# NAGRAJ v. STATE OF MYSORE

- **Citation:** [1964] 3 S.C.R. 671
- **Court:** Supreme Court of India
- **Decided:** 1962-03-07
- **Bench:** K. SuBBA RAGHUBAR DAYAL, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nagraj-v-state-of-mysore-3015
- **Pages:** 15

## Headnote

Sanctirm to pro.ecu!•-Sub·Tn.•wctor of Polic•-Trial
fer offence
in coutBe of dutie.9-Evid•nce in counter case,
i.J ca·n. be
where .!anction i8 nece3.•aryOode of Criminal Procedure, 1898
(Act V of 1898), '8. 127-132,
197.-Mysore Police Act, 1908 (5 of 1908), "'· 4 (c), 8, 26 (1)
and
(3).
The appellant, a Sub-Tn•pertor of Police in Mysore State,
was committed to Ses111ion3 Court for trial on the complaint of
K. K alleged that the appellant and an<Jther
person had
severely beaten T, and that the appellant, when forcibly taking
away T, and reques•ed by K to excuse T, wantonly fired on
two persons.
The appellant's case, on which his counter
case is based, is that while hr. and a constable, after arresting,
were taking T to the Pnlice Station, 20 or 30 persons attacked
them and rescued T. Not heeding to appellant's advice to
desist from voilence. the crowed asked him to wait till K came.
On appellant's refu<a\, the crowd threatened.Just then K came.
Apprehending danRer to their lives. the appellant first fired in
the air, but when the people pelted stones and grappled him.
two shots wrnt off injuring two persons. K suatched his
revolver and two mazahars prepared by the appellant in T's
case, and the people beat him. These persons have at.o been
committed to the Sesions Court for trial. The Sesions Judge
made the reference for qua<hing the commitment of the
appellant, holding that the Magistrate could not have taken
cognizance of the offences without the sanction of the State
ia view of the
of ss. 132 and 197 Code
of Criminal Procedure. The High Court reject•d the reference
of the Sessions Judge for qnashing the commitment
order.
On appeal by special leave, the appellant contended that (l)
the appellant could be clismissed by the State Gr.vernment alor1e
and, therefore, sanction under s. 197 Code of Ori minal Procewas necessa;y ; (2) a police offic•r 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
1963
May I.
J{a1r•j
v.
Stot1 of Mys'''
672 SUPREME COURT REPORTS [1964] Voi...
a counter case are both committed to SeSifons Court, it should
be inferred that the appe1lant has prima
established his
versio':1 of the incident and that his rroducing a copy of the
commllt•l order in the counter ca•e is sufficient for holding
that sanction under s. 132 Code of Criminal Procedure was
necessary, and (4) it is not necessary for the police officer
to prove <"onclusively that he was dispersing an unlawfuil
assembly before he can raise the plea of want of sanction.
Heid that(!) in view of the provisions of ss. 4 (C), 8
and sub-ss. (I) & (3) of s. 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 tho appellant was necessary even if he had committed the
offences alleged while acting or purporting to act in discharge
of his offiicial duty ;
(2) the court can consider the necc91ity 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 allel!ed offe1tce was committed or was probably com·
mitted in connection with action under ss. 127 and 128 of the
('.ode. tr 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 ss. 127 and 128 of the Code, the
court should hold that •anc!ion was necessary. The jurisdiction of the court to proceed with the complaint emanates from
the allegations made in the complaint and not from what i1
alleged by the accused or what is finally established in the case
as a result of the evidence recorded.
Mojajoj Dobey v. H. 0. Bhari, (1955] 2 S. C.R. 925,
referred to.
(3) in the present case it docs not appear from the record
that the evidence prima facie establishes the appellant's contention that he could not be prosecuted without the sanction of
the Govern

## Text

3 s.a.R. SUPREME COURT REPORTS
671
NAGRAJ
v.
STATE OF MYSORE
(K. SuBBA
RAGHUBAR DAYAL and
J. R. MUDHOLKAR jj.)
Sanctirm to pro.ecu!•-Sub·Tn.•wctor of Polic•-Trial
fer offence
in coutBe of dutie.9-Evid•nce in counter case,
i.J ca·n. be
where .!anction i8 nece3.•aryOode of Criminal Procedure, 1898
(Act V of 1898), '8. 127-132,
197.-Mysore Police Act, 1908 (5 of 1908), "'· 4 (c), 8, 26 (1)
and
(3).
The appellant, a Sub-Tn•pertor of Police in Mysore State,
was committed to Ses111ion3 Court for trial on the complaint of
K. K alleged that the appellant and an<Jther
person had
severely beaten T, and that the appellant, when forcibly taking
away T, and reques•ed by K to excuse T, wantonly fired on
two persons.
The appellant's case, on which his counter
case is based, is that while hr. and a constable, after arresting,
were taking T to the Pnlice Station, 20 or 30 persons attacked
them and rescued T. Not heeding to appellant's advice to
desist from voilence. the crowed asked him to wait till K came.
On appellant's refu<a\, the crowd threatened.Just then K came.
Apprehending danRer to their lives. the appellant first fired in
the air, but when the people pelted stones and grappled him.
two shots wrnt off injuring two persons. K suatched his
revolver and two mazahars prepared by the appellant in T's
case, and the people beat him. These persons have at.o been
committed to the Sesions Court for trial. The Sesions Judge
made the reference for qua<hing the commitment of the
appellant, holding that the Magistrate could not have taken
cognizance of the offences without the sanction of the State
ia view of the
of ss. 132 and 197 Code
of Criminal Procedure. The High Court reject•d the reference
of the Sessions Judge for qnashing the commitment
order.
On appeal by special leave, the appellant contended that (l)
the appellant could be clismissed by the State Gr.vernment alor1e
and, therefore, sanction under s. 197 Code of Ori minal Procewas necessa;y ; (2) a police offic•r 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
1963
May I.
J{a1r•j
v.
Stot1 of Mys'''
672 SUPREME COURT REPORTS [1964] Voi...
a counter case are both committed to SeSifons Court, it should
be inferred that the appe1lant has prima
established his
versio':1 of the incident and that his rroducing a copy of the
commllt•l order in the counter ca•e is sufficient for holding
that sanction under s. 132 Code of Criminal Procedure was
necessary, and (4) it is not necessary for the police officer
to prove <"onclusively that he was dispersing an unlawfuil
assembly before he can raise the plea of want of sanction.
Heid that(!) in view of the provisions of ss. 4 (C), 8
and sub-ss. (I) & (3) of s. 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 tho appellant was necessary even if he had committed the
offences alleged while acting or purporting to act in discharge
of his offiicial duty ;
(2) the court can consider the necc91ity 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 allel!ed offe1tce was committed or was probably com·
mitted in connection with action under ss. 127 and 128 of the
('.ode. tr 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 ss. 127 and 128 of the Code, the
court should hold that •anc!ion was necessary. The jurisdiction of the court to proceed with the complaint emanates from
the allegations made in the complaint and not from what i1
alleged by the accused or what is finally established in the case
as a result of the evidence recorded.
Mojajoj Dobey v. H. 0. Bhari, (1955] 2 S. C.R. 925,
referred to.
(3) in the present case it docs not appear from the record
that the evidence prima facie establishes the appellant's contention that he could not be prosecuted without the sanction of
the Government. This questfon 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
of
provi•ions of s. 132 of the Code, he has to establish that (t)
there was an unlawful assembly
likely to
cause disturbance
of public peace, (ii) the assembly wa• commanded to
(iii) the
assembly did no! disperse on the command or, if n.o
command had been given, its conduct had shown a determination not to disperse; and (iv) in the circumstances he had
a s.c.:R.
SUPREME COURT REPORTS
673
used force against the members of such aaseably. 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 •ffences
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 s. 132
of the Code.
••W further, that if the court decides that 1. 132 of tlie
Code applies to the case the proceedings on the complaint insti·
tuted 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.
CRIMINAL APPJ:LliTlll Jull.ISDIOTION: Criminal
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 19111.
R. GopakJkri11hnan, !or the appellant.
/j, R. L. Iyengar and P. D. Menon, for the
respondent.
li63. May 8. The Judgment of the Court was
delivered by
JlfJ
x.,,.i
••
St•• 1fltl7m1·
RAGRUJ!AR D-'.YAL J.-This appeal by special n.,,..,,.,B..,•ll.
leave is directed against the order of the High Court
of Mysore rejecting the reference by the Sessions
Judge, Shimoga Diyision, recommending the quashing of the commitment order of the Magistrate
committing the accused to the Sessions for trial of
offences under ss. 307 and 326, I.P.C., 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 ss. 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
Nagraj
v.
Stot1 of
Raghuiar Dayal J.
614
SUPREME COUR't REPOR l'S [196<t] VOL.
the Sub-Irur,ector and another person had severely
beaten one fhimma and that the Sub-Inspector, when
forcibly taking away Thimma and requested by
Ki:nchappa to excuse Thimma if he had misbehaved,
wantonly
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 facls of the incident, according to the
appellant and the basis of the counter case, are these.
The appellant wots 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 liq,uor
and sent him with the constable to the police statlon.
Thereafter, he arrested Thirnma who was supposed to
be in league with Gidda in manufacturing liquor.
When Thimma was being taken to the police statiou
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 poople how·
ever, 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 Ke11chappa.
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 dan·
ger 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
Hanumanthappa and Shivalingappa.
Kcuchappa snatched
I
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'··
S.C.R.
SUPRl::Nre COURT MPOR.TS
I
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 s.149, though prosecuted·
for offences under ss. 143, 147, 149, 224, 225, 395
and 34, I.P.C.
The Sessions Judge made the reference for the
quashing of the commitment of the appellant as it
appeared that the· two cases arose out of one incident
that tlie 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 ther(!fore previous sanction·· of the Government
under s. l!J7 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
s. 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 num-
. her of persons then surrounded him and rescued
Thimma.
It cannqt also hence be denied that
there was an unlawful assembly which the Sub-
. · -Inspector was entitled to disperse by · force.
•,Now · s. 132 of the Cr. P.C. is clearly a bar to
lllJ.
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$16 SUPREME C01JR_T REPO,R.Ts [1964] VOL.
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 ac1..epting 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
y by force.
The High Courtheld that the Sub·lnspector
of Police could be removed from service by the
Deputy Inspector-General of Police and that there·
fore no question of sanction under s. 197 arose. It
further held that before a Court could hold that
the cognizan'ce' of the case had been.,
by the
Magistrate with\:mt sanction of the GOvernment
under s. 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
of the Code. T.lie High Court
stated later :
•
"Section 132 Cr. P.C. has aething to do with the
ingredients of any offe11ce. It is a protectfoB
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. P.C. In other words, he must place before
the Judge materials and circumstances justifying an inference that there was an unlawful
assembly and the acts complained of were
purported to have been done while dispersing
that assembly."
The High Court further held that it u for
the Sessions Judge to decide on facts establi•hed in
. 3 S.C.R.
SUPREME COURT ·REPORTS ."677
. '
.the case whether s. 132 Cr. P.C. was applicable and
if he came to the conclusion that the facts of the
case brought it within the provisions of s. 132,
Cr. P.C., the Sessions Judge was at liberty to reject
the complaint holding · that it was barred under
s. 132, Cr. P.C.
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 s. 132 Cr. P.C., it would be appropriate
for him to reject that complaint· on , that ground
alone.
·
·
.
. .
-
-
,
• , " - ' ,. , . r
Learned Counsel for the appellant has riiiSed
. four contentions in . this Court : (1)
;ippeHant
as Sub· Inspector of Police could. be dismissed. by
the State Government alone and . that, therefore,
sanction under s. 197 nf 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 dfities under
IX
of the Code. (3) Th:it 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 jacie 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 s. 132, Cr. P.C. 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,:
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lt.ctlcubaf D•J·ol I.
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678
SUPRENIB COURT REPORTS (1964] VOL.
:1JJ6l
. Government alone. Sectio.n 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
11.•z•ul•• D•J•I
--·Act, subject to such rules and orders as the Govern·
ment may pass, includes 'Sub-Inspector.' Section
__ 8 states that the appointment of Inspectors of such
-- - - grades a5 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 provi·
sions 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 s. · 8 of the Act. The contention is not
sounrl. 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 s. 8 will not include Sub· Inspector as he could
nvt possibly be an Inspector of any grade. Subsection ( l) of s. _ 26 of the Act further provides that
any officer authorised by sub·s. (3) in that behalf
may dismiss any police officer below the grade of
Assistant Superintendent and sub-s. (3) provides that
subject to the provisions of s.. 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. dealillg with 'the other contentions
raised we may refer to the provisions of ·Ch. IX of
3 S.C.R.
SUPRBNIE COURT REPORTS- -67i .
,\
·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, s. 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 forces, in the absence of any
communication with any
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 s. 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
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ll•ghublP' D'!1111 ./.
680
SUPREME COURT REPORTS [1964] VOL.
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 ss. 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 sanctioned 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 complaint. It must proceed with the complaint in the
same manner as it would have done in connection
with complaint5 against any other person.
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 Uie
action of the police officer complained of appears to
ceme within the provisions of ss. 127 and 128 of the
Act. This can be either when the accused appears
acfore the Court and makes such a suggestion or
when evidence or circumstances prima
show it.
The mere suggestion of the accused will not, however
be sufficient (or the Court to hold that sanction was
neGessary.
The Court can consider the necessity of
sanction only when from the evidence recorded in th.::
proceedings or the circumstances of the case it be
pos1ible to hold either definitely that the alleged
criminal conduct was committed or was probably
committed in connection with action under ss. 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
/
3 S.C.R.
Sl:JPllENIE GGUltT REPQRTS
i11.sta11ee when a co111plail'lt is iled or wlte• t.li.e accused alleges tltat he eould net be presecuteli. for tlte
alleged offences withonc the sanction of Governwumt
in view of s. 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 tlile
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 iu the
complaint and not from what is alleged ey the accused or what is finally established in the case as a
result of the evidence recerded.
la this connection reference may lie appropriately made to the observatiens of this Cvurt in conaection with prosecutien to which tke provisicms ef
s. 197 of the Code apply.
In M11t11jog llo"iicy v.
H. O. Bhari (1), in connection with the question "is
the need for saBction to Be c@nsidered as s••• as the
co!llplaiat is lodged aad on the allegatieAs 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
of
official duty; but facts subsequently coming to
light on a police or judicial inquiry or even in
(IJ t1955J 2 S.C.R. 925, 915.
l9iS
N•lr•j
v.
Sttlt1 •f Mysor1
Raghubnr D•al I.
1963
Na.eroj
v.
State of Mysflre
Raghub 1 i Dayal J.
682
COURT REPORTS [l 9fl4] VOi •.
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 Ch. IX of the
Code cannot be accepted.
His mere allegation will
not suffice for the purpose anrl 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 was
if the appellant
could primr1 facie show that hiq action which is complained of was in connection"vith the perfonnance of
his duties under ss.127 and 128; of the Code. Assuming that this is t11e 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 eMahlishes 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 tlJ.1t the mere fact
that some of the persons alleged to have formed part
of the unlawful assembly were prosecuted bv the
State and have also been committed bv the Magistrate to the Sessions Court for trial establishes prima
tacie that the accused's
about the necessity
3 S.C.R. SUPREME COURT REPORTS
683
for sanction under s. 132 of the Codr. is correct.
The
commitme.ut of the other accused is on the basis of
evidence in that case and cannot be legally takrn into
consideration to decide the question raised in this
case. '[he question is to be decided on the evidence
in this case and Hilt on the basis of evidence and inferences drawn in the other case.
The third contention, therefore, has no force.
The next question and the real 4uestion lo
decide then is to determine what the accu;ed has to
show in order to get the benefit ,Jf the provisions of
s. 132 of the code in the case., To get such a benefit
and to put off a clear decision'on the question wllethet
his conduct amounts to an offence
or not, the
appellant has to show (i) that tl1ere 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 v;as 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 agaimt the members of such assembly.
He has
to establish thet<c facts just in the
manner as an
accused has to establish auy other exception he pleads
in defence of his,.condurt in a criminal case.
11 is
sufficiently well-settled that it is for the prosccutiou
to prove the offence in the serne that the offence was
committed in the circum,tances in which no recourse
to an exception could be takeri and. therefore if the
accused estabfohes such circums1ances 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 \\'hich
the onus was on him. ln the present case therefore the
accused has to show to the Court that the alleged offenwere committed during the performance of his
1963
Narr,ij
v,
SJate of Mysore
Raghuhar Daral J
1963
N•:raj
v.
•f Mysore
R1Sthuhar Dayal I.
614
SUPREME COURT REPORTS [1964JVOL.
duties iio1 the circumstances narrated above.
On his
so showing,rit would be the duty of the Court to hold
that the complaint could not have been entertained
without the sanction of the Government under s. 132
of the Code. To show this is not equivalent to the
accused establishing facts which would he necessary
for him to take advantage of the provisions of s. 79
of the Indian Penal Code as had been thought in
.some of the cases cited to us. Section 79, I.P.C. deals
with circumstances which when proved makes acts
complained of not an offence. The circumstances to
be established to get the protection of s. 132, Cr. P.C.
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 s. 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 consi·
dered ia the cases we were referred to. It is not necessary to refer to those cases which were ultimately
der.ided OR 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 ss. 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 sanct!on 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 proceedings and pass no formal
order of discharge or
a s.c.R.., SUPREME COURT REPORTS
685
acquittal as contemplated in the case or a prosecution
under the Code. The High Court has said that when
the Sessio s Judge be satisfied that the facts proved
bring the case within the mischief of s. 132 @f 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 circumstauces. It is not essential that the Court must pass
a formal order discharging or acquitting the accuses.
In fact no such order can be passed. Ifs. 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
rejected.
'
We according! y consider the order of the High
Court to be correct and dismiss this appeal.
N11.1r•j
v,
St•lf •f .Wysore
R•1Auw ltq•I J