E.K.Palanisamy v. The Deputy Superintendent of Police, Erode Town Sub-Division, Erode District
Case at a glance
Outcome
Dismissed
Criminal Original Petition is dismissed with the abovedirection
Provisions considered
- Code of Criminal Procedure, 1973 ss. 195, 465, 482
- Indian Penal Code, 1860 ss. 109, 172, 182, 188, 420
Key paragraphs
- Para 99. Criminal Original Petition is dismissed with the abovedirection. Connected Miscellaneous Petitions are closed. JI.Sd/Asst. Registrar02.09.2009Amended as per the order of the Court dt.7.9.09. as made harein sd/-Assistant Registrar.10.09.2009/true copy/Sub Asst. RegistrarTo1. The Judicial Magistrate No.II Erode To be 2. -Do- through the Chief Judicial…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 18.08.2009Coram:-The Hon'ble Mr. Justice R.REGUPATHICrl.O.P. No.7699 of 2009andM.P. Nos.1 and 4 of 2009E.K.Palanisamy... Petitionervs. The Deputy Superintendent of Police, Erode Town Sub-Division, Erode District. ... RespondentPetition under Section 482 of the Code of Criminal Procedure forthe relief as stated therein. call for the records is CC No. 591/07pending on the file is the Judiicial Magistrate NO.II Erode. andquash the proceedings against the petitioner. For Petitioner: Mr.A.Ramesh, Senior Counsel for Mr.V.VijayakmarFor respondent: Mr.Paul Nobel Devakumar, Government Advocate. For Intervener: Mr.R.SivaprakasamO R D E R The petitioner herein, who is A1 amongst three accused in C.C.No.591 of 2007 taken on file by Judicial Magistrate No.II, Erode, with reference to the charge sheet filed by the respondent policein Cr. No.1376 of 1998 for offences under Sections 188, 420 IPC. &466, 467, 468 and 420 read with 109 IPC., seeks to quash the saidproceedings. 2. The defacto complainant is the owner of the land measuring35000 sq. ft. in Ward-A, Block-15, T.S. No.1, 2 and 3 in Erode Townand the case of the prosecution is that the petitioner herein/A1,with a view to clandestinely usurp the said property, createdforged documents and fake revenue records and, in collusion andconspiracy with A2/Tahsildar and A3/Sub Inspector of Survey, procured patta in his favour *by an attempt to sell the land tothird parties. After conclusion of the investigation, final reporthas been filed, culminating in the aforesaid proceedings before thetrial court. https://hcservices.ecourts.gov.in/hcservices/
Learned senior counsel for the petitioner points out thatthe 2nd and 3rd accused are admittedly public servants and in suchcircumstance, when there is an allegation against the petitionerfor having committed an offence under Section 182 IPC. ie., hefurnished false information with the intent to cause the publicservants to use their lawful power to the injury of another person, the procedure contemplated under Section 195 Cr.P.C. should havebeen strictly adhered to, for, by operation of the said provisionin the procedural law, no court shall take cognizance of anyoffence punishable under Sections 172 to 188 of IPC. or of anyabetment of, attempt to commit such offence or of any criminalconspiracy to commit such offence except on the complaint inwriting of the public servant concerned or of some other publicservant to whom he is administratively subordinate. According tothe learned senior counsel, in the light of the allegation that thepetitioner influenced A-2 and A-3/public servants to grant pattain his favour and in turn, both of them used their lawful power toissue the patta and of the fact that the complaint not having beenlodged by the competent authority but by a third party/defactocomplainant, who claims himself as the owner of the property, thecharge sheet filed based on the investigation done with referenceto the offence under Section 182 IPC. cannot be looked into by thecourt for taking cognizance. Referring to the definitions given forpolice report and complaint in Section-2(r) and 2(d) respectivelyof the Code, he argues that, in order to proceed with theinvestigation of a case pertaining to an offence under Section 182I.P.C., the complaint should have been directly given before thelearned Magistrate by the public servant concerned himself or by asuperior officer and since, in the present case, there is deviationin complying with the specific procedure prescribed, Section 182IPC as found in the charge sheet must be deleted. In support ofhis submission, learned senior counsel relied on the case law in Daulat Ram v. State of Punjab (AIR 1962 SC 1206), wherein the ApexCourt ruled as follows:-"
Now the offence under S.182 of the PenalCode, if any, was undoubtedly complete when theappellant had moved the Tehsildar for action. Section 182 does not require that action must alwaysbe taken if the person who moves the public servantknows or believes that action would be taken. Inmaking his report to the Tehsildar therefore, if theappellant believed that some action would be taken(and he had no reason to doubt that it would not)the offence under that section was complete. It wastherefore incumbent, if the prosecution was to belaunched, that the complaint in writing should bemade by the Tehsildar as the public servantconcerned in this case. ..... What the sectioncontemplates is that the complaint must be inwriting by the public servant concerned and there is https://hcservices.ecourts.gov.in/hcservices/ no such compliance in the present case. Thecognizance of the case was therefore wrongly assumedby the court without the complaint in writing of thepublic servant namely the Tehsildar in this case.
The trial was thus without jurisdiction ab initioand the conviction cannot be maintained. "3-A. By referring to the ruling reported in 1994 SCC (Cri) 831(State of UP v. Mata Bhikh), learned Senior Counsel states that asuccessor in office of a public servant concerned will also fallwithin the ambit of the expression 'public servant concerned' andany other view contrary to it will only create difficulties incertain situations and the successor in office of the publicservant gets in the same position of the public servant concernedand he is in law eligible to file a complaint against wrongdoersand in other words, the successor in office falls within the ambitof the expression 'public servant concerned'. According to him, there was no compliance of the mandatory procedure involved bypresenting the complaint through the public servant concerned, hence, no sanctity can be attached to the outcome of theinvestigation ie., police report.
3-B. Reliance is also placed on a Judgment of this Courtreported in 2003 (2) CTC 599 (Ramalingam v. State) wherein, adverting to the observations made in the decision of the ApexCourt in Daulat Ram case (cited supra), the proceedings before thetrial court came to be quashed by holding thus:-"10. Therefore, in terms of Section 195Cr.P.C. it is that Public servant or his superiorofficer who should give a complaint before the Court to take cognizance. Therefore, a policeofficer of a different police station before whomthe PCR Inspector has given a report, filing acharge sheet is illegal and consequently, theentire proceedings are illegal and the convictionand sentence has to be necessarily set aside. "3-C. Learned Senior Counsel ultimately submits that since thepetitioner did not deceive the complainant and the allegation beingfalse representation before the authorities for procuring a pattain his favour, an offence under Section 420 IPC is not made out.
Inother words, it is not the case of the prosecution that thepetitioner intentionally induced the complainant to deliver him theproperty or caused any wrongful loss to him. In the abovecircumstances, this is a fit case to quash the proceedings since nooffence is made out insofar as the petitioner/A1 is concerned. 4. Per contra, with regard to the argument advanced by thelearned counsel for the petitioner to the effect that thepetitioner is not liable to be prosecuted for all the offences https://hcservices.ecourts.gov.in/hcservices/ shown in the Final report, learned counsel for theintervener/defacto complainant submits that it must be construedthat the petitioner along with A-2 and A-3 committed the offencesunder Sections-466, 467, 468 and 420 read with 109 IPC apart fromcommitting the offences under Sections 182 and 420 IPC. in hisindividual capacity. According to him, but for the abetment by thefirst accused, A-2 and A-3 would not not have committed such otheroffences.
Merely because the case has been investigated for anoffence under Section 182 IPC amongst other IPC offences, it cannotbe claimed that the Investigating Agency do not have any power toconduct the investigation in a wholesome manner. At best, havingregard to the fact that the procedure prescribed in Section 195Cr.P.C. has not been adhered to, the penal provision under Section182 IPC. finding place in the charge sheet may be segregated ordeleted and the entire proceedings before the trial court cannot bequashed since final report has been filed for other offencesinvolved and wealth of materials are available to substantiate theallegations. It must be taken note of that the discharge petitionsfiled by the co-accused are pending and in the meantime, adirection has been issued by this Court to conclude the trialwithin three months. The land in question is the ancestralproperty of the defacto complainant, who has got contemporaneousmaterials to substantiate his ownership through inheritance.
Thatbeing so, only on the request and inducement of the petitioner, theco-accused/public servants issued the patta and subsequently, bycreating documents, *by an attempt to sell the land to thirdparties; thus, the petitioner is the person who instigated the co-accused for the issuance of patta in his favour and all of themjoined together to fraudulently deal with the property andcommitted the offences as aforementioned. It is pointed out thatsince Section 109 IPC. is also attracted, it cannot be loosely saidthat the petitioner is alleged to have committed only the offencesunder Sections 182 and 420 IPC and not the other ones. In supportof his submission, learned counsel referred to the ruling reportedin 2002 SCC (cri) 539 (State of Karnataka v. M.Devendrappa) whereinit has been observed as follows:-" 8. ..... it is important to bear in mind thedistinction between a case where there is no legalevidence or where there is evidence which isclearly inconsistent with the accusations made, anda case where there is legal evidence which, onappreciation, may or may not support theaccusations.
When exercising jurisdiction under Section 482 of the code, the High Court would notordinarily embark upon an enquiry whether theevidence in question is reliable or not or whetheron a reasonable appreciation of it accusation wouldnot be sustained. That is the function of thetrial Judge. Judicial process should not be aninstrument of oppression, or, needless harassment. https://hcservices.ecourts.gov.in/hcservices/ Court should be circumspect and judicious inexercising discretion and should take all relevantfacts and circumstances into consideration beforeissuing process, lest it would be an instrument inthe hands of a private complainant to unleashvendetta to harass any person needlessly. At thesame time the section is not an instrument handedover to an accused to short-circuit a prosecutionand bring about its sudden death. .....9. ..... The High Court being the highestcourt of a State should normally refrain fromgiving a prima facie decision in a case where theentire facts are incomplete and hazy, more so whenthe evidence has not been collected and producedbefore the Court and the issues involved, whetherfactual or legal, are of magnitude and cannot beseen in their true perspective without sufficientmaterial.
Of course, no hard-and-fast rule can belaid down in regard to cases in which the HighCourt will exercise its extraordinary jurisdictionof quashing the proceeding at any stage. It wouldnot be proper for the High Court to analyse thecase of the complainant in the light of allprobabilities in order to determine whether aconviction would be sustainable and on suchpremises arrive at a conclusion that theproceedings are to be quashed. It would beerroneous to asses the material before it andconclude that the complaint cannot be proceededwith. .... "Learned counsel drew attention of this Court to a decisionreported in 2002 (3) CTC 785 (Mathew, K.M. v. K.A.Abraham) wherein, with reference to exercise of inherent powers under Section 482Cr.P.C., the Supreme Court held thus:-" 21. ..... 'the inherent power of the courtunder Section 482, Cr.P.C. should be verysparingly and cautiously used and only when thecourt comes to the conclusion that there would bemanifest injustice or there would be abuse of theprocess of the court, if such power is notexercised. 'So far as the order of cognizance bya Magistrate is concerned, the inherent power canbe exercised when the allegations in the firstinformation report or the complaint together withthe other materials collected during investigationtaken at their face value, do not constitute theoffence alleged.
At that stage, it is not openeither to sift the evidence or appreciate theevidence and come to the conclusion that no prima https://hcservices.ecourts.gov.in/hcservices/ facie case is made out.' See. State of Bihar v.Rajendra Agrawalla, 1996 (8) SCC 164." Unless grave illegality is committed, the superior courts should not interfere. Theyshould allow the court which is seized of thematter to go on with it. There is always anappellate court to correct the errors. Oneshould keep in mind the principle behindSection 465 Cr.P.C.. Any or every irregularityor infraction of a procedural provision cannotconstitute a ground for interference by asuperior court unless such irregularity orinfraction has caused irreparable prejudice tothe party and requires to be corrected at thatstage itself. Frequent interference bysuperior courts at the interlocutory stagetends to defeat the ends of justice instead ofserving those ends.
It should not be that aman with enough means is able to keep the lawat bay. That would mean the failure of the verysystem. (See: Santhosh De & Anr. vs. ArchnaGupta & Ors., 1994 (2) SCC 42."Learned counsel submits that a prima case is made out to proceedagainst the petitioner, therefore, the proceedings before the trialcourt may be allowed to continue.5. I have given my thoughtful consideration to the rivalsubmissions made on either side and carefully perused the materialsavailable on record.
Insofar as the contention put forth by the learned seniorcounsel that investigation into an offence under Section 182 IPCcan be done only on the complaint given by a competent publicservant; taking note of the fact that the procedure contemplated isnot complied with in line with Section 195 Cr.P.C. as well as thesettled legal position evolved through the decisions of the ApexCourt, I am of the considered view that the cognizance assumed bythe learned Magistrate for the offence under Section 182 IPC. iserroneous and not sustainable in law.
As regards other offences reflected in the charge sheet, itmust be pointed out that the respondent police have got every rightto investigate into the case and file final report. Though it iscontended that, except for the alleged offence under Section 420IPC., there is no material available to constitute the otheroffences against the petitioner, I am unable to appreciate suchcontention, for, the allegation under Section 420 IPC cannot beconsidered in isolation to the exclusion of other offences allegedagainst the petitioner including Section 109 IPC. Though the https://hcservices.ecourts.gov.in/hcservices/ learned senior counsel, in his vigorous endeavor to make out apoint, submitted that the petitioner continues to be in possessionof the land and such possession has been upheld by civil court, itmust be made clear that this Court cannot act upon such submissionand quash the proceedings in its entirety when prima facie case ismade out in respect of the offences mentioned in the charge sheetbarring Section 182 IPC. and the calendar case is pendingadjudication before the learned Magistrate along with the dischargepetitions filed by the co-accused.
Therefore, by holding that the cognizance taken by thelearned Magistrate for an offence under Section 182 IPC. iserroneous for the reason that investigation into such aspect wasnot done in consonance with the procedure contemplated under Section 195 Cr.P.C. and, by ordering deletion of Section 182 IPC.,the trial court is directed to proceed with the case and concludethe proceedings as expeditiously as possible.
Operative part
Criminal Original Petition is dismissed with the abovedirection. Connected Miscellaneous Petitions are closed. JI.Sd/Asst. Registrar02.09.2009Amended as per the order of the Court dt.7.9.09. as made harein sd/-Assistant Registrar.10.09.2009/true copy/Sub Asst. RegistrarTo1. The Judicial Magistrate No.II Erode To be 2. -Do- through the Chief Judicial Magistrate Erode. subtituted3. The Deputy Superintendent of Police, to the Erode Town Police Station, Erode District. order4. The Public Prosecutor High Court Madras.104. already despatched + One CC to Mr.R.Sivaprakasam Advocate SR.NO.44577 on 3.09.09.+ One Cc to Mr. V.Vijayakumar Advocate SR. NO.44680 Crl.O.P. No.7699/2009.MBS (CO)VC (02.09.2009)VC (10.09.2009)
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Criminal Original Petition is dismissed with the abovedirection
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 195, 465, 482; Indian Penal Code, 1860 — ss. 109, 172, 182, 188, 420.
Which court decided this case, and when?
Madras High Court, on 18 Aug 2009.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.