S.Arulanandam v. A.Kalaiselvan

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.08.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.30234/2006S.Arulanandam, Deputy Superintendent of Police Vigilance Officer, Corporation of Chennai and now Central Crime Branch, Chennai Petitioner VsA.KalaiselvanRespondentPrayer:- This Criminal Original Petition is filed to call for therecords relating to the proceedings of the learned ChiefMetropolitan Magistrate, Egmore, Chennai in CC.No.5828/2006 andto quash the same in for as the Petitioner is concerned.For Petitioner:Mr.M.BalasubramanianFor Respondent :Mr.GnanasekarORDER The Petitioner seeks to quash the proceedings inCC.No.5828/2006 on the file of the learned Chief MetropolitanMagistrate, Egmore, Chennai.2. The brief facts, which are necessary for thedisposal of this Criminal Original Petition, are as follows:-The Petitioner has been working as Deputy Superintendentof Police in the Central Crime Branch, Chennai and he has beendeputed by the Government to work as Vigilance Officer in theCorporation of Chennai. While he was working in that capacity,the Commissioner of Corporation of Chennai directed him toenquire into certain allegations of cheating and concealment ofmaterial facts against its staff the Respondent herein. As perthe directions of the Commissioner of Corporation of Chennai, thePetitioner conducted enquiry and filed a report, stating that theRespondent had concealed his studies as a day college student inthe Vivekananda College and joined the Chennai Corporation as afull time employee and that even thereafter he joined Madras LawCollege as a regular student and after completion of B.L.enrolled himself as an advocate and he was practicing as a full https://hcservices.ecourts.gov.in/hcservices/ time advocate. However, he had managed to get full attendanceand received salary from the Chennai Corporation. On the basisof the said report and pursuant to the order of the Commissionerof Corporation of Chennai, the Petitioner lodged a report againstthe Respondent with the Additional Commissioner of Police, onwhose direction a case was registered in Cr.No.334/2005 for theoffence punishable under Sections 419 and 420 of IPC andinvestigation was proceeded with.3. In the mean while, the Respondent had sent atelegram to the Petitioner on 5.1.2006, claiming a compensationof Rs.25 Crores and threatened to lodge a complaint against thePetitioner for the offences punishable under Sections 211, 193,341, 500 and 506(ii) of IPC. Later, he lodged a private complaintbefore the learned Chief Metropolitan Magistrate, Egmore, Chennaialleging that on receiving the telegram from the Respondent, thenext day the Petitioner threatened him to cause danger to hislife under Sections 193, 211 and 500 of IPC. It appears thatafter recording the statement of the complainant and two otherwitnesses, the Chief Metropolitan Magistrate, Egmore, Chennai hadtaken the complaint on file in CC.NO.5828/2006 and issued processto the Petitioner for his appearance, as against which, thisCriminal Original Petition has been filed to quash the saidproceedings.4. The Petitioner has challenged the impugnedproceedings on three grounds:-(i). That the offence punishable under Sections 211and 193 of IPC cannot be taken cognizance of by acourt on a complaint lodged by a private party andsuch cognizance is clearly barred under Section 195of Code of Criminal Procedure and therefore, thelearned Magistrate has committed a serious error,illegality in taking cognizance of the complaint,(ii). That the Petitioner has been accused of anoffence punishable under Sections 211, 193, 341, 500and 506(ii) of IPC. The Petitioner, DeputySuperintendent of Police being a public servant notremovable from his Office save by or with thesanction of the Government when he is accused ofcommitting certain offences as alleged in thecomplainant, no prosecution can be allowed withoutsanction of the Government in view of the barprovided under Section 197 of Code of CriminalProcedure and(iii) That the act of the Petitioner in initiatingcriminal prosecution against the Respondent isprotected under Sections 76 and 79 of IPC. https://hcservices.ecourts.gov.in/hcservices/

5. As regards ground (i), Section 195 (1)(b) of Code ofCriminal Procedure bars the cognizance by any court of theoffence under Sections 193 to 196 of Code of Criminal Procedure(both inclusive), 199, 200, 205 to 211 (both inclusive) and 228,except upon a proper complaint by such officer of the Court. Inorder to attract Section 195(1)(b), the alleged offence should becommitted in relation to any proceedings in court and such barwould come into operation in this case, in view of the criminalproceedings in CC.No.5828/2006 pending on the file of the learnedChief Metropolitan Magistrate against the Petitioner and twoothers, pursuant to the complaint filed by the Respondent andprocess has been issued to the Petitioner.6. The Full Bench of the Allahabad High Court in thecase of P.C.Gupta Vs. state and another [1974-Cr.LJ-945] hasobserved thus:-"The object of Section 195(1)(b) of Code of CriminalProcedure is to protect persons from being needlesslyharassed by vexatious prosecution in retaliation. Aperson, after having come to know that he is likelyto be prosecuted on any information relating tocommission of an offence may invariably file acomplaint stating that a false report has been madeagainst him. The situation thus created may result inconfusion. The legislature, has, therefore, put abrake on such unscrupulous actions being taken bypersons against whom the police or private personsmay proceed by an information or complaint. It is acheck to protect innocent persons from criminalprosecution which may be actuated by malice or ill-will."7. The allegations made in the complaint against thepetitioner is that despite the fact that no ingredient attractingan offence under Sections 419 and 420 of IPC is made against theRespondent, but the Petitioner has filed a false report as thoughthe said offences have been made out, which has resulted inregistration of the case in Cr.NO.334/2005 by the Petitioner.8. It is further alleged in the complaint that thePetitioner has fabricated false evidence against the Respondentand that the Petitioner has committed an offence punishable underSections 211 and 193 of IPC. Admittedly, the complaint is notfiled by the officer of the court. Since the offences underSections 211 and 197 of IPC relates to giving false evidence andproducing fabricated documents before the court, privateprosecution are absolutely barred and only the public servant orthe court concerned can make a complainant. Since the complaintis filed by the private party, the bar under Section 195(b)(1)come into operation and the cognizance taken by the learnedMagistrate on such complaint suffers from illegality. https://hcservices.ecourts.gov.in/hcservices/

9. It has been held by this Court in the case ofMurugesan and Others Vs. State of Tamil Nadu [1989-Crl-LJ-1833]that a party should not be allowed to evade the provisions ofSection 195 of Code of Criminal Procedure by bringing a chargeunder another Section of Penal Law. The principle is that thefacts should be considered as a whole without splitting them upand when they disclose a specific charge of graver offencerequiring a complainant, then Section 195 cannot be evaded byelecting to prosecute for a general or lesser offence for whichno complaint is necessary. In this case, though the petitioner isaccused of committing offences under Sections 341 and 506(ii) ofIPC, but they cannot be split up and allow the petitioner to facetrial for commission of those offences as it would amount toevading of the provisions of Section 195 of Code of CriminalProcedure. 10. The next contention of the learned counsel for thePetitioner is that the learned Magistrate cannot take cognizanceof the offence alleged in the complaint without prior sanction ofthe competent authority. The relevant portion of Section 197 ofCode of Criminal Procedure is in the following terms:-"197. Prosecution of judges and public servants: (1)When any person who is or was a Judge or Magistrate ora public servant not removable from his office save byor with the sanction of the Government is accused ofany offence alleged to have been committed by himwhile acting or purporting to act in the discharge ofhis official duty, no Court shall take cognizance ofsuch offence except with the previous sanction:-(a) in the case of a person who is employed or asthe case may, was at the time of commission of thealleged offence employed, in connection with theaffairs of the Union, of the Central Government;(b) in the case of a person who is employed or, asthe case may be, was at the time commission of thealleged offence employed, in connection with theaffairs of a State, of the State Government."11. It is not disputed that if the offence is said tohave been committed while acting or purporting to act in thedischarge of the official duty, the provisions of Section 197Code of Criminal Procedure could be attracted and a priorsanction for Prosecution would be required. Hence, the solepoint that arises for consideration is as to whether all or anyone of the offences, for which the Petitioner is sought to beprosecuted, alleged to have been committed by him while acting orpurporting to act in the discharge of his official duty. ThePetitioner being the Deputy Superintendent of Police and when heworked as Vigilance Officer in the Corporation of Chennai, https://hcservices.ecourts.gov.in/hcservices/ pursuant to the direction of the Commissioner of Corporation ofChennai, he had enquired into certain charges of cheating andconcealment of material facts committed by the staff of theCorporation of Chennai, who is the Respondent herein and hadfound those charges to be true and filed a report substantiatingthe above said allegations. Pursuant to this, he had lodged areport with the Additional Commissioner of Police against theRespondent and on his direction, the FIR had been registered inCr.No.334/2005 for the offences under Sections 419 and 420 of IPCand the investigation is pending.12. What the complainant labels an offence against thePetitioner is fabrication of false evidence and producing falsereport to the Commissioner of Corporation of Chennai. Therefore,the Respondent has alleged that the Petitioner has committedoffence punishable under Section 211 and 193 of IPC, whichindisputably was performed by the Petitioner in exercise of hisofficial duty as Deputy Superintendent of Police, as he hadenquired into the allegations made against the Respondent andfiled the report, substantiating the accusations made against theRespondent. The offence alleged to have been committed by thePetitioner under Section 500 of IPC also appears to be connectedwith the performance of the Petitioner's duty as a Police Officerand it is based upon the act of the Petitioner in filing thereport and the complaint and the same had become instrumental forthe publication of defamatory allegation against the Respondentin a weekly magazine.13. As regards the offence under Section 341 and 506(ii), though it does not come within the performance of the dutyof the Petitioner, when a public servant is prosecutedsimultaneously for more than one offence and if any offencerequires sanction, then without the prior sanction of thecompetent authority, the Magistrate cannot take cognizance of allthe offences against the Petitioner and try him for thoseoffences. 14. The learned counsel for the Respondent relied on thedecision of the Honourable Supreme Court rendered in the case ofP.P.Unnikrishnan and another Vs. Puttiyottil Alikutty and another[2001-1-CTC-239] in support of his contention that Section 197does not impose any absolute bar against taking cognizance of anyoffence, but only contemplates sanction of prosecution as acondition precedent for taking cognizance of such offence duringthe course of discharge of their official duty. In paragraph 21of the said decision it is held thus:- "21. If a police officer dealing with law and orderduty uses force against unruly persons either in hisown defence or in defence of others and exceeds suchright it may amount to an offence. But such offencemight fall within the amplitude of Section 197 of the https://hcservices.ecourts.gov.in/hcservices/ Code as well as Section 64(3) of the K.P.Act. But ifa police officer assaults a prisoner inside a lock uphe cannot claim such act to be connected with thedischarge of his authority or exercise of his dutyunless he establishes that he did such acts in hisdefence or in defence of other or any property."In the said decision, the Honourable Supreme Court has held thatunder Section 197 of the Code, no protection has been granted toa public servant for the type of acts committed by him, puttingthe accused in the lock-up room assaulting him with hands andlathis. The Honourable Supreme Court has referred to thedecisions of the Privy Council in the case of HHB Gill Vs. R.,[AIR-1948-PC-128] and in the case of Matajog Dubey Vs. H.C.Bhari[1955-2-SCR-925], and summed up the scope of Section 197(1) ofthe Code thus:-"There must be a reasonable connection between theact and the discharge of official duty; the act mustbear such relation to the duty that the accused couldlay a reasonable, but not a pretended or fancifulclaim, that he did it in the course o the performanceof his duty."It has been further held that a superior officer who assaultedand ill-treated the accused for defying his orders could not besaid to have acted in the course of performance of his duty.15. In the case of M.Jeevanandham Vs. Balaji and others[2007-1-MLJ-Crl-960], this court reiterated the principle laiddown by the Honourable Supreme Court in the case ofP.P.Unnikrishnan and another Vs. Puttiyottil Alikutty and another[2001-1-CTC-239] and held that the court can decide as to whetherthe offence was committed during the course of the discharge ofthe official duty or not, after recording evidence and only afterconsidering the defence of the concerned Police officials. 16. The facts of the present case is distinguishable andthere is no quarrel over the proposition that Section 197 (1) ofCode of Criminal Procedure does not impose any absolute baragainst taking cognizance of any offence and if a police officercommits an act unconnected with the discharge of his authority ofexercise of his duty, then it would not be necessary to get anysanction before prosecution.17. In the case of Prabhakar V. Sinari Vs. Shanker AnantVerlekar [AIR-1969-SC-686], the Honourable Supreme Court hasheld on facts that sanction is necessary when a DeputySuperintendent of Police who acted or purported to act indischarge of his official duty, which is complained of committingan offence under the IPC. It is held that the language ofSection 197 is that no court can take cognizance of an offence https://hcservices.ecourts.gov.in/hcservices/ alleged to have been committed by any person belonging to thecategories mentioned in the section, which would include theDeputy Superintendent of Police, when he is accused of anoffence alleged to have been committed by him while acting orpurported to act in the discharge of his official duty, it doesnot matter if the acts were strictly necessary for the dischargeof his duty. What has to be found is that whether the act andofficial duty were so interrelated that one could postulatereasonably that it was done by the accused in performance of theofficial duty though possibly in excess of the needs andrequirements of the situation. 18. In the present case, it is apparent that sanctionfor prosecution for the offences under Sections 211, 193 and 500of IPC as against the Petitioner is clearly called for and sinceas already observed, the Petitioner being prosecuted for thoseoffences along with the other two offences under Sections 341 and506(ii) of IPC, sanction would be necessary for the prosecutionof the Petitioner jointly for all the said offences. Thecognizance taken by the learned Magistrate in this case withoutsanction cannot be sustained and the same cannot be allowed tocontinue, when such illegality is committed. 19. The learned counsel for the Petitioner put forthyet another contention that if a party or a police officer bonafidely believed that he is acting in pursuance of a statute, thentheir action would be protected under Sections 76 and 79 of IPC,as their acts are on the face of it is legal and they acted inconformity with law. He would further submit that the actscomplained of against the Petitioner cannot be an offence, as thepetitioner has just investigated the case based on theinstructions of the Commissioner of Corporation of Chennai. 20. On a bare perusal of the provisions of Sections 76and 79 of IPC, it is apparent that it contemplates that theremust be bona fide intention and legal justification in doing aparticular act so as to claim protection under this provision.From the facts placed on record, it is evident that as per thedirections of the higher authorities, the Petitioner acted ingood faith and conducted enquiry and registered the case againstthe Respondent, which is still pending before the courtconcerned. I am of the considered view that the said action ofthe Petitioners, which is in conformity with the duty enjoined,who is bound to do such act under law, certainly would beprotected under Sections 76 and 79 of IPC. 21. In the case of Raj Kapoor Vs. Laxman [AIR-1980-SC-605], the Honourable Supreme Court has held thus:-"9. The position that emerges is this.Jurisprudentially viewed, an act may be an offence,definitionally speaking; but a forbidden act may not https://hcservices.ecourts.gov.in/hcservices/ spell inevitable guilt if the law itself declaresthat in certain special circumstances it is not to beregarded as an offence. The chapter on GeneralExceptions operates in this province. Section 79makes an offence a non-offence. When? Only when theoffending act is actually justified by law or is bonafide believed by mistake of fact to be so justified.If, as here, the Board of Censors, acting withintheir jurisdiction and on an application made andpursued in good faith, sanctions the publicexhibition, the producer and connected agencies doenter the statutory harbour and are protected becauseSection 79 exonerates them at least in view of theirbona fide belief that the certificate isjustificatory. Thus the trial court when it hears thecase may be appropriately apprised of the certificateunder the Act and, in the light of our observations,it fills the bill under Section 79 it is right forthe court to discharge the accused as the charge isgroundless. In the present case, the prosecution isunsustainable because Section 79 is exculpatory whenread with Section 5-A of the Act and the certificateissued thereunder. We quash the prosecution. Theposition that emerges is this. Jurisprudentiallyviewed, an act may be an offence, definitionallyspeaking; but a forbidden act may not spellinevitable guilt if the law itself declares that incertain special circumstances it is not to beregarded as an offence. The chapter on GeneralExceptions operates in this province. Section 79makes an offence a non-offence. When? Only when theoffending act is actually justified by law or is bonafide believed by mistake of fact to be so justified.If, as here, the Board of Censors, acting withintheir jurisdiction and on an application made andpursued in good faith, sanctions the publicexhibition, the producer and connected agencies doenter the statutory harbour and are protected becauseSection 79 exonerates them at least in view of theirbona fide belief that the certificate isjustificatory. Thus the trial court when it hears thecase may be appropriately apprised of the certificateunder the Act and, in the light of our observations,it fills the bill under Section 79 it is right forthe court to discharge the accused as the charge isgroundless. In the present case, the prosecution isunsustainable because Section 79 is exculpatory whenread with Section 5-A of the Act and the certificateissued thereunder."and quashed the prosecution. Therefore, Viewed at any angle, thecriminal proceedings launched on the private complaint filed by https://hcservices.ecourts.gov.in/hcservices/ the respondent cannot be sustained and it would be an abuse ofprocess of court to allow the petitioner to face the trial beforethe learned Magistrate. 22. In view of the reasons stated above, I am of theconsidered view that the prosecution against the Petitionercannot be sustained and the same is liable to be quashed.23. In the result, the impugned proceedings inCC.No.5828/2006 is quashed and this Criminal Original Petition isallowed accordingly. Consequently, the connected MP is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm To:The Metropolitan Magistrate, Egmore, Chennai +1cc to M/s.M.Balasubramanian, Advocate Sr 39050+1cc to Mr.M.Ganasekar, Advocate Sr 39373AKR(CO)km/14.10.Crl.OP.No.30234/2006