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FIR No. 31/2011

PS Gazipur
03.12.2016

Present:

Ld. APP for the State.

Both accused with Counsel.
Inspt. Anil Kumar from Legal Cell PHQ.
Inspt. Manoj from PS Gazipur.
Sh. Vijay Shankar Tiwar Section Officer from Home Ministry
Government of India.
Sh. Rupender Singh, Superintendent with Counsel Sh. Waris
Ali from Law Department Government of Delhi.

Report received from Delhi Police and Home Ministry. Heard. Record
perused.

2.

At the outset, I note that despite having been served with a copy of the

order passed in this case, the director general of National Archives has neither sent
an official to appear in the court nor sent any report. This cannot be appreciated in
any manner at all. India is governed by the concept of Rule of Law, an essential
feature whereof is the respect for a court order. Once a court order is
communicated to an executive authority, the order cannot & should not be
neglected. National Archives comes under the Ministry of Culture, Govt of India.
Therefore, worthy Secretary in the Ministry of Culture is requested to look into
the matter and to issue instructions so that all officials seriously follow a court
order.
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3.

Coming now to the order passed in this case. When the court found that

Delhi Govt was unable to say anything about the availability of a particular
enactment (required in this case) which was specifically made applicable to Delhi
and there were similar other examples, the court wanted to remind the Govt of
their obligation to make aware the public about the applicable laws and therefore
wanted assistance from the National Archives and Indian Home Ministry in
respect of bringing the laws in public domain by taking appropriate measures.

4.

The section officer appearing on behalf of Union Home Ministry submits

that the Ministry is ready and willing to bring the specific applicable laws of Delhi
in public domain by taking appropriate measures including uploading the same on
official website. He however made a submission that there might be a situation
that the old files were already sent to the National Archives in which case the
Ministry would not be able to say anything about those laws.

5.

Clearly, it would have been appropriate if the National Archives had sent a

report. Be that as it may. Ministry of Culture shall ensure that the National
Archives renders all necessary help to the Home Ministry in respect of bringing
all specific laws of Delhi at one place.

6.

The Section Officer further submits that they would require 6 weeks time

to do the necessary and file a comprehensive report in the court. He gives his
reasons that they have to arrange for scanner and then scan the laws and thereafter
they can upload the same on the website. In my considered view, his request is
justified. However, I am of the opinion that the basic things should be completed
within a shorter period, say about 15 days. Therefore, the Ministry should try to
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retrieve and collect hard copies of the Delhi specific laws and thereafter should
start working on the process of uploading the same on website.

7.

As such, the Home Ministry shall file an interim report by 18.12.2016.

8.

What are the specific laws applicable to Delhi though need no elaboration

nevertheless some examples may be provided. Such laws would illustratively

include the following:

Union Laws: Enactments passed by the central legislation are also applicable to
Delhi. It appears that the Union Law Ministry is taking care of them. Rather, it
may be noted that the Hon'ble High Court in a Civil Writ Petition (No.4761/2016)
upheld the order of CIC for placing the laws on website and on directions, the
Law Ministry is uploading laws on the website. However, it seems from the
uploaded enactments on their website that they are concerned only with the laws
passed by Union Legislature and not the other laws which are made applicable
only to Delhi through different notifications.

State Laws: Central Govt has power to extend laws of other state to Delhi
through a gazette notification. This was done even in the British period. Several of
such laws are still valid for Delhi. Apparently, the notifications extending the laws
to Delhi were issued by the Home Ministry or erstwhile equivalent. Therefore,
they ought to have all the notifications in their possession. It is their obligation to
bring the same into public domain. Fortunately, the official appearing on behalf of
Union Home Ministry has made a submission that they would be uploading such
laws on their website. This shows that Union Home Ministry is committed to
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make concept of digital India a success.

Delhi Legislative Laws: At certain times, Delhi was having its own legislature
and presently also there is a legislature. The laws passed by Delhi legislature
should also be available in Delhi. Website of Delhi Legislature though enlists
several laws passed by it but text of many of them are not made available therein.
Delhi Govt ought to have all such laws. Therefore, the Union Home Ministry may
require the Delhi Govt to take steps. Rather, it appears that a letter has already
been written by Under Secretary R.K. Pandey in the Union Home Ministry to
Secretary of Hon'ble LG wherein placing of Delhi laws in public domain is also
mentioned. This is clearly a good step in a right direction. Home ministry being
the controlling authority of Delhi needs to see that such laws are uploaded by the
Delhi Govt.

Delhi Police Laws: Delhi Police is governed by Punjab Police Rules and Delhi
Police Act 1978. So far as Punjab Police Rules are concerned, they are easily
available on Internet. Under the Delhi Police Act, Hon'ble LG and worthy Police
Commissioner have power to make rules/regulations. These also govern Delhi and
therefore need to be in public domain. The person appearing from Delhi Police
HeadQuarters submits that everything related to Delhi Police is available on intradp network and are not required to be uploaded in public domain as the same are
for internal process of Delhi Police. This court is of the view that the submission
has no justification at all. Any regulation or rule made under Section-19, 28 and
147 of Delhi Police Act are required to be gazetted as provided in Section-148
thereof and therefore the same cannot be claimed as confidential. Further, Delhi
Police has uploaded several Standing Orders/Circulars on its related website of
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Special Unit for Women & Children and Juvenile Police Unit. Once this is so, a
claim that the Police laws are not required to be brought in public domain cannot
be accepted. Further more, there may be several instructions issued in appropriate
form dealing with process of investigation or other police powers and therefore
unless the litigating public, lawyers, judicial system know about the same, the
existence of such instructions can only be treated as an eyewash to say the least.
Certain examples can be easily comprehended. One Standing Order (444/16) was
issued on the direction of Hon'ble High Court in a case whereby several
guidelines were laid down for investigation including the completion thereof in
one/two years and for taking specific permission for delay at every level of the
hierarchy. If public is not aware about the same, they may not be able to
appropriately make their grievance. A circular was reported in the newspaper to
have been issued by the Police Commissioner prohibiting the police from visiting
construction sites. If the content is unknown to the public, the circular would be
hardly of any use. Likewise, a circular was issued by Delhi Police in respect of
registration of FIR for offence u/s-174A IPC wherein it was specially mentioned
that judges ordering such FIRs should not be cited as complainant/witnesses. The
experience however has shown that several police stations are still doing to the
contrary. More recent example may be an issue pending in this court itself
wherein this court required a report from Delhi Police as to whether the Police are
following the statutory arrest form issued by a rule made by Hon'ble LG u/s-147
Delhi Police Act vide notification No.- F.13/13/98/HPI/Estt./55-74 dated
05.01.2001. Interestingly, the rule was made almost 16 years ago and Delhi Police
is only struggling to seek time on repeated occasions in the said matter. Nonavailability in easy public domain of the said statutory rule has been a significant
factor for non-compliance thereof by the Delhi police. How, despite all these, the
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Delhi Police can claim that police laws are not required to be placed on website.
Proceeding in a good direction, Under Secretary Chitra Narayan in the Union
Home Ministry appears to have asked the Delhi Police Commissioner for a
compliance report in respect of bringing the laws related to Delhi police on its
website. The Home Ministry therefore needs to just ensure that the same is done
at the earliest and to make a mention thereabout in the interim report to be filed by
the Home Ministry as observed in this order.
Delhi Gazette Notifications: Delhi is in a peculiar situation. Other states have
their own publication departments where their gazettes are published. However,
Delhi Gazette are also published by the same department which publishes Indian
Gazette. Publication Division comes under the Ministry of Urban Development.
After 01.05.2016, they have apparently started to upload the Delhi Gazette on
their website. However, for prior period they refer to the Delhi Govt website
which only have some gazette notifications available not all. What is the problem
in uploading all gazette notification cannot be comprehended. Contents of Delhi
gazettes seriously impact the governed i.e. general public of Delhi. The
publication division also publishes Indian Gazette and has been able to upload
several Indian gazettes (even referring back to the year 1950) on the Internet. The
same publication division also publishes Delhi Gazette but is not uploading the
earlier gazettes on its website. They are duty bound to take appropriate steps.
Since controlling authority of Delhi is the Union Home Ministry, they should
request the appropriate authority in Ministry of Urban Development, Govt of
India to look into the matter and to do the needful at the earliest.

9.

Now coming to the question of repealing power of Delhi Legislature. It

appears that through a notification dated 14.12.1966, the Union Home Ministry
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extended UP Prevention of Cow Slaughter Act, 1955 to Delhi.

10.

A constitution bench of Hon'ble Supreme Court in Mithan Lal vs the

State Of Delhi AIR 1958 SC 682 and a three judges bench of Hon'ble Supreme
Court in Delhi Bar Association vs Union Of India (2008) 13 SCC 628 have held
that once a state law is extended to Delhi, the same gets the status of a law enacted
by the Parliament specially for Delhi and has to be treated as a central law in
Delhi. A nine judges bench of Hon'ble Supreme Court in NDMC vs State of
Punjab 1997(7) SCC 339 speaking through a majority view observed that the
aforesaid position remained undisputed.

11.

As such, on being extended to Delhi, the UP Prevention of Cow Slaughter

Act, 1955 became the central law atleast in Delhi.

12.

It however appears that in the year 1994, the Delhi Legislature enacted a

law called Delhi Agricultural Cattle Preservation Act and also repealed the earlier
UP Act aforesaid.

13.

The question is: can the Delhi Legislature repeal a Central Act. The answer

appears to be simple. Contextually, the Court Fee Act 1870 is applicable to Delhi
as a central law and in the year 2012, the Delhi legislature passed an amendment
to the said Act which when challenged was struck down by the Hon'ble High
Court of Delhi and one of the reasons cited in the judgment is that the Delhi
Legislature was incompetent to amend a central law irrespective of presidential
assent. (see Delhi High Court Bar Association vs Union of India; (2013) 203
DLT 129). If the Delhi Legislature does not have power to amend a Central Act, it
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would be futile to argue that it has the power to totally repeal a Central Act.
Rather, the aforesaid judgment also says that Delhi Legislature has no power to
repeal a Central Act.

14.

The Ld. Assistant Public Prosecutor though half heartedly tried to raise a

point that this court does not have jurisdiction to call in question any enactment
and that the authority lies with the Constitutional Courts.

15.

I therefore find it necessary to clarify the misconception. Section-395

CrPC empowers a Magisterial Court to make a reference to the Hon'ble High

Court if it finds a law to be invalid or if there is any legal question requiring
pronouncement of the Hon'ble High Court. Then it is for the Hon'ble High Court
to decide the issue of constitutional and legal importance. This court, having gone
thorough both the laws, is basically inclined to refer the matter to the Hon'ble
High Court as per law.

16.

It appears from the reply of DCP (Legal Cell) filed on behalf of Delhi

Police Commissioner that they are examining the aspect of repealing of UP

Prevention of Cow Slaughter Act, 1955 and needs some time file appropriate
report. Counsel appearing for Delhi Govt submits that the Govt is also examining
the aspect of repeal and needs time file appropriate report.

17.

The order passed in this case does not show that the authorities were called

to reply about aspect of repeal. They were only called upon to produce the
relevant notification and try to bring the laws in public domain. However, it so
happened that a letter was written by the Home Ministry to the Secretary of
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Hon'ble LG whereby they requested also to file report on the aspect of repeal and
also sent a copy of letter to Delhi Chief Secretary. In turn, the OSD to Hon'ble LG
sent an under-office note to the Delhi Police Commissioner, Delhi Home
Secretary, Delhi Law Secretary to file report as desired by the Home Ministry.
This appears to have triggered a different line i.e. the thinking process on the
aspect of repeal. And now, the Delhi Police and Delhi Govt are examining the
aspect of repeal and pray for time to file a report in the court.

18.

I have considered the request for time. There is nothing in law which

prohibits a court from passing an order after considering inputs which may be
made available by the government/departments instead of passing final orders
directly. Making a reference about invalidity of any law to the Hon'ble High Court
is a very crucial matter having constitutional importance. Therefore, the court is
inclined to accede to the request made on behalf of Delhi Police and Delhi Govt
about time to file a report on repeal of earlier Act. Moreover, the issue in hand
will not only impact the law in question but also impact several other laws which
have been amended/repealed by Delhi Legislature, for example:

Punjab Excise Act, 1914 repealed entirely by Delhi Excise Act.

West Bengal Prevention of Defacement of Property Act, 1976 repealed entirely by
Delhi Prevention of Defacement of Property Act.
Prisons Act, 1894 repealed entirely by Delhi Prisons Act.
Indian Stamp Act, partly amended.
Court Fees Act, 1970 partly amended.
Code of Criminal Procedure, 1973 partly amended.
Delhi Sales Tax Act, 1975 partly amended.
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Delhi (Delegation of Powers) Act, 1964 partly amended.

Industrial Disputes Act, 1947 partly amended.

19.

The aforesaid is illustrative and not exhaustive. Be that as it may.

Considering the wide ramification of issue in hand, the court is of the opinion that
time should be granted to Delhi Police, Delhi Govt and Union Home Ministry to
provide their views on the aspect of repealing power of Delhi Legislature in
respect of a Central Act. At request, 6 weeks time is granted to file a report failing
which the matter shall be referred to the Hon'ble High Court u/s-395 CrPC for
appropriate decision on the question of invalidity of law.

20.

In view of the above discussion, following steps are enlisted for being

taken by the appropriate authorities:

Secretary, Ministry of Culture, Govt of India shall issue instructions so that

all officials follow a court order seriously and shall also ensure full co-operation
of National Archives in bringing the laws into public domain;

ii.

Home Ministry shall ensure that hard copy of Delhi Specific laws

which were issued by the Ministry are retrieved and collected and an interim
report in that respect be filed in the court by 18.12.2016;
iii.

Home Ministry shall also ensure that after retrieval and collection, the

laws are uploaded on its website and a final report be filed by 18.01.2017;

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iv.

Home ministry shall also ensure that Delhi Police uploads on its website

all the effective standing orders/circulars etc and the Home Ministry shall mention
the fact in its interim report to be filed as aforesaid;

v.

Home Ministry shall request the appropriate authority in the Ministry of

Urban Development, Govt of India to look into the matter of uploading all Delhi
Gazette on the website of publication division right from the first Delhi Gazette;
vi.

Home ministry shall also see that the Delhi Govt uploads all its laws on

the website;
vii.

Home ministry, Delhi Police and Delhi Govt shall file their views within 6

weeks on repealing power of Delhi legislature regarding a Central Act;

21.

List on 18.01.2017 for filing of final reports, consideration and appropriate

proceedings.

22.

A copy of this order given dasti to appearing parties if they so desire.

23.

A copy of this order be sent to the worthy Secretary, Ministry of Culture,

worthy Secretary in the Home Ministry, worthy OSD to Hon'ble LG, worthy
Delhi Police Commissioner for their perusal and kind consideration.

24.

A copy of this order be also placed on the official website of district

courts.
Rakesh Kumar Singh
MM-03(E)/KKD/Delhi
03.12.2016
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