Nagraj v. State of Mysore

JlfJ x.,,.i •• St•• 1fltl7m1· RAGRUJ!AR D-'.YAL J.-This appeal by special n.,,..,,.,B..,•ll. leave is directed against the order of the High Court of Mysore rejecting the reference by the Sessions Judge, Shimoga Diyision, recommending the quash- ing of the commitment order of the Magistrate committing the accused to the Sessions for trial of offences under ss. 307 and 326, I.P.C., on the ground that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of ss. 132 and 197 of the Code of Criminal Procedure. The case against the appellant was started on the complaint of one Kenchappa who alleged that Nagraj v. Stot1 of Raghuiar Dayal J. 614 SUPREME COUR't REPOR l'S [196<t] VOL. the Sub-Irur,ector and another person had severely beaten one fhimma and that the Sub-Inspector, when forcibly taking away Thimma and requested by Ki:nchappa to excuse Thimma if he had misbehaved, wantonly from his revolver at Hanumanthappa and Shivalingappa. It is on this complaint that, after preliminary enquiry, the Magistrate committed Nagraj, the appellant, to the Court of Session for trial. The facls of the incident, according to the appellant and the basis of the counter case, are these. The appellant wots a Sub-Inspector of Police in the State of Mysore. He was posted at Yagati, Kadur Taluk, in September 1959. On September 7, 1959, he arrested one Gidda, manufacturing illicit liq,uor and sent him with the constable to the police statlon. Thereafter, he arrested Thirnma who was supposed to be in league with Gidda in manufacturing liquor. When Thimma was being taken to the police statiou by the Sub-Inspector and a constable a crowd of about 20 or 30 persons rushed at them, surrounded them and the police officials attacked them and rescued Thimma. Nagraj asked those people not to resort to violence, but to remain calm. The poople how· ever, did not pay heed to the advice, caught the constable and asked Nagraj to stay there till one Kenchappa came. Upon this, the Sub-Inspector again told them to go away without creating any trouble and said that there was no reason for him to wait for Ke11chappa. The people threatened him and the constable with dire consequences if they left the place. Just then Kenchappa came and then these persons encircled the Sub-Inspector and the constable and the Sub-Inspector, apprehending dan· ger to his life and that of the constable, first fired his revolver in the air and when the people pelted stones at him and grappled with him, two shots went off from the revolver and injured two Hanuman- thappa and Shivalingappa. Kcuchappa snatched I \ . \ '·· S.C.R. SUPRl::Nre COURT MPOR.TS I the · revolver, leather bag ·with the ammunition pouch and the two mahazars prepared by the Sub- Inspector regarding the prohibition case. The people beat the Sub-Inspector and carried him to a pond saying that they would throw him into it. They were, however, released at the remonstrance of one Basappa. The persons who are said to have attacked Nagraj that day have also been committed to the Court of Session for trial, of offences under ss. 147, 332, 341 and 395 read with s.149, though prosecuted· for offences under ss. 143, 147, 149, 224, 225, 395 and 34, I.P.C. The Sessions Judge made the reference for the quashing of the commitment of the appellant as it appeared that the· two cases arose out of one incident that tlie Sub-Inspector was at the time discharging his duties, that while discharging his duties he had to disperse an unlawful assembly by force as his own life and that of his subordinate were in jeopardy and that ther(!fore previous sanction·· of the Government under s. l!J7 of the Code was necessary, for the Court's taking cognizance of the offence against him as the power of dismissing a Sub-Inspector of Police vested in the Government. He was also of opinion that even if the Sub-Inspector had fired without any justi- fication as alleged by the complainant; sanction under s. 132 of the Code was necessary. He observed : "Now, it cannot be gainsaid that at that time he was clearly on duty and was taking Thimma to the Police station in the discharge of his . official duty as a Sub-Inspector. A large num- . her of persons then surrounded him and rescued Thimma. It cannqt also hence be denied that there was an unlawful assembly which the Sub- . · -Inspector was entitled to disperse by · force. •,Now · s. 132 of the Cr. P.C. is clearly a bar to lllJ. N•traj •• S1;.u ef JI,,,,, n.,.,, _ ... . "'· ·_._ ·---"""··"k, "" Jkfr•j •• luu of M,,.,,., $16 SUPREME C01JR_T REPO,R.Ts [1964] VOL. the prosecution of police officers purporting to act under Chapter IX of the Cr. P. C. which deals with unlawful assemblies without the sanction of the local Government." The High Court rightly observed that the Sessions Judge was wrong in practically ac1..epting the version of the appellant that he was surrounded by a number of persons who constituted an unlawful assembly and that they rescued Thimma and that therefore he was entitled to disperse the unlawful y by force. The High Courtheld that the Sub·lnspector of Police could be removed from service by the Deputy Inspector-General of Police and that there· fore no question of sanction under s. 197 arose. It further held that before a Court could hold that the cognizan'ce' of the case had been., by the Magistrate with\:mt sanction of the GOvernment under s. 132, it must be established that there was an unlawful assembly and .that the police officer purported to disperse the assembly .under any of the sections 128 to of the Code. T.lie High Court stated later : • "Section 132 Cr. P.C. has aething to do with the ingredients of any offe11ce. It is a protectfoB against prosecution. In order to obtain its benefit the accused person need not prove that the acts complained of were done under circumstances mentioned in Section 132 Cr. P.C. In other words, he must place before the Judge materials and circumstances justify- ing an inference that there was an unlawful assembly and the acts complained of were purported to have been done while dispersing that assembly." The High Court further held that it u for the Sessions Judge to decide on facts establi•hed in . 3 S.C.R. SUPREME COURT ·REPORTS ."677 . ' .the case whether s. 132 Cr. P.C. was applicable and if he came to the conclusion that the facts of the case brought it within the provisions of s. 132, Cr. P.C., the Sessions Judge was at liberty to reject the complaint holding · that it was barred under s. 132, Cr. P.C. Lastly: the High Court. ·suggested that·., the Sessions case against the other party be tried · first and that if after its trial the Sessions Judge was satisfied that the complaint against· the accused. was barred under s. 132 Cr. P.C., it would be appropriate for him to reject that complaint· on , that ground alone. · · . . . - - , • , " -' ,. , . r Learned Counsel for the appellant has riiiSed . four contentions in . this Court : (1) ;ippeHant as Sub· Inspector of Police could. be dismissed. by the State Government alone and . that, therefore, sanction under s. 197 nf the Code was, necessary. for his prosecution of the offences spurported to have been · committed in the discharge of his duty.· (2) .That a police officer cannot be prosecuted without a sanction from the State Government for an offence ·which the police officer alleges, took place,: during the course of performance of dfities under IX of the Code. (3) Th:it when both .. a;. case and a counter case have been committed .for., trial to.the Sessions Court it could be said that. the appellant has prima jacie established his version· of the inCident and that his producing a copy. of the committal order in the counter case is sufficient for holding that sanction under s. 132, Cr. P.C. was necessary. (4) That it is. not necessary for the police officer to prove conclusively that he . was dispersing an unlawful assembly before he can raise the, plea of want of sanction as a bar from prosecution:·. , .... We are not satisfied that the appellant', ;the Sub·Inspector can be dismissed by the State,: __ /UJ , Xazr•j ··. ·,,jM,,,, , lt.ctlcubaf D•J·ol I. . . -. ·- , 678 SUPRENIB COURT REPORTS (1964] VOL. :1JJ6l . Government alone. Sectio.n 4 (c) of the Mysore Police Act, 1908 (Act No. V of 1908), hereinafter called the •"' •· , .. , Act, provides that unless there be something repugnant · in the subject or context. the word 'inspector' 'in the 11.•z•ul•• D•J•I --·Act, subject to such rules and orders as the Govern· ment may pass, includes 'Sub-Inspector.' Section __ 8 states that the appointment of Inspectors of such ----grades a5 Government may ·from · time to time prescribe shall be made by Government and the dismissal of Inspectors of all grades shall .vest in Government. It is on the basis of these two provi· sions that it is submitted for the appellant that it is the Government which-can dismiss ·.him as he, though a Sub-Inspector, is an Inspector for the purposes of s. · 8 of the Act. The contention is not sounrl. It is the dismissal of Inspectors of all grades which vests in the Government. It appears there are Inspectors of various grades. Inspectors of some ·grades were appointed by the Government but the dismissal of Inspectors of all grades is vested in the · Government. In this context, the word 'Inspector' in s. 8 will not include Sub· Inspector as he could nvt possibly be an Inspector of any grade. Sub- section ( l) of s. _ 26 of the Act further provides that any officer authorised by sub·s. (3) in that behalf may dismiss any police officer below the grade of Assistant Superintendent and sub-s. (3) provides that subject to the provisions of s.. 8, the Inspector- General shall have authority to punish any Police Officer below the grade 'of Assistant Superintendent. It follows that the Inspector-General of Police can dismiss a Sub-Inspector who is a police officer below the grade of Assistant Superintendent. No sanction, therefore, of the State Government for the prose- cution of the appellant was necessary even if he had· committed the offence alleged while acting or purporting to act in the discharge of his official duty •. -__ · · · · Before. dealillg with 'the other contentions raised we may refer to the provisions of ·Ch. IX of 3 S.C.R. SUPRBNIE COURT REPORTS--67i . ,\ ·the Code of Criminal Procedure· which has the· heading 'unlawful assemblies.' Section 127 empowers any :Magistrate or officer in charge of a police station to command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse and further provides that it shall be the duty of the members of such assembly to disperse on command. If such'a command is not obeyed by the members of such an assembly, s. 128 authorizes the Magistrate or the officer in charge of the police station to use civil force to disperse the assembly. Civil force can also be used even without giving such command:· if.the conduct of the assembly shows a: determination not to disperse. Such officer can call upon any male person to assist in the dispersing of the assembly and can also arrest and confine the · persons who form part of the assembly. Sections 129 and. 130 deal with the use of military force in the dispersing of such assembly and of the duty of the officer comman- ding the armed forces called upon to disperse such assembly. Section 131 authorises any commissioned officer of the armed forces, in the absence of any communication with any to disperse such an assembly with the help of armed forces in certain circumstances. The officers and . persons who act under these provisions for the purpose of dispersing, the unlawful assembly are protected from prosecution under the provisions of s. 132 on which the appellant relies. The relevant portion of this section, for the purpose of this appeal; reads : · "No prosecution against any person for any act purporting to be done under this Chapter shall · be instituted in any Criminal Court, except with the sanction of the State Government; and (a) no Magistrate or police-officer acting under this Chapter in good faith, x x x x .JK! Jf•P<i .•. .. ff•t4_ '4.J;•;1 R.,,,. ... DAJ.U /. . '. . - '. . _-;. N•1r•j •• St•tl of My,.,, ll•ghublP' D'!1111 ./. shall be deemed to have thereby committed an offence". It is clear that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under ss. 127 and 128 of the Code and in so doing committed some offence comp- lained of, the Court will not entertain the complaint unless it appears that the State Government had sanc- tioned the prosecution of that police officer. If the allegations in the complaint do not indicate such facts, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the comp- laint. It must proceed with the complaint in the same manner as it would have done in connection with complaint5 against any other person. The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court · that Uie action of the police officer complained of appears to ceme within the provisions of ss. 127 and 128 of the Act. This can be either when the accused appears acfore the Court and makes such a suggestion or when evidence or circumstances prima show it. The mere suggestion of the accused will not, however be sufficient (or the Court to hold that sanction was neGessary. The Court can consider the necessity of sanction only when from the evidence recorded in th.:: proceedings or the circumstances of the case it be pos1ible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under ss. 127 and 128 of the Code. It is contended for the appellant that if the question of sanction is not decided in the very first / 3 S.C.R. Sl:JPllENIE GGUltT REPQRTS i11.sta11ee when a co111plail'lt is iled or wlte• t.li.e accu- sed alleges tltat he eould net be presecuteli. for tlte alleged offences withonc the sanction of Governwumt in view of s. 132 of the Code, the protection given by this section will be nugatory as the object of giving this protection is that the police officer be not haras- sed by any frivolous complaint. There may be some such harassment of the accused, but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. Just as a complainant is likely to omit mentioning the facts which would necessitate the sanction of Government before he can prosecute the accused, the accused too is likely to make such alle- gations which may lead to the rejection of tlile complaint for want of sanction. It is well settled that;the jurisdiction of the Court to proceed with the complaint emanates from the allegations made iu the complaint and not from what is alleged ey the accu- sed or what is finally established in the case as a result of the evidence recerded. la this connection reference may lie appropria- tely made to the observatiens of this Cvurt in conaec- tion with prosecutien to which tke provisicms ef s. 197 of the Code apply. In M11t11jog llo"iicy v. H. O. Bhari (1), in connection with the question "is the need for saBction to Be c@nsidered as s••• as the co!llplaiat is lodged aad on the allegatieAs therein contained?", it was said : "The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in (IJ t1955J 2 S.C.R. 925, 915. l9iS N•lr•j v. Sttlt1 •f Mysor1 Raghubnr D•al I. 1963 Na.eroj v. State of Mysflre Raghub 1 i Dayal J. 682 COURT REPORTS [l 9fl4] VOi •. the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case." It follows, therefore, that the contention that a police officer cannot be prosecuted without the sanction from the State Government for an offence which he alleges to have taken place during the course of his performing the duties under Ch. IX of the Code cannot be accepted. His mere allegation will not suffice for the purpose anrl will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the alle- gations in the complaint. The third contention really is that the Court can hold that sanction was if the appellant could primr1 facie show that hiq action which is comp- lained of was in connection"vith the perfonnance of his duties under ss.127 and 128; of the Code. Assu- ming that this is t11e position in law, it does not appear from the record which consists of the orders of the Sessions Judge and the High Court that the evidence in this case prima facie eMahlishes that the appellant's contention that his acts complained of were such for which he could not be prosecuted with- out the sanction of the Government. In this case the High Court has definitely said that the Sessions Judge did not arrive at any such conclusion and had made the reference on a mere acceptance of the accused's version, for which there was no justification. It is contended for the appellant tlJ.1t the mere fact that some of the persons alleged to have formed part of the unlawful assembly were prosecuted bv the State and have also been committed bv the Magis- trate to the Sessions Court for trial establishes prima tacie that the accused's about the necessity 3 S.C.R. SUPREME COURT REPORTS 683 for sanction under s. 132 of the Codr. is correct. The commitme.ut of the other accused is on the basis of evidence in that case and cannot be legally takrn into consideration to decide the question raised in this case. '[he question is to be decided on the evidence in this case and Hilt on the basis of evidence and in- ferences drawn in the other case. The third conten- tion, therefore, has no force. The next question and the real 4uestion lo decide then is to determine what the accu;ed has to show in order to get the benefit ,Jf the provisions of s. 132 of the code in the case., To get such a benefit and to put off a clear decision'on the question wllethet his conduct amounts to an offence or not, the appellant has to show (i) that tl1ere was an unlaw- ful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace ; (ii) that such an assembly v;as commanded to dis- perse; (iii) that either the assembly did not disperse on such command or, if no command had been given; its conduct had shown a determination not to ·dis- perse; and (iv) that in the' circumstances he had used force agaimt the members of such assembly. He has to establish thet<c facts just in the manner as an accused has to establish auy other exception he pleads in defence of his,.condurt in a criminal case. 11 is sufficiently well-settled that it is for the prosccutiou to prove the offence in the serne that the offence was committed in the circum,tances in which no recourse to an exception could be takeri and. therefore if the accused estabfohes such circums1ances which either conclusively establish to the satisfaction of the Court or make the Court believe them to be probable that the case comes within the exception that would be sufficient compliance on the part of the accused with respect to his proving the exception to prove \\'hich the onus was on him. ln the present case therefore the accused has to show to the Court that the alleged offen- were committed during the performance of his 1963 Narr,ij v, SJate of Mysore Raghuhar Daral J 1963 N•:raj v. •f Mysore R1Sthuhar Dayal I. 614 SUPREME COURT REPORTS [1964JVOL. duties iio1 the circumstances narrated above. On his so showing,rit would be the duty of the Court to hold that the complaint could not have been entertained without the sanction of the Government under s. 132 of the Code. To show this is not equivalent to the accused establishing facts which would he necessary for him to take advantage of the provisions of s. 79 of the Indian Penal Code as had been thought in .some of the cases cited to us. Section 79, I.P.C. deals with circumstances which when proved makes acts complained of not an offence. The circumstances to be established to get the protection of s. 132, Cr. P.C. are not circumstances which make the acts complai- ned of no offence, but are circumstances which require the sanction of the Government in the taking of cog- nizance of a complaint with respect to the offences alleged to have been committed by the accused. If the circumstances to be established for seeking the protection of s. 132 of the Code were to make the alleged conduct no offence, there could be no ques- tion of a prosecution with the sanction of the State Government. This distinction had not been consi· dered ia the cases we were referred to. It is not nece- ssary to refer to those cases which were ultimately der.ided OR the basis that the allegations either in the complaint or taken together with what had appeard from the evidence on record justified the conclusion that the action complained of came under ss. 127 and 128 of the Code and that no prosecution in con - nection with such an. action could be instituted in the Court without the sanct!on of the State Government. The last question to consider is that if the Court comes at any stage to the conclusion that the prose- cution could not have been instituted without the sanction of the Government, what should be the proce- dure to be followed by it, i e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the procee- dings and pass no formal order of discharge or a s.c.R.., SUPREME COURT REPORTS 685 acquittal as contemplated in the case or a prosecution under the Code. The High Court has said that when the Sessio s Judge be satisfied that the facts proved bring the case within the mischief of s. 132 @f the Code then he is at liberty to reject the complaint hol- ding that it is barred by that section. We consider this to be the right order to be passed in those circum- stauces. It is not essential that the Court must pass a formal order discharging or acquitting the accuses. In fact no such order can be passed. Ifs. 132 appli- es, the complaint could not have been instituted without the sanction of the Government and the pro- ceedings on a complaint so instituted would be void. the Court having no jurisdiction to take those procee- dings. When the proceedings be void, the Court is not competent to pass· any order except an order that the proceedings be dropped and the complaint is rejected. ' We according! y consider the order of the High Court to be correct and dismiss this appeal. N11.1r•j v, St•lf •f .Wysore R•1Auw ltq•I J