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Emperor Vs. Atmaram and Govind - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 23 of 1907
Judge
Reported in(1907)9BOMLR681
AppellantEmperor
RespondentAtmaram and Govind
Excerpt:
.....city police act (bom. act iv of 1902), sections 12, 16 - commissioner of police-orders issued by police commissioner relation to discipline and general government of the police force-constrution of statute.;the order which the commissioner of police is competent to issue under the head of discipline and general government, under section 12 of the bombay city police act 1902, must be one having reference to the conduct of the police officers in their capacity as such officers. over their conduct in other relations of life, his disciplinary power does not extend, so long as no element or question of their police duty enters into those relations. if it does enter, the controlling authority of the commissioner comes into play and it becomes a matter of police discipline.;the meaning of..........expedient 'relating, among other objects, to the 'discipline and general government of the bombay police force. the words 'as he may deem expedient' give the commissioner a wide discretion, which is in express words limited by but two restrictions. first, any order he issues is 'subject to the control of the governor in council'; and, secondly, the order must relate to 'discipline and general government of the force.' r if it so relates, it is a lawful order and the only authority that can in that case interfere with the commissioner's discretion is the governor in council. whether an order of the kind now in question relates to 'discipline and general government of the force' must be determined with reference to the language of the section itself and where that language is ambiguous,.....
Judgment:

Chandavarkar, J.

1. Section 12, Clause (a) of the Bombay City Police Act, under which the order in dispute purports to have been issued, invests the Commissioner of Police with authority to issues such orders as he may deem expedient 'relating, among other objects, to the 'discipline and general government of the Bombay Police Force. The words 'as he may deem expedient' give the Commissioner a wide discretion, which is in express words limited by but two restrictions. First, any order he issues is 'subject to the control of the Governor in Council'; and, secondly, the order must relate to 'discipline and general government of the force.' r If it so relates, it is a lawful order and the only authority that can in that case interfere with the Commissioner's discretion is the Governor in Council. Whether an order of the kind now in question relates to 'discipline and general government of the force' must be determined with reference to the language of the section itself and where that language is ambiguous, with reference to the scheme and policy of the Act apparent from its other sections and the relation in which every member of the Police force subordinate to the Commissioner stands towards him, so far as that relation is constituted by the Act itself. The first thing to bear in mind with reference to that is that the direction and supervision of the Police force is vested in the Commissioner (Section 5). He is the controlling or commanding authority of the force. Next, the object for which the force is maintained is obviously 'the protection of the inhabitants and for the security of property' (Section 10). Having regard to this object, the Legislature has enacted in Section 12, in which the words which we have to construe occur, that the Commissioner is competent to issue suchorders as he may deem expedient relating to 'the discipline and general government of the force'. These words, standing by themselves, may be understood to apply to the regulation of the general conduct of the men subjected to the discipline. They may be construed to embrace the regulation of their private conduct, religious attitude, moral disposition and so forth. But as the words occur in Clause (a) they do not standalone. They are associated with other words and 'one of the safest guides to the construction of sweeping general words, which it is difficult to apply in their full literal sense, is to examine other words of like import in the same instrument and to see what limitations must be imposed on them. If it is found that a number of such expressions have to be subjected to limitations or qualifications and that such limitations or qualifications are of the same nature, that forms a strong argument for subjecting the expression in dispute to a like limitation or qualification' (Blaokwood v. The Queen (1882) 8 App. Cas. 82. Clause (a) of Section 12 requires that the order contemplated by the section should relate to 'the recruitment, instruction, classification ' of the Police force and then follow the words 'discipline and general government of the force.' Recruitment means the admission of men into the force in the capacity of Police officers. When admitted they have to be organised, instructed and classified for police work. All these are objects appertaining to the capacity of the men as police officers. If then these words have to be limited to that capacity, the words 'discipline and general government' must be likewise limited.

2. The Order, therefore, which the Commissioner is competent to issue under the head of discipline and general government must be one having reference to the conduct of the Police officers in their capacity as such officers. Over their conduct in other relations of life his disciplinary power does not extend, so long as no element or question of their police capacity enters into those relations. If it does enter, the controlling authority of the Commissioner conies into play and it becomes a matter of police discipline. For instance, every subject of His Majesty has a right to do as he likes so long as he docs not thereby violate the laws of the land. That right every Police officer has in common with other subjects. But if the doing of a lawful thing, which he has a right to do, brings his right as a private citizen into conflict with his duty as a policeman, the question becomes one of police discipline.

3. These are the considerations by means of which the validity of the order now in dispute must be tested. What led to that order was that a large number of Police officers contemplated holding a meeting to discuss the question of the adequacy of their salaries. It is true that if they had so met and discussed, they would have in one sense been exercising their right lawfully as private citizens; but all the same the question, to discuss which the meeting would have been called, would have been one into which, appertaining, as it did, to their capacity as Police officers, the element of their relation to the Police Department and to the Commissioner of Police as their head and controlling authority would have entered. Accordingly, the Commissioner prohibited them from 'calling or attending a meeting to discuss any subject connected with the Police force' without his permission. The order did not prohibit them from holding or attending any or every meeting, whatever its purpose. It did not interfere or purport to interfere with any of their private rights, pure and simple; no civic relations of theirs as such were directly affected by it. The object was not to deprive them of their private right but regulate their conduct in their police capacity. Such regulation would not be illegal merely because of its effect on their private right. It was only an accident that a private right was hit at by the order; but its immediate purpose was the control of the men as Police officers. The discussion of a subject connected with the police force may not, it is true, necessarily mean sitting in judgment on the merits of the police administration; there may be no spirit of defiance to the authority of the Commisssioner in it; it may be discussion of a perfectly peaceful and friendly character; but if, for all police purposes and in all police matters, the law says that they are subject to the control of the Commissioner, it is impossible to dissociate the police capacity of such officers from their private capacity and hold that they are in a body meeting for such discussion in the latter capacity alone.'If anything relating to the police enters as an element into the discussion, it becomes a matter connected with their police capacity and it is none the less so because they can hold the discussion in another capacity. And once that capacity enters as an element into the action of a Police officer, he becomes subjeet to the disciplinary jurisdiction of the Commissioner, albeit the officer occupies another, which is a private capacity, also.

4. But it is contended for the accused that they, having attended the meeting when they were not on duty, must be held to have attended it in their private, not their police, capacity. The answer to that is that, according to Section 16 of the Act, 'every Police officer not on leave or under suspension shall for all the purposes of this Act be deemed to be always on duty throughout the City of Bombay.' This section, it must be borne in mind, introduces a statutory fiction. When one thing is not the same as another thing but the Legislature says that it 'shall be deemed to be' the same thing, it creates a legal fiction and in that case 'the Court is entitled to and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to' (per James L.J. in Ex parte Walton (1981) 17 Ch. D. 746. And fictions created by law shall never be 'contradicted so as to defeat the ends for which they are invented, though for every other purpose they maybe contradicted Mostyn v. Fabrigas (1775) Cowp. 177. When the Legislature says in Section 16 of the Bombay Police Act that a Police officer is to be deemed to be always on duty throughout the City of Bombay, the meaning is, even when he is not actually at his post discharging the duty assigned to him, he is for the purposes of the Act to be regarded as being at that post, with all the rights and obligations of his office attaching to him. In other words, he does not cease to be a Police officer, with all the rights and obligations suspended for the time being and become a private citizen, pure and simple, because he doffs his uniform and is not engaged in the actual performance of his police duties. While he is so engaged, the Act says that he has authority to do certain things and it imposes on him certain obligations. The Act also says that he is then subject to the disciplinary power of the Commissioner. For the purposes of his police duty the Act constitutes a certain kind of relation between him and the Commissioner while he is in that situation. And the statutory fiction is created for the purpose of extending the same authority, the same obligations and the same relationship to the time and occasion when the Police officer is not in fact on duty.

5. We have so far discussed the question, having regard to the scheme and policy of the Bombay Police Act, as they are apparent from, or at least consistent with, the language used by the Legislature in the sections having a material bearing and throwing light upon the question. In construing an expression of doubtful import occurring in a statute, (assuming the words 'discipline and general government' to fall within that category), we may well have regard also to considerations outside the language of the Act. The Police force is maintained for the well-being of His Majesty's subjects. It is intended to fulfil towards His Majesty's subjects within His Majesty's Kingdom the same purpose which the army is intended to fulfil outside it. The soldier protects the subjects against enemies outside the Kingdom; the police against enemies inside it. In either case the purpose is in nature the same. They are maintained for the public. In either case the object is security of life and property. All laws, relating whether to the army or the police, are based upon the principle that the army and the police are for the public, not the public for them. And where there is a doubtful question of construction as regards any of such laws, words or expressions at all ambiguous should be construed so as to subordinate all considerations of private to the public interest. That is the principle of construction to be observed with regard to statutes intended for the public benefit (see the observations of Lord Selborne in Dixon'a case (1880) 5 App. Cas. 820 If it is true of soldiers that obedience to their Commanding officer is their first law, that, as pointed out by Adam Smith in his lectures on Law and Police, all military laws and rules are framed upon the principle that 'it is the fear of their officers and of the rigid penalties of the martial law which is the cause of their good behaviour,' and it is to this principle that we owe their valiant actions, the same considerations must, at least to a substantial, if not full extent, apply to the police force as well. In the case of soldiers, whether they can meet or not in a body to discuss subjects connected with military affairs is treated as a matter of military discipline and they cannot so meet without the permission of their Commanding Officer. That was not disputed before us at the bar. So also as to volunteers. In their case 'deliberations or discussions on any matter connected with the discipline of a corps or with the object of conveying praise to or censure on a superior are prohibited. No meetings of volunteers will be hold except under the authority of the officer commanding.' (Army Regulations, India, Vol IX, page 6, under the heading of 'Discipline.') In the 'Instructions for the Liverpool City Police Force', published in 1896 by Mr. J.W. Nott Bower, Head Constable, by order of the Watch Committee, we find among the regulations one which directs that no member of the force shall call or attend any meeting 'to discuss any subject connected with the force without the sanction of the Head Constable.' In 'the Police Code and General Manual of the Criminal Law for the British Empire' edited by Sir Howard Vincent, is given the following regulation at page 122: - 'Meetings: 1, Police must not, on any account, meet together for any purpose whatever, except by permission of their superiors.' And in the address to Police Constables which was delivered by Lord Brampton (who presided in the High Court of England as one of the Judges and distinguished himself by his familiarity with the criminal law in particular) and which is printed at the beginning of the Code, he says :- 'First of all, let me impress upon you the necessity of absolute obedience to all who arc placed in authority over you and rigid observance of every regulation made for your general conduct. Such obedience and observance. I regard as essential to the existence of a Police force.'

6. Judging by all these considerations, arising from the language of the Bombay Police Act and from foreign circumstances material to the purpose for which a Police force is maintained, we come to the conclusion that the order issued by the Commi-ssioner of Police, which the accused in both the cases before us are found to have wilfully disobeyed, related to the 'discipline and general government' of the force and that it is therefore a lawful order which every member of the force was and is bound to obey. It was contended before us that it was a vague order and therefore unreasonable. Vague means something indefinite or uncertain; but here the order is perfectly definite, so far as it goes, because it prohibits meetings to discuss any subject connected Avith the Police force. There is no uncertainty as to the identification of the kind of meetings prohibited. All that can be said of the order is that, even so far as it is confined to subjects connected with the Police force, it is too wide and comprehensive-that it embraces objects which, according to the argument, it should not embrace. But that is not vagueness. And as to unreasonableness, if the Legislature has considered it necessary on grounds of public policy and the well-being of the State that every Police officer should be subject to the disciplinary jurisdiction of the Commissioner and has constituted him the authority to decide the question of expediency in passing orders for the purposes of that jurisdiction, subject only to the control of the Governor in Council, a Court of law will not go into the question of reasonableness except in a very strong case-unless, in fact it is satisfied, that the Commissioner issued his order in a mere spirit of humour and caprice. It was said that upon that view the Commissioner might prohibit members of the force from meeting together for the purpose of presenting a testimonial to one of their officers. He might no doubt and if he did on grounds which commended themselves to him as necessary in the interest of discipline, why should the order be held to be unreasonable unless the Court is satisfied most clearly that he has exercised his discretion in a spirit of perversity? The case of a social club was at the bar put forward as an illustration of the unreasonableness of such an order as we have now before us. It was said that under it members of the force could not meet together for the purpose of starting a social club. An extreme illustration of that kind assumess that the authority empowered by the Legislature to issue such orders is so perverse as to be bereft of all sense of propriety and wisdom. We are not entitled to make any such assumption. The Legislature makes laws having regard to the ordinary course of human nature, reposing trust in the officers selected to carry out its Jaws and acting upon the presumption that they are 'capable of acting sensibly. If they abuse the trust, the Government is there to control them. No Commissioner of Police is likely to issue an order under Section 12 unless he bona fide thinks that the exigencies of the case and the maintenance of discipline in the Police force render it necessary. There may be occasions when even so innocuous a thing as the holding of a meeting for a social club of Police officers may be inexpedient. Under the guise of an innocent club an institution might be started having for its object the undermining of or calculated to undermine all sense of subordination and discipline in the force. Of all such matters the Legislature has constituted the Commissioner the competent authority to judge. The discretion is vested in him and no Court of law has jurisdiction to declare his order ultra vires unless it is clear beyond all doubt that he has used his authority not for the purposes of discipline but for some ulterior purpose.

7. The question of interference with the private rights, which every Police officer has as a citizen in common with other classes of His Majesty's subjects, has already been discussed by us. In considering that question as having a bearing upon the legality or otherwise of the order now in dispute, it must be borne in mind that the object of the Bombay Police Act in giving to the Commissioner the power to issue orders of the description mentioned in Section 12 is to establish regulations for the common organization and efficiency of the persons who take service as Police officers in a great number of matters affecting their capacity as such officers; and that cannot be done except to some extent and on some occasions interfering with their freedom of action as private citizens.

8. On these grounds, in Reference No. 23 of 1907, we answer both the questions referred by the Chief Presidency Magistrate in the affirmative. The Magistrate in sentencing the accused will, we have no doubt, take into account the fact that these are test cases and that, as for the first time our judgment settles the law, a very light sentence of fine will be sufficient to meet the ends of justice. In Appeal No. 116 of 1907, we reverse the order of acquittal, convict the accused of the offence charged and sentence him to pay a fine of rupee one; in default seven (7) days' rigorous imprisonment.


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