Holding

If the superior's order to open fire is justified and lawful, the subordinate officers are protected by IPC section 76 and cannot be convicted of murder.

Summary

The State of West Bengal charged four police officers with murder under IPC sections 302 and 34 for the deaths of Ranjit and Samir Chakraborty during a police operation in 1970. The trial court convicted them, but the Calcutta High Court acquitted, holding that the order to open fire given by the Deputy Commissioner was justified and that the officers acted under that lawful command, also noting the weakness of the prosecution evidence presented nine years after the incident. The State sought special leave to appeal. The Supreme Court examined whether a subordinate officer can be liable for murder when obeying a superior’s order under IPC section 76, and whether the order to fire was lawful. It held that if the superior’s order is justified and lawful, the subordinate is protected by section 76 and cannot be convicted, and further found the prosecution evidence insufficient to sustain a conviction. Consequently, the petition for special leave was dismissed, leaving the High Court’s acquittal intact.

Issues considered

Whether a subordinate police officer is liable for murder when acting under a superior's order to open fire, under IPC section 76.
Whether the order to open fire given by the Deputy Commissioner was justified and lawful.
Whether the prosecution evidence was sufficient to uphold the conviction under sections 302 and 34 of the IPC.
Whether special leave should be granted to overturn the High Court's acquittal.

Legislation cited

Code of Criminal Procedure, 1973s. 197
Constitution of Indias. 136
Indian Penal Code, 1860s. 302, s. 34, s. 76

Subjects

murderpolice liabilitycommand of superiorIPC section 76special leave petitionevidence assessmentNaxal movementpolitical unrest

Judgment

360

A STATE OF WEST BENGAL I
v.
SHEW MANGAL SINGH & ORS.

August 25, 1981
B
(Y.V. CHANDRACHUD, C.J AND V. BALAKRISHNA ERADI, J.]

j
Constitution of India, 1950, Art. 136-Special Leave to appeal-Criminal
Trial-Conviction by trial court-Acquittal by High Court-lnterfl!rence by
Supreme Court-When arises.

c Indian Penal Code 1860 (Act 45 of 1860) S. 76-Scop• of-Command of
superior officer to open/ire-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 comi'cted
and guilty are not acquitted.
D
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 tired at point blank range. The shot having
missed him, he rushed in the house. Pursuing him respondents 2 and 4 dragged
E him out of the house, whereupon respondent 4 fired a shot at him. In the mean·
while, 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 decased was declared dead on the spot and
F 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 Jed by one of the officers, they were attacked by some pi~rsons, 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
G 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.
H •
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
WEST BENGAL V, SHEW MANGAL 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. illsist upon the same
standard or 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 discrepan-
cies in their evidence. Taking note of the unsettled political conditio11s prevailing
in Calcutta during the time, and on an analysis of the prosecL1tion 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 B
mob violence which resulted in injuries to Respondent t and that in the circum-
stances the respondents were bound to obey the orders given by their officer, the
\ High Court acquitted them.

- Dismissing the Special Leave Petition of the Stat~,

HELD: I. 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 respond~
ents, who acted in obedience to that order, believed or did not believe it to be
lawful. [365 F-G]
c

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 D
they could not be held guilty of the offence of which they were charged. [366 CJ

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-Bl E
In the instant case, what the High Court has done is to acquit the innoc:nt.
[367 B]

-
S.S.llobadev. StateofMaharastra[I974] I S.C.R. 489 referred to.

3. It is a self-rigteous assumption to argue that the respondents are
"undoubtedJy guilty of murder" or that they have been acquitted by the High F
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 convic;tion of the accused.
(367 C-D]

In the instant ca~e the particular night on which the incident took place G
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 insuffi-
cient 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 H
of P.W. l from the beginning of the incident was not mentioned in the complaint.
[366 E-H]
362 SUPREME COURT REPORTS [1982] I S.C.R,

A CRIMINAL APPELLATE JURISDICTION : Special Leave Petition I
(Criminal) No. 3459 of 1980.

From the judgment and order dated the !st August, 1980 of
the High Court of Calcutta in Criminal Appeal No. 18 of 1980.

8 A. P. Chatterjee, A. K. Ganguly and B. K. Chatterjee for the
Petitioner.
j
A. K. Sen, D. N. Mukherjee and N. R. Choudhury for Respon-
dent Nos. 1·4

c 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 judgn.ent of acquittal dated
August 1, 1980 passed by the High Court of Calcutta iu Criminal }
Appeal No. 18 of 1980.
D
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 C<'de, 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.
E Dey, the then Assistant Commissioner of Police (N. S.) and some
others, caused the death of Ranjit Chakraborty and Samir Chakra·
borty 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
F
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 I
disclosed that he was a constable of the Calcutta Police and Samir
said that he was an N. V. F. cadet. Bibh uti Chakraborty then fired
G
a shot from his revolver at Ranjit from a point-blank range. Res-
pondent 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
H shot at him. The other Police Officers, including some of the respon-
dents, also fired at Ranjit. In the meantime, the other brother
Samir, who was trying to get into the house, was caught hold of by
WEST BENGAL v. SHEW MANGAL (Chandrachud, c. J.) 363

some of the respondents and respondent l, Shew Mangal Singh, A
' 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 Amba-
ssador car ordered that Samir's voice should be silenced. Thereupon
respondent 3 Anil Maitra: who was sit!ing in a jeep, fired a shot at 8
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. c
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 attac-
ked by some persons, as a result of which respondent 1 Shew Mangal
Singh was injured. He was immediately removed by respondent 2 D
• 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. E

The prosecution was initiated on the basis of a private comp-
laint filed on December 22, 1970 by Benoy Chakraborty (P. W. 1). In
addition to the four respondents, Deputy Commissioner Bibhuti
Chakraborty and Assistant Commissioner P. R. Dey were also inclu-
ded in the array of the accused. The learned Additional Chief F
Metropolitan Magistrate, Calcutta, issued process against the respon·
dent 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.
G
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 comp-
lainant filed another application for sanction, which was granted on
August 4, 1977. But the officers filed a petition in the High Court H
under Article 226 of the Constitution challenging the order of
sanction. A learned single Judge dismissed that petition but in
364 SUPREME COURT REPORTS [1982] ] S.C.R.

A appeal, a Divison Bench of the High Court set aside the order sanc- I
tioning prosecution on the ground of ma/a 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.

B The learned trial Judge convicted the respondents under
section 302 read with section 34 of the Penal Code and sentenced
them to life imprisonment. j

In an appeal by the respondents, the High Court has acquitted
them, against which the State of West Bengal has filed thi:; Special
Leave Petition under Article 136 of the Constitution.

The learned Advocate General of the State of West Bengal,
-
who appenred 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
D predators and, in the circnmstances, 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
E 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
F 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 of the "Naxal Movement". A sitLing Judge of the High
G
Court and a member of the Higher Judicial Service were killed in
Calcuna 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. I) admitted in his
evidence to have stated in the committal Court that newspapers had
H
reported seven or eight murders between August 1970 and April
1971. Manicklal Ghose (P. W. ~) stated in his evidence that many
WEST BENGAL v. SHEW MANGAL (Chandrachud, c. J.) 365

murders were committed during 1970-71 within the jurisdiction of A
the Shyampukur Than a. 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 1, Shew Singh, received
injuries as a result of the mob violence. Since the orders given by 8
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 C
argued this Special Leave Petition for quite some time and in addi-
tion, 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. D

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 F
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 respondent,, 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 G
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
H
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 SUPREME COURT REPORTS · [1982] 1 S.C.R.

A 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 offience. The occasion to apply the provisions of the
section does not arise in the instant case since the question as to
v.hether the accused believed in good faith on account of a mistake
B 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 justi· )
fied 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
c 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.

D 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 con·
viction can safely be founded.

E 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 contradic·
tions to which the High Court has referred. The witnesses were
deposing to the incident nearly nine years later and it appears that
F they made good the lapses of memory by giving a free p:ay to their
imagination. Their evidence leaves much to be desired and is insu-
fficient 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
G 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.
H
Towards the end of his written submissions, learned counsel
for the State of West Bengal has extracted passages from a judgment
WEST BENGAL v. SHEW MANGAL (Chandrachud, C. J.) 367

' of this Court in S.S. Bobade v. State of Maharashtra(') 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 B
acquitted but, what the High Court has done is to acquit the
innocent. Relying upon the observations in S. S. Bobadq, the lear-
ned counsel has stated further that the judicial instrument has a

.. public accountablity and that the history ~ill never forgive "us" if
police officers, undoubtedly guilty of murder, are acquitted "light-
heartedly". We cannot agree more. But tbe snag lies in the setf·right- C
eous 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 "light-
hearted" for the reason that the Government considers that it has a D
stake in the conviction of the accused.

For these reasons, we dismiss the Special Leave Petition.

N. V.K. Petition dismissed.
'

(1) [1974) I SCR 489, 493.