CHAKRADHARI SHARAN SINGH, J.

Invoking the provisions as contained in Sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.), the Government of Bihar, by a notification, dated 16.05.1980, published in the official gazette, has declared that the provisions of Sub-section (2) of the said Section shall apply to the “Officers and men” wherever they may be serving the State of Bihar of the Bihar Police Force, charged with maintenance of public order and who have been appointed by the Inspector General of Police, Bihar, or any other Officer specially authorized to appoint any such person of such force under the Police Act, 1961. The effect of the said notification is that no Court can take cognizance of an offence, alleged to have been committed by a member of Bihar Police Force; charged with maintenance of public order, while acting or purporting to act in discharge of his official duty except with the previous sanction of the State Government.

2. Relying on the said notification, the petitioner, who, admittedly, at the relevant point of time, was posted as Officer-in-Charge of Government Rail Police Station, at Muzaffarpur, has sought for quashing of an order, dated 01.04.1991, passed by the learned Chief Judicial Magistrate, Muzaffarpur, whereby the learned Chief Judicial Magistrate, Muzaffarpur has taken cognizance of the offences punishable under Sections 147, 323, 353, 342 and 379 of the Indian Penal Code, through present application made under Section 482 of the Code of Criminal Procedure.

3. When the matter was taken up by a learned single Judge of this Court, on 14.05.1991, in addition to the said notification, the petitioner relied on a Single Bench decision of this Court in the case of Ram Swarath Yadav and Anr. v. Dr. Rajeshwar Prasad Sinha and Ors., reported in 1990 BBCJ 765, and a Division Bench decision of Gujarat High Court in the case of Bhikhaji Vaghaji v. Barot and others reported in 1992 Crl.L.J. 2014.

4. Learned single Judge of this Court expressed his inability to accept the view taken by the learned single Judge of this Court in case of Ram Swarath Yadav (supra) and also expressed his disagreement with Division Bench decision of Gujarat High Court in the case of Bhikhaji Vaghaji (supra). Learned single Judge was of the view that the said notification, dated 16.05.1980, was wholly unwarranted, illegal and beyond jurisdiction as the word “force” occurring in Sub-section 3 of Section 197 of the Code of Criminal Procedure, should be construed to mean ‘Army’ when deployed in a State or States in the case of emergency including for maintenance of public order.

5. Learned single Judge, accordingly, referred the matter for consideration by a Division Bench in following terms :-

“Thus I understand that the provisions contained in sub-section (3) of section 197 of the Code lays down that the State Government may notify that the provision of sub-section (2) shall apply to such class or category of member of force, i.e., the Army charged with the maintenance of public order, as may be specified in the notification and thus in such a situation State Government will be the competent authority to accord sanction for prosecution of the class of Army as discussed above in place of Central Government as provided under sub-section (2) of section 197 of the Code. If sub-section (3) is interpreted in this way there will be no conflict with the provisions contained in sub-section (1) of section 197 of the Code, since the Army has been treated as a different class of public servants which are not covered by sub-section (1).

For the aforesaid reasons, I am of the view that the notification relied upon by the petitioner in the case of Sri Ram Swarath Yadav (Supra) as well as in this case, issued by the State Government is unwarranted, illegal and without jurisdiction but since there are decisions on this point, which are contrary to my view, and an important question of law, h