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 11th 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 19th 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 Sections 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.
4. The contention of the learned advocate for the complainant is that in order to decide whether a prosecution is barred under Section 132, Criminal P. C, for want of the sanction of the Local Government only the complaint and the sworn statement should be referred to. This is a proposition to which I cannot assent. If it were sound it would follow that any one by appropriate assertions in his complaint and sworn statement could deprive police officers of the protection which the legislature has given them under Section 132, Criminal P.C. In the present case however there are in my opinion quite sufficient indications in the complaint and sworn statement that the accused were acting or purporting to act in the discharge of their duty under Sections 127 and 128, Criminal P.C. The complainant himself speaks of the 'attempt to disperse an unlawful assembly of two pickets;' and although I am told by the learned advocate that these words were used sarcastically they show quite clearly that the complainant was well aware what powers the police were using or purporting to use. I agree with Mr. Ethiraj for the police officers that the principle of the decision in Gangaraju v. Venki A.I.R. 1929 Mad 659 is applicable to this case. Referring to Sub-section (1), Section 197, Criminal P.C., Waller, J., has observed as follows:
It is framed in very wide terms. It requires that Judges, Magistrates and certain public servants shall not be prosecuted without the sanction of the competent authority for any offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duties. The object obviously is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them, while they were acting or purporting to act as public servants. The policy of the legislature is, we conceive, to afford adequate protection to public servants, to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and, if sanction is granted, to confer on the Local Government, if they choose to exercise it, complete control of the prosecution. We can see nothing in these precautions to which the public at large can legitimately take exception, and consider that the sub-section should be construed as widely as it has been framed.
5. In my opinion, every word of this passage is equally applicable to Section 132, Criminal P.C., the terms of which are as wide as, if not wider than, those of Section 197. I therefore allow this petition and quash the proceedings of the Sub-divisional Magistrate of Mangalore taking cognizance of the offence alleged to have been committed by the petitioners. There are two further points which call for remark. Against the Sub-Inspector of Police there is nothing alleged in the complaint or sworn statement except that he was present with the Inspector. Why the learned Subdivisional Magistrate should have considered that to be an offence is not clear. So far as the Sub-Inspector is concerned, no offence whatever is disclosed in the complaint or sworn statement, and no process should have issued to him. Again it is not clear why the learned Subdivisional Magistrate supposed an offence under Section 326, I.P.C., to be disclosed in the complaint. The complainant alleged in the complaint that he believed his ankle joint to have been fractured. In his sworn statement this was modified into a suspicion that his leg bone was broken, but the complaint is quite clear on the point that the constables who beat the complainant were armed only with canes, which are certainly not 'deadly weapons.' At the worst the offence made out in the complaint is one under Section 325, I.P.C., and that not against the Inspector but against the constables. The Inspector was not alleged to have done any beating himself. He could be said to have abetted the beating by the constables. But since the constables were armed with canes only I do not myself see how the Inspector could be supposed to know that they were likely to cause grievous hurt. Section 111, I.P.C., could have no application to such a case and the worst offence the Inspector could be said to have committed was one of simple hurt under Section 323 read with Section 114, I.P.C.