- (1.) LEARNED Munsif & Judicial Magistrate ,siwana, after due trial found Manglaram and Babulal guilty of offence u/s 332,i. P. C. and Ranaram and Khushal Singh of offences u/s 332 read with s. 34, I. P. C. He sentenced Babul Lal and Manglaram to undergo R. I. for 1-1/2 years and to pay a fine of Rs. 250/- and in default to further undergo S. I. for two months; he sentenced Khusalsingh and Ranaram to undergo R. I. for 1-1/2 years for offences u/s 332 read with s. 34, I. P. C. The petitioner went in appeal before the learned Sessions Judge, Balotra. The learned Sessions Judge dismissed their appeal and maintained their convictions and sentences as above. Aggrieved, the petitioners have come to this Court.
(2.) IN a nutshell the prosecution story is that on 30. 6. 81 at about 3 a. m. , P. W. 1 Champa Lal informed S. H. O. , Samdari to the effect that Mangla Ram, Rana Ram and some others where indulging in a drunken brawl at G. S. S. Samdari. Soon after, i. e. at about 3. 15 a. m. Champa Lal aforesaid arrived at a police station and made a written report to the effect that Mangla Ram and Rana Ram had come to G. S. S. Samdari in drunken condition and were indulging in a drunken brawl and Mangla Ram gave some beating to Rana Ram. At that time Champa Lal and Kheta Ram were on duty at G. S. S. Samdari and they tried to intervene but Mangla Ram and Rana Ram did not desist. Champa Lal also alleged that Mangla Ram and Rana Ram were interfering with discharge of duties by Champa Lal. The prosecution story is that upon this written report, a case u/s 186, I. P. C. was registered at Police Station, Samdari and Sukh Singh, Incharge, S. H. O. alongwith Shanker Singh and Sumer Dan, Constables went to G. S. S. Samdari. The Police party reached G. S. S. Samdari at about 3. 30 a. m. The Police party found that Mangla Ram, Rana Ram, Khusal Singh and Bubu Lal were in a drunken state and were engaging in a brawl. At this, Sukh Singh and his companions asked Mangla Ram, Rana Ram, Khushal Singh and Babu Lal to accompany them to Government Dispensary, Samdari upon which Mangla Ram, Babu Lal, Rana Ram and Khushal Singh gave beating to Sukh Singh and his companions, with the result that Sukh Singh received three simple injuries on his person, Sumer Dan received six simple injuries on his person, Shankar Singh received two injuries on his person. A report of this incident was lodged at Police Station, Samdari, the same day by Sukh Singh for offences u/ss 147, 148, 149 332, 353, I. P. C. The injured persons were got medically examined. Due investigation was made and there-after the present petitioners along with Narsingh Ram, Jagdish Chandra and Balwant Ram were put up for trial for offences u/ss 147, 148, 353, 332 and 149, I. P. C. All the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution examined P. W. 1 Champa Lal, P. W. 2 Sukh Singh, P. W. 3 Sumer Dan, P. W. 4 Chhagan Lal, P. W. 5 Dr. Jodha Ram, P. W. 6 Bheru Singh, P. W. 7 Shanker Singh in support of its case. In their statements recorded u/s 313, Cr. P. C, all the accused maintained that they were innocent and had been falsely implicated. It appears that no defence witness was examined. The learned trial Magistrate found that participation of Narsingh Ram, Jagdish Chandra and Balwant Ram in the alleged beating was not proved beyond reasonable doubt. He, therefore, acquitted all these three accused persons of the various charges. He, however, found Mangla Ram, Babu Lal, guilty of offence u/s 332, l. P. C. and Rana Ram and Khushal Singh for offence u/s 332 read with s. 34, l. P. C. and sentenced them as stated above. The learned Sessions Judge hearing the appeal, affirmed the convictions and sentences passed by the learned trial Magistrate. In the present revision petition, the learned counsel for the petitioner submits that offence u/s 186, l. P. C. was not a cognizable one. The police party had no right to take the petitioners to Government Dispensary for medical examination and hence if petitioners rescued themselves by beating the police personnel, they did not commit any offence whatsoever. Reliance has been placed in this regard upon Deoman Shamaji Patil v. The State (1 ). The learned public prosecutor opposes the revision petition and submits that the revision-petitioners were rightly held guilty in this case. He submits that there is nothing on record to show that the petitioners were being taken to the Government Dispensary against their will or were being taken to Government Dispensary by force and, therefore, the petitioners were not entitled to give any beating to the police party.
(3.) I have considered the rival contentions. Admittedly, an offence u/s 186, l. P. C. was not a cognizable one. The police party had absolutely no right to take the petitioners to Government Dispensary for medical examination. The learned Sessions Judge has observed that the police party had gone to G. S. S. , Samdari with a view to take a preventive action against the petitioners who were engaging in a drunken brawl and there is nothing on record to show that the petitioners were being taken to Government Dispensary by force. In my opinion, it was not necessary for the petitioners to show by positive evidence that they were taken to Government Dispensary by force. The circumstances of the case speak for themselves. If the prosecution story is to be believed, then the petitioners were engaging in a drunken brawl. Had they volunteered to go to Police Station, the incident in question could not have taken place at all. Hence, the only inference from the circumstances of the case is that the petitioners were being taken to Government Dispensary for medical examination against their will. The police party had no right to do so. If the police party wanted to lake action against the petitioners then they could have obtained orders of a Magistrate u/s 155, Cr. P. C. Sub-Sec. (2) of Sec. 155 of the Criminal Procedure Code prohibits a police officer from investigating a non-cognizable case without the orders of a Magistrate having power to try such case or commit the case for trial. It is not the case of the prosecution that the Incharge S. H. O. Sukhsingh took any such permission from a competent Magistrate. When it is so. the petitioners were entitled to rescue themselves from the unauthorised action of the police party in taking them to Government Dispensary. A similar situation arose before the Bombay High Court in Deoman Shamji's case (supra ). In that case information was received at the police station that the accused was behaving in a disorderly manner in a public street under the influence of drink. Thereupon some police constables went to the spot and brought the accused to police station. The Head Constable asked five or six constables to take the accused to the local dispensary for his examination by the medical officer. On the way, the accused refused to go any further and resisted the attempts of the constables to drag him to the dispensary. While doing so, he gave a blow to a constable and another to the other constable and made good his escape. It was held in the circumstances of the case that the police party was not entitled to carry the accused to Government Dispensary against his will and if the accused gave some beating to the police personnels, then he was protected u/s. 97, l. P. C, inasmuch as he had a right of private defence against the action of the police party. In my opinion, this ruling is on all fours with the facts of the present case. This is true that no suggestion was given to Sukh Singh and his companions that they were forcibly taking the petitioners to the Government Dispensary but in the facts and circumstances of the case such an inference is inevitable. As already stated, had the petitioners accompanied the police party to Government dispensary of their own will, this incident would not have taken placed at all. Hence, in my opinion, when the police personnel took the petitioners to Government Dispensary against their will, they were entitled to rescue themselves from the unlawful action of the police party and if in doing so, they caused some minor injuries to the police personnel, they cannot be said to be guilty of any offence. In the present case, if the police personnel were given some beating, they invited the same. It has not been shown that the beating was disproportionate in any way. In my opinion, it is not possible to maintain the conviction of the petitioners for offences u/s 332 or 332 read with s. 34 I. P. C. No other point has been urged before me. In view of what I have stated above, this revision petition succeeds and the conviction and sentences passed against the petitioners are set aside. They are on bail and they need not surrender to their bail bonds. Fine, if paid, shall be refunded to them. . ;