M N SCHAMNAD Vs. MNRAMA RAO

JUDGEMENT

(1.) The petitioners are an Inspector and a Sub-Inspector of Police against whom a complaint has been laid in the Court of the Subdivisional Magistrate of Mangalore. The substance of the complaint is that on 11 April 1932, while the complainant and another were peacefully picketing a certain shop, a lorry full of reserve constables numbering in all about a dozen, armed with canes, came led by the accused; and accused 1 Inspector of Police, after warning the complainant and his companion to move, ordered the constables to beat them. In consequence of this order the complainant alleged that he and his companion were severely beaten, and the complainant said he believed that the 12 constables at the instance of the accused had fractured his ankle joint.. A sworn statement was recorded on 19 April in which the complainant said that it was the Inspector who directed the beating and that the Sub- Inspector was present with him. The Subdivisional Magistrate took the case on the file for an offence under Section 326, I.P.C., against both the accused and issued process.

(2.) The accused made an application to the Subdivisional Magistrate in which they alleged that they had acted in the exercise of their powers under Secs.127 and 128, Criminal P.C., in dispersing an unlawful assembly and that the complaint was barred by Section 132, Criminal P.C., for want of sanction of the Local Government. The learned Subdivisional Magistrate has held that the sanction was not necessary and that the trial must go on. He considers that the main question for decision is whether there was an unlawful assembly when the beating was ordered, and says that if the evidence at any stage discloses that there was an unlawful assembly at the time of the beating further proceedings will be stopped, but not till then. The learned advocate for the respondent contends that the learned Subdivisional Magistrate's view is correct. He says that in the first instance there must be a finding on the point whether there was any unlawful assembly, and without such a finding the Court cannot interfere and stay proceedings. Mr. Ethiraj for the petitioners contends that this view is incorrect. It is equivalent to a demand that the police officers must prove themselves to be innocent of the offences alleged against them in order to show that the complaint was invalid for want of sanction.

(3.) It appears to me that Mr. Ethiraj's contention is sound. If there was in fact an unlawful assembly the accused were acting within their powers under Section 128. Criminal P.C., in using force to disperse it. Even if there was not an unlawful assembly but the accused in good faith and by reason of a mistake of fact believed that there was an unlawful assembly, their action would be no offence by reason of Section 79, I.P.C. But to say that the accused in this case must prove the existence of an unlawful assembly, or their bona fide belief in the existence of an unlawful assembly, is to contend that the protection afforded by 8. 132, Criminal P.C., is no more than the protection afforded by Section 79, I.P.C. That is clearly not the case. Section 79 can only be applied when all the facts are known, i.e., when the trial is over; Section 132, Criminal P.C., can only operate before the trial begins. Protection given by Section 79 is a protection against conviction, while the protection given by Section 132, Criminal P.C., is a protection against trial. It is impossible to hold that these provisions are identical. The learned Sub-divisional Magistrate undertakes to stop further proceedings if it is shown at any time that there was an unlawful assembly. The learned advocate for the respondent says that the learned Sub-divisional Magistrate is right in giving such an undertaking, but he cannot refer me to any provision of the Criminal Procedure Code which would authorize the Magistrate to stop the proceedings in such a case. There is no such provision, nor is any such provision necessary, because in those circumstances the accused would have to be discharged or, if a charge had been framed, acquitted. Then the impossible position would be reached that the accused would have to be discharged or acquitted in a case which by reason of Section 132, Criminal P.C., ought never to have been instituted at all.