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CASE NO.:

Appeal (crl.) 823 of 1994

PETITIONER:

RIZWAN AHMED JAVED SHAIKH & ORS.

Vs.

RESPONDENT:

JAMMAL PATEL & ORS.

DATE OF JUDGMENT: 12/05/2001

BENCH:

R.C. Lahoti & N. Santosh Hegde

JUDGMENT:

R.C. Lahoti, J.

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One Faijuddin Jainuddin lodged a complaint against

Rizwan Ahmed, Ramchandra Kasbe and Afzalkhan, the three

appellants before us, complaining that the appellants and

some other unknown persons had gathered dangerous weapons

and abducted the complainant, Faijuddin Jainuddin and

assaulted him. The police registered offences punishable

under Sections 142, 144, 147, 148, 365, 368, 324/149 IPC

against the appellants and commenced investigation. On 28th

March, 1986 at about 8.30 p.m. the respondent no.1 who was

a sub-inspector attached to Chembur police station, along

with other policemen, came to the residence of the

appellants and forced the three appellants to accompany them

to Chembur police station where they were put up in the

lock-up. At about 2 a.m. on 29.3.1986 they were put up in

a police van and brought to Bhandup police station and

placed in the lock-up. On 30.3.1986 the appellants were

produced before the Holiday Magistrate at Bhoiwada (Dadar)

who ordered them to be produced before the regular court on

31.3.1986. Later on they were released on bail. On 16th

July, 1986 the appellants filed a complaint before the

Metropolitan Magistrate, 27th Court, Mulund, Bombay

impleading two sub-inspectors, two senior police inspectors

and a police inspector attached with Chembur and Bhandup

police stations complaining of offences under sections 220,

342 of IPC and 147 (c) (d) and 148 of Bombay Police Act,

1951. The complaint also alleged the appellants having been

mercilessly beaten while they were wrongfully confined at

Chembur police station. The learned Magistrate in the

inquiry held under section 202 Cr.P.C.recorded the statement

of complainant and one witness, took cognizance under

Sections 220 and 342 IPC and Sections 147 and 148 of Bombay

Police Act and directed the accused to be summoned.

The accused-respondents appeared before the learned

Magistrate and raised an objection to the maintainability of

the complaint under Section 197 (2) of Cr.P.C. relying on a

notification which will be reproduced shortly hereinafter.

The learned Magistrate formed an opinion that the complaint

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could not have been filed without the requisite sanction and

therefore directed the accused-respondents to be discharged.

The appellants preferred a petition under Section 482 of

Cr.P.C. and Article 226 of the Constitution before the High

Court of Bombay which was dismissed. The appellants have

filed this appeal by special leave.

The relevant notification dated 2.6.1979 reads as under:-

NOTIFICATION

Home Department

Mantralaya, Bombay - 400 032

No. CR.P.O./78/9845/POL-3. In exercise of the power

conferred by sub-section (3) of section 197 of the Code of

Criminal Procedure, 1973 (II of 1974), the Government of

Maharashtra hereby directs that the provisions of sub-

section (2) of that Section shall apply to the following

categories of the members of the force in the State charged

with the maintenance of public order wherever they may be

serving, namely:-

(1) All police officers as defined in the Bombay Police

Act, 1951 (Bom. XXII of 1951), other than the Special or

Additional Police Officers appointed under section 21 or 22

of that Act;

(2) All Reserve Police Officers as defined in Bombay

State Reserve Police Force Act, 1951 (Bom. XXXVIII of

1951).

It is submitted by the learned counsel for the

appellants that in order to claim protection under the

notification it is necessary that the accused must be a

police officer as defined in the Bombay Police Act, 1951 and

must be charged with the maintenance of public order at the

relevant time. In other words, if a police officer is

discharging a duty referable to law and order only as

distinguished from the maintenance of public order he

cannot claim protection under the notification. In the case

at hand the police officers had arrested the appellants,

kept them in confinement and assaulted them which are acts

referable at the most to the duty of a police officer

related to maintenance of law and order but not the

maintenance of public order and therefore the benefit of

the notification is not available to the respondents. The

learned counsel submitted that the orders of the learned

Magistrate as also of the High Court deserve to be set aside

and the learned Magistrate directed to proceed ahead with

hearing of the complaint made against the accused persons.

Sub-sections (2) and (3) of Section 197 of the Cr.P.C.

which are only relevant for our purpose read as under :-

197. Prosecution of Judges and public servant.

(1) xxx xxx xxx

(2) No Court shall taken cognizance of any offence

alleged to have been committed by any member of the Armed

Forces of the Union while acting or purporting to act in the

discharge of his official duty, except with the previous

sanction of the Central Government.

(3) The State Government may, by notification, direct

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that the provisions of sub-section (2) shall apply to such

class or category of the members of the Forces charged with

the maintenance of public order as may be specified therein,

wherever they may be serving, and thereupon the provisions

of that sub-section will apply as if for the expression

Central Government occurring therein the expression State

Government was submitted.

(3A) xxx xxx xxx

(3B) xxx xxx xxx

(4) xxx xxx xxx

The Division Bench of the Bombay High Court has placed

reliance on a Division Bench decision of Gujarat High Court

in Bhikhaji Vaghaji Vs. L.K. Barot -1981 (22) GLR 956.

The learned counsel for the appellants have on the other

hand placed reliance on a decision of Rajasthan High Court

in Jethmal Vs. Khusal Singh - 1984 RLW 545 and a decision

of Calcutta High Court in K.K. S. Muhammed Vs. Sasi and 4

Ors. - 1985 Kerala Law Journal 403, both Single Bench

decisions. We may briefly summarise the interpretation

placed by the three High Courts on similar notifications

referable to Section 197 (3) of Cr.P.C.

In Jethmals case (supra) the State Governments

notification dated 31.7.1974 provided that the provisions of

sub- section (2) of Section 197 of the Code of Criminal

Procedure, 1972 shall apply to police officials, of all

ranks, charged with the maintenance of public order,

wherever they may be working. The accused police officer

while arresting the complainant under Section 41(2) of

Cr.P.C. refused to release the complainant on bail though

his sureties were present and the bail was offered. The

learned Single Judge of Rajasthan High Court formed an

opinion that the refusal of bail to the complainant by the

accused cannot be said to be in connection with the

maintenance of public order and therefore protection under

the State notification was not available to him. In the

case of K.K.S.Muhammed (supra) the notification dated

6.12.1977 issued by the Government of Kerala under Section

197 (3) of Cr.P.C. provided that the provisions of

sub-section (2) of Section 197 shall apply to all members of

the Kerala State Police Force charged with maintenance of

public order. The learned Single Judge of Kerala High Court

drew distinction between the members of Kerala Police Force

charged with maintenance of public order and those charged

with maintenance of law and order and held that inasmuch as

the accused were not members belonging to any class or

category of forces charged with maintenance of public order,

protection under the notification could not be extended to

the accused persons even if they were acting or purporting

to act in the discharge of their official duties.

In the case of Bhikhaji Vaghaji (supra) the notification

dated 15.5.1974 issued by the State Government under Section

197 (3) of the Code of Criminal Procedure provided that the

provisions of sub-section (2) of the said section shall

apply to the police officers as defined by clause (11) of

section 2 of the Bombay Police Act, 1951..charged

with the maintenance of public order. The Division Bench

held that the phrase charged with the maintenance of public

order occurring in the notification dated 15.5.1974 and

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also occurring in sub- section (3) of Section 197 is

obviously an adjectival phrase and it cannot be interpreted

to mean a phrase suggesting the time when such members of

the police force are to avail themselves of the exemption of

protection contemplated by sub-section (2) of Section 197 of

the Code. The protection was extended to a member of the

police force charged with the maintenance of public order

though the act in question which was alleged to be an

offence committed by the accused persons was not referable

to his duty to maintain public order.

We find ourselves in agreement with the view taken by

the Division Bench of the Gujarat High Court in the case of

Bhikhaji Vaghaji and therefore, also with the view taken by

Division Bench of Bombay High Court in the order under

appeal. The submission made by the learned counsel for the

appellants confuses the issue as to applicability of

notification with the span of protective umbrella or the

purview or compass of such sub- section (2) of Section 197

of the Code. The person on whom the protection is sought to

be conferred by the State Government notification is to be

determined by reading the notification and once it is found

that the State Government notification applies to the member

of the force which the accused is, the scope, purview or

compass of the protection has to be determined by reading

sub-section (2) of Section 197 of the Code, i.e., by asking

a question whether the act alleged to be an offence was done

or purports to have been done in the discharge of the

official duty of the accused. Such official duty need not

necessarily be one related to the maintenance of public

order.

The accused-respondents are undisputedly members of

Bombay Police Force governed by the Bombay Police Act, 1951.

The Preamble to the Act provides that it was enacted to

consolidate and amend the law relating to the regulation of

the police forces and the exercise of powers and performance

of functions by the State Government and by the members of

the said force for the maintenance of public order. It is

an empty truism to state that the members of the police

force are persons charged with the maintenance of public

order. In Bhikhaji Vaghajis case, the Division Bench of

Gujarat High Court has observed (vide para 9) :-

..The Preamble of the Bombay Police Act itself

sets out that the Act was enacted to consolidate and amend

the law relating to the Regulation of the Police Force and

the exercise of powers and performance of the functions by

the State Government and by the members of the said force

for the maintenance of public order (emphasis supplied by

us). It is, therefore, too much to say that the members of

the Police force are not persons charged with the

maintenance of public order. Section 5 of the Bombay Police

Act also mentions that the Police force shall have such

powers, functions and duties as the State Government may by

general or special order determine. The above quoted

Government notification, apart from other general trend, can

be said to be the Governments direction or declaration that

members of the Police Force, styled as Police officers as

defined by section 2(1) of the Bombay Police Act, are

persons charged with the maintenance of public order. It

is a truism to state that it is the duty of every member of

the Police force to see that public order is maintained.

This is the general duty of every member of the Police

force, styled as Police officer in the Bombay Police Act.

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We find ourselves in agreement with the abovesaid

observations.

We may with advantage quote the following passage from

Constitution Bench decision in Madhu Limaye Vs. S.D.M.

Monghyr - AIR 1971 SC 2480 :-

In dealing with the phrase maintenance of public

order in the context of preventive detention, we confined

the expression in the relevant Act to what was included in

the second circle and left out that which was in the larger

circle. But that consideration need not always apply

because small local disturbances of the even tempo of life,

may in a sense be said to affect public order in a

different sense, namely, in the sense of a state of law

abidingness vis-à-vis the safety of others. In our judgment

the expression in the interest of public order in the

Constitution is capable of taking within itself not only

those acts which disturb the security of the State or are

within ordre publique as described but also certain acts

which disturb public tranquillity or are breaches of the

peace. It is not necessary to give to the expression a

narrow meaning because, as has been observed, the expression

in the interest of public order is very wide. Whatever

may be said of maintenance of public order in the context of

special laws entailing detention of persons without a trial

on the pure subjective determination of the Executive cannot

be said in other circumstances. In the former case this

Court confined the meaning to graver episodes not involving

cases of law and order which are not disturbances of public

tranquillity but of ordre publique.

The phrase maintenance of public order in the context

before us need not be assigned a narrow meaning as is

assigned to in preventive detention matters. The police

officers do discharge duties relating to maintenance of

public order in its wider sense.

The notification therefore applies to members of Bombay

police force. Once it is held that the members of the

Bombay police force are the persons to whom the notification

issued under Section 197 (3) of the Code applies and if the

act which is alleged to be an offence was done in discharge

or purported discharge of the duty of the accused persons

they will be entitled to the protection extended by

sub-section (2) of Section 197 of the Code.

The question of applicability of Section 197 (2) of the

Code is not free of difficulty. In S.B. Saha and Ors. Vs.

K.S. Kochar - AIR 1979 SC 1841 this Court on a review of

the case law available on the point held as under :-

The words any offence alleged to have been committed

by him while acting or purporting to act in the discharge of

his official duty employed in Section 197(1) of the Code,

are capable of a narrow as well as a wide interpretation.

If these words are construed too narrowly, the Section will

be rendered altogether sterile, for, it is no part of an

official duty to commit an offence, and never can be. In

the wider sense, these words will take under their umbrella

every act constituting an offence, committed in the course

of the same transaction in which the official duty is

performed or purports to be performed. The right approach

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to the import of these words lies between two extremes.

While on the one hand, it is not every offence committed by

a public servant while engaged in the performance of his

official duty, which is entitled to the protection of

Section 197 (1), an act constituting an offence, directly

and reasonably connected with his official duty will require

sanction for prosecution under the said provision. As

pointed out by Ramaswami, K. in Baijnath v. State of

Madhya Pradesh AIR 1966 SC 220 at p 222 it is the quality

of the act that is important and if it falls within the

scope and range of his official duties, the protection

contemplated by Section 197 of the Criminal Procedure Code

will be attracted.

In sum, the sine qua non for the applicability of this

section is that the offence charged be it one of commission

or omission, must be one which has been committed by the

public servant either in his official capacity or under

colour of the office held by him.

While the question whether an offence was committed in

the course official duty or under colour of office, cannot

be answered hypothetically, and depends on the facts of each

case, one broad test for this purpose first deduced by

Varadachariar J. of the Federal Court in Hori Ram v.

Emperor 1939 FCR 159 is generally applied with advantage.

After referring with approval to those observations of

Varadachariar J., Lord Simonds in H.B. gill v. The King

AIR 1948 PC 128 tersely reiterated that the test may well

be whether the public servant, if challenged, can reasonably

claim, that what he does, he does in virtue of his office.

Speaking for the Constitution Bench of this Court,

Chandrasekhar Aiyer J., restated the same principle, thus :

..in the matter of grant of sanction under Section

197, the offence alleged to have been committed by the

accused must have something to do or must be related in some

manner, with the discharge of official dutythere must be

a reasonable connection between the act and the discharge of

official duty, the act must bear such relation to the duty

that the accused could lay a reasonable claim, but not a

pretended or fanciful claim, that he did it in the course of

the performance of his duty.

The real test to be applied to attract the applicability

of Section 197 (3) is whether the act which is done by a

public officer and is alleged to constitute an offence was

done by the public officer whilst acting in his official

capacity though what he did was neither his duty nor his

right to do as such public officer. The act complained of

may be in exercise of the duty or in the absence of such

duty or in dereliction of the duty, if the act complained of

is done while acting as a public officer and in the course

of the same transaction in which the official duty was

performed or purports to be performed, the public officer

would be protected.

In the case at hand cognizance against the accused

persons has not been taken under Section 323 of the IPC. It

appears that the complaint stated the complainants to have

been beaten mercilessly by one of the accused persons

whilst in custody but when one of the complainants was

examined by the learned Magistrate he stated only this much

that one of the police officers had assaulted him. The

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statement was too vague to be acted upon and hence

cognizance for causing hurt to any of the complainants has

not been taken by the learned Magistrate. None of the

complainants has made any grievance about it. The

cognizance taken is only under Section 220 (commitment for

trial or confinement by person having authority who knows

that he is acting contrary to law) and Section 342 (wrongful

confinement) of Indian Penal Code. Cognizance has also been

taken for offences under Section 147 (Vexatious injury,

search, arrest etc. by police officer) and Section 148

(Vexatious delay in forwarding a person arrested) of the

Bombay Police Act, 1951. Cognizable and non-bailable

offences were registered against the appellants. They were

liable to be arrested and detained. The gravamen of the

charge is the failure on the part of the accused persons to

produce them before a Magistrate within 24 hours of arrest.

The complainants were in the custody of the police officers

and at the police station. It cannot be denied that the

custody which was legal to begin with became illegal on

account of non-production of the complainants before the

Magistrate by the police officers officially detaining the

appellants at a place meant for detaining the persons

suspected of having committed an offence under

investigation. The act constituting an offence alleged to

have been committed by the accused-respondents was certainly

done by them in their official capacity though at a given

point of time it had ceased to be legal in spite of being

legal to begin with. On the totality of the facts and

circumstances of the case in our opinion the learned

Magistrate and the High Court have not erred in holding the

accused-respondents entitled to the benefit of protection

under Section 197 (2) of the Cr.P.C. We have felt it

unnecessary to deal with the allegation made in the

complaint relating to beating of the appellants whilst in

police custody because no cognizance has been taken for an

offence in that regard and no cognizance can now be taken

because of the bar of limitation enacted by Section 468 of

Cr.P.C.

For the foregoing reasons the appeal is dismissed.