BHIKHAJI VAGHAJI v. L. K. BAROT — 1981 DIGILAW 119 (GUJ)

N. H. BHATT, J. ( 1 ) THE first five Special Criminal Applications under Article 227 of the Constitution of India and the Misc. Criminal Application no. 1418 of 1980 filed by the original accused raise common questions of law though the incidents at the root of these first five matters arise out of different criminal cases at one time pending in one or the other Court of the Metropolitan Magistrates Ahmedabad. ( 2 ) THE Special Criminal Application nos. 3 to 7 of 1981 arise out of the orders in the criminal cases nos. 1318/79 263 717 1320 and 134 respectively in those courts. The concerned learned Magistrate in these five cases held that as the accused were Police Officers and as the prosecution was launched without obtaining the previous sanction of the State Government as required under sec. 197 (2) of the Criminal Procedure Code the prosecutions were bad and so they were dropped. Being aggrieved by the said common decision criminal revision applications nos. 27/80 134 30 28 and 29/80 were filed on behalf of the original respective complainant in the City Sessions Court where the order of the learned Magistrate came to be confirmed by the learned Additional Sessions Judge again by a common order. These five special criminal applications are therefore filed by the original respective complainant of the respective complaint challenging the order of dropping the proceedings. ( 3 ) MISC. Criminal Application no. 1418/80 is filed by the original accused. In criminal case no. 2011/79 pending in the court of the Metropolitan Magistrate 5 court Ahmedabad the process that was issued against the original accused is sought to be dropped for want of sanction under sec. 197 (2) of the Criminal Procedure Code. The original accused tiled the said Misc. Criminal Application no. 1418 of 1980 directly in this court alleging that the prosecution against the public servant was incompetent from its very inception for want of sanction of the State Government as required under sec. 197 (2) of the Code. ( 4 ) THE common question that arises in these six proceedings is as to the scope and ambit of sec. 197 of the Criminal Procedure Code. 197 (2) of the Code. ( 4 ) THE common question that arises in these six proceedings is as to the scope and ambit of sec. 197 of the Criminal Procedure Code. In the first five special criminal applications the learned Metropolitan Magistrate concerned and the learned Additional Sessions Judge held that as the accused were Police Officers the concerned complaints did not lie against them for want of the sanction under sec. 197 (2) of the Code. The contention of the accused in these five cases and also of the original accused who has filed the Misc. Criminal Application no. 1418 of 1980 is that sanction is required in respect of the accused who are Police Inspector Police Sub-Inspector or constables in the State Police Force. Both the courts below held that these Police Officers were protected by sec. 197 (2) of the Code and also under sec. 197 (1) of the Code. Section 197 (1) to 197 are reproduced below:197 When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence except with the previous sanction (A) in the case of a person who is employed or as the case may be vas at the time of Commission of the alleged offence employed in connection with the affairs of the Union of the Central Government (B) in the case of a Person who is employed or as the case may be was at the time of commission of the alleged offence employed in connection with the affairs of the state of the state Government. (3) 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. (3) The State Government may by notification direct that the provisions of sub-sec. (3) 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. (3) The State Government may by notification direct that the provisions of sub-sec. (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 were substituted. ( 5 ) EVEN a bare look at sec. 197 (1) of the Code shows that it pertains to a Judge or a Magistrate or a public servant who is not removable from his office except by the State Government or except by somebody with the sanction of the State Government. If we look to sec. 12 (a) and secs. 25 (1) and 25 (2) of the Bombay Police Act it becomes crystal clear that an Inspector of Police or any member of the subordinate ranks of the Police Force can be visited with punishment of suspension reduction dismissal or removal even by the Inspector General of Police or Deputy Inspector General of Police or by the Commissioner of Police in a City where the Commissioner of Police is appointed It is therefore not possible to uphold the view that a Police Inspector is a public servant not removable from his Office save by or with the sanction of the State Government and therefore recourse to sec. 197 (1) of the Code could not be bad. To this extent the contention advanced on behalf of the original complainants must be accepted. ( 6 ) BOTH the courts below alternatively held that by virtue of the Government notification No. G/g/74/103 (A)/sb. II/srp. 2974/1844 dated 15 the State Government had directed that the provisions of sub-sec. (2) of sec. 197 of the Code shall apply to Police officers as defined by clause (11) of sec. 2 of the Bombay Police Act 1951 charged with the maintenance of public order As per the provisions of sec. 197 (3) on such a notification having been issued the provisions of sub-sec. (2) of sec. 197 of the Code shall apply to Police officers as defined by clause (11) of sec. 2 of the Bombay Police Act 1951 charged with the maintenance of public order As per the provisions of sec. 197 (3) on such a notification having been issued the provisions of sub-sec. (2) are attracted to the members of the Forces charged with the maintenance of public order. Sec. 2 (11) of the Bombay Police Act 1951 defines Police Officer as any member of the Police Force appointed or deemed to be appointed under this Act So even a Police constable recruited under the provisions of the Bombay Police Act would be a Police Officer for the purposes of the Bombay Police Act. The Governments notification dated 15-5-74 referred to above is reproduced below in so far as it is relevant for our purposes:in exercise of the powers conferred by sub-sec. (3) of sec 197 of the Code of Criminal Procedure 1973 (2 of 1974) in its application to the state of Gujarat the Government of Gujarat hereby directs that the provisions of sub-sec. (2) of the said section shall apply to the Police Officers as defined by clause (11) of sec. 2 of the Bombay Police Act 1951 (Bom. XXII of 1951) charged with the maintenance of public order. ( 7 ) MR. Barot the learned advocate appearing for the original complaints in the first five matters and for the applicant in Misc. Appln. No. 1418/80 urged that members of the Police force cannot be said to be persons charged with the maintenance of public order. In his submission the members of the Police Force are essentially if not wholly entrusted with the maintenance of law and order and maintenance of public order which is referred to in sec. 129 of the Code is a matter assigned to an Officer incharge of a Police Station or in the absence of such an officer in charge any Police Officer not below the rank of Sub-Inspector and therefore it cannot be said that all members of the Police force are persons or members charged with the maintenance of public order. His second contention of course an alternative one was that this exemption that can be granted by the State Government by recourse to sec. His second contention of course an alternative one was that this exemption that can be granted by the State Government by recourse to sec. 197 (3) of the Code can be provided for only when such members are engaged in the maintenance of public order and not when they are engaged in the functions relating to law and order situations. ( 8 ) THE phrase charged with the maintenance of public order occurring in the Governments notification dated 15-5-74 and also occurring in sub-sec. (3) of sec. 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 or protection contemplated by sub-sec. (2) of sec. 197 of the Code. This phrase in our view clothes the Government with the authority to apply the provisions of sec. 197 (2) in respect of such class or category of Police forces which under law. are charged with the maintenance of public order though they may be additionally charged with the maintenance of law and order also. Mr. Barots emphasis that these words are words of exclusive application is difficult to be accepted by the known canons of interpretation of such adjectival phrases. They are the general qualifications of the members of the Police Force and if it could be shown that the members of the Police force are charged with the duty to maintain public order with or without the additional duties of looking after situations of law and order they will be within the purview or compass of sec. 197 (3) of the Act. The State Government by the notification issued under sub-sec. (3) of sec. 197 of the Code directed that the provisions of sub-sec. (2) shall apply to the Police Officers that is all members of the Police force (as envisaged by the provisions of the Bombay Police Act 1951 and the State Government invoked the provisions under sub-sec. (3) in their respect because they are persons charged with the maintenance of public order. ( 9 ) MR. Barot in this connection urged that the various powers and duties of Police Officers as enumerated in the Bombay Police Act are to be found in Chapter VI containing sec. 64 to sec. (3) in their respect because they are persons charged with the maintenance of public order. ( 9 ) MR. Barot in this connection urged that the various powers and duties of Police Officers as enumerated in the Bombay Police Act are to be found in Chapter VI containing sec. 64 to sec. 98 and in his submission there was no section which specifically clothed the Police Officers with the power to maintain public order. The various powers mentioned in Chapter VI are enumerative and not exhaustive. 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. Sec. 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 sec. 2 (11) 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. ( 10 ) MR. Barots submission that protection under powers under sub-sec. (3) of sec. 197 of the Code can be extended only when the members of the Police force are actually discharging functions related to the maintenance of public order is difficult to entertain. While recognising the essentiality of protecting Judges and public servants and also the members of the Armed force of the Union while acting or purporting to act in the discharge of his official duty the Parliament did envisage that a similar power should be reserved to the State Govt. While recognising the essentiality of protecting Judges and public servants and also the members of the Armed force of the Union while acting or purporting to act in the discharge of his official duty the Parliament did envisage that a similar power should be reserved to the State Govt. in the interest of certain public services which may be charged with the maintenance of public order. A Judge or a Magistrate and members of the Armed forces of the Union are ordinarily unsound with the maintenance of public order or maintenance of law and order. Similarly public servants of high rank referred to in sub-sec. (1) of sec. 197 of the Code also deserve in the opinion of the Parliament immunity from frequent or uncalled prosecutions. Under sub-sec. (3) of sec. 197 the Parliament clothes the State Government with the power to extend similar protection to such class or category of the members of the Forces which are charged with the maintenance of public order and that is why sub-see. (3) is there on the statute book. The State Governments powers are not naked or arbitrary. Section 197 (3) was not under challenge before us. What was challenged was the action of the State Government in issuing the notification on 15-5-74 referred to above and it was alleged that the said notification was beyond the scope and/or powers conferred on the State Government by the Parliament. We have already stated above that this notification squarely falls under sub-sec. (3) of sec. 197 of the Code and there is no question of any non-application of mind to the provisions of the Code. The purpose underlying this sub-see. (3) is evident. With that purpose in mind and with the full consciousness of the limitations on that power provided for in sub-sec. (3) itself the State Govt. acted and issued the said notification. It is therefore difficult for us to accept the submission of Mr. Barot that the notification under sub-see. (3) of see. 197 of the Code is issued by the State Government without application of mind or that it goes beyond the scope and ambit of the said sub-section. ( 11 ) ONCE a notification under sub-sec. (3) of see. 197 of the Code is issued the provisions of see. 197 (2) are attracted. The said sub-see. (3) of see. 197 of the Code is issued by the State Government without application of mind or that it goes beyond the scope and ambit of the said sub-section. ( 11 ) ONCE a notification under sub-sec. (3) of see. 197 of the Code is issued the provisions of see. 197 (2) are attracted. The said sub-see. (2) would then for the purpose of such class or category of the members of such Force would be required to be read as follows: No court shall take cognizance of any offence alleged to have been committed by any Police Officer as defined by clause (11) of sec. 2 of the Bombay Police Act while acting or purporting to act in the discharge of his official duty except with the previous sanction of the State Government. ( 12 ) WE therefore find that both the courts below were eminently right in their view regarding the necessity of previous sanction if it appeared that the alleged acts constituting offences were committed by the Police officers while acting or purporting to act in the discharge of his official duty not necessarily the duty connected with the maintenance of public order. ( 13 ) THIS brings us to the second important facet of facts. In the five cases launched by the five various complainants the allegations were that the Police Officers acted without any authority of law. In one ease they are alleged to have picked up an innocent citizen sitting by the side of the road. The allegations were that though the alleged offences subsequently cooked up to justify the interference with citizens liberty were bailable those citizens were denied their right of being enlarged on bail. In one case it was alleged that the moneys lying in the pocket of the complainant were unauthorisedly taken away by the Police Officers and no receipt was issued. It was alleged in one case that there was uncalled for and absolutely unjustified beating of the citizen Before the protection of sub sec. (2) of sec. In one case it was alleged that the moneys lying in the pocket of the complainant were unauthorisedly taken away by the Police Officers and no receipt was issued. It was alleged in one case that there was uncalled for and absolutely unjustified beating of the citizen Before the protection of sub sec. (2) of sec. 197 of the Code could be had and the proceedings are dropped On that count the learned Magistrate is under an obligation to decide that the alleged acts attributed to the members of the Police force are acts done in the discharge of their official duties or at any rate they purport to be or bear the colour or semblance of the acts that could be done in the discharge of their official duties. We have gone through the orders of the learned Magistrates and the learned Sessions Judge and we find that they have not addressed themselves to this factual aspect of the problem. It appears that whole of their attention was concentrated on the legal point raised in those five cases and consequently they did not pay requisite attention to this part. This question was a vital question which would be required to be decided before the proceedings are dropped by recourse to sub-sec. (2) of sec. 197 of the Code. That having not been done and the orders regarding dropping of the proceedings having been passed the final orders dropping the proceedings are required to be set aside with a further direction that those. criminal cases shall stand remanded to the Chief Metropolitan Magistrate. We also direct that it is desirable and expedient in the interest of justice that all these cases go before one Magistrate. We therefore direct the Chief Metropolitan Magistrate to assign the cases to himself or to assign all these cases to one Magistrate along with criminal case no. 2011 of 1979 from which Misc. Criminal Application no. 1418 of 1980 arises. We make it clear that we have refrained from expressing any opinion on the facts of the cases. We therefore direct the Chief Metropolitan Magistrate to assign the cases to himself or to assign all these cases to one Magistrate along with criminal case no. 2011 of 1979 from which Misc. Criminal Application no. 1418 of 1980 arises. We make it clear that we have refrained from expressing any opinion on the facts of the cases. If the concerned learned Magistrate after taking decision of these matters considers that the acts complained of are acts that can be said to be acts falling in the discharge of official duties or they are the acts purporting to have been done in the discharge of their official duties it would be open to the learned Magistrate to pass appropriate order of dropping the proceedings. We make it further clear that even in the course of the further enquiry that is at any stage if it is found by the concerned Magistrate that the acts complained of are acts done in the discharge of the concerned Police officers official duty or they are such as can be said to be purporting to have been committed or done in the discharge of their official duties the learned Magistrate will be free and competent to drop those proceedings at that stage. ( 14 ) MISC. Criminal Application no. 1418 of 1980 also has been brought to this court by the original accused and what we have observed above on the interpretation of the Government notification and sec. 197 of the Criminal Procedure Code and the Magistrates power to drop the proceedings on certain findings will mutatis mutandis apply to this case also. ( 15 ) IN above view of the matter rule is discharged in. Misc. Criminal Application no. 1418 of 1980 and it is made asolute accordingly in the Special Criminal Applications nos. 3 to 7 of 1981 with no order as to eosts. .