The State of Mysore v. Satyendra Kumar — 1972 DIGILAW 160 (MAD)

Order- The above criminal revision petition is filed by the State from an order passed by the Judicial Magistrate, First Class, Second Court, Bangalore, holding-chat the protection afforded under section 170(1) of the Mysore Police Act, 1963 (to be hereinafter referred to as the Act) is not available to the accused who are constables attached to Basavanagudi Police Station in Bangalore City before the stage of recording of evidence. 2. The material facts are: The respondent-complainant Satyendrakumar, a resident of Govindappa’s Street in Basavanagudi, Bangalore, gave a complaint before the Court on 6th November, 1970, against the two constables alleging that they committed offences punishable under sections 323, 352 and 447 and 300 of the Indian penal Code, on 27th October, 1970. The complaint was referred to the Police for investigation and report under section 156(3) of the Criminal Procedure Code The Circle Inspector of Police, Basavauagudi Sub-Division, investigated into the crime and submitted a ‘B’ report to treat the case as false. But the complainant challenged the ‘B’ report and undertook to prove the case. Accordingly, the learned Magistrate recorded further statement of the complainant on oath and registered a case against the police constables and ordered issue of process for the aforesaid offences. After service of summons, the two Constables who are the accused in that case appeared before the Court. The Public Prosecutor attached to that Court appeared on behalf of the constables and presented an application on 26th May, 1971, stating therein that the complaint was not maintainable as previous sanction of the Government to prosecute the constables as required under section 170 of the Act, had not been obtained. It is stated inter alia in the application that the allegations made against the two accused relate to the acts said to have been committed while discharging official duties entrusted to them on 27th October, 1970. The allegations against the constables are that they approached the complainant when he was in his room. Suddenly, the first accused caught hold of the shirt collar of the complainant and uttered (Police stationige baro magane (in canarese)) He asked them to come into his room and requested them what had made them to ask him to go to the police station. They felled the complainant and kicked him and used abusive language at him. Suddenly, the first accused caught hold of the shirt collar of the complainant and uttered (Police stationige baro magane (in canarese)) He asked them to come into his room and requested them what had made them to ask him to go to the police station. They felled the complainant and kicked him and used abusive language at him. It is also alleged that the second accused who stayed in the room committed theft of a purse belonging to the complainant which contained Rs. 82 in cash, and two certificates issued by the Army Training School, Secunderabad. He was taken to the main Bazar and people gathered there. After the complainant reached the police station, the Sub-Inspector of Police directed him to remain in the police station. He went and got himself treated in the Victoria Hospital after his release by the police. He has given description of the injuries sustained by him and has also produced the wound certificate. He has prefaced his complaint by an allegation that he was subjected to assault and intimidation by the family members of one Ramachandramurthy and that he has preferred in that regard a private complaint which was pending in criminal Court. He lost cash, Valuables and documents and clothes etc., and that he was not able to get any redress at the hands of the Basavanagudi Police Station including the Sub-Inspector of Police (Law and Order). 3. The learned Prosecutor, upon these allegations, contended before the trial Court that as the acts constituting the offences were alleged to have been done by the accused under colour or in exercise of their duty, the prosecution shall not be entertained except with the previous sanction of the Government. The learned Magistrate has rejected this contention and has observed that. “it was premature to assert that the acts complained of are immune from prosecution as the complainant nowhere in his complaint before the Court or in his sworn testimony stated that the accused police constables while acting in the discharge of their duties, purported to have been entrusted to them by the Head Constables of their police station, have done acts in excess of their duty and assaulted him and committed theft in his house.” 4. The learned Government Pleader appearing for the State and also for the accused constables contended that the learned Magistrate has ignored ‘B’ report which clearly shows that the accused were discharging their duties as constables and the offences alleged against them were done while discharging such duty. He relied upon an entry in the station house diary and pointed out that the accused were acting in lawful discharge of their duties and the Magistrate has failed to take that circumstances into consideration while rejecting the request for immunity under section 170 of the Act. He next contended that the learned Magistrate has failed to apply the principles of law laid down by this Court in State v. Manickam and another1, which bears on the facts of this case. 5. Mr. K.N. Chandrasekhar, learned Advocate for the respondent, contended that the ‘B’ report is not conclusive of the fact that a prima facie case was not made out against the accused constables. He characterised ‘B’ report as partisan document, since the case was investigated by the Circle Inspector of Police attached to the Basavanagudi Police Station in which police station the two accused were working as constables. Thirdly, he contended that the statements of witnesses were not recorded in the presence of the complainant, and, therefore, no importance should be attached to their credibility. Lastly, he contended that there is no nexus between the offences alleged and the discharge of duty by the accused. He urged that the learned Magistrate has considered the ‘B’ report and also applied the principle of law laid down in the decision of this Court reported in State v. Manickam1, to the facts of this case. 6. There is force in the contentions raised by the learned Government Pleader on behalf of the State and the accused. There is hardly any force in the contentions raised on behalf of the respondent. 7. As regards the first contention of the Government Pleader, as rightly contended by the learned Government Pleader, the Magistrate except making a reference to the submission of the ‘B’ report by the police, has totally ignored it. Further, the learned Magistrate has merely made a reference to the ratio of the decision reported in Stale v. Manickam1, but has failed to consider the application of the ratio of the said decision to the facts of this case. Further, the learned Magistrate has merely made a reference to the ratio of the decision reported in Stale v. Manickam1, but has failed to consider the application of the ratio of the said decision to the facts of this case. The said decision is directly on the point. Such indifference on the part of the Magistrate is deprecated. The Magistrates should bear in mind that they are bound by the decisions rendered by this Court and are required to apply the law as laid down by this Court. 8. It is unfortunate that the learned Magistrate having disregarded the application of the law as laid down in State v. Manickam1, which as stated earlier, is directly on the point, his relied upon three decisions, two of Supreme Court in Nagraj v. State of Mysore1; Baijnath v. State of Madhya Pradesh2; and one of Goa in Parsurama Ladu Ussopear v. Smt. Jaia3, which deal with, the interpretation of the provisions of sections 197 and 132 of Criminal Procedure Code. On a comparison, it is clear that the wordings in sections 197 and 132 of the Criminal Procedure Code, are not in pari materia with the wordings found in section 170 of the Act. Thus, it is unfortunate that the Magistrate has misdirected himself on the question of application of law bearing on the facts of this case. 9. The learned Government Pleader took me through the ‘B’ report which has a reference to the station house diary, according to which these two constables were deputed to go to the compound of the house of one Ramachandra murthy where the complainant was indecently behaving with ladies and was using indecent language at them. From the complaint also, it is clear that he was taken to the police station by these constables stating that the complianant was making galata. Further it is clear from the complaint itself that the Sub-Inspector asked one of his officials to prepare a notice and get it served upon the complainant. It was under section 92 of the Mysore Police Act, asking the complainant to appear in Second City Magistrate’s Court at 11 a.m. on 28th October, 1970. it is not disputed that the complainant and his associate were charge-sheeted and were convicted for offences under section 92(o) and (r) and were sentenced to pay a fine of Rs. 10 each. It was under section 92 of the Mysore Police Act, asking the complainant to appear in Second City Magistrate’s Court at 11 a.m. on 28th October, 1970. it is not disputed that the complainant and his associate were charge-sheeted and were convicted for offences under section 92(o) and (r) and were sentenced to pay a fine of Rs. 10 each. No doubt, the complainant filed a revision petition before this Court in Cr.R.P. No. 162 of 1972 and got an acquittal on purely a technical ground that the place where he committed the offence under section 92(o) and (r) of the Act was not in a public place or a public street. These circumstances make it abundantly clear that on receiving complaint from the landlord, the accused constables went to his house and took him to the police station. The allegation is that when the accused went to the room of the complainant, the alleged offences have been committed. If there was no complaint to the police against the complainant, there was no necessity for the accused to go there. In these circumstances, the alleged offences have direct connection with the discharge of their duty as constables. If the allegations are proved, these acts would fall either under colour or in excess of their duty. The learned Magistrate’s view that the complainant should state in the course of the complaint that the alleged offences were committed by the constables in the course of discharge of their duty to give them immunity under the provisions of section 170 of the Act, is totally incorrect. In respect of acts done under colour or in excess of the duty, it is a matter to be gathered from the facts and circumstances available on the entire record of the case and not merely the complaint filed by the complainant. 10. In State of Mysore v. Manickam4this Court has laid down as follows: “In order to claim protection of section 170(1) of the Mysore Police Act, 1963, the material point for consideration would be whether there is reasonable connection between the act and the official duty.” In that case, the complainant was in the police station standing in the verandah taking protection against rain. The Sub-Inspector of Police asked him to go away. When the complainant failed to do so, the Sub-Inspector assaulted the complainant and arrested him and later on released him on bail. The Sub-Inspector of Police asked him to go away. When the complainant failed to do so, the Sub-Inspector assaulted the complainant and arrested him and later on released him on bail. In those circumstances, this Court has held that sanction of Government under section 170(1) of the Act to prosecute the Sub-Inspector of Police was required. In the instant case also, on a complaint given by the members of the landlord’s family, the constables were deputed to bring the present complainant to the police station and in the course of the discharge of their duty, certain offences have been alleged against then. Thus, there has been close connection between the act alleged and the official duty. Therefore, the ratio of the decision of this Court bears on the facts of the present case. 11. Further, at what stage the learned Magistrate has to consider the question of sanction, has been clearly laid down by the Supreme Court in Matajog Dobey v. H.C. Bhari1, and also in Virupakappa v. State of Mysore2. These two decisions make it clear that it is not always necessary that the need for the sanction is to be considered as soon as the complaint is lodged. The complaint may not disclose that the acts constituting the offence were done or purported to be done in the discharge of the official duty; but facts subsequently coming to light on a police or judicial enquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. The question may arise it any stage of the proceedings. 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 is a pity that the learned Magistrate has lost sight of the principle of law governing the stage at which the immunity or the protection in section 170 of the Act is to be considered. 12. Mr. The necessity may reveal itself in the course of the progress of the case. It is a pity that the learned Magistrate has lost sight of the principle of law governing the stage at which the immunity or the protection in section 170 of the Act is to be considered. 12. Mr. Chandrasekhar, learned Counsel appearing for the respondent, relied upon a decision of the Federal Court in Hori Ram Singh v. Emperor3, and urged that the offence under section 380 of the Indian Penal Code cannot be said to have been done under colour or in excess of any such duty or authority since no police officer is entitled or purported to discharge his duty, to commit theft of a purse. He urged that as laid down in the decision of the Federal Court sanction is not necessary in so far as the offence of theft under section 380 of the Indian Penal Code is concerned. This decision, in my opinion, has no application to the facts of the instant case. Firstly, the sanction was required in that case under section 270(1) of the Government of India Act, 1935. The wordings used in section 270(1) read as under: “No proceedings civil or criminal shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown of India or Burma before the relevant date, except with the consent, in the case of a person who was employed in connection with the affairs of the Government of India or the affairs of Burma, of the Governor-General in his discretion, and in the case of a person employed in connection with the affairs of a Province of the Governor of that Province in his discretion”. Section 170(1) of the Act reads thus: “In any case of alleged offence by the Commissioner, a Magistrate, Police Officer or Reserve Police Officer or other person, or of a wrong alleged to have been done by such Commissioner, Magistrate, Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherin it shall appear to the Court that the offence or wrong if committed or done Was of the character aforesaid, the prosecution or suit shall not be entertained except with the previous sanction of the Government”. 13. The wordings occurring in these two sections are different. In section 270 (1) of the Government of India Act, 1935, the relevant words are “in the execution of his duty as a servant of the Crown in India.” These words cover the acts done in execution of duty as servant of the Crown in India or Burma. But the words used in section 170(1) of the Act are: “acts done under colour or in excess of any such duty or authority as aforesaid or wherein it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid....”. We have to lay emphasis on the words “under colour or in excess of any such duty or authority.” This means that while purporting to discharge the duty as Police Officer, if the Police Officer does anything under the colour of his office or in excess of the duty, all such acts which may amount to offence or wrong as covered by the words found in section 170(1) of the Act. Therefore, the ratio of the decision in Hon Ram Singh v. Emperor1, in my opinion, cannot be applied to the facts of the instant case. 14. For the reasons stated above, the previous sanction of the Government was necessary to prosecute the accused-constables in this case. Therefore, the order under revision is not sustainable in law and is liable to be set aside. Accordingly, the order is set aside and the complaint filed without the previous sanction of the Government is incompetent and no cognizance shall be taken on such complaint. Therefore, the Magistrate is directed to drop the proceedings. S.V.S. ----- Order set aside; direction to drop proceedings.