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1996 DIGILAW 407 (KER)

Sarojini v. Prasannan

1996-09-27

B.M.THULASIDAS, K.A.MOHAMMED SHAFI

body1996
Judgment :- Thulasidas, J. These revisions have come before us on a reference made by the learned judge, who has observed that the question raised is of considerable importance and that two learned judges of this Court have taken seemingly conflicting views, which require to be resolved. On the complaints of the petitioners, two cases as C.C.Nos. 327 and 345 of 1985 of the Judicial First Class Magistrate Court, Manantoddy, were registered against the common respondents against whom cognizance was taken for an offence punishable under S.323 read with 34IPC, in respect of an incident that happened in the house and premises of the complainants - who are mother and son - on 25.10.1985 at about 8.30 A.M.. They and their witnesses gave evidence about the incident and the accused when questioned under S.313 Cr.P.C. stated that they went to the house to arrest Veeran, the complaintt in C.C.No. 345 of 1985 - the accused in Crime No. 320 of 1985 of Manantoddy Police Station - and since there was obstruction to arrest hi m, and he made an attempt to escape from custody, they had to use force to effect his arrest. They denied the incident as alleged and maintained that they had only sought to discharge their duty as public servants within the bounds of law. They examined two witnesses and also marked documents in defence. At the hearing a contention was advanced that the prosecution is bad for want of sanction under S.197 Cr.P.C., which was repelled by two separate orders dated 7.9.1991, which were challenged in Crl.R.P. Nos. 18 and 19 of 1991 before the Sessions Court, Wayanad, and were set aside against which the present revisions have been filed. 2. Heard. 3. At the relevant time the respondents/ accused were the Sub laspector and two constables of Manantoddy Police Station, who have contended that their prosecution by the petitioners is bad for want of sanction under S.197 Cr.P.C. 'The object of the section is indeed to prevent vexatious proceedings against public servants. It is in public interest that they are not dragged to court by unscrupulous persons on unfounded allegations to harass and intimidate them for acts done in the discharge of functions as public servants. But then, before sub-s.(1) of S.197 Cr.P.C. can be invoked, the conditions stipulated there will have to be satisfied. Non-compliance of any one of the conditions, viz. But then, before sub-s.(1) of S.197 Cr.P.C. can be invoked, the conditions stipulated there will have to be satisfied. Non-compliance of any one of the conditions, viz. that the person accused is or was a public servant removable from his office only with the sanction of the State Government or of the General Government according to whether he is employed in connection with the affairs of the State or the Central Government and that he must have been accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duties. The benefit of this provision cannot be claimed by the accused, who, as stated already, are the Sub Inspector and Constables belonging to the Kerala Subordinate Police Service. The power to dismiss or remove them from service has been conferred under the relevant provisions in the Kerala Police Act and Rule suponthel. G., D.I.G., A.I.G. and S.Ps. In other words, they are not public servants not removable from office, save with the previous sanction of the State Government. The benefit of sub clause (b) of S.197(1) could not be claimed by them. (See in this connection 1983 KLT 349). 4. Under sub s.(2) of S.197 Cr.P.C. there is a bar in taking 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. Under sub-s.(3): "The State Government may, by notification, direct that the provisions of sub-s.(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". The Government has issued a Notification on 16.12.1977 directing that the provisions of sub-s.(2) shall apply to all members of Kerala State Police Force charged with maintenance of Public Order. The point for decision is whether the accused come within the scope of this notification and entitled to its protection. 5. There is no doubt, a distinction between "maintenance of Public Order" and "law and order" which has been well recognised. Chap. The point for decision is whether the accused come within the scope of this notification and entitled to its protection. 5. There is no doubt, a distinction between "maintenance of Public Order" and "law and order" which has been well recognised. Chap. X Cr.P.C. contains provisions for "maintenance of public order and tranquillity". The provisions in Chap. XII could well betaken to deal with matters relating to "maintenance of law and order'. Under S.129 in Chap. X Cr.P.C.: 1. Any Executive Magistrate or Officer-in-charge of a police station or, in the absence of such officer-in-charge, any Police Officer, not below the rank of a Sub Inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly. 2. If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or Police Officer referred to in sub-s.(1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed force and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law". Under S.130: "If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces". Section 131 deals with power of certain armed force officers to disperse assembly. Under S.132: "No prosecution against any person for any act purporting to be done under S.129, S.130 or Section 131 shall be instituted in any Criminal Court, except - (a) with the sanction of the Central Government where such person is an officer or member of the armed forces; (b) with the sanction of the State Government in any other case". Under sub s.(2) - "no Executive Magistrate or Police officer acting under any of the said sections in good faith or in obedience of any order shall be deemed to have committed any offence". It seems obvious that in view of the above provisions, it may not be correct to say that maintenance of public order is quite outside the functions of officers charged with the maintenance of law and order. as held mbabulmitra v. State of West Bengal, AIR 1973 SC 197, - "the true distinction between "law and order" and "public order" is one of degree and extent of the reach of the act in question upon society. The act by itself is not determinate of its own gravity. In the quality it may not differ but in its potentiality it may be very different". Indeed, there can be over-lapping and as held in Ashok Kumar v. Delhi Administration, AIR 1982 scu43, acts: "similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore, touch the problem of law and order, while in another it might affect public order. The act by itself therefore, is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. What essentially is a problem relating to law mid order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act or violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control". What would have begun as a routine 1 aw and order problem might escalate into one of public order and to cope with the situation the services of the armed forces could be requisitioned by the competent authority. The question is of the survival of the society and the problem is the method of control". What would have begun as a routine 1 aw and order problem might escalate into one of public order and to cope with the situation the services of the armed forces could be requisitioned by the competent authority. They, as also those charged with maintenance of law and order, could work at tandem to bring disturbed situations under control and maintain public peace and tranquility. 6. By the notification above mentioned, the provisions of sub-s.(2) have been made applicable to members of Kerala Police charged with 'maintenance of public order' who form a class of the police force. As we have already said, 'maintenance of public order' can fall within the definition of 'law and order', the former being an extension of the latter. Though conceptually distinct they are perhaps two sides of the same, coin. It is unnecessary that there should be anything specific to show that those charged with maintenance of 'law and order' have also been entrusted with the maintenance of 'public order' which is not so different or unrelated to require a specific investiture but is implicit in the former function. Though not in so many words, a view to this effect taken in the unreported decision in Criminal Appeal No. 317 of 1989, in our view, is correct and that to the contrary stated in 1985 KLT 404 with respect does not seem to lay down the correct law. 7. But, then to claim the protection of the notification issued under sub-s.(2) of S.197, the conditions stipulated in the said provision will have to be satisfied. In other words, the offence alleged must have been committed while acting or purporting to act in the discharge of official duty. There should be reasonable nexus between the impugned act/ offence and the discharge of official duty. No blanket protection of all acts/ offences is meant or intended by the notification. By no stretch of imagination, it could be said that the impugned acts alleged in the complaints were committed in the' discharge of maintenance of public order and therefore, are not protected by the notification above mentioned. This was rightly said by the learned Magistrate. No blanket protection of all acts/ offences is meant or intended by the notification. By no stretch of imagination, it could be said that the impugned acts alleged in the complaints were committed in the' discharge of maintenance of public order and therefore, are not protected by the notification above mentioned. This was rightly said by the learned Magistrate. The learned sessions judge was wrong to take a contrary view and to observe that sanction is required to prosecute the first accused, if not the others, and to acquit them all. We set aside the common order passed on Crl. R.P. Nos. 18 and 19 of i 991 and restore those passed by the Judicial First Class Magistrate, Manantoddy, who is directed to dispose of the cases on their merits and in accordance with law. The Criminal Revision Petitions are disposed of as above.