Sundararajan v. Inspector of Police CB CID Erode

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 22.1.2008.CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.1964 of 20071. Sundararajan2. Manickasundaram3. Vetrivel4. ChandrasekarPetitioners (Accused 13 to 16)vs. Inspector of Police CB CID Erode, Crime No.634/2004Erode Town Police Station.Respondent (Complainant)Criminal Revision Case filed under sections 397 and 401Cr.P.C. against the order dated 21.11.2007 made in M.P.No.51 of2007 in S.C.No.108 of 2007 on the file of the I AdditionalSessions Judge, Erode. For petitioners: Mr.A.PadmanabanFor respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side)ORDERThe revision is directed against the dismissal of dischargepetition filed by A13 to A16 in M.P.No.51 of 2007 in S.C.No.108 of2007 on the file of the I Additional Sessions Judge, Erode. 2. The first petitioner is the Sub Inspector of Police andpetitioners 2 to 4 are the police constables in Armed Reserve. A1to A6 in Sessions Case No.108 of 2007 allegedly committed murderof Ravindranathan @ Ravi on 2.6.2004 at 6.00 pm in pursuance ofthe criminal conspiracy hatched by them. The allegation asagainst the petitioners herein ranked as A13 to A16 is that whenthey escorted A8 Ravi alias Steel Ravi to the court on 20.5.2004at 4.30 pm and also at 6.20 pm, the aforesaid criminal conspiracywas hatched by the aforesaid accused with A4 Balan, A9 Madeswaran https://hcservices.ecourts.gov.in/hcservices/ and A10 Tajudeen to murder Ravindranathan @ Ravi in their verypresence. But, the petitioners, who had knowledge about the saidcriminal conspiracy failed to inform the police authorities andthereby they committed an offence under section 176 of the IndianPenal Code. 3. The petitioners would contend that there is a bar undersection 195(1)(a)(1) of the Code of Criminal Procedure to takecognizance of such offences alleged to have been committed by thepublic servant. Further, the joint trial of the petitioners alongwith the other accused is not permissible under section 223 of theCode of Criminal Procedure. 4. The State would contend that the court can take cognizanceof any offence when it is clubbed with other cognizable offences.As the offence has been allegedly committed by the petitionersduring the course of same transaction which began with a criminalconspiracy and terminated with murder, joint trial is permissibleunder section 223 of the Code of Criminal Procedure, it is furthersubmitted.5. The Trial Court has observed that the charge sheet laid bythe Inspector of Police who recorded the statement can beconsidered as a complaint for the purpose of section 195(1)(a)(i)of the Code of Criminal Procedure. Therefore, there is no lacunaon the part of the State in prosecuting the petitioners based onthe charge sheet which was tantamount to complaint for the scopeof section 195(1)(a)(1) of the Code of Criminal Procedure. TheTrial Court has also held that the offence has been allegedlycommitted by the petitioners only during the course of the verysame transaction and therefore, as per section 223 of the Code ofCriminal Procedure, joint trial is permissible. So saying, theTrial Court dismissed the application seeking discharge. 6. The points that arise for determination are i) Whether the charge sheet laid by the respondent would amount tocomplaint for the purpose of section 195(1)(a)(1) of the Code ofCriminal Procedure.ii) Whether joint trial of the offence under section 176 of theIndian Penal Code alleged to have been committed by thepetitioners along with the offence under section 320 of the IndianPenal Code is permissible under section 223(d) of the Code ofCriminal Procedure. 7. Learned counsel appearing for the petitioners wouldvehemently contend that the Trial Court has totally ignored thebar under section 195(1)(a)(i) of the Code of Criminal Procedurefor taking cognizance of the offence under section 176 of theIndian Penal Code without any complaint in writing of the public https://hcservices.ecourts.gov.in/hcservices/ servant concerned or of some other public servant to whom he isadministratively subordinate. It is his further submission thatthe alleged offences charged as against the petitioners cannot besaid to have been committed during the course of the very sametransaction. The offence alleged to have been committed by thepetitioners does not have any nexus with the criminal conspiracyor the murder alleged to have been committed in the aftermath ofsuch criminal conspiracy. Therefore, joint trial is not at allpermissible even as per section 223(3) of the Code of CriminalProcedure.8. Learned Government Advocate (Criminal Side) would submitthat our High Court has held in a similar situation that thecharge sheet laid by the Inspector of Police who is a publicservant would amount to a complaint for the purpose of section 195(1)(a)(1) of the Code of Criminal Procedure. The knowledge as tothe conspiracy had been allegedly acquired by the petitionersduring the conspiracy which was hatched by the other accused inthis case. Therefore, section 223(d) of the Code of CriminalProcedure is squarely attracted to the facts and circumstances ofthe case.9. Section 195 of the Code of Criminal Procedure would readthat no court shall take cognizance of any offence punishableunder sections 172 to 188 of the Indian Penal Code except on thecomplaint in writing of the public servant concerned or of someother public servant to whom he is administratively subordinate.It is quite clear from the aforesaid provision of law that it isnot permissible for the court to take cognizance of offence undersection 176 of the Indian Penal Code as against the petitionersexcept on a complaint in writing of the public servant. 10. It has been held by this court in PERIYASAMY NADAR, In re(1965 MLJ 348) as follows:-"It would be unreasonable to classify thecomplaints of public servants under section 195(1)(a) into complaints by public servants other thanPolice Officers and complaints by Police Officersand police reports by Police Officers and toexclude Police Reports by Police Officers from thepurview of the section. The scope of the sectionis that before the Court could take cognizance ofan offence against a public servant, the publicservant should himself prefer a complaint inwriting. There is no justification for treatingthe Police Officer differently and excluding thecomplaint from the Police Officer which ispreferred in the form of a Police Report. Thecontext of section 195 clearly warrants the https://hcservices.ecourts.gov.in/hcservices/ construction of the word 'complaint' in section195(1)(a) to include even report of the PoliceOfficer, when this is made by the Police Officerconcerned as a public servant with a view totaking action against a person."11. This court has chosen to authoritatively hold in theaforesaid case that when the concerned public servant is thepolice officer who laid the charge sheet, the charge sheet laid byhim cannot be excluded from the definition of the complaint. Sucha charge sheet laid by the police officer who is the publicservant concerned shall be considered as a complaint for thepurpose of section 195(1)(a) of the Code of Criminal Procedure.12. In this case, based on section 161 statement given by thewitnesses before the investigating officer and also based on the164 statement recorded in this case, the investigating officer haschosen to lay a final report not only against the other accusedbut also against the petitioners who allegedly committed theoffence under section 176 of the Indian Penal Code.13. The learned counsel appearing for the petitioners submitsan authority reported in DURGACHARAN v. STATE OF ORISSA (AIR 1966SC 1775) wherein it has been held that without a complaint inwriting for the distinct offence under section 186 of the IndianPenal Code, the same cannot be taken cognizance of by the courtconcerned. Further to circumvent the provision under section 195(1) of the Code of Criminal Procedure, the investigating agencycannot charge a person with an offence to which section 195 doesnot apply. Merely by changing the garb or label of an offencewhich is essentially an offence covered by section 195 of the Codeof Criminal Procedure, the court cannot take cognizance of suchoffence. 14. The question whether a charge sheet laid by the Inspectorof Police, a public servant who came to know of the offencealleged to have been committed by the petitioners herein can beconstrued as a complaint for the purpose of section 195(1)(a) ofthe Code of Criminal Procedure had not arisen in the aforesaidjudgment. Further, that was a case where some of the policeofficials and other public servants were the victims of theoccurrence. But, in the instant case, the victim is not thepublic servant. The public servants are the alleged perpetratorsof the crime under section 176 of the Code of Criminal Procedure.The Inspector of Police who has come to know of such an offencealleged to have been committed by the petitioners, has rightlylaid the charge sheet under section 176 of the Indian Penal Codealso against the petitioners. Such a charge sheet can beconstrued, as per the ratio laid down by this court, as a https://hcservices.ecourts.gov.in/hcservices/ complaint for the purpose of section 195(1)(a)(1) of the Code ofCriminal Procedure. Here, in this case, the respondent, Inspectorof Police is the public servant concerned. 15. It has been held in DAULAT RAM v. STATE OF PUNJAB (AIR1962 SC 1206) that the complaint must be in writing by the publicservant concerned before taking cognizance of an offence undersection 182 of the Indian Penal Code by the court concerned. Inthat case, it appears that a public servant was attacked and theofficial documents in his possession were robbed by the accused.Neither the public servant who was attacked nor the Tahsildarconcerned submitted any complaint in writing as per the mandatesof section 195(a) of the Code of Criminal Procedure. But, in thiscase, the petitioners, who are public servants have allegedlyperpetrated the crime. The Inspector of Police, who has beenentrusted with the task of investigation is the proper publicservant who can lodge a complaint. As already held by this court,the charge sheet laid by the Inspector of Police amounts to acomplaint. 16. In view of the above, the court finds that the courtconcerned has rightly taken cognizance of the case for offenceunder section 176 of the Indian Penal Code based on the finalreport filed by the investigating officer. 17. As per section 223(d) of the Code of Criminal Procedure,the persons accused of different offences committed in the courseof same transaction may be charged jointly. The question thatarises for determination is whether the alleged act of thepetitioners has been committed during the course of sametransaction of the alleged criminal conspiracy which culminated inmurder. Of course, a person can be tried for several distinctoffences if they are committed in one series of acts so connectedtogether as to form the same transaction under section 223(d) ofthe Code of Criminal Procedure. The Only condition is thatdifferent offences should have been committed in the course of thevery same transaction. The phrase "same transaction" impliescontinuity of action and purpose. It must be established thateach one of the accused was so connected with the other accusedthat the act done by one of them may be said to have been donejointly with the others. In other words, the expression "sametransaction" would imply onerous of purpose.18. In this case, the hatching of criminal conspiracy andcommission of murder would come under the category of "sametransaction". Being a mere spectator of the criminal conspiracywithout participating actively therein or in the murder thatfollowed does not amount to participating in the very sametransaction, the reason being that the action of the spectator https://hcservices.ecourts.gov.in/hcservices/ does not render continuity of purpose for the criminal actcommitted by the other accused in hatching the conspiracy andcommitting the murder. Inasmuch as the act of the petitioners whoescorted the accused concerned was not closely connected bycontinuity of purpose and progressive action towards a commonobject of committing the murder, the act of the petitioners doesnot fall under section 223(d) of the Code of Criminal Procedure.Further, section 223 implies discretion vested on the Trial Courtfor the sake of convenience of the Trial. Even if persons areaccused of committing different offences in the course of the sametransaction, it can very well charge the persons separately andtry the offences. The legislature has carefully worded theprovision in order to confer discretion on the Trial Court. 19. As it is found that the offences alleged to have beencommitted by the accused under section 176 of the Indian PenalCode is a distinct offence which has no connection either with thecriminal conspiracy hatched or the murder allegedly committed bythe other accused, in the interest of justice, the petitionerswill have to be tried separately by the Trial Court. 20. In view of the above, the learned Trial Judge is directedto charge the petitioners separately for offence under section 176of the Indian Penal Code and try them simultaneously with theother accused and proceed with the trial of the case in accordancewith law. 21. With the above direction to the Trial Court, the revisionpreferred as against the dismissal of discharge petition standsdismissed. M.P.No.1 of 2007 also stands dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssk. To1. I Additional Sessions Judge, Erode. https://hcservices.ecourts.gov.in/hcservices/

2. do thro the Principal Sessions Judge,Erode.3. Inspector of Police CB CID Erode, Erode Town Police Station.4. The Public Prosecutor,High Court, Madras1 cc to Mr.A. Padmanaban, Advocate, sr. 2222Crl.R.C.No.1964/2007JRG (CO)kk 29/1