Bombay High Court
Rizwan Ahmed Javed Shaikh And Ors. vs Jammal Patel, S.I. And Ors. on 11 August, 1989
Equivalent citations: 1990(2)BOMCR297
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT S.P. Kurdukar, J.
1. This writ petition under Article 226 of the Constitution of India read with section 482 of the Criminal procedure Code has been directed against the order of discharge dated 8th January, 1987 (Exh. 'H') passed by the Additional Chief metropolitan Magistrate, 11th Court, Kurla, Bombay. The learned trial Magistrate discharged the accused 1st respondent (P.S.I.) on the ground that the petitioner (complainants) did not obtain sanction from the competent authority under section 197 of the Criminal Procedure Code, before filing the complaint.
2. The petitioners are original complainants-hereinafter referred to as 'petitioners'. The 1st respondent is the Sub-Inspector of Police attached the Chembur Police Station against whom the petitioners have filed Criminal Case No. 55/S of 1986 for offences punishable under sections 220 and 342 of the Indian Penal Code and under sections 147 and 148 of Bombay Police Act, 1951. Respondent Nos. 2 to 4 are the Police Officers attached to Chembur Police Station. Respondent No. 5 is Senior Police Inspector attached to Bhandup Police Station. Respondent No. 6 is the Commissioner of Police. Greater Bombay. Respondent No. 7 is the Home Department and Respondent No. 8 is the State of Maharashtra. The grievance of the petitioners in this criminal case is mainly against the 1st respondent.
3. In order of appreciate the rival contentions raised before us it would be necessary to set out some facts. C.R. No. 172/85 came to be lodged in the Court of Metropolitan Magistrate, 27th Court, Mulund by the State against the petitioners for offence punishable under sections 142, 144, 147, 148, 365, 368, 324 read with section 149 of the I.P. Code (See Exh. B. Colly). It is a State case lodged by the police station, Bhandup against the petitioners on the basis of the first information report lodged by one Faijuddin Jainuddin. This complaint was lodged by Faijuddin Jainuddin against the petitioners alleging that they and some other unknown persons (accused) gathered with dangerous weapons and assaulted the complainant and abducted him thereafter. The statement of said Faijuddin Jainuddin was recorded by the Police Officer pursuant to which criminal case come to be filed (See Exh. B. Colly). It is not necessary to set out the alleged statement of Faijuddin in detail but suffice it to mention that there appears to be some dispute over the wages. The said Faijuddin claims to be a worker in a factory owned and run by the 1st petitioner carrying on the business of manufacturing oil tin in the name and style of Shailesh Containers. The said factory is situated at Vishal Industrial Estate, Village Road, Bhandup (West) Bombay. The Investigating Officer also recorded the statement of one Mohammed Hanif Mohammed Yusuf Saiyed who also in his statement alleges that he was beaten by some unknown persons near his place of residence in Chembur Naka, Chembur at the instance of the 1st petitioner. The incident according to Faijuddin took place on 27th March, 1986 at about 12.30 hrs. The statements of both these victims were recorded on 28th March, 1986 by the Police Officer, Chembur Police Station. This complaint was lodged against the petitioners and one Amir Ali Kasam Ali Afgan and some 8 unknown persons. It appears that since the complainant had approached the Police Station at Chembur for the alleged assault on them, the said Police Station started investigation and in the course of investigation on 28th March, 1986 the 1st respondent, Sub-Inspector attached to Chembur Police Station along with other police men went to the residential premises of the first petitioner and apprehended all the petitioners between 8.00 and 9.00 p.m. on the same day. The 1st respondent took all these petitioners to the Police Station at Chembur for further investigation. Later on during the night intervening between 28th and 29th March, 1986, the petitioners were handed over to the Bhandup Police Station for further investigation. The petitioners were produced before the Metropolitan Magistrate on 30th March, 1986 at 10.00 a.m. with the remand application at the request of the petitioners, they were produced before the regular Court on 1st of April, 1986. The trial Magistrate released all the petitioners on bail.
4. The petitioners allege that they were apprehended without any cause and/or detained in the police custody without authority of law, by the 1st respondent. The petitioners therefore filed Criminal Case No. 55/S of 1986 in the Court of Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Bombay, against the 1st respondent for offences punishable under sections 220, 342 of Indian Penal Code read with sections 147(c)(d) and 148 of the Bombay police Act. It is this complaint in which an order of discharge came to be passed which is the subject matter of challenge in this petition. It is alleged in this complaint by the petitioners that on 28th March, 1986 at about 8.30 p.m. the 1st respondent who was in plain clothes along with 7 to 8 other police men in plain clothes entered forcibly at the residence of the 1st petitioner when he was watching Chhayageet on television. Out of these persons one person pointed out the 1st petitioner and thereafter the 1st respondent along with his other associates forced all the petitioners to accompany them. At that time they pushed Habibunnisa Shaikh Abdul Karim as a result of which she fell down. The 1st respondent thereafter took all the petitioners in a private Ambassador car to the police station. According to the petitioners the whole episode took place at the point of revolver which the 1st respondent was carrying. The petitioners were then taken to the Chembur Police Station and were kept in lock up. After about 45 minutes 1st petitioner's sister-in-law (Bhabi) along with one Ramaswamy, the neighbour and Faridali Kasamali, a relative arrived at the police station to know the reason to their arrest. It is alleged by the petitioners that they were not told as to why they were arrested. Later on at about 2.00 a.m. the police Officers told them that they have been arrested on a complaint lodged by one Mohammed Hanif under sections 143, 144, 147, 148, 368, 324, r.w. 149 of Indian Penal Code. It is alleged by the petitioners in this complaint that they were mercilessly beaten even in front of these relatives till 2.00 a.m. by using slaps. At about 3.00 a.m. they were taken in a police van and were brought to Bhandup Police Station and thereafter handed over to Sub-Inspector Shri Dhabade of Bhandup Police Station (2nd respondent).
On 30th March, 1986 they were produced before the Holiday Court at Bhoiwada but the learned Magistrate ordered to produce them on 31st March, 1986 before the regular Court. The grievance of the petitioner's is that they were produced before the Magistrate on 30th March, 1986 beyond 24 hours and this action is in contravention of mandatory provisions of section 57 of the Criminal Procedure Code. A grievance is also made in this complaint that there are some forgeries in the lock up register in as much as some inconsistent and contrary entries were made therein. Even the time of arrest is subsequently changed. The grievance of the petitioners is that they have been detained by the Police in the lock up firstly without any rhyme or reason and secondly they were detained for more than 24 hours. The 1st respondent has thus committed an offence punishable under section 220 and also liable to be punished under section 342 of I.P. Code read with sections 147 and 148 of the Bombay Police Act. They have also stated in this complaint that they have filed the complaint against the 1st respondent to the higher authorities including the Government of Maharashtra complaining against the illegal and high handed action on his part. On 16-7-1986 the Additional chief Metropolitan Magistrate recorded verification statement of the complainant. On the basis of the material produced before him the trial Magistrate ordered to issue process under sections 220, 342 of I.P. Code and sections 147 and 148 of the Bombay police Act.
5. On or about 10th October, 1986 the 1st respondent made an application (Exh. E. Colly.) claiming protection under section 197 of the Criminal Procedure Code. and prayed that since the petitioners have not obtained the sanction from the Competent Authority prior to the filling of the complaint (Case No. 55/S of 1986), the present complaint cannot be entertained and, therefore, he be discharged and the complaint be rejected.
6. On this application the learned Magistrate heard both the parties and vide his impugned order dated 8th January, 1987 discharged the 1st respondent. It is this order which is the subject matter of challenge in this criminal writ petition.
7. It is common ground that the petitioners did not obtain the prior sanction of the competent authority under section 197 of the Criminal Procedure Code before filing the complaint No. 55/S of 1986. It is also common ground that the 1st respondent was Sub-Inspector of Police attached to the Chembur Police Station at the relevant time and in the employment of the Government of Maharashtra. Mr. Ahooja learned advocate appearing in support of this application firstly urged that no prior sanction under sub-section (1) of section 197 of the Criminal Procedure Code, is required before filing the complaint, since the 1st respondent does not fall in the category of the Government servant who is removeable from his service by the State Government. He also urged that section 197(3) Criminal Procedure Code, has not application inasmuch as the notification dated 2-6-1979 issued by the Home Department, Government of Maharashtra, Bombay, does not come into operation since there is no material on the record to indicate that the 1st respondent although member of the police force in the State was charged with the duties of maintenance of public order . According to the learned Advocate this notification will apply only to such members of the police force of the State who were/are charged with the duties of maintenance of public order and in the absence of specific notification in that behalf it cannot be said that every member of the police force in the State is charged with the maintenance of public order. While elaborating this argument Counsel urged that the entire police force in the State of Maharashtra is governed by the provisions of the Bombay Police Act, 1951 and the said Act relates to maintenance of law and order and not maintenance of public order. Learned Counsel drew our attention to several provisions of the Bombay Police Act. We will deal with these arguments in detail little later.
8. At the outset it must be stated that the impugned order of discharge is based upon the notification dated 2nd June, 1979 issued by Home Department, Government of Maharashtra, Bombay. Reverting back to the first contention of Mr. Ahooja, it is necessary to set out section 197 of the Criminal Procedure Code :-
"197(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.---
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government, may by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted".
9. At this stage it would also be necessary to set out the Government Notification dated 2nd June, 1979 and it reads as under :
NOTIFICATON 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 (2 of 1974), the Government of Maharashtra hereby directs that the provisions of the 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)".
In the facts and circumstances of the present case sub-section (1) of section 197 Criminal Procedure Code, will have no application.
10. The question that needs to be considered in this petition is whether notification dated 2nd June, 1979 issued by the Home Department, Government of Maharashtra applies to the police force as defined under Bombay Police Act and whether the complaint lodged by the petitioners could be entertained without obtaining the previous sanction of the State Government under sub-section (2) of section 197 of the Criminal Procedure Code As indicated above the 1st respondent at the relevant time was the Sub-Inspector attached to the Chembur Police Station and on the basis of the complaint lodged by Faizuddin against the petitioners of assault, abduction etc., went to the house of the 1st petitioner during the course of investigation and apprehended the petitioners and brought them to the Chembur Police Station. From the statements of Faijuddin and Mohammad Hanif it appears that both of them reside at Chembur Naka, Chembur, Bombay-400 071 and it was not disputed before us that the place of their residence falls within the jurisdiction of Chembur Police Station to which the 1st respondent at the relevant time was attached as Sub-Inspector of Police. It also cannot be disputed that the 1st respondent during the course of investigation of the complaint lodged by Faijuddin, out of an incident dated 27th March, 1986, apprehended the petitioners and brought them to the Chembur Police Station on the night of 28th March, 1986 at about 9.00 p.m. The offences alleged in the complaint of Faijuddin were punishable under sections 143, 144, 145, 148, 365, 368, 324 read with section 149 of C.P. Code. The 1st respondent, therefore, in our opinion upon taking cognizance of the said complaint, in discharge of his duties as Sub-Inspector apprehended the petitioners and brought them to the Police Station at Chembur and put them into lock up on 28-3-1986.
11. Mr. Ahooja urged that the said notification can be resorted to and or give protection to such members of the police force in the State who are charged with the maintenance of public order. The offences alleged to have been committed by the petitioners on the basis of Faijuddin's complaint may at the most fall under law and order and certainly do not fell within the ambit of maintenance of public order. Secondly, in the absence of any further notification on the part of the State Government notifying the members of police force who are charged with the maintenance of public order merely because one happens to be a member of the police force in the State cannot be said to be charged with the maintenance of public order and consequently cannot take the shelter of the said notification. According to Mr. Ahooja duties of the members of the police force in the State are governed by the provisions of Bombay Police Act and the said Act deals with only law and order and not maintenance of public order. In the absence of further notification by the State Government assigning duties of maintenance of public order, learned advocate urged that it cannot be said that the 1st respondent was charged at the relevant time being the member of the police force in the State with the maintenance of public order and, therefore, the said notification has no application. If the said notification does not apply then provisions of section 197(2) of Criminal P.C., will not apply and the 1st respondent cannot be discharged on the ground that no previous sanction was obtained from the State Government before filing the complaint.
12. As against this the learned Advocate General appearing for the respondents urged that this notification does apply to the members of the police force in the State since they are charged with the maintenance of public order and having regard to the definition of Police Officer contained in section 2(11) of the Bombay Police Act, every member of the Police Force is a Police Officer and every such member is entitled for protection of the said notification. Learned Advocate General further contended that Police Officer defined under section 2(11) of the Bombay Police Act throughout the State is charged with the maintenance of public order and, therefore, there is no question of issuing any further notification notifying a particular member and/or members of the Police Force in the State having been charged with the maintenance of public order. Learned Advocate General therefore contended that the order of discharge based on the notification dated 2nd June, 1979 is perfectly legal and valid and needs no interference.
13. Mr. Advocate General drew our attention to the reported judgment of Gujarat High Court in Bhikhaji Vaghaji v. L.K. Barot and others, 1982 Cri.L.J. 2014. An identical issue based on interpretation of notification dated 2nd June, 1979 fell for consideration before the Division Bench. The Bench consisted of B.J. Divan, C.J. and N.H. Bhatt, J., and the judgment has been rendered by Bhatt, J. While considering the ambit of section 197(2) read with the notification dated 2-6-1979, the Gujarat High Court held that every member of the Police Force in the State is covered by the notification and every such member is charged with the maintenance of public order. Identical contentions as raised before us were raised before the Gujarat High Court and the High Court observed as follows:---
"8. The phrase 'charged with the maintenance of public order' occurring in the Government's notification dated 15-3-1974 and also occurring in sub-section (3) of section 197 is obviously an adjectival phrase and it cannot be interpreted to mean a phrase suggesting the time when such members of the police force are to avail of the exemption or protection contemplated by sub-section (2) of section 197 of the Code. This phrase, in our view, clothes the Government with the authority to apply the provisions of section 197(2) in respect of such class or category of police forces, which under law, are charged with the maintenance of public order, though they may be additionally charged with the maintenance of law and order also. Mr. Barot's emphasis that these words are words of exclusive application is difficult to be accepted by the known canons of interpretation of such adjectival phrases. They are the general qualifications of the members of the police force and if it could be shown that the members of the police force are charged with the duty to maintain public order with or without the additional duties of looking after situation of law and order, they will be within the purview or compass of section 197(3 of the Act. The State Government by the notification issued under sub-section (3) of section 197 of the Code, directed that the provisions of sub-section (2) shall apply to the Police officers, that is, all members of the police force (as envisaged by the provisions of the Bombay Police Act, 1951), and the State Government invoked the provisions under sub-section (3) in their respect because they are persons charged with the maintenance of public order.
"9. Mr. Barot in this connection urged that the various powers and duties of Police Officers, as enumerated in the Bombay Police Act are to be found in Chapter VI, containing section 64 to section 98, and in his submission, there was no section which specifically clothed Police Officers with the power to maintain public order. The various powers mentioned in Chapter VI are enumerative and not exhaustive. 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 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 police force shall have such powers, functions and duties as the State Government may by general or special order determine. The above quoted Government notification, apart from other general trends can be said to be the Government's direction or declaration that members of the Police Force, styled as "police officers" as defined by section 2(11) of the Bombay Police Act, are persons "charged with the maintenance of public order". It is a truism to state that it is the duty of every member of the police force to see that public order is maintained. This is the general duty of every member of the police force, styled as "Police Officer" in the Bombay Police Act."
14. We are in agreement with the view taken by the Division Bench of the Gujarat High Court and, in our opinion, the Government Notification dated 2-6-1979 will come into operation and consequently the provisions of section 197(2) will be attracted and, therefore, in the absence of previous sanction of the State Government the complaint filed by the petitioners will not be maintainable. The order of discharge therefore is valid and legal and needs no interference.
15. It was then contended by Mr. Ahooja that the 1st respondent acted contrary to the mandatory provisions of section 57 of the Criminal P.C., inasmuch as he detained the petitioners for more than 24 hours. The act of the 1st respondent therefore cannot be said to be in discharge of his duties or in the colour of discharge of his duties and if the said action of the 1st respondent is not protected by either of the two eventualities such action would fall outside the mischief of section 197(2) of the Criminal P.C. This submission again does not appeal to us because initially, the act of the 1st respondent apprehending the petitioners and taking them to the Chembur Police Station and putting them into lock up cannot be said not in discharge of his duties particularly in view of the offences disclosed in the complaint lodged by Faijuddin. Learned Advocate General urged that if the initial act of the 1st respondent was in discharge of his duties then it cannot be said, assuming that there is some irregularity, the said irregularity would not render his initial action illegal and/or not in discharge of his duties. In support of his submission Mr. Advocate General drew our attention to the various judgments of this Court and in particular the judgment of the learned Single Judge in Anil J. Solanke v. The State of Maharashtra, . The learned Single Judge discussed the issue in great details and also relied upon the judgments of this Court as well as Federal Court and the Supreme Court. In that case the Police Officer was authorised to grant the bail in a bailable offence but did not grant the bail despite the bail application made by the accused (complainant) and detained the accused for more than 10 hours and came to be released only after receiving the order of bail from the superior Police Officer. The learned Single Judge in paragraph 12 has observed as follows : pp. 785-86 "The facts and the observations of both the citations above squarely apply to the present case. According to the complainant, inspite of the fact that he was arrested for a bailable offence and he was ready to tender bail for his release, the accused petitioner had refused to release him on bail for a period of 10 hours. In my opinion, the Investigating Officer, such as the petitioner, has a right to detain a person for interrogation and investigation, but his right is limited only to detain for a period of 24 hours and not more. It is also seen from the complaint case that in fact he was released on bail by the applicant himself in the same morning after a few hours upon instructions from higher authorities. It was argued on behalf of the respondent complainant that the substance of the complaint case should be taken into account and it is possible for the complainant after adducing some evidence before charge that what the applicant accused did was totally outside the purview of his official duties as Police Inspector. The said argument is not convincing for the simple reason that merely on the basis of certain vague allegations in complaint paragraphs 1 to 7, it cannot be said that the accused petitioner intentionally recorded a false report, registered a false offence and caused to arrest the complainant and intentionally refused him bail. The fact remains that in ordinary course of business, an offence came to be registered against the complainant for which the petitioner directed his subordinates to detain the respondent No. 2 and then released him on bail after some hours. The said act cannot be termed as otherwise than....in discharge of his official duties. At any rate, those acts are in the purported discharge of his official duties and the petitioner would be entitled to protection under section 197, Criminal procedure Code. The act complained of has a direct nexus with the discharge of official duties by the petitioner. As held in D. Subba Rao v. M.V.V. Reddi, 1975 Cri.L.J. 1124, the offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duties. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty. What the Court must find out is whether the act and the official duty are go inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.'
16. In our opinion the Act of the 1st respondent cannot be said to be not in discharge of his official duties as Sub-Inspector of Police, Chembur Police Station and, therefore, he is entitled to get the protection of section 197(2) of the Criminal Procedure Code.
17. Mr. Ahooja learned advocate urged that this notification has been explained by further notification by Secretary to the Government of Maharashtra (Exh. DD) and in view of the said notification the 1st respondent is not entitled to protection. The said notification reads as under:---
"NOTIFICATION.
Home Department, Mantralaya, Bombay - 400 032 Dated 7-11-1984 No. DLP/0984/C 354 + POL-3.---In exercise of the powers conferred by Clause (b) of sub-section (2) of section 6 of the B.P. Act, 1951 (Bom XXII of 1951) and of all other powers enabling it in this behalf the Government of Maharashtra hereby directs that all the powers, functions duties and responsibilities and authority of the Inspector General of Police under the said Act and the rules and order made there under (except the power under section 23 to make rules and the powers under Clause (a) of sub-section (2) of section 25 of that Act to inflict a major punishment of any Inspector or other police officers who is appointed by the Inspector General of Police) may also be exercised, performed or discharged as the case may be by the Addl. Inspector General of Police in the office of the Director of Police."
In our opinion this notification does not advance the case of the petitioners to contend that the protection granted under the notification dated 2-6-1979 is taken away. In this view of the matter we are of the opinion that the order of discharge cannot be said to be illegal.
18. Mr. Ahooja then urged that the allegations in the complaint of Faizuddin do not fall within the ambit of maintenance of public order. He urged that the allegations disclosed in the complaint of Faijuddin at the most may be referrable to the law and order and, therefore, the 1st respondent cannot take the advantage of his own wrong by taking recourse to the said notification. In order to emphasise the meaning of the phrase "maintenance of public order". Shri Ahooja drew our attention to various judgments of the Supreme Court as well as of this Court but it must be stated that all these judgments are under the detention law. We may only mention these judgments without any further discussion since we are of the opinion that the concept of maintenance of public order in the detention law cannot be imported in the Bombay Police Act. Assuming that Mr. Ahooja is right in his submission, the preamble of the Bombay Police Act does not support his submission. The preamble of the Bombay Police Act reads as under:
"Whereas it is expedient to amalgamate the District and Greater Bombay Police forces and the Police Forces of the Saurashtra, Kutch and Hyderabad areas, and of the Vidarbha region, of the State of Bombay into one common Police Force and to introduce uniform methods regarding the working control of the said force throughout the State; And whereas it is necessary to consolidate and amend the law relating to the regulation of the said Force and the exercise of power and performances of functions by the State Government and by the members of the said Force for the maintenance of public order;
And whereas it is necessary to provide for certain other purposes hereinafter appearing. It is hereby enacted as follows---"
19. Mr. Ahooja strongly relied upon the recent judgment of the Supreme Court in Angoori Devi v. Union of India, . In particular he drew our attention to paragraphs 12 and 13 of the said judgment to impress upon us that there is distinction between law and order and public order and the Bombay Police Act is enacted to regulate law and order and not maintenance of public order. He drew our attention to the judgments of the Supreme Court in Ram Manohar Lohia v. State of Bihar, ; and Arun Ghosh v. State of West Bengal, . The learned advocate also drew our attention to the definition of Public Order given in Law of Lexicon, Dictionary Legal Maxim Vol. 12, 1960. There can hardly be any dispute about the law laid down by the Supreme Court in these judgments. All these judgments are under the detention law and the concept of maintenance of public order is slightly different under the Bombay Police Act.
20. Mr. Advocate General drew our attention to Chapter V of the Bombay Police Act. The heading of this Chapter is, "Special measures for maintenance of public order and safety of State." He drew our attention to sections 48, 49, 50, 51 and 55 and urged that phrase maintenance of public order in the Bombay Police Act issued in a slightly different context and not in the context of detention law. In support of his contention Mr. Advocate General relied upon the judgment of the Constitution Bench of the Supreme Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and others, . He pointed out the relevant discussion on this topic from judgment of this Court. The phrase maintenance of public order in the context of preventive detention cannot have the same meaning in any other enactment or ordinary law. In this behalf he drew our attention to paragraphs 20, 21 and 24. Para 20 reads as under :---
"In dealing with the phrase 'maintenance of public order' in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the larger circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to affect."
21. In view of the above discussion, in our opinion, the acts complained of in the present complaint filed by the petitioners were committed by the 1st respondent in discharge of this duties and if that be so no prosecution can be launched against him without obtaining previous sanction of the State Government/competent authority. The order of discharge is therefore legal and valid.
22. After the arguments were closed the learned advocate Shri Ahooja urged that the complainant has alleged in the complaint that the 1st respondent has beaten them and therefore this act of the 1st respondent cannot have the protection of section 197(2) and at any rate in that connection the matter should be remitted back to the trial court for further trial. In this behalf Counsel drew our attention to sections 161 and 163 of the Criminal P.C. Mr. Ahooja urged that the complaint as a whole should be read and if it is read there is sufficient material on the record to hold prima facie that the 1st respondent has committed an act which is prohibited under sections 161 and 163 of the Criminal P.C., and to that extent the matter be remanded back to the trial magistrate for trial.
23. Mr. Advocate General drew our attention to the order dated 17-7-1986 passed by the Magistrate which reads as under:---
"Perused the complaint, the statement of the complainant and his witness Habibunnisa. Hear Mr. Ahooja advocate for the complainant. Issue process under sections 226, 242 I.P.C. and sections 147, A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','10590','1');">148 of Bombay Police Act."
Learned Advocate General also urged that the private complaint which has been drafted by Mr. Ahooja himself does not allege that the 1st respondent has committed offence punishable under section 323 (beating) of the I.P.Code. Since the Magistrate has issued the process under sections 220, 342 of I.P. Code and under sections 147 and 148 of Bombay Police Act, as far back as on 17-6-1986 and which order having not been challenged this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India cannot take cognizance of alleged offence punishable under section 323 of I.P. Code and issue the process in that behalf. Learned Advocate General also drew our attention to section 468(2)(b) of the Criminal Procedure Code and urged that after lapse of period of nearly 3 years, it may not be permissible to take cognizance of the alleged offence under section 323 of I.P. Code at this stage. The very opening words of section 468 prohibits the Court from taking cognizance of an offence after the expiry of period of limitation. Under section 468(2)(b) the cognizance could be taken within one year for alleged offence punishable under section 323 of I.P. Code. He, therefore, urged that the application made on behalf of the petitioners be rejected. We are in agreement with the submission of the learned Advocate General and we accordingly reject the prayer of the petitioners either to allow them to amend the writ petition prayer and/or to take cognizance at this stage for offence punishable under section 323 of I.P. Code against the 1st respondent and remit the matter back to the trial Court. Application accordingly stands rejected.
24. In the result, then writ petition fails and the rule is discharged. There shall be no order as to costs.
25. Shri Mukesh Ahooja, Advocate for the petitioners applies for leave to appeal to the Supreme Court. Leave refused.