1. The three petitioners in this case are Civic Guards and have been convicted of abetment of attempt to extort a sum of five rupees made by an absconding accused, a constable of the Calcutta Police. They have each been sentenced to three months' rigorous imprisonment.
2. The main evidence is given by Libar Shaw (P.W. 1) and Nanda Paria, a Corporation, street waterman (P.W. 5). According to them the former had purchased a tin of kerosene oil from the shop of Sakhi Chand Shaw (P.W. 2) and the waterman was carrying it in a scavenger cart when they were challenged by the now absconding constable. The present three petitioners were along with the constable. Libar Shaw was asked by the constable if he had a cash, memo. He showed the memo to the constable who took possession of it and then the party were moving on to the thana. After going some way the constable demanded 5 Rupees saying that he would let Libar Shaw go if this was paid. The petitioners themselves did not ask for money but they were pushing Libar Shaw and Nanda telling them to go along. There was some haggling. Libar Shaw agreed to pay two rupees, five rupees was demanded. According to Nanda Paria the constable said that he wanted a rupee from each of them. When the money was refused the constable tore up the cash memo and the party moved to the thana. At the thana unfortunately for the constable and his party the bluff was called. Libar and Nanda told the story and the Sub-Inspector acted promptly, came back and founds the pieces of the cash memo where they had been thrown after they had been torn off. They were pasted together again but they have been lost at the thana; the Magistrate accepts the evidence as to the existence of the cash memo, and the evidence of the shop-keeper who says that he gave such a paper. This is also supported by Rabindra Nath Roy P.W. 6, Barrack Commander of the Civic Guard Barrack to which the present petitioners are attached.
3. Mr. Chatterjee appearing before us contends that there is nothing to show that the present petitioners did in fact act in abetment of the attempted extortion. In our opinion, it is I quite clear that the three petitioners were a party to the demand and in fact were considerable aid to the constable in giving force to his demand in that they could be witnesses of the (non-existence of the cash memo. The tearing up (of the cash memo was obviously a part of the scheme to apply pressure to Libai to make him pay and the presence of these men who made no protest about the matter and went along with the constable to the thana was obviously of assistance and intended to be of assistance to the constable in trying to enforce his demand. At no stage of the proceedings, not even, in the trial Court, have the three petitioners ever attempted to support the victim of the extortion and go against the constable. At the thana they did not support his history of the existence of the cash memo. In the circumstances, in our opinion, the Magistrate is fully justified in concluding that they were intentionally aiding the constable in his demand. There is no reason, therefore, why the conviction should be interfered with.
4. Mr. Chatterjee urges that this prosecution should fail for want of sanction. Under Clause 5(2) of the Civic Guards Ordinance, 1940, assuming that to be applicable to the present, case, no prosecution is to be instituted against a member of the Civic Guard.
in respect of anything done or purporting to be done by him in the discharge of his function as such member except with the previous sanction of. the Commissioner of Police.
An almost identical provision appears in Section 270(1), Government of India Act. There it is laid down that.
No proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown in India and except with the consent of the Governor-General.
and these provisions have been interpreted by the Federal Court in the cases in Hector Thomas Huntley v. Emperor 31 A.I.R. 1944 P.C. 66 and Suraj Parkash v. Emperor 32 A.I.R. 1945 P.C. 24 (P.C.) in which it has been held that these give no protection in respect of charges of bribery Under Section 161, Penal code and of breach of trust Under Sections 408 and 409, Penal Code. Equally we must hold that in the present case no sanction is required for prosecution for abetment of attempted extortion. The result is that this rule is discharged. The accused-petitioners must surrender to their bail and serve out the remainder of their sentences.