STATE OF MYSORE Vs. SATYENDRA KUMAR

JUDGEMENT

(1.) The above criminal revision petition is filed by the State from an order passed by the Judicial Magistrate, First Class, Second Court, Bangalore, holding that the protection afforded under S.170 (1) of the Mysore Police Act, 1963 (to be hereinafter referred to as the Act) is not available to the accused who are constables attached to Basavangudi Police Station in Bangalore City before the stage of recording of evidence.

(2.) The material facts are: The respondent-complainant Satyendrakumar, a resident of Govindappa's Street in Basavangudi, Bangalore, gave a complaint before the Court on 6-11-1970 against the two Constables alleging tnat they committed offences punishable under Ss.323, 352 and 447 and 380 ot the IPC. on 27-10-1970. The complaint was referred to the Police for investigation and report under S.156(3) of the Cr.P.C. The Circle Inspector of Police Basavangudi Sub-Division, investigated into the crime and submitted a 'B' report to treat the case as ialse. But the complainant challenged the 'B' report and undertook to prove the case. Accordingly], the learned Magistrate recorded further statement of the complainant on oath and regisvered a case against the police constables and ordered issue of process for the aforesaid offences. After service of summons, the two Constables who are the accused in that case appeared before the Court. The Public Prosecutor attached to that Court appeared on behalf of the Constables and presented an application on 26-5-1971 stating therein that the complaint was not maintainable as previous sanction of the Government to prosecute the Constables as required under S.170 of the Act, had not been obtained. It is stated inter-alia in the application that the allegation made against the two accused relates to the acts said to have been committed while discharging official duties entrusted to them on 27-10-1970. The allegations against the Constables are that they approached the complainant when he was in his room. Suddenly, the first accused caught hold of the shirt collar of the complainant and uttered " Police Stationnige baro magane ''. He asked them to come into his room and requested a them "what had made them to ask him to go to the police station". They" felled the complainant and kicked him and used abusive language at him. It is also alleged that the second accused who stayed in the room committed theft of a purse belonging to the complainant which contained Rs.83 in cash, and 2 certificates issued by the Army Training School, Secunderabad. He was taken to the main Bazar and people gathered there. After the complainant reached the police station, the Sub-Inspector of Police directed him to remain in the police station. He went and got himself treated in the Victoria Hospital after his release by the police. He has given description of the injuries sustained by him and has also produced the wound certificate. He has prefaced his complaint by an allegation that he was subjected to assault and intimidation by the family members of one Ramachandramurthy and that he has preferred in that regard a private complaint which was pending in criminal court. He lost cash, valuables and documents and clothes etc., and that he was not able to get any redress at the hands of the Basavangudi Police Station including the Sub-Inspector of Police (Law and Order).

(3.) The learned Prosecutor, upon these allegations, contended before the trial Court that as the acts constituting the offence were alleged to have been done by the accused under colour or in excess of their duty, the prosecution shall not be entertained except with the previous sanction of the Government. The learned Magistrate has rejected this contention and has observed that " it was premature to assert that the acts complained of are immune from prosecution as the complainant nowhere in his complaint before the Court or in his sworn testimony stated that the accused police Constables while acting in the discharge of their duties, purported to have been entrusted to them by the Head Constable of their police station, have done acts in excess of their duty and assaulted him and committed theft in his house ".