1. The facts in this case are as follows:
2. By an order of the District Magistrate of Midnapore dated 13th February, 1958 the respondent, Dhananiov Navak was appointed as a Special Police Officer under Section 17 of the Police Act, 1861. Section 17 of the said Art runs as follows
'When it shall appear that any unlawful assembly, or riot or disturbance of the peace has taken place or may be reasonably apprehended and that the police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any police officer not below the rank of Inspector to apply to the nearest Magistrate to appoint so many of the residents of the neighbourhood as such police officers may require to act as special police officers for such time and within such limits as he shall deem necessary; and the Magistrate to whom such application is made shall, unless he sees cause to the contrary, comply with the application.'
The Superintendent of Police, Midnapore, applien before the District Magistrate, Midnapore, for the appointment of several persons as special police officers under Section 17, because disturbance of peace in connection with the breaking of Railway wagons and stealing of Railway property was reasonably apprehended by him in the neighbourhood of the villages, which included the village in which the said respondent resides. It has been stated in the affidavit of Shri Nirmal Kumar Biswas, Additional District Magistrate, Midnapore affirmed on 9th March, 1959 that for several years a series of wagon breaking cases happened between Macheda and Kolaghat Railway stations in the South Eastern Railway. There were 20 cases of wagon breaking in the year 1955 26 cases in 1956 and 11 cases in 1957 The distance between the two Stations i- roughly about two miles and falls within the Midnapore district. As stated above, the Superintendent of Police. Midnapore apprehended breach of the peace in connection with the stealing of railway properties and made an application to the District Magistrate, Midnapore, whereupon he appointed 22 person under Section 17 of the said Act as special police officers, including the said respondent The respondent did not comply with the notice appointing him and failed to report for duty. This is not the first time that he has done so. It appears from paragraph 8 of the said affidavit of the Additional District Magistrate, that he had deliberately flouted orders in the past for which several criminal cases had been filed, some of which are still pending, including the criminal case filed in respect of the order which is the subiect-matte of this appeal. On or about 10th December, 19!i8 the said respondent made an application it? the writ jurisdiction of this Court and a Rule was issued asking the respondent in the Court below to show cause why the order of appointment should not be rescinded and why the criminal proceedings should not be quashed and for other reliefs. The matter came up for healing before P. N. Mookerjee, J The learned Judge in his judgment dated 2nd February, 1961 points out that five points were taken, which are as follows:
(1) that the impugned order offended Articles 19(1)(R) and 23 of the Constitution,
(2) that Section 17 of the Police Act was inconsistent with Article 23 of the Constitution and consequently, void,
(3) that consequently Section 19 which is dependant on Section 17 is void and that no prosecution could be maintained,
(4) that the impugned order of appointment was made in violation of the principles of natural justice,
(5) that it was made without the requisite enquiry as to its necessity or as to the existence of circumstances justifying the same.
3. The learned Judge points out that the first three grounds had already been negatived by this Court in Dulal Samanta v. District Magistrate. Howrah, : AIR1958Cal365 A regards the fourth point he came to the conclusion that the principles of natural justice had no relevance. He, however, held that on the fifth point the applicant was entitled to relief and, therefore he made the Rule absolute and appropriate writs were issued for quashing the petitioner's appointment dated 13th Februany 1958 as a special police officer as also the criminal proceedings in connection with the same We are unable to agree with either the rearming given by the learned Judge in the court below or the conclusion arrived at by him. We must proceed on the assumption that action 17 wat intra vires and that the order was not mala fide, since nothing to the contrary has been found in the learned Judge's judgment Section 17 does not require any enquiry to be made by the District Magistrate. Naturally, as an administrative officer he would have to be satisfied that the requisition made by the Superintendent of Police was bona fide The words 'reasonably apprehended' are used in Section 17. The order might, have been challenged on the ground that there was no reasonable ground for apprehension and that on the facts, no reasonable person could have any apprehension But no such ground has been advanced. If such a point was raised there the Court would have jurisdiction to go into the matter. Here, however not only has the order not been challenged from that point of view, but on the fact:- it seems that the apprehension is legitimate Year after year wagon breaking and theft took place on the railways and the police foret available was found to be inadequate It is, therefore, a public duty on behalf of all critizens to come to the aid of there persons who are in charge of the enforcement of law and order Here, it was the statutory duty of the said respondent to help the police But in spite of this, he not only refused to comply with the order but has done so repeatedly, in spite of repeated criminal proceedings having been instituted against him The reasonable conclusion is that he is but upon flouting the law. The learned Judge in the Court below says that the existence of some sort of emergency should be proved and he does not seem to think that such an emergency existed. With respect we differ from him It is but common knowledge that railway thefts are increasing and where the police authorities are asking for more policemen, the Court cannot presume that there existed no emergency or any apprehension of breach of the peace was unjustified In out opinion, on the facts of this case all the ingredients of Section 17 have been satisfied. There is no reason whatsoever to hold that the order was contrary to law.
4. The result is that this appeal is allowed The order of the Court below is set aside and the Rule is discharged. Interim orders, if any are vacated.
5. There will be no order as to costs.
Arun K. Mukherjea, J.
6. I agree.