1. Two interesting questions of law arise in the case. One is whether police officers are empowered by law in the case of a person suspected or accused of an offence under the Bombay Prohibition Act, to take that person, against his will, to a doctor for medical examination. The second question arises if the first is answered in the negative, and the at question is whether, such a person can lawfully exercise the right of private defence agaisnt the force sought to be used in taking him to a doctor.
2. This being a criminal revision application the facts are no longer in dispute. The petitioner, who will be referred to hereafter as teh accused, is a resident of Satana in the Nasik District. On the date of the offence, information was received at the police station at Satana 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 the police station. They tried to make a panchanama about the physical condition of the accused, but could not get any panchas. They head constable Wagh, who appears to have been in charge of the police station, 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 so resisting, he gave a blow to constable Thakaji and, another to constable Madhav, and made good his escape. He ran inside a house and chained the door from within. Some days later, he surrendered to the police. Two cases were then launched agaisnt him. One was for an offence under Section 85 of the Bombay Prohibition Act. He was acquitted in that case. The other was for an offence under Section 353, Indian Penal Code, of assault and use of criminal force to deter public servants from discharging their duty. He was convicted of the offence and the conviction was upheld in appeal. He has come in revision from the order of conviction and sentence.
3. On behalf of the accused, Mr. S.G. Patwardhan has advanced a plea which was not taken in the Courts below, but which is consistent with the facts proved by the prosecution. Mr. S.G. Patwardhan ways that the action of the constables in dragging or attempting to drag the accused towards the dispensary was itself illegal, that the constables were obviously not doing their, 'duty' while acting illegally, and that the conduct of the accused cannot, therefore, constitute an offence as defined in Section 353, Indian Penal Code. Two reasons are urged by Mr. Patwardhan in support of the plea that the action of the constables was illegal. He says, in the first place, that there is no legislative sanction which enables police officers in the cause of investigation to require an un willing peons to submit to medical examination, so, that the employment of force of show of force by the constables against the accused amounted to use of criminal force or to assault, and was an offence under Section 352, I.P.C. He says, secondly that even if such legislative sanction were shown to exist, the conduct of the constables violated Cl. (3) of Art. 20 of the Constitution which provides that 'no person accused of any offence shall be compelled to be a witness agaisnt himself', and which was interpreted by the Supreme Court in M.P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) , to mean, in broad terms, that no person against whom an accusation has been made shall be required to furnish, by any positive volitional act, any material which can he used as evidence against him.
4. Dealing with the first part of Mr. Patwardhan's argument, we have been unable to find any statutory provision which renders lawful the coercion exercised or threatened by the constables in order that the accused may be medically examined. The powers which may be exercised by police officers in the course of investigation have been specified in several sections of the Criminal Procedure Code, and supplemental provisions in that behalf are found in Chapter VI of the Bombay Police Act, 1951, and, in so far as the investigation relates to offence under the Bombay Prohibition Act, in Chapter IX of that Act. Although no power has specifically been conferred on investigating officers to compel a person to submit to medical examination, the learned Government Pleader argues that the power has been impliedly conferred by Section 157 of the Criminal Procedure Code. That section provides that, in certain circumstances. an officer in charge of a police station shall proceed, or shall depute on e of his subordinate officers to proceed, to the spot 'to investigate the facts and circumstances of the case, and, if necessary to take measures for discovery and arrest of the offender.' Section 4(1) of the Code provides that the word 'investigation' where it occurs in the code, includes all the proceedings under this code for the collection if evidence conducted by a police officer.....' The learned Government Pleader says that when, in the case of a person suspected of an offence under the Bombay Prohibition Act, a police officer proceeds to secure expert medical opinion about the physical condition of that person, he conducts a 'proceeding for the collection of evidence', that the proceeding therefore amounts to 'investigation', and that it is the duty of the police officer concerned to carry out this investigation under Section 157 of the Code. The learned Government pleader further argues that the Code does not purport to lay down all the various modes in which investigation may have to be carried out in different cases, so that the expression 'proceedings under the Code' occurring in the above definition of 'investigation' is not confined to specific proceedings authorised by the Code, but extends to all the proceedings which the officer, who is authorised to investigate a case, finds it necessary to adopt for the purpose of investigation. The argument in substance is that Section 157 of the Code authorises an investigating officer to collect evidence in any manner that he may find expedient, and that this authority overrides the rights and liberties of the subject to the extent necessary for the purpose of investigation.
5. The short answer to this rather spacious argument is that Section 157 of the Code lays down some of the duties, and none of the rights, of an officer in charge of a police station. That section has no relevance whatever to the consideration of the extent to which a police officer can act in curtailment of the rights of the subject as regards his person or his property. Since a part of the investigation in every case can obviously be carried out by doing what an ordinary individual can do, the legislature did not find it necessary to lay down, in a positive form, all the things that may be done by an investigating officer in collecting evidence. But to the extent to which the Legislature found that a curtailment of the rights and liberties of the subject was necessary for proper investigation into offence, to that extent the Legislature has made positive and specific provisions. Such provisions are found in the Criminal procedure Code as well as in other Acts. For instance, Ss. 51 to 53 of the Code relate to search of arrested persons, Ss. 96 to 99 and Section 165 to search of places, Ss. 160 to 162 to interrogation of witnesses, etc. If investigating officers had a general overriding power to do whatever is found necessary for investigation, all these provision would be redundant. The learned Government Pleader suggests that these provisions have been made, not by easy of granting to investigating officers some limited powers of interference in the rights and liberties of the subject, but by way of imposing limitations on the overriding power of the investigating officers to interfere with such rights and liberties. This argument is untenable, firstly be cause the said sections positively confer certain limited powers and do not purport to limit some general power otherwise existing, and secondly because in the absence of positive legislative enactment a general power to interfere with individual rights and liberties cannot be simply assumed. Law on the contrary assumed-and this was so even before the commencement of the Constitution-the existence of individual rights and liberties, and steps in for regulating those rights and liberties in the interest of social living.
6. That the Code of Criminal Procedure has not granted to investigating officers an overriding power such as is claimed by the learned Government Pleader is further illustrated by the Identification of Prisoners Act passed by the Central Legislature in 1920. The preamble of the Act shows that its object was 'to authorise the taking of measurements and photographs of convicts and others'. Among other things, the Act requires any person arrested in connection with certain types of offence to allow his measurements to be taken in the prescribed manner on the direction of a police officer. The Act also authorises Magistrates to direct measurements and photographs to be taken of any peons if that is found expedient 'for the purposes of any investigation or proceeding under the Code of Criminal Procedure'. Section 6 of the Act makes it lawful to overcome any resistance to the taking of measurements and photographs under the Act, and also makes the resistance itself an offence under Section 186 of the Indian Penal Code. The Act was passed several years after the Code of Criminal Procedure, and it shows that the Code did not grant to investigating officers a general overriding power to act in curtailment of the rights and liberties of the subject for the purpose of investigation.
7. A question was raised before us whether the accused in this case was formally arrested before he was sought to be taken for medical examination. We did not find it necessary to decide this question because, even if he was taken in custody, the police constables had no legal authority to require him to submit to medical examination. It is obvious that the arrest and detention of a person under the provisions of the Criminal Procedure Code do not deprive the person of such of his rights and liberties as are unconnected with his confinement.
8. A view similar to the one which we are adopting in this case was taken by a Division Bench of the Calcutta High Court in Bhondar v. Emperor. : AIR1931Cal601 . It was held in that case that it was not permissible under the Criminal Procedure Code to take hold of a prisoner forcibly and to examine his body medically without his consent for the purpose of qualifying some medical witness in the case against him, and that any such examination without the consent of the accused amounted to an assault. It was further held in that case that the medical evidence so obtained is not admissible, but we are not required to express any opinion as regards that conclusion.
9. We find that the English law on this question is also the same. This can be seen form the following passage in Halsbury's laws of England, 3rd Edn. Vol X, at page 742:
'Without the consent of a prisoner, a Judge or Magistrate has no power to order an examination of his person, and if in pursuance of such an order an examination is made, the person who made the order and the person who makes the examination are guilty of an assault; but if the prisoner consents even under a misapprehension as to the power to make such an order, the consent is an answer to the charge of assault.'
10. It is thus clear that the police constables in this case were not doing their duty in taking the accused agaisnt his will towards the dispensary and that the accused cannot be convicted under Section 353 of the Indian Penal Code.
11. In view of this conclusion, we do not find it necessary to decide whether, a contended by Mr. Patwardhan, the act of the police constables amounted to the exercise of testimonial compulsion and violated Cl. (3) of Art. 20 of the Constitution. That question may fall for determination if the Legislature makes a provision requiring a person to submit to medical examination so that the evidence so obtained may be used against him.
12. It is next argued by the learned Government Pleader that, even if the accused is not guilty of the aggravated offence under S 353 of the Indian Penal Code, his action in giving two blows to the police constables amounts to an assault punishable under Section 352 of the Indian Penal Code. Now, as held above, it was the police constables who initially assaulted the accused by attempting to drag him forcibly to the dispensary, and prima facie the accused had the right of private defence against that action under Section 97 of the Indian Penal Code. It does not appear to us, nor was it urged before us by the learned Government Pleader, that the accused inflicted more harm than was necessary fort the purpose of preventing the constables form taking him to a doctor. The learned Government Pleader, however, says that the accused was not entitled to act in the exercise of the right of private defence because of paragraph of Section 99, Indian Penal Code, which runs as follows:
'There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.'
Now, the expression 'good faith' as used in the Indian Penal Code has a technical meaning, for Section 52 of the Indian Penal Code says that 'nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention'. It is obviously the duty of all police officers to acquaint themselves with at least the general scope of their powers. Since the action of the police constables in this case was altogether outside the scope of their powers, it cannot be said that they acted with 'due care and attention' and therefore in 'good faith' generally speaking, the exception contained in the first paragraph of Section 99 of the Indian Penal Code applies where a public servant acts irregularly in the exercise of his powers, and not where he acts outside the scope of his powers.
13. The learned Government Pleader, however, points out that the police constables were merely carrying out the order given by the head constable in taking the accused to the medical dispensary, and he argues that they were protected by the first paragraph of Section 99 irrespective of whether the order of the head constable was wholly illegal. In support of the is argument the learned Government Pleader relies on a recent decision of a Division Bench of this Court in State v.Yamanappa Limbaji, 58 Bom LR 551. Now, in the first place, it cannot be held that the police constables were carrying out the order of the head constable in dragging the accused to the dispensary agaisnt his will. The evidence shows that the head constable had merely asked the police constables to take the accused to the dispensary, and that the accused offered resistance on the way to the dispensary, in the absence of the head constable. Since the occasion to exercise force against the accused arose in the absence of the head constable, it is not correct to say that the head constable had directed the constables to exercise force against the accused. Secondly, even if the order of the head constable amounted to a direction to take the accused to the dispensary by force if necessary, we do not think that the mere fact that the constables were carrying out an order of their superior officer, however illegal that order may have been, had the effect of depriving the accused of the right of private defence.
14. The decision in 58 Bom LR 551 does not in our opinion, support that view. In that case, the accused was a dismissed police constable and he failed, even after dismissal, to vacate the quarters which had been provided to him during his term of service. The District Superintendent of Police gave a notice to the accused to vacate the premises, and on his failure to do so, directed the Sub-Inspector of Police to dispossess him. The accused offered resistance to the Sub-Inspector and assaulted him and was then prosecuted for an offence under Section 332 of the Indian Penal Code. The Court held, relying on paragraph 1 of Section 99 of the Indian Penal Code, that the accused was not entitled to act in the exercise of the right of private defence. The notice issued by the District Superintendent of Police to the accused calling upon him to vacate the premises was under Section 31(1) of the Bombay Police Act, and the subsequent direction of the District Superintendent of Police requiring the Sub-Inspector to secure vacant possession of premises fell under Section 31(2) of that Act. Both the Sub-sections of Section 31 require that the officer taking action thereunder should have been authorised to do so by the State Government. Now, the District Superintendent of Police to take action under Section 31(1) only, and not under Section 31(2) as well. It was under these circumstances that the Court held that, although the direction of the District Superintendent of Police was not in accordance with law, the Sub-Inspector of Police was protected by paragraph 1 of Section 99 of the Indian Penal Code against the exercise of the right of private defence by the accused. The judgment of the Division Bench was delivered by Vyas J., and in the course of the Judgment the learned Judge observed :
'......The District Superintendent of Police's order dated 29-7-1954, was not such a should prima facie appear to be a defective or bad order. It would have been a different matter if on the face of the order itself it had appeared defective or incorrect. If ex facie the order had been such that the Sub-Inspector should or could have known that he was asked to do something which was contrary to law, it might have raised a different question.....'
In another part of his judgment, with reference to the position of a public servant, carrying out an order of his superior officer, the learned Judge said:
'..... He is not expected to test and satisfy himself as to the technical propriety of the order which he is called upon to enforce. For instance, in this case he could not be expected to apprehend a fine distinction between an authorisation contemplated by Section 31, Sub-section (1), Clause (b), and an authorisation under Section 31, Sub-section (2). He could not be blamed if he did not see a distinction between the scope and extent of Sub-section (1) and Sub-section (2) of Section 31.....'
It is clear that the learned Judge who decided that case did not lay down any general proposition to the effect that teh right of private defence cannot be exercised against public servants who carry out the orders of their superiors, however manifestly illegal the orders may be. It was because the order which the Sub-Inspector of Police was carrying out in that case was apparently lawful, but was found to be unlawful on account of technical defect, that the learned Judges held that the accused was deprived of the right of private defence by paragraph 1 of Section 99 of the Indian Penal Code. In the present case, the order of the head constable, if it is construed as an order authorising the police constables to use force against the accused, was wholly beyond the powers of the head constable, and the accused had the right of defending himself against the force sought to be illegally exercised against his person in pursuance of that order.
15. The result is that the accused is not guilty either under Section 353 or under Section 352 of the Indian Penal Code. Accordingly we make the rule absolute, set aside the order of conviction and sentence, and acquit the accused. The fine, if paid, should be refunded. The bail bond is cancelled.
16. Rule made absolute.