State of West Bengal Vs. Shew Mangal
Singh & Ors  INSC 148 (25 August 1981)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) ERADI, V. BALAKRISHNA (J)
CITATION: 1981 AIR 1917 1982 SCR (1) 360 1981
SCC (4) 2 1981 SCALE (3)1249
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.
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 off 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 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
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  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
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, 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
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
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
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
Political leaders, businessmen and members of
the Police Force also met with their death during that period of 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
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
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
N V. K. Petition dismissed.