TaxTMI 
TaxTMI 
2001 (5) TMI 981
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....re 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. The (SIC) despondence apposed (SIC) the (SIC) Magistrate and raised an objection to the main....
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.... 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 offices 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 cla....
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....ocedure, 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 Cr.P.C. 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 Cr.P.C. 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 wee not members belonging to any class or category of....
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....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) :- "...The Preamble of the Bombay Police Act itself sets out that the Act was enacted to consolidate and amend the law relating to the Regulation of the Police Force and the exercise of powers and performance of the functions by the State Government and by the members of the said force for the maintenance of public order (emphasis supplied by us). It is, therefore, too much to say that the members of the Police force are not persons charged with the maintenance of public order. Section 5 of the Bombay Police Act also mentions that the Po....
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....ned 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 Ors. vs. K.S. Kochar 1979 CriLJ 1367 this Court on a review of the case law available on the point held as under :- "The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of an official duty to commit....
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....hat he did it in the course of the performance of his duty". 15. 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. 16. 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 h....