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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. L...I...T.......T.......T.......T.......T.......T.......T..J

   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-Ã -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.