DEOMAN SHAMJI PATIL Vs. STATE OPPONENT

JUDGEMENT

(1.) TWO interesting questions of law arise in the case. One is whether police officers are empowered by law in the case of a person suspected or accused of an offence under the Bombay Prohibition Act, to take that person, against his will, to a doctor for medical examination. The second question arises if the first is answered in the negative, and that question is whether such a person can lawfully exercise the right of private defence against the force sought to be used in taking him to a doctor.

(2.) THIS being a criminal revision application the facts are no longer in dispute. The petitioner, who will be referred to hereafter as the accused, is a resident of Satana in the Nasik District. On the date of the offence, information was received at the police station at Satana that the accused was behaving in a disorderly manner in a public street under the influence of drink. Thereupon some police constables went to the spot and brought the accused to the police station. They tried to make a panchnama about the physical condition of the accused, but could not get any panchas. Then head constable Wagh, who appears to have been in charge of the police station, asked five or six constables to take the accused to the local dispensary for his examination by the medical officer. On the way, the accused refused to go any further, and resisted the attempts of the constables to drag him to the dispensary. While so resisting, he gave a blow to constable Thakaji and, another to constable Madhav, and made good his escape. Ha ran inside a house and chained the door from within. Some days later, he surrendered to the police. Two cases were then launched against him. One was for an offence under S. 85 of the Bombay Prohibition Act. He was acquitted in that case. The other was for an offence under S. 353, Indian Penal Code, of assault and use of criminal force to deter public servants from discharging 'their duty. He was convicted of the offence and the conviction was upheld in appeal. He has come in revision from the order of conviction and sentence.

(3.) ON behalf of the accused, Mr. S. G. Patwardhan has advanced a plea which was not taken in the Courts below but which is consistent with the facts proved by the prosecution. Mr. S. G. Patwardhan says that the action of the constables in drag-ging or attempting to drag the accused towards the dispensary was itself illegal, that the constables were obviously not doing their "duty" while acting illegally, and that the conduct of the accused cannot, therefore, constitute an offence as defined in S. 353, Indian Penal Code. Two reasons are urged by Mr. Patwardhan in support of the plea that the action of the constables was illegal. He says, in the first place, that there is no legislative sanction which enables police officers in the course of investigation to require an unwilling person to submit to medical examination, so, that the employment of force or show of force by the constables against the accused amounted to use of criminal force or to assault, and was an offence under S. 352, I. P. C. He says, secondly, that even if such legislative sanction were shown to exist, the conduct of the constables violated Cl. (3) of Art. 20 of the Constitution which provides that "no person accused of any offence shall be compelled to be a witness against himself", and which was interpreted by the Supreme Court in M. P. Sharma v. Satish Chandra, 1954 SCR 1077: (AIR 1954 SC 300), to mean, in broad terms, that no person against whom) an accusation has been made shall be required to furnish, by any positive volitional act, any material which can be used as evidence against him.