Leonard Stone, C. J. - (1.) THIS is an appeal by a head constable and six police constables against the convictions and sentences varying from three months' rigorous imprisonment in the case of accused No.4 to three years' rigorous imprisonment in the case of accused Nos. 2, 7 and 8, to transportation for life in the case of accused Nos. 1, 3 and 5, In all the cases other concurrent sentences were passed on the accused by Mr. C. S. Deodhar, Sessions Judge of Kaira, on January 6, this year. Accused No.6 died in the course of the proceedings.
(2.) THE accused are not all similarly charged, the charges against them variously include rioting, unlawful assembly, causing hurt and murder, and the bare uncontrovertible facts from which these various charges spring are as follows. At about 7-20 p. m. on the evening of August 18, 1942, as the result of a collision, fortuitous in its actual occurrence, an armed force consisting of one Head Constable (accused No.1) in command and seven other Constables (accused Nos. 2 and 8), five being armed with rifles and three with lathis, who were proceeding from Navli to Vasad by train, got down from the train at the intervening station of Adas on sighting, and then encountered, a party of 34 students, who had come from Baroda State earlier on that day and who were then in the proximity of the station; beat, them with lathis and opened fire, firing seven rounds of ball ammunition, which resulted in the death of four members of the party from Baroda and the wounding of ten others. I must at the ouset, in fairness to the accused, dispel certain prejudice which was allowed to creep into the case in the lower Court. THE party from Baroda has been throughout the proceedings described as "boys" and sometimes as "satyagrahis" (those who offer "passive resistance" only ). THEre is no evidence whether all or any of the members of the party were "sataygrahis" but their ages ranged from 18 to 23, the majority of them being 18 or 19 years of age. Eighteen years of age is, in this country, not only the age of the attainment of majority, but it is also the age, as it is in many other countries, for joining the army for military service. Throughout this judgment in referring collectively to these 34 young men I shall use the colourless expression "the party from Baroda. " The prosecution's case, as developed in this Court by the Advocate General, is that the Police, when they got off the train at Adas station, did not do so in the performance of any duty, but in order to carry out the premeditated design of giving the party from Baroda "khokhra" (the nearest English words are "a hammering" or "abashing") and so, speaking sarcastically, "to give them 'swaraj' (their freedom ). " That there was no idea of pursuing an investigation, no idea of dispersing an unlawful assembly, no idea of apprehending any of the party from Baroda or of preventing any criminal act, no element of acting either in self defence or of protecting property, and that accordingly this is a case of wanton and unprovoked murder, deliberate in design and brutal in its execution, inspired by a thirst to revenge the murder of two policemen which had taken place 5 days previously at Dakore. The defence is that the police were throughout justified in the circumstances in the action they took, that they were acting in discharge of their duty, and that these proceedings ought never to have been entertained by any Court at all, as the police rely on certain statutory provisions and in particular Section 80 of the Bombay District Police Act, 1890.
(3.) THE incident belongs to the era of the troubled state of this country which prevailed after August 8, 1942, when the "quit India" resolution was passed, and the case must be approached dispassionately. On the one hand the death of four young men and the wounding of ten others is a catastrophe in any circumstances, but on the other, police officers, like any other executive officers of Government, are entitled without fear or favour to invoke and receive the protection which the law bestows upon them; for it would be impossible for the affairs of any civilised community to be efficiently administered if changes in regime put executive officers of Government in peril of being victimised retrospectively. As time passes Governments come and go, but the even tenor of the duty of a public servant circumscribed by law must be pursued and upheld, immutable and inviolate, against any anticipatory hopes or apprehensions from changes in the political arena. This is one of the most fundamental principles upon which every modern democratic structure stands. Before referring to the facts in any detail, it is very necessary in this case if we are to avoid-what appears to have happened in the Court below,-being engulfed in a mass of contradictory evidence, to set out and keep clearly in mind, what the point of this case really is, and what is the law applicable.;