that if a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute: see <NAME> v.Brown(2), per Lord <NAME>." It is true, as already pointed out, that on a question under article 254(1) whether an Act of <ORG> prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under article 254(2) whether the further legislation by <ORG> is in respect of the same matter as that of the State law. We must accordingly hold that section 2 of Bombay Act No. XXXVI of 1947 cannot prevail as against section 7 of the Essential Supplies (Temporary Powers) Act No. XXIV of 1946 as amended by Act No. LII of 1950.

The appellant also sought to argue that the subjectmatter of the legislation in Act No. XXXVI of 1947 was exclusively in the Provincial List, and that section 107(2) of the Government of India Act and article 254(2) of the Constitution which apply only with reference to legislation on subjects which are in the Concurrent List, have no application. The very legislation on which the appellant relies, viz., Act No. XXXVI of 1947, proceeds, as already stated, on the basis that the subject-matter is in the Concurrent List. The appellant raised this question before the learned Judges of <ORG>, and they rejected it. In the application for, leave to appeal to (1) 1 K.B. 5I8.

(2) 1 El. and El. 267,274.

this Court which was presented under article 132(1 ), the only ground that was put forward as involving a substantial question as to the interpretation of the Constitution was, whether the Bombay Act No. XXXVI of 1947 was repugnant and void under article 254 of the Constitution. No other question having been raised in the petition, we must decline to permit the appellant to raise this point. In the result, the appeal fails and is dismissed. Appeal dismissed.


<NAME>, J.

1. This is an application under Article 226 of the Constitution praying that a writ of certiorari or any direction be issued to the opposite parties quashing the order of <NAME>, Kanpur, dated 20-12-1952 by which he dismissed the applicant from service.

2. The facts alleged in the affidavit filed along with the petition are that on 19-8-1952, the applicant, who was holding the substantive post of a head constable, was officiating as a Sub-Inspector of Police and was posted at police station ' Cantonment ' as incharge of Rail Bazar Chauki in the City of Kanpur. The allegation was that on the night between. 23rd and 24th August, 1952, the applicant along with two constables entered the house of one <NAME> in mohalla Mirpur and threatened to lock him up and other inmates of the house under the Gambling Act in order to extort money from them and thereafter the applicant and the constables received money from them.

On these allegations, the applicant was suspended and reverted to the substantive rank of head constable on 26-8-1952. Thereafter proceedings under Section 7 , Police Act were started against him and were conducted by <NAME>, officiating Deputy Superintendent of Police. Sri <NAME> gave his findings on 26-11-1952 and recommended that the applicant be removed from the police force. The findings were submitted to the Superintendent of Police; Kanpur for necessary orders.

<NAME>, who was at that time officiating Superintendent of Police, Kanpur City, issued a letter under his signature to the applicant and the applicant was asked to give his explanation to the findings arrived at by Sri <NAME>. The applicant submitted his explanation to the officiating Superintendent of Police and the Superintendent of Police, by his order dated 20-12-1952, uphold the findings arrived at by Sri <NAME> 'and the applicant was dismissed from service.

An appeal was filed by the applicant to the Deputy Inspector General of Police, Southern, Range, Kanpur who, by his order dated 12-5-1053, rejected the appeal. The applicant then filed a second appeal before the Inspector General of Police who, by his order dated 18-3-1954, upheld the decision of the subordinate authorities. The applicant then made a representation to <ORG> but he was directed to make his representation through proper channel and the representation was then withheld. Thereafter the present petition was filed.

(3) A counter-affidavit has been filed on be half of the opposite parties in which it is stated that on the morning of 24-8-1952 the matter was reported to the Station Officer Cantonment, Sri <NAME>. On 26-8-1952, Sri <NAME> informed through phone to <NAME>, City. Same day <NAME> suspended the applicant and reverted him to the substantive rank of head constable.

Thereafter the Superintendent of Police ordered an inquiry into the matter by the Circle Inspector. The Circle inspector submitted his report on 6-9-1952 and on the strength of that report, proceedings under Section 7 , Police Act were started against the applicant. The Deputy Superintendent of Police, <NAME>, who held the inquiry against the Applicant eventually submitted his findings to the Superintendent of Police on 26-11-1952 with the recommendation that the applicant should be removed from service.

The recommendation was accepted by the Superintendent of Police by his order dated 20-12-

1952 and he dismissed the applicant from ser vice. An affidavit was further filed by the petitioner on 24-8-1955 in which he deposed that the applicant came to know that Sri <NAME>, Deputy Superintendent of Police, was not authorised by the higher authorities, that is the Deputy Inspector General of Police, Southern Range, Kanpur under para 479 (f) of the Police Regu lations to conduct the inquiry under Section 7 , Police Act .

4. Three points have been raised by the applicant in the present petition. Firstly, it is contended that under Section 35 , Police Act , a charge under Section 7 , Police Act can only be gone into and decided by an officer who has got magisterial powers. In view of the <ORG> decision of this Courf in -- ' <CITATION> .', AIR- 1956 All 96 (A), this point has not been pressed by the applicant. It has now been held by the Full Bench that for departmental inquiries under Section 7 , Police Act it is not necessary that an officer conducting an inquiry should have magisterial powers as Section 35 does not apply to such inquiry.

5. The next point urged by the applicant was that the applicant was reverted to his substantive post of head constable after the charges had been levelled against him under Section 7 and on the date when the inquiry was started against him, he was still an officiating Sub-Inspector of Police and as such the procedure provided in the rules for inquiries against a Sub-Inspector should have been followed.

As I have already pointed out, in the counter affidavit it has been stated that before the inquiry under Section 7 was started against the applicant, he had been reverted to his substantive post of head constable and consequently there is no substance in this argument of the applicant that the procedure provided for an inquiry against a Sub-Inspector of Police should have been followed in his case. On this question, a further argument was advanced by Mr. <NAME>.

He contended that the reversion of the applicant itself amounted to reduction in rank and such an order could not have been passed by the opposite parties without following the procedure provided in paras 480 onwards of the Police Regulations. There is no substance in this argument either.

Firstly, there is no prayer in the petition asking for the order reverting the applicant to be quashed and secondly, the order of reversion was not passed under para 478 of the Police Regulations. The applicant was not reverted as a punishment but as he was only officiating as a Sub-Inspector of Police, it was open to the authorities to revert him to the substantive post and the reversion cannot be called as a reduction in rank.

6. The last argument advanced by the applicant was that Sri <NAME> was not competent to hold an inquiry against him. Section 7 , Police Act provides that subject to such rules as <ORG> may from time to time make under this Act, the Inspector General, Deputy Inspector-General, Assistant Inspector-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks on certain grounds. Section 7 , as will appear from the opening part of the section is subject to rules framed by <ORG>.

It is, therefore, clear that before an action can be taken under Section 7 , the authorities, enumerated in the section, must follow the procedure provided in the rules. Paragraph 478 of the Police Regulations enumerates the punishments which can be awarded to the Police Officers on an inquiry under Section 7 , Police Act . Paragraph 479 enumerates the officers who are empowered to award the punishments enumerated in para 478. It is necessary to refer to three sub-paragraphs of para 479. Sub-paragraphs (d), (e) and (f) are as follows:

"(d). The Superintendent, of Police may punish all inspectors, and sub-inspectors temporarily or permanently subordinate to him except with dismissal or removal. Any case in which he proposes the dismissal or removal of an inspector or sub-inspector of any branch of the force must be forwarded for orders to the Deputy Inspector General of Police in accordance with the instructions contained in Sub-para 8 of para 490 below.

"(e). The Superintendent may punish all head constables and constables temporarily or permanently subordinate to him.

"(f). Subject to the provisions of para 491 (i) all permanent Assistant Superintendents of Police and Deputy Superintendents of Police who have crossed the first efficiency bar in the time scale of pay applicable, to them and (ii) other Assistant Superintendents of Police and Deputy Superintendents of Police, specially authorised in this behalf by the Deputy Inspector' General of Police so far as his Range is concerned; may exercise all the powers of a Superintendent of Police as detailed in Sub-paras (d) and (e) of this paragraph other than powers relating to the punishment of inspectors of police and powers under Fundamental Rules 24 and 25." From a perusal of these sub-paragraphs, it is clear that the Superintendent of Police could, under Sub-para, (e) of para. 479, punish the applicant. All the powers of the Superintendent of Police can be exercised by the officers enumerated in Sub-para, (f) of para. 479. Paragraph 491 provides for the procedure for the inquiry before an order under para. 478 is passed by any of the officers mentioned in para. 479.

Paragraph 491 provides that the officers holding the posts enumerated in para. 479(f) shall follow the procedure prescribed in para. 490 when, conducting departmental trials, and their orders shall, with the concurrence of the Superintendent of Police, have the same executive force in all cases as the orders of the Superintendent of Police except in cases in which the officer conducting the proceedings recommends the dismissal or removal of a constable or under officer. In such cases the Superintendent of Police shall give the officer a copy of the finding of the enquiring 'Officer and ask him to show cause within a reasonable time against the punishment proposed. Paragraph 491, therefore, provides for the procedure to be followed in such inquiries, The contention of the applicant is that the officers mentioned in para 479 (f) can only make an inquiry under para, 491. An officer, who is not mentioned in para 479 (f), has no power to hold any inquiry under pata. 491 and recommend to the Superintendent of Police to exercise his powers under para 479(e)..

The Standing Counsel's contention is that para 479 (f) provides that subject to the provisions of para. 491 (i) all permanent Assistant Superintendents of Police and Deputy Superintendents of Police ,who have crossed the first efficiency bar in the time-scale of pay applicable to them and other Assistant Superintendents of Police and Deputy Superintendents of Police, specially authorized in this behalf by the Deputy Inspector General of Police so far as his range is concerned, may exercise all the powers of a Superintendent of Police as detailed in Sub-paras (d) and (e) of this paragraph.

<NAME>, who conducted the inquiry, was the Deputy Superintendent of Police and unless he was specially authorised in this behalf by the Deputy Inspector General of Police so far as his range was concerned, he had no power to conduct the inquiry under para 491. The question to be determined is whether <NAME> had any such authority on the date when he conducted the inquiry. The Standing Counsel, who appears for the opposite parties, has relied upon a letter sent by the Deputy Inspector General of Police, Southern Range, Kanpur to the Superintendent of Police, Kanpur in August 1950.

As the applicant's counsel has no objection, I have ordered a copy of this letter to be placed on the record of this petition. It appears that in 1950 certain cases under Section 7 , Police Act were started against some constables and the Superintendent of Police, Kanpur wrote to the Deputy Inspector General of Police, Southern Range, Kanpur for the necessary authority to be granted to <NAME> to conduct such inquiries and a reply was sent by the Deputy Inspector General of Police Southern Range, Kanpur 'in the following terms:

"Once an officer has been authorised to take Section 7 proceedings under the amended para 479(d) of P. Rs., he continues to be so authorised to take Section 7 proceedings, unless this authority isi withdrawn from him.

As such it is not necessary to empower <NAME>, Officiating Deputy Superintendent of <ORG> again on his transfer to this Range."

In the first place the Standing Counsel's contention is that the interpretation put on para 479 (f). of the Police Regulations by the Deputy Inspector General of Police in this letter is a correct interpretation. According to the Standing Counsel, once the Deputy Superintendent of Police has been granted the authority to conduct an inquiry under Section 7 no fresh authority need be granted to him on his transfer to some other range. If this interpretation of para 479 (f) is accepted, then the words "so ar as his range is concerned," in the said paragraph after the words "Deputy Inspector General of Police" will become redundant.

In my judgment what para 479 (f) means is that the authority granted by the Deputy Inspector General of Police of a particular range to a Deputy Superintendent of Police to conduct an inquiry under Section 7 , Police Act is operative only so long as the Deputy Superintendent of Police is working within that range. As soon as he is transferred to some other range, the authority ceases to be operative.

It is not a case of withdrawal of the authority the authority in its own force becomes In operative as soon as the Deputy Superintendent ot Police is transferred to some other range. It was therefore, necessary to grant a fresh authority to Sri <NAME>. In my opinion, therefore, a fresh authority was necessary to be given to Shri <NAME> when he was transferred from Sultanpur, to Kanpur.

7. The next contention of the Standing Counsel is that even if it be accepted that a fresh authority was needed, the letter of the Deputy Inspector General of Police, Southern Range, who was authorised to grant an authority under para 479 (f), should be treated as granting the required authority under para 479 (f). In my opinion there are two objections to this contention of the Standing Counsel.

Firstly, in the letter itself the Deputy Inspector General of Police says that the officer had been authorised to take proceedings under Section 7 under the amended para 479 (d) only. There is no reference to Sub-para (e) in. this letter and consequently it cannot be argued that the letter gave any authority to the Deputy Superintendent of Police under para 479 (f) to act under Sub-para (e) Secondly the letter did not in terms confer any authority on Sri <NAME>.

On' the contrary the contents of the letter show that the Deputy Inspector General of Police was definitely of opinion that no fresh order conferring the authority was needed and if the authority who could confer such a power, itself definitely holds that it was not necessary for him to grant any fresh authority, it cannot be said that such a letter by itself granted any authority to Sri <NAME> to conduct the inquiry within the meaning of para 479 (f).

<NAME>, 'when he made the inquiry, therefore, had no power under para 479 (f) of the Policie Regulations to conduct the" inquiry under para 491 and consequently the inquiry made by him was without jurisdiction and the order passed consequent upon this inquiry must be set aside.

8. The last contention of the Standing Counsel is that the question as to whether Sri <NAME> was authorised under para 479 (f) to hold the inquiry should have been raised before him or before the Superintendent of Police, the <ORG> which had to determine the question of fact and it is not open to the applicant in. the present petition to raise the question of fact at this stage.

The question really urged by the applicant is not one of fact but goes to the very root of the jurisdiction of the officer holding the inquiry. The contention of the applicant, as I have already pointed out, is that unless an officer is authorised under para 479 (f), he has no power to hold an inquiry under para 491 and in challenging the order of the Superintendent of Police on the ground of want of jurisdiction, it is open to the petitioner here to urge that there was no proper authority given to Sri <NAME> under para 479 (f) of the Police Regulations.

The failure to raise that point before D.I.G. or the Superintendent of Police is no bar to the applicant to raise the question of the power of <NAME> to hold the inquiry in this writ petition.

9. I, therefore, quash the order of the Superintendent of Police dated 20-12-1952.