R C POLLARD Vs. SATYA GOPAL MAZUMDAR

JUDGEMENT

(1.) On 25 May 1948 this Court issued a rule upon the District Magistrate of Murshidabad and upon the complainant to show cause why the conviction of the accused Pollard under Section 355, Indian Penal Code (assault with intent to dishonour a person) and the sentence passed upon him to pay a fine of RS. 200 should not be set aside on the grounds that no previous sanction for the prosecution had been obtained under Section 197, Criminal P.C. or Section 270, Government of India Act, 1935, and that in the circumstances the accused was entitled to treat the complainant as a trespasser and thereby protected by the right of private defence. On 19 July 1943 the accused Pollard made a further application to this Court alleging that his trial was held in an atmosphere of prejudice rendering the proceedings illegal and void. In the second application the accused set out from his recollection certain parts of letters which he alleged were written by the then Chief Minister of Bengal, Mr. A.K. Fazlul Huq, to the District Magistrate during the pendency of the proceedings which prejudiced the proceed, ings and asked the Court to issue a rule upon the Government of Bengal to produce these letters. The second rule was granted and the Government of Bengal through the Deputy Legal Remembrancer produced the said letters in a sealed cover and deposited them with the Registrar of the appellate side of this Court. In view of the nature of the allegations made in the second application, the matter was reported to me by Lodge J. who presided over the Court which issued the rule and I caused the sealed envelope to be opened and the letters examined. Farther, in view of the matters disclosed by those letters this Special Bench was constituted to hear the application.

(2.) The short story of the facts relating to the assault case in which the accused was convicted are as follows : The accused is the Superintendent of Police, Berhampore, in the District of Murshidabad. On 9 September 1942, there were disturbances in the civil Court buildings at Berhampore as a result of which the District Judge sent for the Superintendent of Police, namely, the accused who arrived with several policemen and arrested four youths who were concerned in the disturbances. We are not told of the precise nature of the disturbances, but it has been alleged during the proceedings that they involved an attempt to set fire to the Court building. There were many disturbances at that time. The accused with his pose of police took the youths from the Court in the direction of the thana. He, however, did not proceed to the thana but intead went with his prisoners to his bungalow which is on the road to the thana. In the compound of his bungalow is an office used by the Intelligence Branch of the police. The accused left the youths in the charge of some of his subordinate police officers in his com-pound and went into his bungalow. A little while after the complainant, who is a pleader in the local Court, arrived and entered the compound. At the time there was a crowd of people, estimated by some witnesses at thirty and by others at eighty, outside the bungalow on the road. The complainant who was dressed in pleader's garb - black coat with trousers - proceeded towards the prisoners. One of them was his nephew. The complainant spoke to the police officers and, according to them, also to his nephew. The complainant says that his purpose was to ascertain under what provision of law the youths had been arrested and, if possible, to get bail for his nephew. The police officers told the complainant that they did not know under what provision of law the boys were arrested and according to them the complainant spoke to the boys, although the complainant denies this. There is no evidence to show that the complainant intended to do anything else other than what he says he came for. Shortly afterwards, the accused came out from his bungalow dressed not in police uniform but in a jersey and short trousers and asked what the complainant was doing there. One of the subordinate police officers told him and the complainant who thereupon walked towards the accused either spoke to him or had the intention of speaking to him. The accused thereupon waived his hand in the direction of the gate and said "get out." The complainant continued to approach the accused and the accused thereupon laid hands, on him. The complainant says the accused fisted and kicked him, turned him round and pushed him roughly in the direction towards the gate. The accused said that he merely seized the complainant by the shoulder with one hand and put the other on his face and turned him round and pushed him towards the gate. At the same time the crowd shouted slogans such as "Bande Mataram" and "Inqilab Zindabad" and the accused ordered the police to clear them away from the gate. The complainant went out of the compound and reported the matter to the District Magistrate as well as to the Local Bar Association. Thereafter these proceedings were started.

(3.) The complaint was heard by a First Class Magistrate, Mr. S. Choudhury, who decided that the assault was committed whilst the accused was acting or purporting to act in the discharge of his official duties and that therefore the accused could not be prosecuted without the previous sanction of the Local Government under Section 197, Criminal P.C. At this stage no evidence other than that of the complainant was heard by the Magistrate. The complainant thereupon moved the District and Sessions Judge of Murshidabad for a further inquiry into his complaint. No further evidence was heard by the Sessions Judge but he made this comment: It seems to me, however, that if the facts be as stated in the petition of complaint and in the initial deposition to say that the Superintendent acted or purported to act in the discharge of his official duty is nothing short of preposterous, because that is exactly what he did not do. His duty was to see the pleader and to inquire of him what he had to say and then to deal with him. Instead he seems to have acted on the spur of the moment under an irrational impulse caused by some momentary annoyance with which the complainant had nothing to do, and he just acted in his capacity as a private individual in a passion and forgot for the moment the duty and obligations attaching to his office as a servant of the Crown. In my view neither Section 197, Criminal P.C. nor Section 270, Government of India Act, has any application to the facts of this case and that therefore the learned Magistrate should have issued process at least under Section 352, Indian Penal Code, and so given the accused an opportunity to make amends which opportunity - I expect he would welcome now (provided of course the facts are as stated). I direct further inquiry into this.