RIZWAN AHMED JAVED SHAIKH AND ORS. versus JAMMAL PATEL AND ORS.

Citation: [2001] 3 S.C.R. 766 · Decided: 12-05-2001 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
RIZWAN AHMED JAVED SHAIKH AND ORS. 
v. 
JAMMAL PATEL AND ORS. 
MAY12,2001 
B 
[R.C. LAHOTI AND N. SANTOSH HEGDE, JJ.] 
Criminal Procedure Code, 1973-Section 197(2) and (3)-Cognizance 
with prior sanction-Applicabilizr of the provision on police officers under 
C Boinbay Police Act, 1951-By issue a.fa notification-Held, the alleged 
offence sh~u/d be in discharge of o.fficial duty and not be related to 
'maintenancel°f public order'. 
Penal Code, 1860/Bombay Police Act, 1951-Sections 220 and 342 
Sections 147(C) and (d)-Prosecution of police officers-Offence alleged 
D committed. in their official capacity-Held, the police officers entitled to 
benefit of protection under Section 197(2) Cr.P.C. 
Words and Phrases 
'Maintenance of public order '~Meaning of-Jn the context of Section 
E 
173(3) of Criminal Procedure Code, 1973. 
Appellants filed complaint against the respondent-police officers, 
\ 
complaining that respondent No. 1, a Sub-Inspector, kept the appellants in 
police lock-up and did not produce them before the Magistrate within 24 hours 
F of their arrest, and that lhey were mercilessly beaten while under detention. 
In magisterial inq':'iry, held under section 202 Criminal Procedure 
Code, 1973, the Magistrate took cognizance under sections 220 and 342 IPC 
('I 
•• 
and Sections 147 and 148 of Bombay Police Act, 1951. One of the 
complainants, when examined, merely stated that he was assaulted by one of 
G the police officers. The respondents/accused raised objection as to the 
maintainability of the complaint under section 197(2), Cr.P.C. relying on a 
notification whereby sanction under section 197 Cr.P.C. was necessary for 
all police officers defined in Bombay Police Act. Magistrate discharged the 
respondent~ on t.he ground that the complaint could not have been filed without 
H the requisite sanction. 
766 
RIZWAN AHMED .JAVED SllAIKll v . .JAMMAL PATEL 
767 
The Appellants' Petition under section 482 Cr.P.C. and writ petition filed A 
before High Court were dismissed. 
In appeal to this Court, the appellants contended that the benefit of 
notification was not available to respondents, since in order to claim protection 
under notification, it is necessary that the accused must be police officers as 
defined in Bombay Police Act and must be charged with the 'maintenance of B 
the public order' at the relevant time and not for 'maintenance of law and 
order', and that in the present case, si~e the police officers had arrested the 
appellants, kept them in confinement and assaulted them, they were acts 
referable at the most to the lluty of the police officers related to the 
'maintenance of law and order', but not the 'maintenance of public order'. c 
Dismissing the appeal, the Court 
HELD: 1.1. The real testto be applied to attract the applicability of 
Section 197(3) Cr.P.C. 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 D 
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. 1775-D-El 
E 
1.2. In the instant case, the notification issued under Section 197(3) 
Criminal Procedure Code, 1973, 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) Cr.P.C. applies.11nd if 
the act which is alleged to be an offence was done in discharg~ or purported F 
discharge of the duty of the accused persons, they will be entitled to the 
protection extended by sub-section (2) of Section 197, Cr.P.C. Such official 
duty need not necessarily be one related to the maintenance of public order. 
1774-A-B; 772-DI 
\ 
S.B. Saha and Ors. v. K.S. Kochar, AIR (1979) SC 1841; Jethmal v. G 
Khusal Singh, (1984) RLW 545 and K.K.S. Mohammed v. Sasi and 4 Ors., 
(1985) Kerala Law Journal 403, referred to. 
Bhikhaji Vaghaji v. l.K. Baral, (1981) GLR 956, approved. 
1.3. The act constituting an offence alleged to have been committed by H 
768 
SUPREME COURT REPORTS 
[200 I] 3 S.C. R. 
A the accused-r<;,spondents was certainly done by t

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