Saturday, 25 September 2021

What is doctrine of Implied Power?

  We may pause, at this stage, to point out that though the Supreme Court's observation, in Sakiri Vasu (supra), to the effect that Section 156(3) empowers the Magistrate to monitor investigation has not been agreed to in its subsequent decisions, the concept of the doctrine of implied power, succinctly described in Sakiri Vasu (supra), has not been deviated from. The relevant observations, made in Sakiri Vasu (supra), are, therefore, quoted below:—

“17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section-156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include-all such incidental powers as are necessary for ensuring a proper investigation.

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers, which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.

19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd Edn., p.. 267):

“…If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission.”

20. In ascertaining a necessary implication, the court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.

21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective.

{Para 76}

78. While answering the question, posed above, the Supreme Court, in M.K. Md. Kunhi (supra), invoked the principle of implied power and held that it is a firmly established rule that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition-, Articles 5401 and 5402).

79. The Supreme Court, in M.K. Md. Kunhi, (supra), quoted, with approval, the observations made in Domat's Civil Law Cushing's Edition, Vol:— 1 at page 88, which read as under:—

“It is the duty of the Judges to apply the laws, not only to that appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it. It is, therefore, seen that in order to meet certain rare circumstances, Court have adopted the doctrine of implied power, of course, with abundant caution bearing in mind that no prejudice or hardship is caused to adverse party.”

In the High Court of Patna

(Before I.A. Ansari and V.N. Sinha, JJ.)

Chandra Shekhar Bharti Vs The State of Bihar 

Decided on January 27, 2014

Citation: 2014 SCC OnLine Pat 7874 : (2014) 2 PLJR 756 : (2014) 3 KLT (SN 31) 27 : 2014 Cri LJ 2953

Read full Judgment here: Click here
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