Akhilesh Prasad Vs. Union Territory of
Mizoram [1981] INSC 30 (11 February 1981)
KOSHAL, A.D.
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.
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." 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 anything
directly against the Court itself. His apprehension is a derivative one from
the activities of the Drivers' 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 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.
7. Learned counsel for the parties is 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.
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