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SUPREME COURT OF INDIA
8th may 1963
K. SUBBA RAO, RAGHUBAR DAYAL AND J.R. MUDHOLKAR, JJ.
Nagraj, Appellant
Versus
State of Mysore, Respondent.
Criminal Appeal No. 172 of 1962.
Advocate appeared
Mr. R. Gopalakrishnan. Advocate, for Appellant; M/s. B. R. L. Iyengar and P. D. Menon, Advocates, for Respondent. 271
CRIMINAL PROCEDURE CODE - Ss. 132, 197 - SANCTION FOR PROSECUTION - POLICE OFFICER - DISMISSAL - POWER OF INSPECTOR GENERAL OF POLICE - UNLAWFUL ASSEMBLY - DISPERSAL - PROTECTION TO POLICE OFFICER - PROCEDURE TO BE FOLLOWED BY COURT.
Fact of the Case:
The appellant, a Sub-Inspector of Police, was accused of firing at and injuring two persons while dispersing an unlawful assembly. The Magistrate committed the appellant to the Sessions Court for trial under Ss. 307 and 326, I. P. C. The Sessions Judge made a reference to the High Court recommending the quashing of the commitment order on the ground that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government under Ss. 132 and 197 of the Code of Criminal Procedure.
Finding of the Court:
The High Court held that the appellant could be dismissed from service by the Deputy Inspector-General of Police and that therefore no question of sanction under S. 197 arose. It further held that before a Court could hold that the cognizance of the case had been taken by the Magistrate without 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 Ss. 128 to 131 of the Code.
Issues: 1. Whether sanction under S. 197 of the Code of Criminal Procedure was necessary for the prosecution of the appellant, a Sub-Inspector of Police, for offences allegedly committed in the discharge of his official duty? 2. Whether a police officer can 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 duties under Ch. IX of the Code? 3. Whether the appellant had prima facie established his version of the incident and that his producing a copy of the committal order in the counter case was sufficient for holding that sanction under S. 132, Criminal P. C. was necessary? 4. Whether it is 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?
Ratio Decidendi: 1. The appellant could be dismissed from service by the Deputy Inspector-General of Police and therefore no question of sanction under S. 197 arose. 2. 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 duties under Ch. IX of the Code. 3. The appellant had not prima facie established his version of the incident and that his producing a copy of the committal order in the counter case was not sufficient for holding that sanction under S. 132, Criminal P. C. was necessary. 4. 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.
Final Decision: The appeal was dismissed.
Judgment
RAGHUBAR DAYAL J. : This appeal by special leave is directed against the order of the High Court of Mysore rejecting the reference by the Sessions Judge, Shimoga Division, recommending the quashing of the commitment order of the Magistrate committing the accused to the Sessions for trail 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.
2. The case against the appellant was started on the complaint of one Kenchappa who alleged that the Sub-Inspector and another person had severely beat one Thimma and that the Sub-Inspector, when forcibly taking away Thimma and requested by Kenchappa to excuse Thimma if he had misbehaved, wantonly fired 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 trail.
3. The facts of the incident, according to the appellant and the basis of the counter case, are these. The appellant was 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 liquor, and sent him with the constable to the police station. Thereafter, he arrested Thimma who was supposed to be in league with Gidda in manufacturing liquor. When Thimma was being taken to the police station 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 people, however, 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 Kenchappa. 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 danger 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 persons, Hanumanthappa and Shivlingappa. Kenchappa snatched 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.
4. 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 I. P. C.
5. 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 the 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 sub-ordinate were in jeopardy and that therefore previous sanction of the Government under S. 197 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 justification 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 sta
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