Penal Code, 1860: ss.217 and 221 – Prosecution case was that a group of persons (Accused no.1 to 16) armed with dandas (sticks) and iron rods trespassed into the newspaper office and vandalized it and set it on fire – Three employees of the newspaper office got stuck in the engulfing fire and lost their life – A1 to A16 were charged under IPC, Explosive Substances Act and Tamil Nadu Property (Prevention of Damage and Loss) Act – Appellant-accused No.17 who was the then jurisdictional Deputy Superintendent of Police was charged for offence under ss.217 and 221 – Case against the appellant was that he did not take action to prevent the crime and intentionally disobeyed the directions of law and allowed the accused to escape from the place of occurrence – Trial court acquitted the appellant on the ground that on the date of occurrence, appellant was not the superior officer present at the place of occurrence and that PW-30-Additional Superintendent of Police was the superior officer and the bandobust was arranged under the head of PW-30 – State’s appeal against acquittal – High Court reversed the acquittal of 9 out of 16 main accused – High Court also reversed the acquittal of appellant and convicted him under charged offences – On appeal, held: The evidence on record clearly showed that the bandobust at the Newspaper office was posted under the control of PW-30 and the appellant was acting under the direction of PW-30 – Evidence on record further made it clear that the appellant and other police personnel used force to chase away the agitators – Evidence of PW-2-News Editor and PW-3-Chief Operating Officer of Newspaper office was to the effect that appellant immediately responded to them that action would be taken at once and that he had not received any order from his superiors which showed that there was no lack of diligence on his part – In his evidence, PW-30 did not state anything about the appellant having disobeyed his orders – s.217 is attracted when there is disobedience of the direction of law with intention to save the accused – In a tense situation where there is law and order problem, normally a superior gives out instructions on how to handle a situation and the subordinates are expected to carry them out – Responsibility for the actions lies with the superior – In the instant case, there was nothing to show that the appellant disobeyed the orders of PW-30 who was the officer placed In-charge of the bandobust nor there was any lack of diligence and inaction on the part of the appellant to sustain his conviction – On the contrary, there is clear evidence to show that the appellant and other police personnel used mild force against the miscreants and thus, chased them away to prevent any further untoward incident – As regards conviction under s.221, one of the essential ingredients is the intentional omission to apprehend a person or intentionally aiding such person to escape – PW-29-Superintendent of Police and PW30 who were present on the spot issued directions and accordingly, the appellant acted – After the occurrence was over, PW-29 directed the appellant to search for the accused – Accordingly, the appellant went in search of the accused and arrested accused No.1 to 4 on various dates – There is no evidence that appellant intentionally omitted to apprehend the accused on the spot – The view of trial court that ingredients of ss.217 and 221 were not made out was plausible one – High Court ought not to have substituted its views with the conclusion of the trial court – Conviction of the appellant not sustainable.
Allowing the appeals, the Court
HELD: 1. Ex.-P82 is the bandobust duty list as ordered by PW-29-Superintendent of Police. As per Ex.-P82, police officials were present at the place of occurrence for bandobust and PW30-Additional Superintendent of Police, a superior officer of the appellant, is mentioned at serial No.1. PW-1-Sub-Inspector of Police stated that on the date of occurrence, bandobust was under the leadership of PW-30 who came to the place of occurrence with striking force and they chased the agitators along with the appellant. SI-PW-1 stated that about ten persons of Madurai Armed Reserve Police Force came in a single vehicle and that the appellant had asked that the vehicle to be parked away safely and asked the police force that they should be scattered sparsely without standing together at one place. In his chief examination, PW-1 has also stated that all of them along with the appellant and other police personnel had used force on the agitators and they chased away the agitators. PW-1 also stated that the appellant was informing about the development in the place of occurrence then and there through wireless to PW-29, Superintendent of Police. As per Ex.-P82 and from the evidence of PW-1, it is seen that thus the appellant was not the senior most officer present at the scene of occurrence to issue directions; PW-30 was the higher officer present there who was to issue directions and the appellant was to act under the direction and guidance of PW-30. [Para 24] [992-B-F, H; 993-A]
2. PW-2 was working as News Editor of Dinakaran Newspaper in Madurai. In his examination-in-chief, he deposed that he informed about the attack to PW-3, Chief Operating Officer (COO) of Dinakaran in Chennai and PW-3 requested the police to give security and stop the attacks. PW-3 deposed that PW-2 told him that more and more people were entering inside the office and that PW-2 gave him the telephone number of the appellant who was standing outside the office and that he (PW-3) immediately called the appellant over phone and the appellant told him that the police were on their way and that action would be taken immediately. The evidence of PWs 2 and 3 showed that the appellant immediately responded to them by stating that action would be taken at once and that he has not received any order from his superiors. The evidence of PWs 2 and 3 shows that the appellant was taking action and there was no lack of diligence on his part. [Paras 25, 26] [993-B, F-G; 994-B]
3. The evidence of PW-29 and Ex.-P82 clearly show that PW-30 was the officer In-charge of the security bandobust. The appellant, who was the Deputy Superintendent of Police at the relevant time was under the supervision and control of PW-30. In his evidence, PW-30 has not stated anything about the appellant having disobeyed his orders. In order to attract the ingredients of Section 217 IPC, there should have been disobedience of the direction of law with intention to save the accused. In a tense situation where there is law and order problem, normally a superior gives out instructions on how to handle a situation and the subordinates are expected to carry them out. If each subordinate police officer start taking actions on his own without order from the superior officer, it would lead to chaos and confusion. Responsibility for the actions lies with the superior: in the present case, PW-30-Additional Superintendent of Police. There is nothing on record to show that the appellant disobeyed the orders of PW-30 who was the officer placed In-charge of the bandobust nor there was any lack of diligence and inaction on the part of the appellant to sustain the conviction of the appellant under Sections 217 IPC and 221 IPC. [Paras 30, 31] [995-G-H; 996-A-D]
4. Insofar as the conviction under Section 221 IPC is concerned, one of the essential ingredients of Section 221 IPC is the intentional omission to apprehend a person or intentionally aiding such person to escape. PW-29-Superintendent of Police and PW-30-Additional Superintendent of Police who were present on the spot issued directions and accordingly, the appellant acted. After the occurrence was over, PW-29 directed the appellant to search for the accused. Accordingly, the appellant went in search of the accused and arrested accused No.1 on 15.05.2007; accused No.2 on 16.05.2007 and accused Nos.3 and 4 on 10.05.2007. There is no evidence to show that the appellant intentionally omitted to apprehend the accused on the spot to sustain the conviction under Section 221 IPC.[Para 33] [996-G-H; 997-A-B]
5. When the trial court has recorded the finding that the ingredients of Sections 217 IPC and 221 IPC are not made out which is a plausible view, the High Court could not have substituted its views with the conclusion of the trial court. So far as the appellant is concerned, the prosecution has not proved his guilt and the conviction of the appellant cannot be sustained. The High Court was not right in reversing the order of acquittal passed by the trial court. [Para 34] [997-C-D] Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103; Anvar P.V. v. P.K. Basheer and Others (2014) 10 SCC 473 : [2014]
11 SCR 399 ; Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 ; Sonu alias Amar v. State of Haryana (2017) 8 SCC 570 : [2017] 8 SCR 151 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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