PRADEEP NANDRAJOG, J.

1. The factual backdrop leading to filing of the present petition is that the Home Guards organization was raised in India in the erstwhile State of Bombay in the year 1946 for the purpose of assisting the police in controlling civil disturbances and communal riots. With the passage of time the service of the Home Guards was utilized throughout India for purposes as diverse as maintenance of law and order and providing help in natural calamities like floods, fires, famines etc.

2. The Delhi Home Guards organization has been raised under the Bombay Home Guards Act, 1947 as extended to the Union Territory of Delhi in the year 1959. Before we proceed further, it would be relevant to note the following salient provisions of the Bombay Home Guards Act, 1947, as extended to the Union Territory of Delhi:-

“2. Constitution of Home Guards and appointment of Commandant General and Commandant –

(1) The Chief Commissioner of Delhi shall constitute for the Union Territory of Delhi a voluntary body called the Home Guards, the members of which shall discharge such functions and duties in relation to the protection of persons the security of property and the public safety as may be assigned to them in accordance with the provisions of this Act and the rules made there under.

Provided that the Chief Commissioner of Delhi may, by notification in the Official Gazette, divide the Union Territory of Delhi into two or more areas and constitute such a volunteer body for each area.

(2) The Chief Commissioner of Delhi may appoint a Commandant of each of the Home Guards constituted under sub-section (1).

(3) The Chief Commissioner of Delhi shall appoint a Commandant General of Home Guards in whom shall vest the general supervision and control of the Home Guards throughout the Union Territory of Delhi and until a Commandant is appointed under subsection (2), the Commandant General may also exercise the powers and perform the functions assigned to the Commandant by or under this Act.

3. Appointment of Members –

(1) Subject to the approval of the Commandant General, the Commandant may appoint as members of the Home Guards such number of persons, who are fit and willing to serve, as may from time to time be determined by the Chief Commissioner of Delhi, and may appoint any such member to any office of command in the Home Guards.

(2) Notwithstanding anything contained in sub-section (1) the Commandant General may, subject to the approval of Chief Commissioner of Delhi, appoint any such member to any post under his immediate control.

4. Functions and duties of members –

(1) The Commandant may at any time call out a member of the Home Guards for training or to discharge any of the functions or duties assigned to the Home Guards in accordance with the provisions of this Act and rules made there under.

(2) The Commandant General may in any emergency call out a member of the Home Guards for training or to discharge any of the said functions or duties in any part of the Union Territory of Delhi.

5. Powers, protection and control –

(1) A member of the Home Guards when called out under section 4 shall have the same powers and protection as an officer of police appointed under any Act for the time being in force.

(2) No prosecution shall be instituted against a member of the Home Guards in respect of any thing done or purporting to be done by him in discharge of his functions or duties as such member except with the previous sanction of the District Magistrate.

6. Control by officers of police force –

The members of the Home Guards when called out under section 4 in aid of the police force shall be under the control of the officers of the police force in such manner and to such extent as may be prescribed by rules made under section 8.

9. Members of Home Guards to be public servants –

Members of the Home Guards acting under this Act shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal