1. C.C.184 of 1981 is a private complaint filed by the petitioner against three police constables and one head constable attached to the Parur Police Station for offences punishable under S.323 and 427 read with Sec.34 of the Indian Penal Code, before the Judicial Magistrate of the I Class, Parur. On 26-2-1981, the employees of K.M.K. Hospital at North Parur, owned by Dr.Sreenivasan, were offering satyagraha near the Hospital in order to get some of their demands achieved. Petitioner was watching the same. It is his case that at about 6 p.m. the accused came in a jeep, manhandled him, destroyed the satyagraha shed, took him along with some of the satyagrahies to the Police Station by dragging them to the jeep and again manhandled him, at the Police Station. When the accused appeared pursuant to summons, they challenged maintainability of the complaint for want of sanction of Government under S.197 of the Code of Criminal Procedure. The Chief Judicial Magistrate, by order dated 24-4-1981 accepted the objection, dropped the proceedings and released all the accused. The revision is by the complainant against that order.

2. The Chief Judicial Magistrate, by the impugned order, found that the offences alleged against the accused were committed while they were acting or purporting to act in the discharge of their official duties. Notification SRO No. 61165/A2/77/Home(A) Department Trivandrum, dated 6-11-1977 issued by the Kerala Government was relied on by the Magistrate to find that the accused are members of the Kerala State Police Force charged with maintenance of public order and hence by the notification they are also entitled to protection under S.197(2) of the Criminal Procedure Code. These findings are very seriously under challenge.

3. S.197 of the Criminal Procedure Code reads: "197. Prosecution of judges and public servants

(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 for purporting to act in the discharge of his official duty, no Court j 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 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 substained.

(4) The Central Government or the State Government, as the may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

4.S.197 (1) and (2) are independent of each other. In order to invoke the provisions of S.197(1), it is necessary that two ingredients must coexist. In the first place, the person must be a public servant not removable from office save by or with the sanction of the Government. Second condition is that the act must have been committed by such a person acting or purporting to act in the discharge of his official duty. The prohibition against taking cognizance without sanction will operate only if these two conditions are there. The second condition is common to both S.197 (1) and (2). In this case the accused persons are only police constables and one head constable. They are not "public servants removable from office save by or with the sanction of the Government" as held in the decision in George v. S. I. of Police (1983 KLT 349) and sanction under S.197 (2) is not required to prosecute them even if the acts were done while acting or purporting to act in the discharge of their official duties.

5. But in this case the claim for protection is only under S.197 (2) read with S.197 (3) and the notification issued thereunder and not under S.197 (1) presumably because the accused are conscious of the fact that they are not public servants not removable from office save by or with the sanction of the Government and as such not entitled to protection under S.197 (1). Protection under S.197 (1) is available to any public servant without any restriction or discrimination based on the office held or duty discharged provided he is not removable from office save by or with the sanction of the Government and the act complained of was committed while acting or purporting to act in the discharge of official duty. But in order to claim protection under S.197 (2) the offender need not necessarily be one not removable from office save by or with the sanction of the Government. Those coming under that category and outside the same are entitled to the protection provided they are members of the Armed Force of the Union and the commission of the act was while acting or purporting to act in the discharge of the official duty. For the protection under S.197 (1) one need not be a member of the Armed Force. The delegation of powers to the State Governments is not restricted in its application to the Armed Forces alone. The State Governments are authorised to confer that protection to any class or category of forces wherever they are serving. But there is the restriction that the member or members of such forces must be charged with maintenance of public order. Such a restriction is not there for the Armed Forces of the Union under S.197 (2).

6. The notification relied on by the Magistrate was issued under the authority obtained by the provisions of S.197(3). S.197(3) authorises the State Government to issue notification extending the protection under S 197 (2) to certain class or category of officers. The officers mentioned therein are only such class or category of members of the forces charged with maintenance of public order as may be specified therein. The power of the State Government to issue a notification under S.197(3) is only to extend the benefits of S.197(2) to the class or category of officers charged with the "maintenance of public order". What is specified in the notification is only that the provisions of S.197(2) shall apply to all members of the Kerala State Police Force "charged with the maintenance of public order". The notification issued by the Government reads as follows:

" GOVERNMENT OF KERALA No. 61155/A2/Home

Home (A) Department, Trivandrum, 6-12-1977

NOTIFICATION

SRO. In exercise of the powers conferred by sub-section (3) of S.197 of the Code of Criminal Procedure 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of sub-section (2) of the said section shall apply to all members of the Kerala State Police Force, charged with maintenance of Public Order.

(By Order of the Governor) S. NARAYANASWAMY Special Secretary.

EXPLANATORY NOTE

S. 197 of the Criminal Procedure Code affords protection from false, vexations or malafide prosecutions to some categories of public servants in the shape of requirement of previous sanction of the Government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in the discharge of their official duties. The members of the Armed Forces of the Union are also protected. Government consider that members of the Kerala Police Force who are charged with the maintenance of public order are also in need of similar protection. The notification is issued to achieve this objective."

7. It is clear from the explanatory note that the State Government considered that the members of the Kerala Police Force "who are charged with the maintenance of public order" are also in need of similar protection. It is clear that the State Government was not entitled to extend the protection to all the members of the Kerala Police Force without any discrimination. In fact it was not so extended to all. The Magistrate went under the wrong assumption that all the members of the Kerala Police Force are persons charged with maintenance of public order. Otherwise he must have confused "public order" and "law and order". S.197(3) has to be read with S.197(2). The power delegated is to extend the benefits under S.197(2). alone. The delegation is with a restriction in its application. The restriction is that the State Government can extend the protection only to a particular class or category of officers charged with maintenance of public order. That means the authority under the delegated power cannot be extended to any category of officers other than those specified therein. In fact the notification issued by the State Government was only within that restriction.

8. Maintenance of public order is different from maintenance of law and order. Chapter X of the Code of Criminal Procedure deals with "maintenance of public order and tranquillity". Chapter XII deals with matters relating to maintenance of law and order. "Public Order" is an expression having wide connotation. It differs from law and order in relation to the reach of an act upon society. Similar acts may have different reactions if committed in different circumstances and contexts. If the act affects only specified individuals, the problem created may only be law and order. But if it affects the tempo of the community life, it is prejudicial to maintenance of public order. Criminal acts affecting individuals alone will come only under law and order. Those who are responsible for national security or public order may have to be the sole judges to decide in any particular instance what national security and public order requires. That may be the reason why protection was intended to be given to them against vexatious prosecutions in preference to others.

9. The difference between "public order" and "law and order" came up for consideration in Rev. Stainislaus v. State of M.P. (AIR 1977 SC 908 [LQ/SC/1977/27] ). The Supreme Court held therein that "the expression "public order" is of wide connotation. It must have the connotation which itself meant to provide as the first Entry in List II. It has been held by the Supreme Court in Ramesh Thappar v. The State of Madras (1950 S.C.R. 594)- (AIR 1950 SC 124 [LQ/SC/1950/24] ) that "public order" is an expression of wide connotation and signifies a state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established."

10. That question has also come up for consideration before the Supreme Court in Babul Mitra v. State of West Bengal (AIR 1973 SC. 197 [LQ/SC/1972/460] ). It was observed therein:

"The true distinction between "law and order" and "public order" is one of degree and extent of the reach of the act in question upon society. The act by itself is not determinant of its own gravity. In the quality it may not differ but in its potentiality it may be very different."

The distinction was elaborately considered by the Supreme Court in Ashok Kumar v. Delhi Administration (AIR 1982 SC 1143 [LQ/SC/1982/98] ). Those distinctions were given as follows:

"The true distinction between the areas of "public order" and "law and order"lies not in the nature or quality of the act, but in the degrees and extent of its reach upon society. The distinction between the two concepts of "law and order" and "public order" is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of pubic order."

"What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act or violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control."

11. Such a preferential treatment in the case of persons charged with maintenance of public order is clear from S.132 of the Cr. P.C. also. The accused persons in this case are only police officers attached to a local police station. There is nothing to show that they were charged with maintenance of public order. The notification was evidently not intended to give a blanket protection to all police personnel. If that be the case, the accused are not entitled to the protection under S.197 (2) of the Cr. P. C. They are only members of the Kerala Police Force charged with maintenance of law and order. Sanction required as per the notification read with S.197 (2) and (3) of the Cr. P. C. is not applicable in their case.

12. Then the question is though it does not strictly arise, only whether the acts were done by them while acting or purporting to act in the discharge of their official duties. I said that the question does not strictly arise because when once it is seen that the accused are not members belonging to any class or category of forces charged with maintenance of public order, the State Government cannot extend the protection to them by a notification issued under S.197(3) and even if they were acting or purporting to act in the discharge of their official duties, they cannot get the protection. But for the sake of completeness I am considering that aspect also.

13. In the first place even in the matter of deciding this question the learned Magistrate committed an irregularity. He has collected materials from the papers in Crime No.38/81 of the North Parur Police Station in order to come to the conclusion that the accused were acting or purporting to act in the discharge of their official duties. Those are not documents produced or proved in the case. At the time when the learned Magistrate passed the order it was only the initial stages of the case. No evidence was let in. Allegations in the complaint alone could have been considered at that stage for deciding the question whether the accused were acting or purporting to act in the discharge of their official duties. If at a later stage, from the evidence, the Magistrate was satisfied that the accused were acting or purporting to act in the discharge of their official duties, the case could have been disposed of at that stage on that

ground. The Magistrate did not wait for that purpose and he collected extraneous matters to influence his decision on this point.

14. The allegation is that they manhandled the petitioner and committed mischief by destroying the shed. These acts, if true, cannot be taken as something done while acting or purporting to act in the discharge of their official duties. If an act is one purporting to be done in the discharge of their official duties, it must have some nexus with the discharge of the official duty. Manhandling and mischief by destroying a shed cannot be taken as acts done while acting or purporting to act in the discharge of official duties, unless it is proved that these acts were necessary for the discharge of the official duties. It is true that the protection is intended as a safeguard against vexatious complaints regarding the acts done in the discharge of official duties. But acts having no relationship at all with the discharge of official duties cannot be brought under the purview of the protection. There must be some reasonable connection with the acts and the official duty.

15. This question came up for consideration in Raghavan v. Bhaskaran Nair (1970 KLT 42). E. K. Moidu, J. observed as follows:

"It is clear that though S.197 Cr. P. C. is meant to protect the public servants on vexatious complaints with regard to acts committed by them in the discharge of their official duties it cannot be extended to afford immunity to them in respect of the acts which had no relationship whatsoever in the discharge of their official duties. In order therefore to protect the ban imposed by the section, a reasonable nexus between the acts complained of and the official duty must be shown. The provision would also apply to acts which constitute offences punishable under S.323 and 506 (2) IPC provided that those acts were done by the public servant while acting or purporting to act in the discharge of their official duties and were reasonably necessary for the execution of the official duty. The question of necessity of sanction to a case has to be decided when materials are available on record to determine that question whatever the stage of the case may be. Whether a particular act could be said to be done in the exercise of such duty is essentially and substantially a question to be determined on the facts and circumstances of each case".

"A public servant cannot be said to act or to purport to act in the discharge of bis official duty, if his act is such as to be within the scope of his official duty. The test to apply is whether acts with which the public servant is charged strictly bear on the duties which he has got to discharge as a public servant. In order that an act of a public servant may fall within the ambit of his official duty, it must be shown that it was committed in the discharge of his official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of his duty as this question will arise only at a latter stage when the trial proceeds on the merits. The first accused had no case in reply to the charge that his act if any was committed in self defence of his person. It was possible for the courts below to consider the case on merits against the first accused as it is to be held that, prima facie, it is seen that the 1st accused when the act complained of was not doing any work in relation to his official duty as a Police Officer. Facts may come in the course of the prosecution evidence as the trial or otherwise may establish the necessity for sanction. In that event the court shall dismiss the complaint on the ground that accused should not be prosecuted without the sanction under S.197. It follows that the 1st accused, Inspector of Police, did not act in the discharge of his official duty when the torture complained of against him was committed and that is absolutely necessary for the trial Magistrate to proceed with the complaints against him".

16. The same question was also considered in Prabhakar v. Shanker (AIR 1969 SC 686 [LQ/SC/1968/379] ). The finding therein was:

"It does not matter if the acts were strictly necessary for the discharge of the duty. What has to be found out is whether the act and the official duty were so interrelated that one could 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. It is not every offence committed by a public servant which required sanction for prosecution under S.197 (1) nor even every act done by him while he was actually engaged in the performance of his official duties. But if the act complained of was directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be required so, irrespective of whether it was in fact, a proper discharge of his duties or not."

17. In this case the court was having only the allegations in the complaint for the purpose of deciding whether the act had any relation to the discharge of the official duty. I have found that in considering the papers in another case what the Magistrate has done was an irregularity. The Magistrate ought to have considered only the allegations in the complaint which alone were available for him at that stage for consideration whether the accused were entitled to the protection claimed. From those allegations, it was impossible to come to a finding that the acts had at least indirect connection with the discharge of their official duties.

18. The self-same question came up for consideration before the Supreme Court in Shambu v. T. S. Krishnaswamy 1983(1) SLR 701). That was a case in which a transfer application was moved by an Advocate before the District Judge.. The District Judge called for the remarks of the Munsiff regarding certain allegations. The Munsiff submitted his remarks in the shape of a letter in which he called the advocate as a rowdy, a big gambler and a mischievous element. It was held that calling such names cannot even remotely be said to be connected with the discharge of official duty and hence sanction under S.197 Cr. P.C., for prosecution of an offence of defamation under S.499, IPC was not necessary.

19. In this case the only question that was considered by the Magistrate was whether sanction under S.197(2) of the Cr. P. C. was required or not. For that purpose the Magistrate has also decided, and it was necessary also, that the accused were acting or purporting to act in the discharge of their official duties. My finding is that with the available evidence, it cannot be found that they were acting or purporting to act in the discharge of their official duties. I have found that the protection under S.197(2) is not applicable in this case. So also, I have found that the case will not come even under S.197(1) of the Cr. P. C. My further finding is that the accused are not persons coming within the category mentioned in S.197(2) as well as those coming under the notification issued on the basis of the authorisation under S.197(3) of the Cr. P. C. If so, the order of the Magistrate cannot stand.

In the result, the Crl. R.P.is allowed and the impugned order dated 24-4-1981, dropping the proceedings and releasing the accused, is hereby set aside. The learned Magistrate is directed to take back the complaint to his file and proceed with the same according to law.