Rizwan Ahmed Javed Shaikh v. Jammal Patel, (SC) BS11621
SUPREME COURT OF INDIA

Before:- R.C. Lahoti and N. Santosh Hegde, JJ.

Criminal Appeal No. 823 of 1994. D/d. 12.5.2001

Rizwan Ahmed Javed Shaikh - Appellants

Versus

Jammal Patel - Respondents

For the Appellants :- Mr. N.S. Nargolkar, Senior Advocate with Mr. D.M. Nargolkar and Mr. Shakil Ahmed Syed, Advocates.

For the Respondents :- Mr. S.S. Shinde, Advocate.

NOTE

Section 197 Criminal Procedure Code- Arrest of person by police officer is legal but his detention beyond 24 hours is illegal. In such situation the sanction under section 197 Criminal Procedure Code is required as both the acts are covered by one transaction.

IMPORTANT

Sanction for prosecution - Public servant doing legal act as well as an illegal act in the course of same transaction - Sanction for prosecution is required - On facts, Police Officer arresting a person in an F.I.R. but illegally detaining him beyond 24 hours - Arrest was legal but detention was illegal - Both acts were done in same transaction - Sanction for prosecution is required.

A. Criminal Procedure Code, 1973, Section 197(2) - Sanction for prosecution - Public servant doing legal act as well as an illegal act in the course of same transaction - Sanction for prosecution is required - On facts, Police Officer arresting a person in an F.I.R. but illegally detaining him beyond 24 hours - Arrest was legal but detention was illegal - Both acts were done in same transaction - Sanction for prosecution is required.

[Para 16]

B. Criminal Procedure Code, 1973, Section 197(2) - Sanction for prosecution - Act done by Public servant in exercise of official duty - The public servant also committing an illegal act in same transaction - Sanction for prosecution will be required under Section 197(2) Criminal Procedure Code, 1973.

[Para 16]

Cases Referred :-

Bhikhaji Vaghaji v. L.K. Barot, 1981(22) GLR 956.

Jethmal v. Khusal Singh, 1984 RLW 545.

K.K.S. Muhammed v. Sasi and others, 1985 Kerala Law Journal 403.

Madhu Limaye v. S.D.M. Monghyr, AIR 1971 Supreme Court 2486.

S.B. Saha v. K.S. Kochar, AIR 1979 Supreme Court 1841.

Baijnath v. State of Madhya Pradesh, AIR 1966 Supreme Court 220.

Hori Ram v. Emperor, 1939 FCR 159.

H.H.B. Gill v. King, AIR 1948 Privy Council 128.

JUDGMENT

R.C. Lahoti, J. - One Faijuddin 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 Indian Penal Code 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 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 Indian Penal Code 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 Criminal Procedure Code, 1973 recorded the statement of complainant and one witness, took cognizance under Sections 220 and 342 Indian Penal Code and Sections 147 and 148 of Bombay Police Act and directed the accused to be summoned.

2. The accused-respondents appeared before the learned Magistrate and raised an objection to the maintainability of the complaint under Section 197(2) of Criminal Procedure Code relying on a notification which will be reproduced shortly hereinafter. The 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. The appellants preferred a petition under Section 482 of Criminal Procedure Code and Article 226 of the Constitution before the High Court of Bombay which was dismissed. The appellants have filed this appeal by special leave.

3. The relevant notification dated 2.6.1979 reads as under :-

4. It is 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.

5. Sub-sections (2) and (3) of Section 197 of the Criminal Procedure Code which are only relevant for our purpose read as under :-

6. The Division Bench of the Bombay High Court has placed reliance on a Division Bench decision of Gujarat High Court in Bhikhaji Vaghaji v. L.K. Barot, 1981(22) GLR 956. The learned Counsel for the appellants have on the other hand placed reliance on a decision of Rajasthan High Court in Jethmal v. Khusal Singh, 1984 RLW 545 and a decision of Calcutta High Court in K.K.S. Muhammed v. Sasi and others, 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 Criminal Procedure Code.

7. In Jethmal's case (supra) the State Government's 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 Criminal Procedure Code 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 Criminal Procedure Code 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.

8. In the 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, 1973 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.

9. We 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 members 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.

10. The accused-respondents are undisputedly members of Bombay Police Force governed by the Bombay Police Act, 1951. The 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 Vaghaji's case, the Division Bench of Gujarat High Court has observed (vide para 9) :-

We find ourselves in agreement with the abovesaid observations.

11. We may with advantage quote the following passage from Constitution Bench decision in Madhu Limaye v. S.D.M. Monghyr, AIR 1971 Supreme Court 2486 :-

12. The 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.

13. The 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.

14. The question of applicability of Section 197(2) of the Code is not free of difficulty. In S.B. Saha and others v. K.S. Kochar, AIR 1979 Supreme Court 1841 this Court on a review of the case law available on the point held as under :-

15. Speaking for the Constitution Bench of this Court, Chandrasekhar Aiyer J., restated the same principle, thus :-

16. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public office 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.

17. In the case of at hand cognizance against the accused persons has not been taken under Section 323 of the Indian Penal Code. 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 offices 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. The 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 Criminal Procedure Code 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 Criminal Procedure Code.

For the foregoing reasons the appeal is dismissed.

Appeal dismissed.