1. This Revision petition is filed by the complainants against the order passed by the Sub Magistrate of Chengannur in C.C 665/59 allowing a preliminary objection raised by the accused and dismissing their complaint. The allegations in the complaint were that on 23-7-59 they were severely beaten by the four accused, carried in the police van and unlawfully detained in the police station till 5 P.M when they were sent to the hospital. The accused presented an application to the learned Magistrate in which they alleged that what really happened on that day was that a large crowd gathered in the premises of the Mulakkuzha Government High School in connection with the anti-Government agitation, that they along With the Executive First Class Magistrate had gone to maintain law and order, that the crowd pelted stones at the police party, that the Executive First Class Magistrate declared the assembly as unlawful and ordered them to disperse and when they refused to disperse orders were given to them to disperse the assembly by resorting to a mild lathi charge and that they had acted in the exercise of their powers under Sections 127 and 128 of the Cr PC. In dispersing an unlawful assembly and that the complaint was therefore barred by Section 132 of the Cr PC for want of sanction of the State Government. An attested copy of the F.I.R, registered by the police against these complainants and others for offences under Sections 148, 337, 332 and 427 I.P.C was produced along with the petition.
2. A further contention was also raised that accused 1 and 2 are public servants removable from office only by the State Government and that to prosecute them for the Offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duties, sanction will have to be obtained under Section 197 of the Cr PC, and the court could not take cognizance against them except with the previous sanction of the State Government. It has not been disputed before me that accused 1 and 2 Were removable from their office only by the State Government. As such S. 197 will be applicable if the other conditions laid down in the section were satisfied.
3. The first question that arises is whether Section 132 of the Cr PC can be invoked by the petitioners as a bar to their prosecution. The contention raised by the accused was that they were acting under Sections 127 and 128 of the Cr PC, namely, dispersing an unlawful assembly, that they resorted to a mild lathi charge under the orders of the Executive Magistrate as the crowd started pelting stones at them and that they were only acting in the discharge of their duties and therefore they are entitled to the protection afforded by law under Section 132 of the Cr PC. The fact that if they were really acting as alleged by them S. 132 would be applicable is not and cannot be disputed. The question is whether the occurrence took place as alleged by them.
4. The learned counsel for the petitioners would argue that till it is proved that there was an unlawful assembly and that the petitioners acted under Sections 127 and 128 of the Cr PC, the question of sanction does not arise, in short what is contended is that the accused must prove that they were acting in the discharge of their duties in dispersing an unlawful assembly. If that is proved then S. 79 I.P.C comes into operation and the accused would not be guilty, but that can be established only after trial. What is contemplated under S. 132 is that the accused in such a case cannot be put on trial at all. S. 132 says,
“No prosecution against any person for any act purporting to be done under this Chapter shall be institutes in any criminal court, except with the sanction of the State Government.”
5. The protection conferred by this section would be rendered nugatory if the onus is thrown on the police officers to prove in the trial that they acted under Chapter 9 of the Cr PC. It would mean that the police officers must prove them selves to be innocent of the offences alleged against them in order to show that the complaint is invalid for want of sanction.
6. A similar contention was raised and negatived in the case in Schamnad v. M.N Rama Rao, AIR 1933 Mad 268. In that case Burn, J., followed an earlier Bench decision in Gangaraju v. K. Venki, AIR 1929 Mad 659. In that case the learned Judges were dealing with Section 197 of the Cr PC. Waller J., in delivering the judgment of the Bench observer as follows:
“It (referring to Section 197 of the Cr PC) 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 precautions to which the public at large can legitimately take exception, and consider that the sub-section should be construed as widely as it has been framed.”
7. After quoting the above observation of Waller, J., Burn, observed that every word of this passage is equally applicable to Section 132 of the Cr PC, the terms of which are as wide as, if not wider than, those of S. 197.
8. Another contention raised by the learned counsel was that only the complaint and the sworn statement should be looked into and not any other circumstance or documents for the purpose of deciding whether the prosecution is barred under S. 132. Burn J., while dealing with this points has stated 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 of the Cr PC.
9. The decision of Burn J., has been followed by King, J., in Elaya Piilai v. Arulanandam Pillal, 1937 Mad WN 1243 and Somasundaram, J., in V.D Yesudasan v. Gurusamy, AIR 1957 Mad 555. I am in respectful agreemenl with the views expressed in these cases.
10. I might also refer to the observation of JacKson, J., in Raja Rao v. Ramaswami, AIR 1927 Mad 566:
“Section 197 of the Cr PC, presents no difficulty it the obvious intention of the legislature is borne in mind. It is no part of British policy to set an official above the common law. If he commits a common offence he has no peculiar privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction for the obvious reason that otherwise official action would be beset by private prosecution. Judges would be charged with defamation, policemen With wrongful restraint, and distrainers with theft. This privilege of immunity from prosecution without sanction only extends to acts which can be shown to be in discharge of official duty, or fairly purporting to be in such discharge”.
11. In the present case there is in my opinion enough material to show that the accused were acting or purporting to act in the discharge of their duty under Sections 127 and 128 of the Cr PC. They were thus acting under Chapter 9 and were entitled to protection under Section 132 of the Cr PC. The order of the learned Magistrate is therefore correct and on this ground alone this petition has to be dismissed.
12. S. 197 is also equally a bar for the prosecution of accused 1 and 2. It is not necessary to trace the entire case law on the matter. It is enough to refer to some of the recent decisions of the Supreme Court which have a direct bearing on this question. In Amrik Singh v. State Of Pepsu, (S) AIR 1955 SC 309 His Lordship Venkatarama Ayyar, J., discussed the earlier cases of the Federal court and the Privy Council and summed up the position as follows:
“It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Cr PC, nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, Which must precede the institution of the prosecution.”
13. In the case in Shreekantiah Ramayya Munipalli v. State Of Bombay, (S) AIR 1955 SC 287 the accused who were Government servants were in charge of the Military. ‘Engineering Stores depot and were entrusted with certain Government Funds. They entered into a conspiracy to defraud Government and in pursuance of the conspiracy they arranged to sell certain articles and the sale price was misappropriated by them and not credited to Government. It was argued that it was none of the duties of the accused to misappropriate Government money and therefore S. 197 would not apply. Their Lordships while holding that S. 197 applied observed as follows:
“Now it is obvious that if Section 197 of the Cr PC is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be, but it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.”
14. In the case in Matajog Dobey v. H. C. Bhari , (S) AIR 1956 SC 44 the position was further made clear. In that case warrants were issued by the Income-tax Investigation Commission to the four accused who were Government Officials. They raided certain premises with some policemen. The father of the person whose premises were searched came to the place and found that the officials had forcibly opened the lock of the door of the room in which there were several books and papers which they were collecting and packing into Dundles for removal. He protested, pointed out that their actions were illegal and oppressive and wanted a proper search list to be prepared, and proper receipts to be given to him for the books ant documents sought to be seized and removed. Thereupon two policemen held him down and it was alleged that he was assaulted mercilessly, kicked, dragged downstairs, put in a police van and taken to the Burra Bazaar thana, there assaulted again before being sent to the hospital.
15. It was alleged that he was brought back and detained in the lock-up till midnight when he was released on bail. On these facts a complaint was filed under Sections 325, 342 and 504 I.P.C Objection was raised that the prosecution without sanction under S. 197 is not maintainable. Their Lordships held that sanction under S. 197 was necessary and stated that the test would be that there is a reasonable connection between the act and the discharge of official duty and the act bears such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of the performance of his duty.
16. What the court has, therefore, to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of duty though possibly in excess of the needs and requirements of the situation. Judged in the light of these well settled principles it would be seen that the acts complained against the accused in this case were so integrally connected with the duties attached to their office as to be inseparable from them and that sanction is necessary for their prosecution. The order of the learned Magistrate can be supported in this ground also. There is therefore no merit on this revision petition and it is dismissed.
IF/D.H.Z
17. Revision dismisses.