STATE Vs. YAMANAPPA LIMBAJI PANDHARE

JUDGEMENT

(1.) THIS is an appeal by the State of Bombay from an appellate judgment of the learned Additional Sessions Judge, Sholapur, acquitting the respondent Yamanappa Limbaji Pandhare, who was convicted of an offence under Section 332 of the Indian Penal Code by the Judicial Magistrate, First Class, III Court, Sholapur.

(2.) THIS appeal raises a question of construction of Section 31 of the Bombay Police Act No. XXII of 1951 and the question has arisen in this way. The respondent Yamanappa Limbaji Pandhare, whom I shall hereafter refer to as the accused, was originally serving as a head constable in the Police Department. On April 3, 1954, he was dismissed from service. During the tenure of his service he was provided with quarters in room No. 45 of Block No. 3 in 'A' Division Police Lines, Sholapur. After his dismissal the accused applied to the District Superintendent of Police, Sholapur, on April 25, 1954, for permission to stay on in the abovementioned premises. On May 3, 1954, the District Superintendent of Police issued a notice to the accused, calling upon him to vacate the premises, which were occupied by him, within seven days of the receipt of the notice. On May 5, 1954, Mr. Sapre, the Second Sub -Inspector of Police attached to the 'A' Division Police Station, went to the room of the accused in order to serve upon him the abovementioned notice which was issued against him by the District Superintendent of Police. The accused refused to sign the notice as it was not accompanied by a duplicate copy. On May 11, 1954, Mr. Sapre again went to the room of the accused to serve the notice upon him. At that time Mr. Sapre had taken the notice and also a duplicate copy thereof with him. Even on that occasion the accused refused to accept the notice and his contention in that behalf was that the duplicate copy of the notice did not bear the signature of the District Superintendant of Police. Thereafter, on May 25, 1954, the District Superintendent of Police issued another notice against the accused. By this notice, which is exh. 2, the District Superintendent of Police called upon the accused to vacate the premises occupied by him within seven days from the receipt of the notice. The District Superintendent of Police further warned the accused that in case he failed to comply with the notice, action under Section 31 of the Bombay Police Act, 1951, would be taken against him. This notice exh. 2 was served on the accused on June 3, 1954. It would appear that even in the case of this notice the accused refused twice to accept it upon one pretext or another. Ultimately it was on June 3, 1954, that the notice was served upon him. Thereafter, on two occasions, the police jamadar Javalgikar went to the room of the accused as the accused had failed to vacate his premises within seven days from the receipt of the District Superintendent of Police's notice. The two occasions upon which Mr. Javalgikar went to the room of the accused were once on June 28, 1954, and again on July 25, 1954. On both these occasions the accused told the Jamadar that he would not vacate the premises and that he would see the Sub -Inspector in that connection. On July 26 Sub -Inspector Salvi went to the room of the accused and asked him to vacate the premises. On that day (July 26, 1954) the accused gave Sub -Inspector Salvi an application addressed to the District Superintendent of Police, Sholapur. By that application the accused asked for permission to stay on in the premises till August 10, 1954, as he had preferred an application to the High Court at Bombay against the order of his dismissal. The accused's application for permission to stay on in the premises was rejected by the District Superintendent of Police. Thereafter, on July 29, 1954, the District Superintendent of Police directed the Sub -Inspector attached to the 'A' Division Police Station to take legal action against the accused and to report the result of the action taken to the District Superintendent of Police within seven days. Pursuant to the abovementioned order of the District Superintendent of Police dated July 29, 1954, Sub -Inspector Salvi went to the room of the accused along with panchas and constables. On August 11, 1954, when Mr. Salvi went to the accused's room to execute the order of the District Superintendent of Police dated July 29, 1954, the accused offered resistance to Mr. Salvi and assaulted him while he was discharging his duty as a public servant, namely as a Police Sub -Inspector. As a result of the assault made by the accused upon Mr. Salvi, the accused was prosecuted upon a charge under Section 332 of the Indian Penal Code.

(3.) NOW , the learned trial Magistrate who heard and decided the ease against the accused held that, though the writing exh. 2 dated May 25, 1954, was styled 'notice' by the District Superintendent of Police, it was virtually an order issued under Section 31 of the Bombay Police Act, inasmuch as it stated that the accused had been dismissed from service on April 3, 1954, that therefore he had no right to reside in room No. 45 any longer, that he should vacate the premises occupied by him within seven days of the receipt of the order and that, on his failing to do so, legal action against him would be taken, The learned Magistrate held further that the above order was issued by the District Superintendent of Police, Sholapur, under Sub -section (2) of Section 31 of the Bombay Police Act, and in the learned Magistrate's view it was a competent order. While dealing with this point the learned Magistrate observed that it was true that no separate notification under Section 31, Sub -section (2), was issued by the State Government authorising a District Superintendent of Police to exercise powers under Section 31,Sub -section (2), but, said the learned Magistrate, no separate notification under Section 31, Sub -section (2), was necessary. In the view of the learned Magistrate, since the words in Section 31, Sub -section (1), Clause (b), are 'any officer authorised by the State Government in this behalf' and since the words in Section 31, Sub -section (3), are 'the officer authorised in this behalf by the State Government', the word 'officer' in Section 31, Sub -section (2), means and refers to the 'officer' authorised under Section 31, Sub -section (1), Clause (b). In other words, the learned Magistrate held that a District Superintendent of Police or an Additional District Superintendent of Police or a Deputy Commissioner of Police, Greater Bombay, empowered by the State Government under Section 31, Sub -section (1), Clause (b) can validly issue an order to the person concerned to vacate the premises and can validly direct a police officer to enter upon the premises occupied by the person concerned and to remove the said person from the said premises.