1. This is a revision petition against the order of discharge made by the learned Stationary Sub-Magistrate, Musiri, in P. R. No. 4 of 1954.
2. The order of the learned Stationary Sub-Magistrate runs as follows:
'This is a private complaint of murder filed by Chinnasami Reddiar of Mudalipatti on 21-4-1934 against Sri Kuppuswami, Sub-Inspector of Police, Kattuputhur, as a result of an occurrence that took place on 26-3-1954 at about 3 P. M. The complaint was taken on file on 21-4-1954 as P. 11. No. 4 of 1954 for an offence under S. 302, I. P. C. and summons was issued to the accused and the accused made his first appearance on 1-5-1954. The case was subsequently adjourned to 6-5-1954 on which date the accused tiled an objection petition.
The accused police officer, Sri K. Kuppusami, Sub-Inspector of Police, Kattuputhur, had raised a preliminary objection that under S. 132, Criminal P. C., a prosecution against him without the sanction of the Local Government is barred as he was engaged at the time of the alleged occurrence in dispersing an unlawful assembly which attempted to rescue the persons kept by him in legal custody and prays for a discharge. In support of his contention, there are two rulings. The first is the case of -- 'M. N. Schanmad v. Rama Rao : AIR1933Mad268 . It has been held in that case that Section 132, Criminal P. C. bars the institution of proceedings. The second is the decision of Burn J. which has been totally accepted by King J. in -- 'Elaya Pillai v. Arulanandan Pillai', 1937 MWN 1243 (B).
In my opinion, these two decisions are fully applicable to the facts of the ease even from a reacting of the complaint. It is clear that there should have been an unlawful assembly as the police party were said to have been outnumbered and assaulted. It has also been brought to my notice by the complainant in the petition for adjournment dated 6-5-1954 that the accused Sub-Inspector had obtained a warrant from this Court which only goes to show his bona fides. The accused Sub-Inspector had properly registered a case and sent the first Information Report wherein he has clearly stated the part played by him. The complainant happens to be accused 1 in that case. There has also been an official enquiry in the shooting incident. If the Sub-Inspector is found to be at fault, appropriate proceedings will certainly be taken against him. The complaint is further much belated by about a month.
Taking all these facts into consideration, I am convinced that the accused Sub-Inspector was engaged in dispersing an unlawful assembly during which this unfortunate incident happened. In my opinion, the accused Sub-Inspector is entitled to the protection which law gives him under Section 132, Criminal P. C. As this complaint is initiated without proper sanction, I hold it is barred under Section 132, Criminal P. C., and the charge against the Sub-Inspector is groundless. I accordingly discharge the accused Sub-Inspector under Section 209(2), Cr. P. C.'
3. The order of discharge of the lower Court cannot be supported at all for the following three reasons: First of all this is a case where though justice might possibly have been done, it is certainly a case of its not appearing to have been done. The scheme of the Criminal Procedure which is based upon French Criminal Procedure in this respect is chat two parallel agencies have been set up for taking to Court of criminal offences; the police and the private aggrieved party are placed on a parallel footing. The object of the Criminal Procedure Code is to ensure the freedom and safety of the subject in that it gives him the right to come to Court if he considers that a wrong has been done to him or to the Republic and be a check upon police vagaries. In this case, au aggrieved party has come to Court with a definite complaint that angered by inability to arrest a gambling party a Sub-Inspector, has shot dead two brothers. He has cited eleven witnesses. To this complaint a note has been added:
The act of murder was not done in the course of his legitimate duties as a Sub-Inspector of Police, but as the result of malice outside the purview of his duties as a public servant. Hence no sanction by the Government is necessary.' This complaint has been examined on oath, and it is not too much to say that not one word has been elicited to discredit the allegations of the complainant. The learned Sub-Magistrate has purported to throw out this complaint in this P. R. Case by relying wholly upon his extra judicial information, he has made up for want of judicial information to come to the conclusion he has come to, viz., that the Sub-Inspector shot dead these two persons in the course of dispersing an unlawful assembly on surmises from which be had better have abstained. In other words, he appears to have made up his mind 'ex parte' that the case must be thrown out with the result that he has drafted an order which shows, though justice might have been done, it does not certainly appear to have been done.
4. Secondly, this is a case which in the Sub-Magistrate's own good sense should have suggested to him he should not enquire into. It is no doubt that the mere fact that a Magistrate issues a warrant does not make him a person interested under Section 556, Criminal P. C. That section requires something more for the Magistrate to be considered as a party or person interested precluding him from hearing the case. But, as pointed out by me in -- 'Raghavalu v. State', : AIR1953Mad243 (C), it all depends upon the nature and extent of the enquiry made by the Magistrate before issuing a warrant under the Madras Gaming Act, as has been dune in this case, as to whether he should or should not have tried the case. If the Magistrate had made an elaborate enquiry and had come to express an opinion before the issue of a warrant and the warrant results there from then his own judicial conscience should suggest to him that he not being able to bring an open mind should not hear what he considers to be an offshoot of the warrant issued by him.
The records here do not show the extent of the enquiry made by the Magistrate or the nature of the conclusion come to by him. But, the circumstances of this case show that the judicial conscience of this Magistrate should have suggested to him that it would have been better if the complaint was heard by another Magistrate. It seems to me that possibly the Magistrate would have adopted this course but for a transfer petition which seems to have put up his back and which made him determined to get along with the hearing of the complaint and terminate it. Therefore, this is a case of a Magistrate, who, by reason of his prior connection with the matter, should not have heard it.
5. Thirdly, as pointed out by me in -- 'Dowlath v. Dey', 1953 MWN 174 (D), whether sanction as a prerequisite is necessary is not a pure question of law but a mixed question of fact and law and has to be decided after information has been gathered for coming to a conclusion one way or the other. In this very case, if the Magistrate had sent for the First Information Report and the alleged report at the official enquiry and then made them part of the evidence in the manner prescribed in the Indian Evidence Act, and given an opportunity to the complainant to refute and then came to the conclusion that a prima facie case has been made out that what the Sub-Inspector did was an act purporting to be done under Chap. IX, Criminal P. C. dealing with unlawful assemblies, he would have been perfectly justified in throwing out the case of the complainant and the complainant can have no grievance and this Court will not certainly interfere.
6. Therefore, the order of discharge of the lower Court is set aside and the District Magistrate (Judicial) Tiruchirappalli is directed to have further enquiry made by any competent Magistrate other than this Magistrate who has unsatisfactorily disposed of this matter, and dispose of this case according to law.