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PETITIONER: AKHILESH PRASAD

       Vs.

RESPONDENT: UNION TERRITORY OF MIZORAM

DATE OF JUDGMENT11/02/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. SEN, AMARENDRA NATH (J)

CITATION:  1981 AIR  806            1981 SCR  (2) 789  1981 SCC  (2) 150        1981 SCALE  (1)292

ACT:      Code  of  Criminal  Procedure,  section  197(2)-Whether Central Reserve  Police Force  falls within  the  expression "Armed Forces  of the Union" as used thereat-Section 3(1) of the Central  Reserve Police  Force Act and Entry 2 in List I of the Seventh Schedule to the Constitution.

HEADNOTE:      Allowing the appeal, the Court ^      HELD : 1 : 1. The Central Reserve Police Force squarely falls within  the expression  "Armed Forces of the Union" as used in  sub-section (2)  of section  197  of  the  Code  of Criminal Procedure. [794 F]      1 :  2. The  expression  must  be  given  its  ordinary meaning  which   would  certainly  not  be  limited  to  the inclusion of  only the military, naval and air-forces of the Union as defined in clause (a) of sub-section (3) of section 132 of the Code of Criminal Procedure. [793 F-G]      1 : 3. Entry 2 in List I of the Seventh Schedule to the Constitution clearly  envisages armed  forces other than the three well  known forces  of the  State, namely,  the naval, military and air-forces. [793 H, 794 A-B]      1 :  4. Sub-section  (1) of  section 3  of the  Central Reserve Police  Force Act  itself declares  in no  uncertain terms that  the Central  Reserve Police  Force is  an  armed force of  the Central  Government which is the same thing as saying that it is a part of the "Armed Forces of the Union". [794D]      1 : 5. Just because the Central Reserve Police Force is a reserve  force it  does  not  follow  that  it  is  not  a regularly operating force. [794 E-F]      2. The  question whether  the offences  alleged to have been committed  by the appellant in the instant case, are or are not  such as may be said to have been committed while he was acting  or purporting  to act  in the  discharge of  his official duty is to be left over. [794 G]      Pancham Lal v. Dadan Singh, [1979] Criminal Law Journal 1018; S.  B. Saha  v. M.  S. Kochar,  [1980] 1  SCR 111-1979 Criminal Law Journal 1367, approved and followed.

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 439 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 20-2-1980  of the  Gauhati High  Court in Cr. Revision No. 173/78. 790      H. K. Puri for the Appellant.      N. Nettar and Miss A. Subhashini for the Respondent.      P. A.  Francis, K.  S. Gurumurthy  and R. N. Poddar for the Intervener.      The Judgment of the Court was delivered by      KOSHAL, J. This is an appeal by special leave against a judgment dated  the 20th February, 1980, of a learned Single Judge of  the Gauhati  High Court  dismissing an application made by the appellant under sections 482 and 407 of the Code of Criminal  Procedure praying  that the proceedings pending in the  Court of  the Assistant District Magistrate, Aizawal which have  been initiated  through a  police report against the appellant with a prayer that he be punished for offences under sections  307, 326  and 324  of the  Indian Penal Code alleged to have been committed by him on the 30th May, 1978, be quashed  or, in  the alternative, that the proceedings be transferred to  a competent  court beyond  the territory  of Mizoram.      2. The  relevant facts  are not  in dispute  and may be stated briefly. On the 30th May, 1978, a case was registered at the  Vairengte Police  Station at  the  instance  of  one Thanugura alleging  that men  of the  Central Reserve Police Force (hereinafter  referred  to  as  CRPF),  of  which  the appellant is  a member had fired shots at handyman Thara and a driver  the two  of whom  received injuries in the arm and thigh respectively. After investigation the police submitted a report under section 173 of the Code of Criminal Procedure against the  appellant to  the Assistant District Magistrate Aizawl.      3. Aggrieved by the commencement of proceedings against him in  the Court  of the Assistant District Magistrate, the appellant sought  redress from  the High  Court through  the application which  has been dismissed by the impugned order. The prayer  for quashing  the proceedings  contained in  the application was  based on  various grounds only one of which has now  been canvassed  before us  and  that  is  that  the offences attributed  to the  appellant are  alleged to  have been committed  by him  while he was acting or purporting to act in the discharge of his official duty as a member of the Armed Forces of the Union and that in view of the provisions of sub-section  2 of  section 197  of the  Code of  Criminal Procedure (hereinafter  referred to as the Cr.P.C.) no Court had the  jurisdiction to  take cognizance of those offences. The prayer  made in the alternative was supported by various assertions indicative  of surcharged  atmosphere in  Mizoram which had resulted in 791 the entire  population becoming  hostile to the appellant so that it would not at all be safe for him to attend the Court at Aizawl.      4. The  learned Single  Judge noted  the provisions  of sub-section (2) of section 197 of Cr. P.C. which runs thus :           "No Court  shall take  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."

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    He correctly analysed the section while holding that it would operate only if           (1)  the concerned  accused was  a member  of  the                "Armed Forces of the Union" and           (2)  the offence  attributed to him was alleged to                have been  committed while  he was  acting or                purporting to  act in  the discharge  of  his                official duty.      The learned  Judge  then  proceeded  to  find  out  the meaning of  the expression  "Armed Forces  of the  Union" as occurring in  the  subsection,  with  reference  to  various provisions of  the Army  Act, of  the Cr.  P.C. the  Central Reserve Police  Force Act,  1949 (hereinafter referred to as the CRPF  Act) and  of entry  2 in  List I  of  the  Seventh Schedule  to  the  Constitution  of  India,  and  thereafter concluded :           "If the  expression ‘Armed Forces’ of the Union is      understood as  including any  other armed forces of the      Union, then  the C.R.P.F.  may be included therein, and      not otherwise.  Considering the  fact that the C.R.P.F.      is   a   Reserve   Police   Force,   the   conventional      interpretation to mean only the regular armed forces of      the Union  may be  acceptable. Members  of  the  Police      Force        are         holders        of        civil      posts............................ In  AIR 1965  All 236      (238), it  was held  that the Armed Forces of the Union      mean the  regular Army,  Navy and Air Force or any part      of any  one or more of them as defined in the Army Act,      and it  could never  have  meant  the  members  of  the      National Cadet  Corps who  are not  part of the regular      forces of the Union." The learned  Judge then went on to decide the question as to whether the  appellant was  alleged to  have  committed  the offences covered by 792 the proceedings  against him  while acting  or purporting to act in  the discharge of his official duty and decided it in the negative with the observations :           "The alleged occurrence is not such as may be said      to have  been directly  and reasonably  connected  with      performance of his official duty. It was neither in his      official capacity  nor under  colour of  his office. It      does not,  therefore, appear  to have been while acting      or purporting  to act  in the discharge of his official      duty. Active  duty, as  defined in  the Act,  means the      duty to restore and preserve order in any local area in      the event of any disturbance therein."      However, the  learned Judge left the question open with the remarks :           "The question  of necessity  of sanction has to be      determined from  stage to  stage as the case progresses      (1979 Crl.  L.J. 1018)(1).  It may be considered at any      stage of  the proceeding  and while  considering, it is      not necessary  for the  Court to  confine itself to the      allegations in  the complaint,  and the  court can take      into consideration  all the  materials on the record at      the  time  the  question  is  raised  (1979  Crl.  L.J.      1367).(2) More  materials may come up for consideration      by the trial court and it will be inopportune to decide      the question at this stage."      On the  question of  transfer the  views of the learned Single Judge were :           "The petitioner has not alleged any thing directly      against  the   Court  itself.  His  apprehension  is  a      derivative one  from the  activities  of  the  Drivers’

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    Union and  the meetings  and  publicity  given  to  the      incident. The  Mizoram Government in its affidavit have      stated that  the officer  in seisin  of the  case is  a      judicial officer  without any administrative functions,      and is not likely to be influenced by these events. The      contemporary  events   of   publicity,   meetings   and      processions are  all past,  and may  not have benumbing      effects in  future. At  this stage, nothing having been      alleged  against   the  particular  court,  it  is  not      reasonable on  the part  of the petitioner to apprehend      that he will not 793      receive a  fair trial.  The judicial  administration in      Mizoram has  to  run  according  to  law  despite  such      events.  If  a  case  is  transferred  on  the  alleged      grounds, there  may be  no end  to such transfers. That      may  cast   reflection  on  the  judiciary.  The  other      difficulty, namely,  that the  Lushai Hills  Autonomous      District (Administration of Justice) Rules, 1953, which      applies in  Mizoram is not applicable elsewhere is also      to be  considered. There  will also  be difficulties of      examining witnesses  in Mizo  language at other places.      Considering the  above facts,  it will not be desirable      to transfer  the case  at this stage. The Government of      Mizoram will  take appropriate  measures for  safety of      the petitioner  and his  witnesses, and  for conduct of      the case in a befitting atmosphere."      It was  in the  above premises  that the learned Single Judge dismissed the appellant’s application on both counts.      5. The  first question which falls for determination by us is as to whether the appellant was a member of the "Armed Forces of  the Union"  within the meaning of that expression as occurring  in sub-section  (2) of  section 197 of the Cr. P.C. The  expression "Armed  Forces"  has  been  defined  in clause (a)  of sub-section  (3) of  section 132, Cr. P.C. as meaning the  military, naval  and air  forces, operating  as land forces  and as  including any other armed forces of the Union so  operating. That  definition however, is limited in its application,  by the  express language  of  that  clause itself, to  the interpretation of sections 129 to 132 of the Cr. P.C. and the argument, therefore, advanced in support of the impugned  judgment that   definition will not govern the interpretation  of  section  197  cannot  be  said  to  lack plausibility.  Nor   has  it  been  shown  to  us  that  the expression "Armed  Forces of the Union" as occurring in sub- section (2)  of section  197, Cr.  P.C.  is  governed  by  a definition occurring  elsewhere either in the Cr. P.C. or in any other  statute. In  this situation  it must be given its ordinary meaning  which, it  appears to  us, would certainly not be  limited to the inclusion of only the military, naval and air  forces of the union. In this connection a reference to the contents of entry 2 in List I of the Seventh Schedule to the Constitution of India may be made with advantage.      They are :           "Naval, military  and air  forces; any other armed      forces of the Union" 794 The entry  clearly envisages  armed forces  other  than  the three well  known forces  of the  State, namely  the  naval, military and  air forces.  All  that  remains  to  be  done, therefore, is  to find  out answers  to  the  following  two questions :           (a)  Is the C.R.P.F. a force ?           (b)  If  question   (a)   is   answered   in   the                affirmative, whether  C.R.P.F.  is  an  armed

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              force ? In our  opinion the  answer to  both the  questions must  be given in  the affirmative  in view of the provisions of sub- section (1) of section 3 of the CRPF Act which unfortunately do not  appear to  have been  brought to  the notice  of the learned Single Judge. That sub-section reads thus :           "There  shall   continue  to  be  an  armed  force      maintained by  the Central  Government and  called  the      Central Reserve Police Force."      The sub-section  itself declares  in no uncertain terms that the  CRPF is  an armed  force of the Central Government which is  the same  thing as saying that it is a part of the "Armed Forces  of the Union". We may make it clear, however, that even  if the  provisions just  above extracted were not available our  answer to the two questions would still be in the affirmative.  The reason  given by  the  learned  Single Judge for holding a contrary opinion, namely, that the force was "only  a reserve force and not a regular force" by which expression he  appears to mean that it was not a continually operating force  does  not  commend  our  concurrence.  Just because the  CRPF is a reserve force it does not follow that it is  not a  regularly operating  force and no provision of the CRPF  Act has  been pointed  out to  us such as may lend support to a contrary view.      5. We  hold that  the CRPF  squarely falls  within  the expression "Armed  Forces of  the Union"  as  used  in  sub- section (2) of section 197 of the Cr.P.C.      6. We  leave open  the question  whether  the  offences alleged to  have been  committed by the appellant are or are not such  as may be said to have been committed while he was acting or purporting to act in the discharge of his official duty. This course we follow in view of the exposition of law contained in  that paragraph  quoted by us from the impugned judgment which  makes  a  reference  to  1979  Criminal  Law Journal, 1018  and 1979  Criminal Law  Journal  1367,  which exposition is  not only correct according to learned counsel for all parties before us but also has our full approval. 795      7. Learned counsel for the parties are also agreed that the case  against the  appellant be transferred to the Court of a  Magistrate functioning  at Gauhati.  We  consider  the proposal to  be conducive to a fair trial and, accepting it, transfer the  proceedings to the Court of the Chief Judicial Magistrate, Gauhati.  We further  direct that  the State  of Assam and  the CRPF shall afford full protection to the life and liberty of the appellant. S.R.                                        Appeal allowed. 796