Mohan vs State of U.P. and Others

V.P. Mathur, J.—This criminal revision is directed against the judgment and order passed on 26-6-1987 by Shri R.R. Jatav, Additional Sessions Judge, Lalitpur. The learned Judge was disposing of Criminal Revision No. 112 of 1986 which Was filed before him against the judgment and order dated 18-7-1986 passed by the Chief Judicial Magistrate, Lalitpur in Criminal Case No. 208 of 1984 (Mohan v. Ram Saran and Ors.).

The proceedings started on a criminal complaint filed on 3-5-1984 by the applicant against the opposite parties and four others. The Chief Judicial Magistrate of Lalitpur summoned them. These persons surrendered in Court and filed their bail bonds to obtain bail. Then an application was moved to the effect that there was a bar of Section 197 of the Code of Criminal Procedure, and the case could not proceed. At the time when the cognizance of this case was taken, the learned Chief Judicial Magistrate held of his own accord, vide, his order dated 3-5-1984 that there was no bar of Section 197 Code of Criminal Procedure to these proceedings. At that stage, however, the present opposite parties Nos. 2 and 3 were not parties to the matter. They had not yet been summoned. They were only summoned after the passing of the order dated 3-5-1984. Therefore, the learned Magistrate''s order dated 3-5-1984 Which was only passed on prima facie perusal of the record, could not amount to estoppel against the present opposite parties Nos. 2 and 3 and could raise the plea of bar of Section 197 of the Code of Criminal Procedure when they were summoned and when they appeared in Court and the proceedings started against them. They did raise that point. The learned Magistrate however, came to the conclusion that since he bad already disposed of the matter on 3-5-1984, it was not possible for him to reverse his finding and record another finding. A revision was filed being Criminal Revision No. 112 of 1986 and it was allowed by the learned Additional Sessions Judge of Lalitpur, who held that the case was barred by the provisions of Section 197 of the Code of Criminal Procedure.

I have heard the learned Counsel for the State. He has drawn my attention to some provisions of the Police Regulations. Police Regulation No. 406-A lays down that sub-inspectors of Civil Police are appointed by the Deputy Inspectors General from the list of candidates who qualify at the prescribed Cadets'' course at the Police Training College. The officiating appointment of Under-Officers may be made by the Superintendent of the Police. Regulation No. 407 lays down that in Civil and Armed Police, Head Constables are appointed by Superintendents of Police by promotion from amongst the constables of the District force. Regulation No. 409 says that enlistment of the constables of the armed and civil police is to be made by the Superintendent of Police Under these circumstances, it is very clear that appointments of Sub-Inspectors, Head Constables and Police constables are not made by the State Government or with its sanction. Naturally it follows that their removal from service will also be made by the Appointing Authority and not by the State Government or with its sanction. Section 7 of the Police Act, 1961 lays down that Inspectors General Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may dismiss, suspend or reduce in rank any police officer of the subordinate rank....''

In Section 1 there is a mention of the fact that references to the subordinate rank of the police force shall be construed, as reference to Members of that Force, below the rank of Deputy Superintendent of Police. Thus even so far a the question of removal from service or dismissal is concerned, the State Government does not come into picture so far as opposite parties No. 2 Ram Saran Singh, Sub-Inspector and No. 3 Deo Bahadur Singh, Constable are concerned. But there is a government notification No. 1841 (3)/VI-538-71 dated January 30, 1975 made by the U.P. Government and it is to the following effect:

In exercise of the powers conferred by Sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), the Governor i pleased to direct that the provisions of Sub-section (2) of the aforesaid section shall apply to all members of the following forces of the State, charged with the maintenance of public order wherever they may be serving, namely-

(i) U.P. Police Force;

(ii) U.P. Pradeshik Armed Constabulary.

By Order J.A. Kalyan Krishna Sachiv.

According to this notification, the provisions of Sub-section (2) of Section 197 Code of Criminal Procedure nave been made applicable to the Uttar Pradesh Police Force. This mean that the protection of Section 197 Code of Criminal Procedure shall be available to the Members of the Police Force irrespective of whether they are appointed by the Government or b; some other authorities. This being so, the learned Additional Sessions Judge'' order dated 26-6-1987 was perfectly justified and the case against Ram Sarai Singh, Sub-Inspector and Deo Bahadur, constable could not proceed without i sanction from the proper authority.

The revision has thus no force and is hereby dismissed.