Ahmed Javed Shaikh & Ors Vs. Jammal Patel & Ors  Insc 305 (12 May 2001)
Lahoti & N. Santosh Hegde R.C. Lahoti, J.
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
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.
learned Magistrate formed an opinion that the complaint could not have been
filed without the requisite sanction and therefore directed the
accused-respondents to be discharged.
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.
relevant notification dated 2.6.1979 reads as under:-
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:-
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;
All Reserve Police Officers as defined in Bombay State Reserve Police Force
Act, 1951 (Bom. XXXVIII of 1951).
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.
(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.
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
The State Government may, by notification, direct 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.
xxx xxx xxx (3B) xxx xxx xxx (4) xxx xxx xxx
Division Bench of the Bombay High Court has placed reliance on a Division Bench
decision of Gujarat High Court The learned counsel for the appellants have on
the other hand placed reliance on a decision of Rajasthan High Court 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.
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.
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 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.
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.
accused-respondents are undisputedly members of Bombay Police Force governed by
the Bombay Police Act, 1951.
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.
is the general duty of every member of the Police force, styled as Police
officer in the Bombay Police Act.
find ourselves in agreement with the abovesaid observations.
with advantage quote the following passage from 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.
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.
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.
question of applicability of Section 197 (2) of the 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.
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 to the import of these words lies between two extremes.
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.
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.
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.
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.
for the Constitution Bench of this Court, Chandrasekhar Aiyer J., restated the
same principle, thus :
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.
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.
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
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.
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.
the foregoing reasons the appeal is dismissed.