Offences, and the Extension of Powers

Sections 5(2) and 5(3): the deeming that does the work

5(2). When the powers and jurisdiction are extended to an area, a member of the Establishment may, subject to any orders of the Central Government, discharge the functions of a police officer in that area and shall, while so discharging them, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.

5(3), inserted by Act 40 of 1964, section 5. Where such an order is made, then without prejudice to sub-section (2), any member of or above the rank of Sub-Inspector may, subject to any orders of the Central Government, exercise the powers of the officer in charge of a police station in that area, and when so exercising them shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.

The deeming is the elegant part of this Act and it should be explained, not merely quoted.

The criminal procedure law knows nothing of a "Central Bureau of Investigation officer". It knows a police officer and an officer in charge of a police station, and it gives them their powers by those names. So the Act does not write a parallel code of investigation powers; it turns its own officers into the local article. A member acting in Pune under a section 5 order is, for the purposes of that investigation, a Maharashtra police officer, and a Sub-Inspector is a station house officer.

And the deeming cuts both ways, which students miss. Section 5(2) vests him with the local force's powers, functions and privileges and subjects him to its liabilities. He gains nothing he could not have had as a local officer and loses none of the accountability. A complaint against him lies as it would against a local policeman, and the safeguards of the criminal procedure law apply to him unchanged.

Compare section 2(2) and (3), chapter 780. The identical technique is used for the Union territories. Section 5 is section 2 done again for a State, with section 6 added as the price.

Section 7 and the shape of the Act

Section 7 was the repeal of Ordinance 22 of 1946, and was itself repealed by the Repealing and Amending Act 1950, as chapter 770 recorded.

Which leaves the Act with a very short spine, and it is worth setting out once so that the whole is visible:

s.1 title and extent. s.1A definitions borrowed from the 2003 Act. s.2 the force, and its powers in the Union territories. s.3 the notification of offences. s.4 superintendence and administration. s.4A the Committee for the Director. s.4B his tenure. s.4BA the Director of Prosecution. s.4C officers of and above Superintendent of Police. s.5 extension to a State. s.6 the State's consent. s.6A struck down in 2014.

There is nothing else. No statement of functions, no accountability provision, no reporting requirement, no complaints mechanism, no code of investigation, no relationship with the State police beyond the deeming in section 5(2). Everything the agency does beyond this list is done under the general criminal law, under executive instructions, or under the Crime Manual it writes for itself, and chapter 940 makes that the case for a statute.

A worked example

The Central Government wishes the Establishment to investigate a class of banking offences in Maharashtra.

Step one, section 3. The offences must be specified in a notification in the Official Gazette as offences to be investigated by the Establishment. If they are not, nothing else can help.

Step two, section 5(1). An order extending to the area in Maharashtra the powers and jurisdiction of members of the Establishment for the investigation of those notified offences.

Step three, section 6. The consent of the Government of Maharashtra, without which nothing in section 5 enables a member to exercise those powers there. Chapter 820 takes this up.

Once all three are in place. A Deputy Superintendent of the Establishment in Pune is, by section 5(2), deemed a member of the Maharashtra police force, with its powers, functions and privileges and subject to its liabilities; and by section 5(3), being above the rank of Sub-Inspector, he may exercise the powers of the officer in charge of a police station and is deemed to be one within the limits of his station. He may therefore register the case and investigate it.

Now change one fact: the offence is a class not covered by the section 3 notification. The section 5 order cannot cure it. Section 5 extends the place, never the subject. The Central Government would have to amend the notification under section 3 first.

Change another: the area is a railway area. Section 5(1) expressly includes railway areas, and section 6 expressly excludes a railway area from the consent requirement, so no State consent is needed there.

What beginners get wrong

That section 5 gives the agency all-India jurisdiction. It gives the Central Government a power to extend, area by area, and section 6 conditions its exercise on the State's consent outside a Union territory or railway area.

That a section 5 order can add offences. It cannot. The offences come only from a section 3 notification.

That a section 5 order needs a Gazette notification. Section 5(1) says "by order". Section 3 is the provision that requires a notification in the Official Gazette.

That the deeming in section 5(2) gives the officer extra powers. It gives him the local police officer's powers and subjects him to the same liabilities.

That any officer of the force can register a case in a State. Section 5(3) requires or above the rank of Sub-Inspector, exactly as section 2(3) does in a Union territory.

Quick revision

s.5(1): the Central Government may by order extend to any area, including railway areas, in a State not being a Union territory, the powers and jurisdiction of members of the Establishment, for the investigation of offences specified in a s.3 notification. Place only, never subject matter.

s.5(2): a member so acting is deemed a member of the police force of that area, with its powers, functions and privileges and subject to its liabilities.

s.5(3), inserted by Act 40 of 1964: a member of or above Sub-Inspector may exercise the powers of, and is deemed to be, the officer in charge of a police station within the limits of his station.

s.6 is the condition on s.5 and is the next chapter.

s.7: repealed Ordinance 22 of 1946; itself repealed by the Repealing and Amending Act 1950.

The whole Act: ss.1, 1A, 2, 3, 4, 4A, 4B, 4BA, 4C, 5, 6, and the struck-down 6A. No statement of functions, no accountability provision, no reporting requirement, no complaints mechanism.

Test yourself

1. How does the Delhi Special Police Establishment acquire jurisdiction in a State? By a two-stage process which section 6 conditions. First the offences must be specified in a notification issued by the Central Government under section 3. Then, under section 5(1), the Central Government may by order extend to any area, including railway areas, in a State not being a Union territory, the powers and jurisdiction of members of the Establishment for the investigation of those offences. Section 6 then provides that nothing in section 5 shall be deemed to enable a member to exercise those powers and jurisdiction in any area in a State, other than a Union territory or railway area, without the consent of that State Government.

2. What is the effect of section 5(2) and section 5(3)? Section 5(2) provides that a member acting under a section 5 order may discharge the functions of a police officer in that area and shall while doing so be deemed to be a member of the police force of that area, vested with its powers, functions and privileges and subject to its liabilities. Section 5(3), inserted by Act 40 of 1964, adds that a member of or above the rank of Sub-Inspector may exercise the powers of the officer in charge of a police station in that area and shall be deemed to be such an officer within the limits of his station. The effect is that the Act creates no separate code of investigation powers but converts its own officers into the local article, so that the ordinary criminal procedure law applies to them exactly as it applies to the State police, both in what they may do and in what they answer for.

3. Can an order under section 5 enlarge the offences the agency may investigate? No. Section 5(1) extends powers and jurisdiction only for the investigation of offences or classes of offences already specified in a notification under section 3. The two provisions divide the work: section 3 fixes what may be investigated and section 5 fixes where. To add an offence the Central Government must amend the section 3 notification, and no order under section 5 can supply the deficiency.

4. Is the consent of the State needed to act in a railway area? No. Section 5(1) expressly includes railway areas among the areas to which the powers and jurisdiction may be extended, and section 6 excludes from the consent requirement any area in a State which is a Union territory or a railway area. Railways being a Union subject, the exclusion is consistent with the distribution of legislative power.

5. What does the shortness of the Act tell you about the agency? That the agency's legal foundation was never designed for the institution it now is. The whole Act consists of the short title and extent, a borrowed definitions clause, the constitution of the force and its powers in the Union territories, a one-sentence power to notify offences, the superintendence and administration provision, the four lettered sections on the Director, the Director of Prosecution and senior appointments, the extension provision, the consent provision and a struck-down section 6A. It contains no statement of the agency's functions, no accountability or reporting requirement, no complaints mechanism, no code of investigation and no provision governing its relationship with the State police beyond the deeming in section 5(2). Everything else the agency does rests on the general criminal law, on executive instruction, or on the manual it writes for itself, and that gap is the principal argument for enacting a dedicated statute.