Pavani v. Mustak Ali — 1998 DIGILAW 897 (RAJ)

Honble GUPTA, J.–This revision petitions has been directed against the order dt.27.3.97 passed by the learned Sessions Judge, Jalore where by he allowed the revision petition preferred by respondent Mustak Ali and set aside the order dt.8.6.94 of the Addl. Chief Judicial Magistrate, Bhinmal wherein cognizance of offences punishable u/Ss. 341 and 323 I.P.C. was taken against him. (2). The relevant facts are that Smt. Pavani (petitioner) had filed a complaint before the Magistrate alleging that on 30.8.93 when she was in her field, a stranger came there and asked about one karmi, and on her reply that she did not know, he started abusing her and even man-handled and kicked her, on which Ganpat Singh and Jamta (brother-in-law of Pavani) intervened, and Ganpat Singh told her that the stranger was Mustak Ali, an employee of Bagoda Police Station. This complaint was forwarded by the Magistrate to the Police u/S. 156(3) Cr.P.C. where a case was registered. The Police gave final report. Therefore, the complainant filed fresh complaint in the Court in which her statement was recorded and the statements of the witnesses u/Sec. 202 Cr.P.C. were also recorded. The injury report was also filed. The learned Magistrate took cognizance u/S. 341 and 323 I.P.C. vide order dt. 8.6.94 and the accused-respondent was summoned. This order was challenged by respondent Mustak Ali before the Sessions Judge by preferring revision petition which was allowed on the ground that protection of Section 197 Cr.P.C. was available to accused Mustak Ali, Constable and as sanction for prosecution was not obtained before prosecuting him, the prosecution was bad. It was also observed by the Sessions Judge in his order that Mustak Ali had registered a case against Pavani and as he was attacked while on duty he had a right of private defence. Eventually, he quashed the order of taking cognizance. (3). Mr. Shah contented that the learned Sessions Judge has committed grave error in holding that protection of Sec. 197 Cr.P.C. was available to Mustak Ali. His submission was that protection of Section 197 Cr.P.C. cannot be claimed by the respondent on the basis of the State Government notification dt. 31.7.74 as at the relevant time he was not charged with the duty of maintenance of public order. His further submission was that the Sessions Judge has erred in considering the proba- ble defence of the respondent while disposing of the revision petition. 31.7.74 as at the relevant time he was not charged with the duty of maintenance of public order. His further submission was that the Sessions Judge has erred in considering the proba- ble defence of the respondent while disposing of the revision petition. (4). Mr. Choudhary, on the other hand, contended that protection of Section 197 Cr.P.C. was available to Mustak Ali under the Government notification No. S.O. 89 dt. 31.7.74 published in Rajasthan Gazette dt.2.8.74. (5). I have given the matter my thoughtful consideration. The first question to be considered was whether the protection of Section 197 Cr.P.C. is available to the respondent under the notification dt. 31.7.74. (6). The relevant provisions of Section 197 Cr.P.C. are reproduced hereunder:- ``197. Prosecution of Judges and Public servants:- (1) When nay 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, was 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 a State, of the State Government : Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression ``State Government occurring there in, the expression ``Central Government were substituted. (2) 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. (2) 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 provi- sions 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 were substituted. (3-A) * * * * (7). Under sub-Sec. (1) of Sec. 197, Cr.P.C. protection is available only to a Judge or a Magistrate or a public servant who is not removable from his office save by or with the sanction of the Government. It was frankly conceded by learned cou- nsel for the respondents that the appointing authority of the constable is not the State Government and for his removal orders of the State Government are not required. Thus, protection was not available to Mustak Ali under sub-sec.(1) of Sec. 197, Cr.P.C. His case also does not fall in sub-sec.(2), as he was not the member of the Armed Forces. (8). Under sub-section (3) the State Government is empowered to issue notification for the members of the Force, charged with the maintenance of Public Order. In exercise of the power conferred under this sub-section the State Government has issued notification dt.31.7.74, which reads as follows :- `` S.O.89.- In exercise of the powers conferred upon it under sub-sec- tion (3) of Sec. 197 of the Code of Criminal Procedure, 1973, the State Government hereby direct that the provisions of sub-sec. (2) of the said Section shall apply to Police officials, of all ranks, charged with the maintenance of Public order, where-ever they may be serving. (9). A reading of the notification makes it clear that the provisions of sub-sec. (2) of Sec. 197, Cr.P.C. have been made applicable to such of the Police official who are charged with the duty of maintenance of Public order. It is obvious that the provisions of sub-sec.(2) are not applicable to those Police officials who are charged with duties other than maintenance of Public order. (10). (2) of Sec. 197, Cr.P.C. have been made applicable to such of the Police official who are charged with the duty of maintenance of Public order. It is obvious that the provisions of sub-sec.(2) are not applicable to those Police officials who are charged with duties other than maintenance of Public order. (10). The question is what is Public order ? The words` Public Order has not been defined in the Code of Criminal Procedure. However, the scope and meaning of the words `Public Order can be understood by the provisions of Chapter X and XI of the Code of Criminal Procedure. (11). The heading of Chapter X is `Maintenance of Public order and Tranquil- ity. The subject matter of this Chapter consists of (a) unlawful assemblies, (b) Public nuisances, (c) urgent cases of nuisance or apprehended danger and (d) disputes as to immovable property. It is obvious that if a member of the Police Force is asked to discharge duties on any of the subject matters of Chapter X, it will be said that he is charged with the duty of maintenance of `Public Order. (12). A Police official is required to perform various duties such as maintenance of law and order, patrolling, execution of the process issued by the Court, providing assistance to the citizens in emergency etc. It is not possible to accept that a Police Official always performs the duty of maintenance of Public Order. It is only in grave situation that the Police Official is charged with the duty of maintain of `Public Order. The duty to maintenance law and order arises out of the Chapter XI of the Code of Criminal Procedure, where in the Police is supposed to prevent the commission of a cognizable offence, arrest the person if the offence is committed, register the case and make investigation. Some times a member of the police force is asked to perform such duties which are not normally the duties of the Police. If a member of the force performs such other duties or the duties under Chapter XI of the Code of Criminal Procedure, it cannot be said that he was engaged on the duty of maintenance of Public order. (13). If a member of the force performs such other duties or the duties under Chapter XI of the Code of Criminal Procedure, it cannot be said that he was engaged on the duty of maintenance of Public order. (13). As regards the duty of a Police official, one has to imagine three concentric circles: Law and order represents the largest circle, within which the next circle represents `Public Order, and the smallest circle represents security of the State. In other words, an act may affect law and order but not `Public Order and an act may affect Public order but not security of the State. Thus every breach of public peace does not necessarily create a problem of `Public Order. Unless public tranquility is disturbed or likely to be disturbed there cannot be a problem of Public Order. (14). It follows that if a police official is asked to handle the problem of `law and order, it cannot be said that he is charged with the maintenance of `Public Order. There are several offences under the Penal Codes such as theft, cheating, ordinary assault which do not violate or affect Public Order but only `law and order. Such offence affects only specific individual as distinct to the Public at large. So, if a Police Official is asked to investigate the offences of above categories or is asked to arrest the accused of that offence, it cannot be said that he is charged with the duty of maintenance of Public Order. It is obvious that while performing such duty he is concerned with the maintenance of law & order. (15). The Apex Court in relation to matters under the preventive detention law had an occasion to interpret the term `Public Order. In the case of State of U.P. vs. Hari Shanker Terwari (1) it was observed as follows:- `` Conceptually there is difference between Law and order and Public Order but what in a given situation may be a matter covered by law and order may really turn out to be one of Public Order. Therefore, one has to turn to the facts of each case to ascertain whether the matter relates to the larger circle (Public Order) or the smaller circle (law and order). In the case of Gulab Mehra Vs. Therefore, one has to turn to the facts of each case to ascertain whether the matter relates to the larger circle (Public Order) or the smaller circle (law and order). In the case of Gulab Mehra Vs. State of U.P. (2) it was observed as follows : `` An act whether amounts to a breach of law and order or a breach of Public order solely depends on its extent and reach to the society. If the act is restricted to particular individuals or a group of individuals it breaches the law and order problem, but if the effect and reach and potentiality of the act is so deep as to affect the community at large and/or the even tempo of the community then it becomes breach of the Public Order......... Thus whether an act relates to law and order or to Public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect Public Order. The principle was reiterated in the case of Stated of U.P. Vs. Kamal Kishore Saini (3). (16). It is thus crystal clear that if a member of Police Force is asked to perform duties of patrolling in the area or serving the process on some person or persons or arrest an accused etc. it will be said that he performs Official duty in relation to maintenance of law and order. On the contrary, if a Police Official is asked to control the mob from committing breach of prohibitory orders issued under Sec. 144 Cr.P.C. it will be said that he is charged with the maintenance of Public Order. (17). In the instant case, respondent Mustak Ali claims to have gone to the place of occurrence to take Karmi, who was wanted in some case. It is obvious that Mustak Ali was not charged with the duty of maintenance of Public order at the time of occurrence. That being so, Mustak Ali is not entitled to have the protection of Section 197(2) Cr.P.C., and no sanction for his prosecution was required. (18). It is significant to point out that in sub-sec. It is obvious that Mustak Ali was not charged with the duty of maintenance of Public order at the time of occurrence. That being so, Mustak Ali is not entitled to have the protection of Section 197(2) Cr.P.C., and no sanction for his prosecution was required. (18). It is significant to point out that in sub-sec. (2) where in the provision is for the members of the Armed Forces of the Union, the words ``while acting or purporting to act in the discharge of his official duty have been used, whereas in sub-sec. (3) these words ``while acting or purporting to act in the discharge of offi- cial duty have been omitted. Instead the words used are` charged with maintenance of Public Order . The intention of the legislature is evident when instead of using words `` official duty the words ``maintenance of Public Order have been used in sub-sec (3). The words `charged with maintenance of Public Order do not have the same meaning as that of the words `while acting or purporting to act in the discharge of his official duty. One may be discharging his `official duty yet it is not necessary that he is charged with the maintenance of the `Public Order. (19). To conclude, on the basis of the notification dt. 31.7.74, it cannot be found that Mustak Ali, who had gone to apprehend an accused was charged with the duty of maintenance of Public Order. The learned Sessions Judge has obviously erred in holding that Mustak Ali could not be prosecuted without obtaining sanction for prosecution u/s. 197 Cr.P.C. (20). The second contention of Mr. Shah is also not without substance. At the stage of taking cognizance, the Magistrate is required to see only whether there is sufficient ground for proceeding. At that stage, the Magistrate is not required to see as to what will be the probable defence of the accused or whether the trial will end in conviction. The learned Sessions Judge has obviously fallen in error when he considered the material in the light of case instituted by Mustak Ali against Smt. Pavani. The learned Magistrate was perfectly justified in taking cognizance against Mustak Ali for the offence on the basis of evidence produced before him. The lear- ned Sessions Judge has thus gone beyond the scope of revisional jurisdiction when he passed the impugned order. The learned Magistrate was perfectly justified in taking cognizance against Mustak Ali for the offence on the basis of evidence produced before him. The lear- ned Sessions Judge has thus gone beyond the scope of revisional jurisdiction when he passed the impugned order. Consequently, the revision petition is allowed. The impugned order is set aside and the order of the learned Magistrate is restored.