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TMI Blog2001 (5) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 summoned. 2. The (SIC) despondence apposed (SIC) the (SIC) Magistrate and raised an objection to the maintainability of the complaint under Section 197(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Cr.P.C. which are only relevant for our purpose read as under :- 197. Prosecution of Judges and public servant. (1)XXX XXX XXX (2) No 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 Central Government. (3) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This is the general duty of every member of the Police force, styled as Police officer in the Bombay Police Act. 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 Vs. S.D.M. Monghyr 1971 CriLJ 1720 : 1971 CriLJ 1720 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-a-vis the safety of others. In our judgment the expression in the interest of public order in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se words lies between two extremes. While 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 1966 CriLJ 179 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. In 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. While 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Section 342 (wrongful confinement) of India 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. 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 being 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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