minal Appeal No 172 of 1962
Appeal by special leave from the judgment and order dated March 7 1962 of the Mysore High Court in Criminal Revision Case No 100 of 1961
B Gopalakrishnan for the appellant
B R L Iyengar and P D Menon for the respondent
May 8
The judgment of the Court was delivered by RAGHUBAR DAYAL J
This appeal by special leave is directed against the order of the High Court of Mysore rejecting the reference by the Sessions Judge Shimoga Division recommending the quashing of the commitment order of the Magistrate committing the accused to the Sessions for trial of offences under sections 307 and 326 IPC on the ground that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of sections 132 and 197 of the Code of Criminal Procedure
The case against the appellant was started on the complaint of one Kenchappa who alleged that 674 the Sub Inspector and another person had severely beaten one Thimma and that the Sub Inspector when forcibly taking away Thimma and requested by Kenchappa to excuse Thimma if he had misbehaved wantonly fired from his revolver at Hanumanthappa and Shivalingappa
It Is on this complaint that after preliminary enquiry the Magistrate committed Nagraj the appellant to the Court of Session for trial
The facts of the incident according to the The facts of the incident according to the appellant and the basis of the counter case are these
The appellant was a Sub Inspector of Police in the State of Mysore
He was posted at Yagati Kadur Taluk in September 1959
On September 7 1959 he arrested one Gidda manufacturing illicit liquor and sent him with the constable to the police station
Thereafter he arrested Thimma who was supposed to be in league with Gida in manufacturing liquor
When Thimma was being taken to the police station by the Sub Inspector and a constable a crowd of about 20 or 30 persons rushed at them surrounded them and the police officials attacked them and rescued Thimma
Nagraj asked those people not to resort to violence but to remain calm
The people however did not pay heed to the advice caught the constable and asked Nagraj to stay there till one Kenchappa came
Upon this the Sub Inspector again told them to go away without creating any trouble and said that there was no reason for him to wait for Kenchappa
The people threatened him and the constable with dire consequences if they left the place
just then Kenchappa came and then these persons encircled the Sub Inspector and the constable and the Sub Inspector apprehending danger to his life and that of the constable first fired his revolver in the air and when the people pelted stones at him and grappled with him two shots went off from the revolver and injured two persons Hanumanthappa and Shivalingappa
Kenchappa snatched 675 the revolver leather bag with the ammunition pouch and the two mahazars prepared by the SubInspector regarding the prohibition case
The people beat the Sub Inspector and carried him to a pond saying that they would throw him into it
They were however released at the remonstrance of one Basappa
The persons who are said to have attacked Nagraj that day have also been committed to the Court of Session for trial of offences under ss 147 332 341 and 395 read with s149 though prosecuted for offences under sections 143 147 149 224 225 395 and 34 IPC The Sessions judge made the reference for the quasbing of the commitment of the a appellant as it appeared that the two cases arose out one incident that the Sub Inspector was at the time discharging his duties that while discharging his duties he had to disperse an unlawful assembly by force as his own life and that of his subordinate were in jeopardy and that therefore previous sanction of the Government under section 197 of the Code was necessary for the Court s taking cognizance of the offence against him as the Power of dismissing a Sub Inspector of Police vested in the Government
He was also of opinion that even if the Sub Inspector had fired without any justification as alleged by the complainant sanction under section 132 of the Code was necessary
He observed  Now it cannot be gainsaid that at that time he was clearly on duty and was taking Thimma to the Police station in the discharge of his official duty as a Sub Inspector
A large number of persons then surrounded him and rescued Thimma
It cannot also hence be denied that there was an unlawful assembly which the SubInspector was entitled to disperse by force
Now section 132 of the Cr
PC is clearly a bar to 676 the prosecution of police officers purporting to act under Chapter IX of the Cr P C which deals with unlawful assemblies without the sanction of the local Government
 The High Court rightly observed that the Sessions judge was wrong in practically accepting the version of the appellant that he was surrounded by a number of persons who constituted an unlawful assembly and that they rescued Thimma and that therefore he was entitled to disperse the unlawful assembly by force
The High Gourtheld that the Sub Inspector of Police could be removed from service by the Deputy Inspector General of Police and that therefore no question of sanction under section 197 arose
It further held that before a Court could hold that the cognizance of the case had been taken by the Magistrate without sanction of the Government under section 132 it must be established that there was an unlawful assembly and that the police officer purported to disperse the assembly under any of the sections 128 to 131 of the Code
The High Court stated later  Section 132 Cr
PC has nothing to do with the ingredients of any offence
It is a protection against prosecution
In order to obtain its benefit the accused person need not prove that the acts complained of were done under circumstances mentioned in Section 132 Cr
In other words he must place before the judge materials and circumstances justify ing an inference that there was an unlawful assembly and the acts complained of were Durported to have been done while dispersing that assembly
 The High Court further held that it is for the Sessions judge to decide on facts established in 677 the case whether section 132 Or
PC was applicable and if he came to the conclusion that the facts of the case brought it within the provisions of section 132 Cr
PC the Sessions judge was at liberty to reject the complaint holding that it was barred under section 132 Cr
PC Lastly the High Court suggested that the Sessions case against the other party be tried first and that if after its trial the Sessions judge was satisfied that the complaint against the accused was barred under section 132 Or
PC it would be appropriate for him to reject that complaint on that ground alone
Learned Counsel for the appellant has raised four contentions in this Court  1 The appellant as Sub Inspector of Police could be dismissed by the State Government alone and that therefore sanction under section 197 of the Code was necessary for his prosecution of the offences spurported to have been committed in the discharge of his duty
2 That a police officer cannot be prosecuted without a sanction from the State Government for an offence which the police officer alleges took place during the course of performance of duties under Ch
IX of the Code
3 That when both a case and a counter case have been committed for trial to the Sessions Court it could be said that the appellant has prima facie established his version of the incident and that his producing a copy of the committal order in the counter case is sufficient for holding that sanction under section 132 Or
PC was necessary
4 That it is not necessary for the police officer to prove conclusively that he was dispersing an unlawful assembly before he can raise the plea of want of sanction as a bar from prosecution
We are not satisfied that the appellant the Sub Inspector can be dismissed by the State 678 Government alone
Section 4 c of the Mysore Police Act 1908 Act No V of 1908 hereinafter called the Act provides that unless there be something repugnant in the subject or context the word inspector  in the Act subject to such rules and orders as the Government may pass includes Sub Inspector  Section 8 states that the appointment of Inspectors of such grades as Government may from time to time prescribe shall be made by Government and the dismissal of Inspectors of all grades shall vest in Government
It is on the basis of these two provisions that it is submitted for the appellant that it is the Government which can dismiss him as he though a Sub Inspector is an Inspector for the purposes of section 8 of the Act
The contention is not sound
It is the dismissal of Inspectors of all grades which vests in the Government
It appears there are Inspectors of various grades
Inspectors of some grades were appointed by the Government but the dismissal of Inspectors of all grades is vested in the Government
In this context the word Inspector  in section 8 will not include Sub Inspector as he could not possibly be an Inspector of any grade
Subsection 1 of section 26 of the Act further provides that any officer authorised by sub section
3 in that behalf may dismiss any police officer below the grade of Assistant Superintendent and sub section
3 provides that subject to the provisions of section 8 the InspectorGeneral shall have authority to punish any Police Officer below the grade of Assistant Superintendent
It follows that the Inspector General of Police can dismiss a Sub Inspector who is a police officer below the grade of Assistant Superintendent
No sanction therefore of the State Government for the prosecution of the appellant was necessary even if he had committed the offence alleged while acting or purporting to act in the discharge of his official duty
Before dealing with the other contentions raised we may refer to the provisions of Ch
IX of 679 the Code of Criminal Procedure which has the heading unlawful assemblies  Section 127 empowers any Magistrate or officer in charge of a police station to command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace to disperse and further provides that it shall be the duty of the members of such assembly to disperse on command
If such a command is not obeyed by the members of such an assembly section 128 authorizes the Magistrate or the officer in charge of the police station to use civil force to disperse the assembly
Civil force can also be used even without giving such command if the conduct of the assembly shows a determination not to disperse
Such officer can call upon any male person to assist in the dispersing of the assembly and can also arrest and confine the persons who form part of the assembly
Sections 129 and 130 deal with the use of military force in the dispersing of such assembly and of the duty of the officer commanding the armed forces called upon to disperse such assembly
Section 131 authorises any commissioned officer of the armed forcees in the absence of any communication with any Magistrate to disperse such an assembly with the help of armed forces in certain circumstances
The officers and persons who act under these provisions for the purpose of dispersing the unlawful assembly are protected from prosecution under the provisions of section 132 on which the appellant relies
The relevant portion of this section for the purpose of this appeal reads  No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any
Criminal Court except with the sanction of the State Government and a no Magistrate or police officer acting under this Chapter in good faith x x 680 shall be deemed to have thereby committed an offence
It is clear that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under sections 127 and 128 of the Code and in so doing committed some offence complained of the Court will not entertain the complaint unless it appears that the State Government had sanc tioned the prosecution of that police officer
If the allegations in the complaint do not indicate such facts the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the comp laint
It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other per son
The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police officer complained of appears to come within the provisions of Ss 127 and 128 of the Act
This can be either when the accused appears before the Court and makes such a suggestion or when evidence or circumstances Prima facie show it
The mere suggestion of the accused will not however be sufficient for the Court to hold that sanction was necessary
The Court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to  hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under sections 127 and 128 of the Code
It is contended for the appellant that if the question of sanction is not decided in the very first 681 instance when a complaint is filed or when the accualleges that he could not be prosecuted for the alleged offences without the sanction of Government in view of section 132 of the Code the protection given by this section will be nugatory as the object of giving this protection is that the police officer be not harassed by any frivolous complaint
There may be some such harassment of the accused but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise
just as a complainant is likely to omit mentioning the facts which would necessitate the sanction of Government before he can prosecute the accused the accused too is likely to make such allegations which may lead to the rejection of the complaint for want of sanction
It is well settled that the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded
In this connection reference may be appropria tely made to the observations of this Court in connection with prosecution to which the provisions of section 197 of the Code apply
In Matajog Dobey vs H C Bhari 1 in connection with the question is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained it was said  The question may arise at any stage of the proceedings
The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty but facts subsequently coming to light on a police or judicial inquiry or even in 1  935 682 the course of the prosecution evidence at the trial may establish the necessity for sanction
Whether sanction is necessary or not may have to be determined from stage to stage
The necessity may reveal itself in the course of the progress of the case
 It follows therefore that the contention that a police officer cannot be prosecuted without the sanction from the State Government for an offence which he alleges to have taken place during the course of his performing the duties under h
IX of the Code cannot be accepted
His mere allegation will not suffice for the purpose and will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complaint
The third contention really is that the Court can hold that sanction wag necessary if the appellant could prima facie show that his action which is complained of was in connection with the performance of his duties under ss127 and 128 of the Code
Assuming that this is the position in law it does not appear from the record which consists of the orders of the Sessions judge and the High Court that the evidence in this case prima facie establishes that the appellant s contention that his acts complained of were such for which he could not be prosecuted without the sanction of the Government
In this case the High Court has definitely said that the Sessions judge did not arrive at any such conclusion and had made the reference on a mere acceptance of the accused s version for which there was no justification
It is contended for the appellant that the mere fact that some of the persons alleged to have formed part of the unlawful assembly were prosecuted by the State and have also been committed by the Magistrate to the Sessions Court for trial establishes prima facie that the accused s contention about the necessity 683 for sanction under section 132 of the Code
is correct
The commitment of the other accused is on the basis of evidence in that case and cannot be legally taken into consideration to decide the question raised in this case
The question is to be decided on the evidence in this case and not on the basis of evidence and inferenccs drawn in the other case
The third contention therefore has no force
The next question and the real question to decide then is to determine what the accused has to show in order to get the benefit of the provisions of section 132 of the code in the case
To get such a benefit and to put off a clear decision on the question whether his conduct amounts to an offence or not the appellant has to show i that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace  ii that such an assembly was commanded to disperse  iii that either the assembly did not disperse on such command or if no command had been given its conduct had shown a determination not to disperse  and iv that in the circumstances he had used force against the members of such assembly
He has to establish these facts just in the same manner as an accused has to establish any other exception he pleads in defence of his conduct in a criminal case
It is sufficiently well settled that it is for the prosecution to prove the offence in the sense that the offence was committed in the circumstances in which no recourse to an exception could be taken and therefore if the accused establishes such circumstances which either conclusively establish to the satisfaction of the Court or make the Court believe them to be probable that the case comes within the exception that would be sufficient compliance on the part of the accused with respect to his proving the exception to prove which the onus was on him
In the present case therefore the accused has to show to the Court that the alleged offences were committed during the performance of his 684 duties in the circumstances narrated above
On his so showing it would be the duty of the Court to hold that the complaint could not have been entertained without the sanction of the Government under section 132 of the Code
To show this is not equivalent to the accused establishing facts which would be necessary for him to take advantage of the provisions of section 79 of the Indian Penal Code as had been thought in some of the cases cited to us
Section 79 IPC deals with circumstances which when proved makes acts complained of not an offence
The circumstances to be established to get the protection of section 132 Or
PC are not circumstances which make the acts complained of no offence but are circumstances which require the sanction of the Government in the taking of cognizance of a complaint with respect to the offences alleged to have been committed by the accused
If the circumstances to be established for seeking the protection of section 132 of the Code were to make the alleged conduct no offence there could be no question of a prosecution with the sanction of the State Government
This distinction had not been considered in the cases we were referred to
It is not necessary to refer to those cases which were ultimately decided on the basis that the allegations either in the complaint or taken together with what had appeard from the evidence on record justified the conclusion that the action complained of came under sections 127 and 128 of the Code and that no prosecution in con nection with such an action could be instituted in the Court without the sanction of the State Government
The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government what should be the procedure to be followed by it i e whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the procee dings and pass no formal order of discharge or 685 acquittal as contemplated in the case of a prosecution under the Code
The High Court has said that when the Sessions judge be satisfied that the facts proved bring the case within the mischief of section 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section
We consider this to be the right order to be passed in those circumstances
It is not essential that the Court must pass a formal order discharging or acquitting the accused
In fact no such order can be passed
If section 132 applies the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void the Court having no jurisdiction to take those proceedings
When the proceedings be void the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rthe relating to Bombay and reads thus 1 The body known as the Bombay State Road Transport Corporation and the Board thereof referred to in the notification of the Government of Bombay No 17805 dated the 16th November 1949 hereinafter referred to as the existing Corporation  and Board  respectively shall notwithstanding any defect in or invalidity of the enactment or order under which they were constituted be deemed for all purposes to have been validly constituted as if all the provisions of the said notification had been included and enacted in this section and this section had been in force continuously on and from the said date and accordingly a all action by and all transactions with the existing Corporation or Board including any action or transaction by which any property asset or right was acquired or any liability or obligation whether by contract or otherwise was incurred shall be deemed to have been validly and lawfully taken or done and b no suit prosecution or other legal proceeding shall lie against the Government of Bombay or any member of the 694 Board or any officer or servant of the existing Corporation in respect of any action taken by or in relation to the setting up of the existing Corporation or Board merely on the ground of any defect in or invalidity of the enactment or order under which the existing Corporation or Board was constituted
2 On the establishment of a Corporation under section 3 in the State of Bombay hereinafter referred to as the New Corporation  a the existing Corporation and Board shall be deemed to be dissolved and shall cease to function b all property and assets vesting in the existing Corporation shall vest in the new Corporation c all rights liabilities and obligations
of the existing Corporation whether arising out of any contract or otherwise shall be the rights liabilities and obligatorily respectively of the new Corporation and d all licences and permits granted to all contracts made with and all instruments executed on behalf of the existing Corporation or Board shall be deemed to have been granted to made with or executed on behalf of the new Corporation and shall have effect accordingly
 It will be clear from these provisions that the old Corporation was recognised as having always had valid legal status and deemed to have been properly incorporated
On the establishment of a Corporation under section 3 of the Act of 1950 the old 695 Corporation was dissolved
But all action by and transaction with the old Corporation including any action or transaction by which any property or asset etc was acquired by or for the old Corporation was deemed to have been validly or lawfully taken or done
It is common ground that in consequence of the passing of the Act of 1950 the Bombay Act of 1950 stood impliedly repealed and was in fact expressly repealed by the Bombay Act 29 of 1955
The provisions which we have set out above clearly show that the State Transport Corporation having been incorporated by an Indian law is a Company
Since however the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government could it be said that the terms of the proviso to sub section
1 of section 6 have been satisfied  It is contended by the learned Attorney Generalon behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay
Even assuming that the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue
No doubt the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by it as its own property
They cannot therefore be regarded as public revenue  in any sense
It was then said by reference to several provisions of the Act that the Government is entitled to exercise control over the Corporation that the profits earned by the Corporation would go to the Government that if the Corporation was wound up all its assets would also go to the Government and that therefore the Corporation could be regarded as noth ing more than a limb of the Government
Even though that may be so
the Corporation is certainly not a department of Government but is a separate legal 696 entity and therefore moneys coming out of public revenues whether invested loaned or granted to it would change their original character and become the funds or assets of the Corporation when they are invested in or transferred or loaned to it
While therefore the terms of the proviso could be said to have been satisfied because compensation is to be paid by the Corporation the acquisition will be bad because the provisions of Part VII of the Land Acquisition Act have not been complied with
In order to get out of this difficulty the learned Attorney General argued that the State Transport Corporation is a local authority
The expression Local authority is not defined in the Land Acquisition Act but is defined in section 3 31 of the  as follows   local authority  shall mean a municipal committee district board body of port commissioners or other authority legally entitled to or entrusted by the Government with the control or management of a municipal or local fund The definitions given in the  govern all Central Acts and Regulations made after the commencement of the Act
No doubt this Act was enacted later in point of time than the Land Acquisition Act  but this Act was a consolidating and amending Act and a definition given therein of the expression local authority is the same as that contained in the earlier Acts of 1868 and 1887
The definition given in section 3 3 1 will therefore hold good for construing the expression local authority occurring in the Land Acquisition Act
We have already quoted the definition
It will be clear from the definition that unless it is shown that the State Transport Corporation is an 697 authority  and is legally entitle i to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority
No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds
It was no doubt submitted by the learned Attorney General that the Corporation was furnished with funds by the Govern ment for commencing its business  but even if that were so it is difficult to appreciate how that would make the funds of the Corporation local funds
Learned Attorney General then relied upon the provisions of section 29 of the Bombay State Road Transport Act 1950 which provides that the Corporation shall for all purposes be deemed to be a local authority
No doubt that is so
But the definition contained in this Act cannot override the definition contained in the of 1897 which alone must apply for construing the expression occur ring in a Central Act like the Land Acquisition Act unless there is something repugnant in the subject or context
Though land acquisition is now in the concurrent list and therefore the State can legislate the Bombay Act not having received the President s assent cannot prevail against the meaning of the expression local authority  in that Act
No repugnancy is pointed out
Then again the Act of 1948 had empowered the Province of Bombay among other provinces to appoint Road Transport Corporations and conferred power on the Provincial Governments under sections 5 and 6 to deal with compensation and winding up of Corporations so appointed
In pursuance of this power and after the commencement of the Constitution the Bombay Act of 1950 had been enacted by the State Legislature of Bombay
But by the repeal of the Act of 1948 by the Central Act of 1950 the foundation for the continuance and existence of the Bombay Act 698 of 1950 disappeared
Moreover since section 41 of the Central Act provided that a Corporation shall be deemed to be a local authority within the meaning  and not within the meaning of any other law the provisions of section 29 of the Bombay Act could in no circumstances be said to survive
In view of all this the learned Attorney General did not press his argument on the point further
In our view the acquisition impugned in this case having been made  for the benefit of a Corporation though for a public purpose is bad because no part of the compensation is to come out of public revenues and the provisions of Part VII of the Land Acquisition Act have  not been complied with
We therefore allow the appeals and decree the suits of the appellants with costs in all the courts
Appeals allowed


Summary:
The appellant a Sub Inspector of Police in Mysore State was committed to Sessions Court for trial on the complaint of K K alleged that the appellant and another person had severely beaten T and that the appellant when forcibly taking away T and requested by K to excuse T wantonly fired on two persons
The appellant s case on which his counter case is based is that while he and a constable after arresting were taking T to the P lice Station 20 or 30 persons attacked them and rescued T Not heeding to appellant s advice to desist from violence
the crowed asked him to wait till K came
On appellant s refusal the crowd threatened
just then K came
Apprehending danger to their lives the appellant first fired in the air but when the people pelted stones and grappled him two shots went off injuring two persons
K snatched his revolver and two mazahars
prepared by the appellant in T s case and the people beat him
These persons have also been committed to the Sesions Court for trial
The Sesions Judge made the reference for quashing the commitment of the appellant holding that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of sections 132 and 197 Code of Criminal Procedure
The High Court rejected the reference of the Sessions Judge for quashing the commitment order
On appeal by special leave the appellant contended that 1 the appellant could be dismissed by the State Government alone and therefore sanction under section 197 Code of Criminal Procedure was necessary  2 a police officer cannot be prosecuted without a sanction for an offence which the police officer alleges took place in course of his duty  3 when a case and 672 a counter case are both committed to Sessions Court it should be inferred that the appellant has prima facie established his version of the incident and that his Producing a copy of the committal order in the counter case is sufficient for holding that sanction under section 132 Code of Criminal Procedure was necessary and 4 it is not necessary for the police officer to prove conclusively that he was dispersing an unlawfull assembly before he can raise the plea of want of sanction
Hold that 1 in view of the provisions of sections 4 C 8 and sub sections
1  3 of section 26 of the Mysore Police Act the Inspector General of Police can dismiss Sub Inspector and therefore no sanction of the State Government for prosecution of the appellant was necessary even if he had committed the offences alleged while acting or purporting to act in discharge of his official duty  2 the court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged offence was committed or was probably committed in connection with action under sections 127 and 128 of the Code
If at any stage of the proceedings it appears to the court that the action of the police officer complained of comes within the provisions of sections 127 and 128 of the Code the court should hold that sanction was necessary
The jurisdiction of the court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded
Majajoj Dobey vs H C Bhari   referred to
3 in the present case it does not appear from the record that the evidence prima facie establishes the appellant s contention that be could not be prosecuted without the sanction of the Government
This question is to be decided on the evidence in this case and not on the basis of evidence and inferences drawn in the other case  4 in order that the appellant can get the benefit of the provisions of section 132 of the Code he has to establish that i there was an unlawful assembly likely to cause disturbance of public peace ii the assembly was commanded to disperseiii the assembly did not disperse on the command or if no command had been given its conduct had shown a determination not to disperse and iv in the circumstances he had 673 used force against the members of such assembly
This he has to do in the same manner as an accused has to establish an exception he pleads in his defence
Therefore the accused in the present case has to show to the court that the alleged offences were committed during the performance of his duties and on his so doing the court would hold that the complaint could not proceed without the sanction of the Government under section 132 of the Code
Held further that if the court decides that section 132 of the Code applies to the case the proceedings on the complaint instituted without the sanction would be void and the proper order for it to pass would be that the proceeding be dropped and the complaint rejected