SHRI ABEDUR RAHMAN Vs. SHRI BANAMALI CHOUDHURY

JUDGEMENT

(1.) THE question raised in this Criminal Revision is whether a S.I. of Police who is deployed for law and order duty in Assam can be prosecuted for an offence which he is alleged to have committed in the discharge of such a duty without a Sanction from the Government.

(2.) THESE are the facts. During the movement against the foreigners the two organizations of Assam, viz., All Assam Students Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) called upon the mass people of the State to offer Satyagraha every day before the offices of the Deputy Commissioner, Sub -Divisional Officer, Sub -Deputy Collector and Block Development Officer in Assam for a period from 18.12.80 to 30.12.80. The Kamrup District Unit of the GSP then organized for offering Satyagraha every day in front of the office of Sub -Deputy Collector at Mirza. In those days tae Petitioner was an S.I. of Police and was the O.C. of Police Station at Palashbari which was very close to Mirza. During the Satyagraha he was in command of a Police Force for law and order duty at Mirza. Besides the Police force, there was a CRP Force under command of Platoon Commander. Both the forces were under the direct control of an Executive Magistrate. From 18.12.80 onwards a large number of local people came and offered Satyagraha in the premises of the Office of the Sub -Deputy Collector at Mirza. As there was a possibility of breach of peace the Executive Magistrate promulgated an order under Section 144 Code of Criminal Procedure from 21.12.80. At 10 -15 A.M. of 22.12.80 a large number of people came in a procession in the main road to assemble before the office of the Sub -Deputy Collector violating the promulgation under Section 144 Code of Criminal Procedure The Executive Magistrate and the Petitioner persuaded the people to disperse from the procession but the crowd did not listen. Finding that the situation became un -controllable the Executive Magistrate ordered the police force, headed by the Petitioner to burst tear gas but that also failed to disperse. The crowd rather defied and became violent. So at 12 -15 P.M. (at noon) the Executive Magistrate ordered the Platoon Commander to open fire and there the upon CRPF fired 23 rounds to disperse the crowd. One person, Shri Chandra Kalita, died at the spot and another person, Shri Ranjen Kumar, sustained bullet injuries. Thereafter, on the same day, the Executive Magistrate lodged an FIR at Palashbari Police Station. In the FIR it was stated that being unable to control the mob, be had to order the Platoon Commander to open fire and when the CRPF fired 23 rounds one Shri Chandra Kalita died on the spot and another Shri Rajen Kumar sustained bullet in juries. In the FIR he named 8 persons from amongst the mob. On that FIR the Petitioner, who is O.C. of the Police station, registered a case under Sections 147/148/149/332/333/336/427/188 IPC. Investigation of that case was going on. But on 7.2.81, i.e., more than 1 1/2 month after the incident, the Respondent No. 1, a Joint Secretary of the South Kamrup Unit of the GSP, filed a Criminal complaint under Sections 302/201 IPC in the Court of Judicial Magistrate, Gauhati, by alleging that the CRPF men obstructed the people on National Highway, in front of Mirza Higher Secondary School from proceeding onwards and at that place the Petitioner had fired his pistol killing Chandra Kalita inside the school compound and injuring Rajen Kumar, On 5.5.81 the learned Magistrate took cognizance of the case and issued warrant against the Petitioner. After that the Petitioner moved an application before the Court of learned Magistrate stating that as he was deployed for law and order duty, he could not be prosecuted for the alleged offence without a sanction from the Govt. of Assam. The learned Magistrate rejected this application. Hence this revision. Mr. P.C. Mahanta placed a notification dated 16.6.80 issued by the Govt. of Assam under No. PLA/05/80/29. This notification was issued under Sub -Section 3 of Section 197 of the Code of Criminal Procedure, as amended by the Code of Criminal Procedure (Assam Amendment) Ordinance, 1980. It made Sub -section l97 of the Code applicable to all members of the Police including CRPF, BSF, SSB and Police Battalions of other States deployed for law and order duty in Assam and to other officials mentioned therein. This ordinance was repealed by the Code of Criminal Procedure (Assam Amendment) Act, 1980 which came into force on 5.6.80. Section 3 of the Act of 1980 provides as follows:

(3.) IT appears that there is a mistake in the printing of his amendment. After para (a) the next para ought to be para (b) and not (3); and then after the word 'public order' in (b) the rest ought to come under separate para because obviously that provision is meant for both. The correct position of the amendment should be as follows: