IMPORTANT POINT
Notification under Section 197(3) Cr.P.C. dated 2.6.1979 by Maharashtra Government applies to Members of Bombay Police Force as Police Officers do discharge duties relating to public order in wider sense though in narrow sense their duties relate to law and order. So if they are alleged to have done an act which may be an offence in discharge or purported discharge of the duty they will be entitled to the protection of prior sanction extended by Section 197(2) Cr.P.C. 1973.

Headnote:(i) Criminal Procedure Code, 1973-Section 197(2) and (3)-Notification under Section 197(3) by Maharashtra Government that provision of taking prior sanction under Section 197(2) will also apply to all police officers as defined in the Bombay Police Act, 1951 in the State of Maharashtra charged with the maintenance of public order-Meaning of public order-Taken narrowly by Rajasthan and Kerala High Courts excluding from it law and order-Taken widely by Gujarat and Bombay High Court including law and order-Which view is correct? (the later)-Case law discussed-Real test to be applied stated.
       Held : 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 member 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. (Para 9)
       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. 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. (Paras 12 and 13)
       The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer 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. (Para 15)
       (ii) Torture in custody of alleged accused-Complaint against police officers under Sections 220, 342 IPC and under Sections 147 and 148 of Bombay Police Act, 1951-Cognizance taken by Magistrate-Objection by police officers that complaint was not maintainable without proper sanction under Section 197(2) Cr.P.C.-Allowed-Upheld by High Court-Appeal against by special leave-Whether Courts below were right? (Yes)-Appeal dismissed-Deficiency in complaint of not alleging Section 323 IPC and its amendment becoming barred by limitation under Section 468 Cr.P.C. also pointed out (Cross Ref : Section 323 IPC and Section 468 of Cr.P.C.).
       Held : In the case at hand cognizance against the accused persons has not been taken under Section 323 of the IPC. 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 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 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 Cr.P.C. 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 Cr.P.C. For the foregoing reasons the appeal is dismissed. (Paras 16 and 17)

Judgement Key Points

Certainly. Based on the provided legal document, the key legal principle established is that the protection granted to public officers, specifically police officers, under Section 197(2) of the Criminal Procedure Code (Cr.P.C.) is dependent on whether the acts committed by them were done in the discharge or purported discharge of their official duties.

The document clarifies that the scope of "official duty" is broad and includes duties related to the maintenance of public order in its wider sense, beyond mere law and order. When a notification under Section 197(3) of the Cr.P.C. applies to members of a police force, such as those in the Bombay Police Force, the protection extends to acts performed while acting in their official capacity, even if the act is not directly related to maintaining public order but is connected to their role as police officers (!) (!) (!) (!) (!) (!) (!) .

Furthermore, the determination of whether an act was performed in the course of official duty involves assessing whether the act was connected to or in the course of executing their official functions, considering the nature of the act and the context in which it was performed. The protection is not limited solely to acts related to maintaining public order but also encompasses acts undertaken in the broader scope of their duties as police officers (!) (!) (!) (!) .

In addition, the document emphasizes that the protection under Section 197(2) is a safeguard against prosecution without prior sanction when acts are done in official capacity, but this protection does not extend if the act was done outside the scope of official duties or was in dereliction of duty, even if performed while acting as a police officer (!) (!) (!) .

Finally, the document underscores that the applicability of such protection must be determined by a careful reading of the specific notification and the circumstances of the act, rather than a narrow or broad interpretation of the phrase "maintenance of public order." The actual scope of protection depends on whether the acts in question were performed as part of official duties, considering the broader understanding of police responsibilities (!) (!) .

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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 IPC 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 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. That accused-respondents appeared before the learned Magistrate and raised an objection to the maintainability of the complaint under Section 197(2) of Cr.P.C. 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 Cr.P.C. 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-

NOTIFICATION

Home Department

Mantralaya, Bombay - 400 032

No. CR.P.O./78/9845/POL-3. In exercise of the power conferred by sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (II of 1974), the Government of Maharashtra hereby directs that the provisions of sub-section (2) of that Section shall apply to the following categories of the members of the force in the State charged with the maintenance of public order wherever they may be serving, namely:-

(1) All police officers as defined in the Bombay Police Act, 1951 (Bom. XXII of 1951), other than the Special or Additional Police Officers appointed under Section 21 or 22 of that Act;

(2) All Reserve Police Officers as defined in Bombay State Reserve Police Force Act, 1951 (Bom. XXXVIII of 1951).

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 ma

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2001 Supreme(SC) 902

Cases Referred (1)