V.D. Yesudasan and ors. Vs. Gurusamy - Court Judgment

Excerpt:
code of criminal procedure (v of 1898), section 132--scope of--protection under--prosecution of persons acting under chapter ix of the code--if can be launched without sanction of state government ; section 132, criminal procedure code, gives protection to persons against prosecution for any act purporting to be done under chapter ix of the code of criminal procedure except with the sanction of the state government. the protection conferred by this section will be rendered nugatory if the onus is to be thrown on persons to prove in the trial that they acted under chapter ix. this could not have been the object of the legislature when it provided safeguards for the protection of public servants while they were acting in the discharge of their duties. - - 1. petitioners 1 to 3 in crl. m. p. no. 87 of 1956 (a. 5 to 7 in c. c. no. 96 of 1956) on the file of the sub-divisional magistrate,' koilpatti, are the petitioners herein. the fifth accused is a sub-inspector of police and accused 6 and 7 are police constables. the complainant belongs to the village of athikinar hamlet of shanmugapuram in the tirunelveli district, after the estates abolition act, there was trouble between the ryots in the village of athinkinar and the proprietor, the zamindar of ettayapuram. orders under section 144 crl. p. c., were passed against the complainant and the other residents of the village of athikinar restraining them from interfering with the cultivation of certain lands belonging to the zamindar. that there was a dispute between the ryots and the.....

Judgment:
1. Petitioners 1 to 3 in Crl. M. P. No. 87 of 1956 (A. 5 to 7 in C. C. No. 96 of 1956) on the file of the Sub-divisional Magistrate,' Koilpatti, are the petitioners herein. The fifth accused is a sub-inspector of police and accused 6 and 7 are police constables. The complainant belongs to the village of Athikinar hamlet of Shanmugapuram in the Tirunelveli district, After the Estates Abolition Act, there was trouble between the ryots in the village of Athinkinar and the proprietor, the Zamindar of Ettayapuram. Orders under Section 144 Crl. P. C., were passed against the complainant and the other residents of the village of Athikinar restraining them from interfering with the cultivation of certain lands belonging to the zamindar. That there was a dispute between the ryots and the inhabitants of the above village and the zamindar who is impleaded as the first accused in the above case is clear from the allegations contained in the complaint filed by the complainant. The matter was taken to the civil court also and the complainant and the other men were restrained by an injunction from interfering with the possession of the lands belonging to the zamindar of his lessees.

2. On 21-4-1956 the fifth accused, the first petitioner herein, accompanied by two other constables, along with six or seven reserve constables and three or four police constables undoubtedly visited the village of Athikinar coming in a police lorry and a jeep. According to the allegations in the complaint they got down a furlong away from the village, rounded up the womenfolk who were engaged in plucking cotton and took them to the village and presented them before the circle inspector. Most of the menfolk ran away on seeing this. The complainant also took shelter in the house of one Villiammal. After getting information that the police and others were trying to break open the door of his house, the complainant alleges, he rushed to his house and then he was beaten by accused 2 to 7 by sticks. He was beaten in the buttock and on his leg and then he fell down unable to bear the pain and became unconscious and when he recovered consciousness, he alleges, he found himself kept under a margosa tree in the outskirts of the village. It is for causing these injuries to the complainant he has filed this complaint in the above case implicating accused 5 to 7, the sub-inspector and two other constables as accused in the case, along with the zamindar and his clerk, agent and others.

3. In the sworn statement taken from the complainant this is what he stated:

"The Reserve Police, the Sub-Inspector and Zamindar's men got down from these vehicles. They gathered together about 50 women who were picking cotton in that area and led them towards the village. On seeing that our menfolk got frightened and ran away, I also went and hid myself in Valliammal's house in the south street of my village."

The police filed a charge-sheet in C. C. No. 136 of 1956 against eleven persons for offences under Sections 143, 144, and 225-B, I. P. C. This also is said to have taken place on the same day and at about the same time as the occurrence in respect of which the complainant has filed a complaint against these petitioners and others. The complainant in this case is the fourth accused in the case filed by the police in C. C. No. 136 of 1956.

4. The petitioners raised a preliminary objection before the Sub Divisional Magistrate that Section 132 Crl. P. C. is a bar to the prosecution against them and the complaint, therefore, ought not to be entertained without the sanction of the State Government. The Sub-divisional Magistrate before whom both the cases had been filed dismissed the petition holding that what is alleged in the complaint filed by the private complainant is entirely in respect of a different action and at a different place and that at that stage the magistrate was not inclined to hold that the complainant sustained the injuries in the cotton punja as alleged on behalf of the petitioners. He therefore dismissed the petition. It is against this order that the present revision has been filed. The question is whether in the circumstances mentioned in the complaint Section 132 Crl. P. C. can be invoked to the aid of the petitioners herein as a bar to the prosecution filed against them by the private complainant.

5. On behalf of the petitioners reliance is placed on the decision of Burn J. in Schamnad v. Ramarao, 1932 Mad W. N. Cr. 253: (AIR 1933 Mad 268) (A). The contention of the petitioners is that they were acting under Sections 127 and 128 Crl. P. C., that is to say, they were dispersing an unlawful assembly and they had to use a mild force as there was resistance by the members of the unlawful assembly and that they were therefore only acting in the discharge of their duties and they are entitled to the protection afforded by law under Section 132, Cr. P. C. The fact that if the petitioners herein did act in the discharge of their duties, viz., in dispersing an unlawful assembly, then Section 132 Crl, P. C. is applicable, is not, and cannot be, disputed. The whole question, therefore, turns upon the question whether the occurrence took place as alleged by the complainant, that is to say, whether he sustained the injuries in the manner alleged by him or whether he sustained the injuries when the police used force in dispersing an unlawful assembly.

It is the contention of the complainant that till it is proved that there was an unlawful assembly and that the petitioners acted under Sections 127 and 128 Crl. P. C, the question of sanction does not arise. In short, the onus is thrown on the petitioners to prove that they were acting in the discharge of their duties in dispersing an unlawful assembly. If they prove that, then certainly they are not guilty at all of any offence under Section 79 I. P. C. That is established only after the trial is gone through or the petitioners undergo the necessary trial. But what is contemplated under Section 132, Crl. P. C. is that they could not even be put on trial. The section says:

"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."

The protection conferred by this section will be rendered nugatory if the onus is to be thrown on the petitioners to prove in the trial that they acted under this chapter, that is, under Chapter 9 Crl. P. C. To find out whether the accused acted under this Chapter or not, it is contended for the complainant that only the complaint & the sworn statement should he looked into and not any other circumstances or document. Burn J. while dealing with this point has disagreed with that view. He points out that if such a contention is sound "it would follow that any one by appropriate assertions in his complaint and sworn statement could deprive police officers of the protection which the legislature has given them under Section 132 Crl. P. C." There is considerable force in the observations made by Burn J. as even in cases where admittedly the police officers acted under Chapter 9, Cr. P. C. by appropriate allegations in the complaint, the sanction required under Section 132 Crl. P. C. may be evaded and the court would be asked to proceed with the case against the accused. This could not have been the object of the legislature when it provided safeguards for the protection of public servants while they were acting in the discharge of their duties.

6. The decision of Burn J. has been followed by King J. in Elaya Pillai v. Arulanandam Pillai, 1937 Mad W. N. Cr. 259 (B). In. fact both these decisions follow an earlier decision of a Bench of this court in Gangaraju v. Venki, ILR 52 Mad. 602: AIR 1929 Mad 659(C). Burn J. adopts the observations of. Waller J. in ILR 52 Mad 602: AIR 1929 Mad 659 (C), where the learned Judges were dealing with Section 197 Crl. P.C. Waller J. in the above case has observed as follows;

"It (referring to Section 197, Cr. P. C.) is framed in very wide terms. It requires that judges, magistrates, and certain public servants shall not be prosecuted without the sanction of the competent authority for any offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duties. The object obviously is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them, while they were acting or purporting to act as public servants. The policy of the legislature is, we conceive, to afford adequate protection to public servants, to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and, if sanction is granted, to confer on the local government, if they choose to exercise it, complete control of the prosecution. We can see nothing in these prosecutions to which the public at large can legitimately take exception, and consider that the sub-section should be constructed as widely as it has been framed."

7. After quoting the above observations of Waller J., Burn J. observed :

"In my opinion, every word of this passage is equally applicable to Section 132, Cr. P. C. the terms of which are as wide as, if not wider than, those of Section 197."

The decisions of Burn J. and King J. have been subsequently followed by Govinda Menon and Basheer Ahmed Sayeed JJ. in Cr. R. C. No. 286 of 1953 (D); and they were further followed by Panchapakesa Aiyar J. in Cr. R. C, No. 461 of 1954 (E). In the last case, Panchapakesa Aiyar J. clearly points out that if any police officer has really misbehaved and used force far in excess, it is open to the complainant to place the facts before the Government and obtain the sanction. The learned Judge points out how if a police officer really misbehaves, Government is not likely to support his action and they will consider in terms of giving sanction to the complainant to prosecute him if they are really satisfied that such excess has been committed by the particular police officer, to prosecute whom sanction is asked for. There is really no difficulty to prosecute any police officer if he really misbehaves.

8. Apart from all these nice considerations, the allegations in the complaint itself suggest that the police officers had come there in discharge of their duties to disperse an unlawful assembly. The complainant refers to an earlier order under Section 144, Cr. P. C. passed against them and a subsequent injunction against them restraining them from picking cotton in the very field which is the subject-matter of dispute, how the women-folk were rounded up and presented before the Inspector and how the menfolk started running and how the complainant also started running and took shelter. It is not as if the complainant was in his house and the police came and pulled him out and beat him. The allegations in the complaint read with what he has stated in his sworn statement really suggest that the police officers must have come there for the purpose of dispersing the members of the unlawful assembly; in fact, the version contained in the police charge-sheet in C. C. No. 136 of 1956 clearly supports this conclusion.

9. On the facts of this case it is clearly established that the petitioners were acting under Chapter 9, Cr. P. C. and, therefore, they are entitled to protection under Section 132, Cr. P. C. The proceedings against the petitioners are, therefore, quashed.