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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: SHEW MANGAL SINGH & ORS.

DATE OF JUDGMENT25/08/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) ERADI, V. BALAKRISHNA (J)

CITATION:  1981 AIR 1917            1982 SCR  (1) 360  1981 SCC  (4)   2        1981 SCALE  (3)1249

ACT:      Constitution of  India, 1950, Art. 136-Special Leave to appeal-Criminal Trial-Conviction by trial court-Acquittal by High Court-Interference by Supreme Court-When arises.      Indian Penal Code 1860 (Act 45 of 1860) S. 76-Scope of- Command of superior officer to open fire-Subordinate officer in execution  of command  causes death-Subordinate officer’s belief that command was lawful-Enquiry into-When arises.      Criminal Trial-Duty  of Courts-To ensure that innocents are not convicted and guilty are not acquitted.

HEADNOTE:      The respondents  were police  officers. The prosecution alleged that  when the deceased and his brother were sitting outside  the   house  three  police  vehicles  carrying  the respondents and  other police  officers suddenly  stopped in front of  their house  and  that  a  police  officer  rushed towards them  and when  the deceased  disclosed his identity the officer  fired at  point blank  range. The  shot  having missed him, he rushed in the house. Pursuing him respondents 2 and 4 dragged him out of the house, whereupon respondent 4 fired a  shot at  him. In  the meanwhile, the other brother, who was  trying to  get into the house was caught hold of by some of the respondents and respondent 1 fired at him.      The two  brothers were  thereafter dumped into a police jeep, and  the convoy  of police  officers departed from the scene of the occurrence. Both the brothers were taken to the hospital where  the deceased  was declared  dead on the spot and his brother died, before any medical assistance could be given to him.      The defence  of the  respondents was  as follows:  that while they  were on  patrol duty led by one of the officers, they were  attacked by  some persons,  as a  result of which respondent 1  was injured  and was  removed to the hospital. When fire  was opened  under orders  of the  officer the two deceased received  injuries, and  that respondents  1 and  2 were falsely  implicated after an attempt to pressurise them into deposing against the officer had failed.      Prosecution was  initiated on  the basis  of a  private complaint  filed  by  the  third  brother  of  the  deceased implicating the  respondents and two officers. No action was taken against  the two  officers for  want of section 197 of

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the Code of Criminal Procedure.      While the  trial  judge  convicted  and  sentenced  the respondents, the  High Court acquitted them. Before the High Court it was contended on behalf of the 361 State that  this was  a case  in which the protectors of law and order  had become  A predators  and in the circumstances the Court should not, insist upon the same standard of proof as in  other criminal  cases,  and  as  the  witnesses  were desposing nearly  nine years  after the date of the incident there was  bound to  be  discrepancies  in  their  evidence. Taking note of the unsettled political conditions prevailing in Calcutta  during the  time, and  on an  analysis  of  the prosecution evidence,  the High Court found it impossible to believe that the incident had happened in the manner alleged by the prosecution. Believing the defence version that there was mob  violence which resulted in injuries to Respondent I and that  in the circumstances the respondents were bound to obey the  orders given  by their  officer,  the  High  Court acquitted them.      Dismissing the Special Leave Petition of the State, ^      HELD: 1.  If the  order to  open fire  was justified as found by  the High Court and is therefore lawful, no further question can  arise whether  the respondents,  who acted  in obedience to  that order,  believed or did not believe it to be lawful. [365 F-G]      In the  instant case  since the situation prevailing at the scene  of the  offence was  such as to justify the order given by  the officer  to open  fire, the  respondents could plead in  defence that they acted in obedience to that order and therefore  they could  not be held guilty of the offence of which they were charged. [366 C]      2.  A   miscarriage  of  justice  may  arise  from  the acquittal of  the guilty no less than from the conviction of the innocent and that if unmerited acquittal become general, they tend  to lead to a cynical disregard of the law. Courts must take  equal care  to ensure  that the  innocent are not convicted and the guilty are not acquitted. [367 A-B] E      In the instant case, what the High Court has done is to acquit the innocent.[367 B]      S.S. Bobade  v. State  of Maharastra [1974] 1 S.C.R 489 referred to.      3. It  is a  self-rigteous assumption to argue that the respondents are  "undoubtedly guilty of murder" or that they have been  acquitted by  the High  Court  "light-heartedly". Respondents are  undoubtedly not  guilty of murder. The High Court’s judgment  reflects its  serious concern for justice. Judgments of  acquittal are  not to  be condemned as "light- hearted" for  the reason  that the Government considers that it has a stake in the conviction of the accused. [367 C-D]      In the  instant case  the particular night on which the incident took  place was  cloudy and it was drizzling. It is very difficult  to take  the witnesses  at their  word  when their evidence  suffers  from  various  contradictions.  The witnesses were  deposing to  the incident  nearly nine years later. Their  evidence  is  insufficient  to  establish  the complicity of  the respondents  in causing  the death of the deceased. The  surviving brother  lodged the  complaint more than a  month after  the incident.  The name  of  PW.  2  an important witness  who was in the company of P.W. 1 from the beginning  of   the  incident   was  not  mentioned  in  the complaint. [366 E-H] 362

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JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 3459 of 1980.      From the  judgment and order dated the 1st August, 1980 of the  High Court  of Calcutta in Criminal Appeal No. 18 of 1980.      A. P.  Chatterjee, A.K. Ganguly and B. K Chatterjee for the Petitioner.      A. K.  Sen, D.  N. Mukherjee  and N.  R. Choudhury  for Respondent Nos. 1.4      The Judgment of the Court was delivered by      CHANDRACHUD, C.J:  This Special Leave Petition is filed by  the  State  of  West  Bengal  against  the  judgment  of acquittal dated  August 1,  1980 passed by the High Court of Calcutta in Criminal Appeal No. 18 of 1980.      The respondents,  who are  all  Police  officers,  were tried by  the learned  Judge, City Sessions Court, Calcutta, under section 302 read with section 34 of the Penal Code, on the charge  that at  about 10.00  p.m. On  November 11, 1970 they,  along   with  Bibhuti  Chakraborty  the  then  Deputy Commissioner of Police (North Division), P. R. Dey, the then Assistant Commissioner  of Police  (N.S.) and  some  others, caused the death of Ranjit Chakraborty and Samir Chakraborty by causing them gunshot injuries.      The case of the prosecution is that the deceased Ranjit and his  brother Samir were sitting outside their house when three police  vehicles carrying  the respondents  and  other Police officers,  numbering about  15 or 20 in all, suddenly stopped in  front of  the house. The Police officers, led by Bibhuti Chakraborty,  rushed towards  them and  their  elder brother  Benoy,   with  revolvers  in  their  hands.  Ranjit disclosed that he was a constable of the Calcutta Police and Samir  said   that  he  was  an  N.  V.  F.  cadet.  Bibhuti Chakraborty then  fired a  shot from  his revolver at Ranjit from  a  point-blank  range.  Respondent  2,  Chitta  Ranjan Ganguly, and  respondent 4,  Bimal Thakur pursued Ranjit who had in the meanwhile rushed into his house. They dragged him out of  the house,  whereupon respondent  4 fired  a shot at him. The  other  Police  officers,  including  some  of  the respondents, also  fired at  Ranjit. In  the  meantime,  the other brother  Samir, who  was trying to get into the house, was caught hold of by 363 some of the respondents and respondent 1, Shew Mangal Singh, fired a shot at him. Samir and Ranjit were thereafter dumped in to  a Police  jeep and  the convoy of the Police officers went to  a place  near Rajarghat  on the  bank of  the river Hooghly. Samir  was crying  in agony.  Some  of  the  Police officers who  were sitting in an Ambassador car ordered that Samir’s voice  should be  silenced. Thereupon  respondent  3 Anil Maitra: who was sitting in a jeep, fired a shot at him. Ranjit and  Samir were  then taken  to R.  G. Kar  Hospital, where Ranjit  was declared  dead. Samir  died within  a  few minutes thereafter,  before any  medical assistance could be given to  him. Their brother Benoy was taken into custody by the Police  Officers and was produced before a Magistrate on the following day, when he was released on bail.      The defence  of the  respondents is  that they  were on patrol  duty   Led  by   Bibhuti  Chakraborty,   the  Deputy Commissioner  of  Police.  When  the  police  party  entered Shyampukur Street,  they were attacked by some persons, as a result of  which respondent 1 Shew Mangal Singh was injured. He was  immediately removed  by respondent  2 and P. R. Dey,

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the Assistant  Commissioner  of  Police,  to  the  R.G.  Kar Hospital. Thereafter  the Deputy Commissioner of Police gave firing orders,  as  a  result  of  which  Ranjit  and  Samir received injuries.  The contention of respondents 1 and 2 is that they  were implicated  falsely in  the  case  after  an attempt to  pressurise them into deposing against the Deputy Commissioner had failed.      The prosecution was initiated on the basis of a private complaint filed  on December  22, 1970  by Benoy Chakraborty (P. W.  l). In  addition to  the  four  respondents,  Deputy Commissioner Bibhuti  Chakraborty and Assistant Commissioner P. R.  Dey were  also included  in the array of the accused. The  learned   Additional  Chief   Metropolitan  Magistrate, Calcutta, issued  process against the respondent but refused to do  so against  the two  other officers  on the ground of want of  sanction for their prosecution under section 197 of the Code of Criminal Procedure.      The complainant  applied for sanction under section 197 Cr. P.  C., for  the prosecution of the two officers but his application was  rejected. In July 1977, after the change of Government, the  complainant filed  another application  for sanction, which  was granted  on August  4,  1977.  But  the officers filed  a petition  in the  High Court under Article 226 of the Constitution challenging the order of sanction. A learned single Judge dismissed that petition but in 364 appeal, a  Division Bench  of the  High Court  set aside the order sanctioning prosecution on the ground of mala fides on the part  of the  State Government  and  on  the  ground  of violation of  the rules of natural justice. There the matter rested in so far as those two officers are concerned.      The learned trial Judge convicted the respondents under section 302  read with  section 34  of the  Penal  Code  and sentenced them to life imprisonment.      In an  appeal by  the respondents,  the High  Court has acquitted them,  against which  the State of West Bengal has filed this  Special Leave  Petition under Article 136 of the Constitution.      The learned  Advocate General  of  the  State  of  West Bengal, who appeared to defend the appeal in the High Court, contended there that this is not a normal case of murder but a rather unique one in which the protectors of law and order had themselves  become predators  and, in the circumstances, there were  bound to  be loop holes in the prosecution case. It was  urged  in  the  High  Court  that  one  should  not, therefore, expect  or insist upon the same standard of proof as in  other criminal  cases. In regard to the discrepancies in the  evidence of  the prosecution witnesses, it was urged by the  learned Advocate General in the High Court, that the witnesses were  deposing nearly nine years after the date of the incident,  as a  result of  which there were bound to be discrepancies  in   their  evidence.   On  the  question  of application of section 34, it was urged in the High Court on behalf of  the State  Government that  even if it may not be possible to  apportion the  guilt amongst the accused, their mere presence  at the spot would establish their involvement in the offences with which they were charged.      The judgment  of the  High Court shows that in the year 1970-71 certain parts of the State of West Bengal, including the City of Calcutta, were passing through a critical period of lawlessness on account or the "Naxal Movement". A sitting Judge of  the High Court and a member of the Higher Judicial Service  were   killed  in   Calcutta  during  that  period. Political leaders,  businessmen and  members of  the  Police Force also  met with  their  death  during  that  period  of

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turbulence. Benoy  Chakraborty (P.  W. l)  admitted  in  his evidence  to   have  stated  in  the  committal  Court  that newspapers had  reported  seven  or  eight  murders  between August 1970 and April 1971. Manicklal Ghose (P. W. ’) stated in his evidence that many 365 murders   were   committed   during   1970-71   within   the jurisdiction of  A the  Shyampukur Thana.  On an analysis of the prosecution evidence, the High Court found it impossible to hold  that the  incident in  question had happened in the manner alleged  by the  prosecution. According  to the  High Court, the  police, while  on patrol duty, were compelled to open fire  after respondent l, Shew Singh, received injuries as a  result of  the mob violence. Since the orders given by the  Deputy   Commissioner  to  open  fire  were  justified, respondents were  bound to  obey the  lawful orders of their superior officer.  On this  ground alone,  according to  the High Court, the accused were entitled to be acquitted.      Learned counsel  who appears  for  the  State  of  West Bengal argued  this Special  Leave Petition  for quite  some time and  in addition,  at our  direction, he  filed written submissions in  support of  the petition.  We adjourned  the matter to  enable us to go through those submissions. Having done so  we are  unable to  hold that this is a fit case for granting leave to the State Government to appeal against the judgment of the High Court.      A very interesting and important question was raised in the High  Court as  to whether  the command  of  a  superior officer to  open  fire  affords  a  complete  defence  to  a subordinate officer  if, while  acting in  the execution  of that command  he causes  injury or death. The High Court has referred in its judgment to passages from Cross E and Jones’ "Introduction of  Criminal Law"  (8th  edition,  page  371); Granville William’s Text Book of Criminal Law (1978 edition, page 408);  Smith & Hogan’s Criminal Law (1978 edition, page 209); Colin  Howard’s Criminal Law (page 424) and to a South African Case.  It is  unnecessary for  us to  go  into  that question for  the simple reason that we are of the view that the High  Court was  justified in  coming to  the conclusion that the  particular situation  warranted and  justified the order issued  by the  Deputy Commissioner  of Police to open fire. If  that order  was justified and is therefore lawful, no further question can arise as to whether the respondents, who acted  in obedience  to that  order, believed or did not believe that  order to  be lawful.  Such an  enquiry becomes necessary only when the order of the superior officer, which is pleaded  as a  defence, is  found not to be in conformity with the commands of the law.      Section 76  of the  Penal Code provides that nothing is an offence  which is  done by  a person  who is,  or who  by reason of  a mistake  of fact and not by reason of a mistake of law in good faith 366 believes himself  to  be,  bound  by  law,  to  do  it.  The illustration to that section says that if a soldier fires on a mob  by the  order of  his superior officer, in conformity with the  commands of  the law,  he commits  no offence. The occasion to  apply the  provisions of  the section  does not arise in  the instant  case since the question as to whether the accused  believed in  good faith on account of a mistake of fact  that he  was bound  by law  to do  the act which is alleged to  constitute an  offence, would  arise only if, to the extent  relevant in  this case,  the order or command of the superior  officer  is  not  justified  or  is  otherwise unlawful. Since the situation prevailing at the scene of the

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offence was such as to justify the order given by the Deputy Commissioner of  Police to  open fire,  the respondents  can seek the  protection of that order and plead in defence that they acted  in obedience  to that  order and  therefore they cannot be  held guilty  of the  offence of  which  they  are charged. That  is the purport of the illustration to section 76.      But considering  that a little politics appears to have got mixed  up with  the trial of this case, it would be more satisfactory not  to rest our judgment on this aspect of the matter and  to consider  whether the  evidence  led  by  the prosecution is  such on  which a  conviction can  safely  be founded.      The particular  night on  which the incident took place was cloudy and it was drizzling. On the question whether the witnesses were  able to identify the respondents, it is very difficult to  take them  at their  word when  their evidence suffers from  the various  contradictions to  which the High Court has  referred. The  witnesses  were  deposing  to  the incident nearly  nine years  later and  it appears  that the made good  the lapses  of memory  by giving  a free  play to their imagination.  Their evidence leaves much to be desired and is  insufficient to  establish  the  complicity  of  the respondents  in  causing  the  death  of  Ranjit  and  Samir Chakraborty. Benoy lodged his complaint (Ext. 2) more than a month  after   the  incident  and  yet  there  are  material discrepancies between  what he  stated in  the complaint and what he said in his evidence. Manick is an important witness from the  point of view of the prosecution because he was in the company  of Benoy  from the  beginning of  the  incident until they  were released  on  bail  the  next  day.  It  is surprising that  in the  list of  witnesses filed  by  Benoy along with  his complaint,  Manick’s name does not figure at all.      Towards the  end of  his written  submissions,  learned counsel for  the State of West Bengal has extracted passages from a judgment 367 of this  Court in S. S. Bobade v. State of Maharashtra(1) to the effect  A that  a miscarriage  of justice may arise from the acquittal of the guilty no less than from the conviction of the  innocent and  that if  unmerited  acquittals  become general, they  tend to  lead to  a cynical  disregard of the law.  With  respect,  we  share  this  opinion  but  do  not appreciate its  relevance here.  Courts must take equal care to ensure that the innocent are not convicted and the guilty are not  acquitted but,  what the  High Court has done is to acquit the  innocent. Relying upon the observations in S. S. Bobade, the  learned counsel  has stated  further  that  the judicial instrument has a public accountability and that the history  will   never  forgive   "us"  if  police  officers, undoubtedly    guilty     of    murder,     are    acquitted "lightheartedly". We cannot agree more. But the snag lies in the   self-righteous   assumption   that   respondents   are "undoubtedly guilty  of  murder"  or  that  they  have  been acquitted by  the High  Court "lightheartedly".  Respondents are undoubtedly  not guilty  of murder and the High Court’ s judgment reflects its serious concern for justice. Judgments of acquittal  are not  to be condemned as "lighthearted" for the reason that the Government considers that it has a stake in the conviction of the accused.      For  these   reasons,  we  dismiss  the  Special  Leave Petition. N V. K.                                  Petition dismissed. 368

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