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 AK Ganguly and B K Chatterjee for the Petitioner
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 1000 pm 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 NS 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 RG 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 accused
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 concerned
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 charged
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 period
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 founded
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 section section Bobade vs State of Maharashtra1 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 section section 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 Leave Petition
N V K Petition dismissed


Summary:
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 of 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 State  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 innocent367 B SS Bobade vs State of Maharastra  referred to
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 PW 1 from the beginning of the incident was not mentioned in the complaint
366 E H 362