S.K. Chattopadhaya, J.
1. Heard Mr. Topno, learned counsel for the petitioner and Mr. P. D. Agrawal, learned counsel for the State.
2. An interesting question has been poised before this court on behalf of the petitioner as to whether a complaint or FIR could be filed against a public servant without the sanction of the Government when the action of the public servant complained of appears to come within the provisions of Sections 127 and 128 of the Code of Criminal Procedure (in short 'the Code').
3. In order to appreciate the points raised, it is necessary to give some facts of the case. One Surajdeo Yadav lodged an FIR on 27-2-95 alleging, inter alia, that the petitioner, the Range Officer of Chainpur Range along with his rifle party came to the village and began to seize woods from the possession of one Rajendra Yadav, the brother of the informant. The woods were to be used for the house which was under construction. The petitioner and his party began to load the said woods in a truck which he brought with them. One Ramjivan rushed to the place and restrained the Range Officer from taking the woods, as a result of which some altercation took place and it is alleged that the petitioner began to beat Ramjivan Yadav with stick. Other villagers assembled on call by Ramjivan Yadav and certain mob started fighting. When the petitioner found that fighting was going towards some uncontrolled situation, he gave order for firing and one blank fire in the air was made. The . villagers, however, did not retard and two firings were made in which the informant got one injury in his finger of leg. The another firing hit one Indradeo Yadav in his abdomen who fell down then and there. After the occurrence, the petitioner and his party flew towards southern part of the jungle. The villagers took the injured, Ramjivan and Indradeo, to Daltonganj for medical treatment but in Nawadih, Indradeo succumbed to the injury. On the basis of the allegation, a case was registered under Sections 302, 307, 324 and 34 of the Indian Penal Code read with Section 27 of the Arms Act.
4. Mr. Topno submits that the petitioner being a Forest Range Officer is a public servant within the meaning of the Indian Penal Code and moreover, he has been appointed as an Executive Magistrate and Special Executive Magistrate and power has been delegated to him under the Code; He further submits that the petitioner along with his party proceeded on duty to raid and seize the illegal fell and collect forest produce. When they saw the huge quantity of forest produce hoarded in a newly constructed house in the forest range and no person was there, he and his party began to load the forest produce (woods) in the truck. According to the petitioner, at that time about 200 people armed with deadly weapons came and assembled and the mob encircled the raiding party. One of the mob snatched the rifle from one of the raiding personnel, Ramanand Tiwari and the petitioner ultimately finding no other alternative ordered for firing. On his order, the raiding party, for their self defence, made firing thrice. The petitioner further directed his party to flee towards jungle to save their lives. On the basis of this incidence, it is alleged that F.I.R. was lodged under various sections of the Penal Code and Section 27 of the Arms Act against about 175 villagers nexalites which gave rise to G.R. case No. 206/95.
5. Mr. Topno, on the allegation of the petitioner in the F.I.R.,- submits that the petitioner had acted in good faith under Section 129 of the Code of Criminal Procedure and, as such, the F.I.R. filed against the petitioner by Surajdeo Yadav cannot be entertained in absence of any sanction as required under Section 132 of the Code.
6. Mr. P. D. Agrawal, learned counsel appearing on behalf of the State, has submitted that it is settled principle of law to the effect that no prosecution against any person for any act purported to be done under Sections 129,130 and 131 of the Code can be launched unless sanction of the appropriate Government is obtained. But, he submits that the occasion for the court to consider whether the complaint could be filed without the sanction of the Government would be at a later stage of the proceeding when it will appear before the appropriate court that the action of the officer complained of appears to have come within the provision of Sections 129 and 130 of the Act and not at this stage. He further submits that in exercise of its inherent power under Section 482 of the Code, the High Court will not quash the F.I.R. mainly on the suggestion of the petitioner.
7. In order to appreciate the contention of the parties, provisions as laid down in chapter 10 of the Code regarding maintenance of public order and tranquillity may be looked into. Section 129(1) empowers any Magistrate or Officer incharge of a police station, or in the absence of such officer incharge, any police officer, not below the rank of a Sub-Inspector to command any unlawful assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse.
Similarly, Sub-section (2) of Section 129 authorises the Magistrate or police officer referred to in Sub-section (1) to proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed force and acting as such, for the purpose of dispersing such assembly and if necessary, arresting and confining the persons who form part of it in order to disperse such assembly or that they may be punished according to law.
Section 130 deals with the use of armed force in the dispersing of such assembly and of the duty of the officer commanding the armed forces called upon to disperse such assembly.
Under Section 131, the commissioned or gazetted officer of the armed forces, in the absence of any communication with any Magistrate, may disperse such assembly with the help of the armed forces under certain circumstances. He is also empowered to arrest and confine any person forming part of it in order to disperse such assembly or that they be punished. according to law.
8. From the aforesaid analysis it is clear that certain officers including officers of the armed forces can use force under certain circumstances in order to maintain public peace and tranquillity. But law also commands that in doing so as little force shall be used and as little injury to person or property should be caused as may be consistent with dispersing the assembly and arresting and detaining the persons.
9. The Legislature has provided two safeguards in regard to prosecution of members of the armed forces or of the forces charged with the maintenance of public order sought to be prosecuted for use of excessive force for the discharge or purported discharge of their duty. Firstly, Section 132 of the Code contemplates that they cannot be 'prosecuted' without obtaining sanction to prosecute from the appropriate government and secondly Section 197 provides that no court can take 'cognizance' of an offence against such an official in the absence of previous sanction of the appropriate government. While sanction under Section 132 is addressed to the intending com- plainant, sanction under Section 197 is addressed to the Magistrate presiding over a court. The disability operates in two different spheres. Want of sanction under Section 132 renders the complaint invalid. Want of sanction under Section 197 vitiates all the proceedings in the court. For want of the former, the complainant cannot complain, for want of the latter the court cannot try the case.
The aforesaid settled principle cannot be disputed but the question is what is the occasion for the court to consider whether the complaint could be filed without the sanction of the Government.
10. The contention of Mr. Topno that when a complaint is filed, the question of sanction must be decided in the very first instance because the protection given by Section 132 will be nugatory as the object giving this protection is that the petitioner be not harassed by any frivolous complaint. It is true that there may be such harassment of the accused against whom such allegations are made, by 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 complainant did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise.
In the case of Nagraj v. State of My sore, reported in : 1964CriLJ161 their Lordships while considering the scope and ambit of Sections 127,128,129,130 and 132 of the Code of Criminal Procedure, 1898, in a case as to whether a police officer in the State of Mysore could be prosecuted without prior sanction as required under Section 132 of the Code of Criminal Procedure, 1898, has observed as follows:-
'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 Chap. IX of the Code, cannot be accepted. His mere allegation will not suffice for the purpose and will not force the court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complain.
11. The apex court has further held that to get such benefit and to put a clear decision on the question whether his conduct amounts to an offence or not, the accused has to show (1) that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace; (ii) that such an assembly was commanded to disperse; (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 disperse; and (iv) that in the circumstances he had used force against the members of such assembly. It is further held that he has to establish these facts just in the same manner as an accused has to establish any other exception he pleads in defence of his conduct in a criminal case.
12. It is well settled that the question whether sanction was required or not can be looked into by the Court either when the accused appears before the court and makes such a suggestion or when evidence or circumstances prima facie show it. The mere suggestion of the accused will not, in my opinion, be sufficient for the court to hold that sanction was necessary. The Court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under Section 129 or 130 of the Code.
13. In the case of Bakshish Singh Brar v. Smt. Gurmej Kaur reported in : 1988CriLJ419 the Apex Court has held that the trial court can decide the necessity of saction after gathering materials and evidences. In the case in hand, the argument of Mr. Topno that the F.I.R. filed against the petitioner by the informant cannot be held to be maintainable because no sanction was taken prior to lodging of the same, in my considered opinion, has no force.
14. Mr. Topno further argued that the petitioner has filed a first information report against 175 villagers stating therein, in detail the situation and conduct of the villagers which compelled him to order for firing and these facts will show that the petitioner was acting bona fidely under Section 129 read with Section 130 of the Code. In my opinion, this contention of Mr. Topno has also no leg to stand and, as such, must be rejected.
15. In the case of Nagraj : 1964CriLJ161 (supra) while repelling almost the same argument that some of the persons alleged to have formed part of unlawful assembly, were prosecuted by the State and have also been committed by the Magistrate to the Sessions Court for trial , establishes, prima facie, that the . accused's contention about the necessity of sanction under Section 132 of the Code was correct, their Lordships observed that the commitment of the other accused is on the basis of evidence in that case cannot be legally taken into consideration to decide the question raised in the aforesaid case. The question is to be decided on the evidence in the case and not on the basis of evidence and inferences drawn in the other case.
16. Taking into consideration the facts and circumstances of the present case as well as the settled principles of law, in my considered opinion, this court while exercising its power under Section 482 of the Code, cannot quash the F.I.R. on mere suggestion made on behalf of the petitioner. The forum for determination as to whether sanction under the law as required or not, is to be decided in proper stage.
17. In the result, I find no merit in this application and the same is dismissed.