Shew mangal Singh v. State of west Bengal 1981 CrLJ 84 (Cal)
In Shew mangal Singh v. State of West Bengal, a question arises before the court that 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.
In this case, two police officers fired shot on two brothers and both of them died soon after police took them to hospital. It was the time of Naxal movement in West Bengal and killing and unlawfulness were at high. And as per police, they were directed to control the mob and in the consequence, both brothers died. However, prosecution contended that police deliberately killed both brothers while they were sitting before their house. Even police dragged one of them when he tried to escape from there in house.
Trial court convicted the police officer. But, in appeal, high court in his judgement while discussing the laws on the question of legality of open fire under the command of superior officer and acquitted the accused by taking the notice of situation of Calcutta state at that time and discrepancies in evidence due to long period of trial.
After acquittal of accused from the High court, state filed Special leave petition in the Supreme Court against acquittal, however, Supreme court maintained the acquittal and dismissed the special leave petition.
Principle laid down-
In this case, Supreme court laid down that the particular situation (controlling the mob) 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. i.e. illegal and against the law.
Section 76 of IPC
Section 76 of the Penal Code provides that,
Nothing (no act) 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 believes himself to be, bound by law, to do it. (that act)
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.
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.
(Special Note- This case is considered an important case under section 76 of IPC in the context of command of superior order to shoot open fire.)