P.Susila v. Usharani & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 10.08.2011CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMCrl.R.C.No.32 of 2007P.Susila .. Petitioner Vs1.Usharani2.The State represented by The Public Prosecutor Kancheepuram District Chengalpattu... RespondentCriminal Revision Case filed under section 397 & 401 of theCr.P.C against the judgment dated 14.12.2006 in Crl.M.P.No.15595 of2005 in S.C.No.538 of 2005 on the file of Principal Sessions Judge, Chengalpattu. For Petitioner : Mr.R.Vijaya kumarFor Respondents :*Mr.N.R.Elango, Senior Counsel for Mr.S.Parthasarathy for R1 Mr.P.Govindarajan Addl. Public Prosecutor for R2

O R D E RThis revision is preferred against the order of the learnedPrincipal Sessions Judge, Chengalpet in Crl.M.P.No.15595 of 2005 inS.C.No.538 of 2005 dated 14.12.2006 discharging the accused in acomplaint under Section 3 (1) (x) SC/ST (Prevention of Atrocities)Act.2. The petitioner and respondent were working as head constables in All Women Police station, Mamallapuram. The petitioner preferred a complaint to the Deputy Superintendent of Police throughRPAD alleging an occurrence of commission of offence under Section 3(1)(x) Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act that took place on 22.02.2004. Finding no action taken there on, the petitioner preferred a private complaint before the Chief Judicial Magistrate, Chengalpet. As offence under Section3(1)(X) of the Scheduled Caste and the Scheduled Tribes (Preventionof Atrocities) Act was alleged, the matter stood committed to the Sessions court, Chengalpet.

The factual details of the complaint are https://hcservices.ecourts.gov.in/hcservices/ not relevant to the purpose of disposal of this petition. Suffice to state that the accusation of the point was that therespondent/accused harassed the petitioner and heaped abuse upon her as she belonged to a scheduled community. Though before the court below question of delay in filing the complaint and of the complaint having been preferred before a court not having jurisdiction were also informed, it was impressed upon the court below, by reference to a circular issued by this court in R.O.C.1062/2003/F-1 dated22.5.2003, that complaints against Police personnel were to be preferred before the Chief Judicial Magistrate. The court below, restricted itself to the question of propriety or otherwise of preference of the complaint before the Magistrate and found that the Chief Judicial Magistrate ought to have outright rejected the complaint and directed the petitioner to seek resort to relevant rules of procedure established by law.3.

The court below reasoned that since the petitioner had already preferred a petition before the concerned authorities, it would have been for the Deputy Superintendent of Police or the Superintendent of Police to take appropriate action as per procedure laid down in Rules 6 and 7 of the Scheduled Caste and the ScheduledTribes (Prevention of Atrocities) Act. Bypassing such provisions, in the absence of a referred charge sheet, was faulted. 4. Heard Mr.R.Vijayakumar, learned counsel for the petitioner and Mr.N.R. Elango, learned Senior counsel for Mr.S. Parthasarathy, for the 1st respondent and the learned Additional Public Prosecutorfor the 2nd respondent.5. Learned counsel for the petitioner would submit that the petitioner had resorted to fling a complaint upon finding no action taken on her representation to the Superior Police Authorities. TheScheduled Caste and the Scheduled Tribes (Prevention of Atrocities)Act did not contain any specific bar against preference of a private complaint.

While so, the recourse by the petitioner to a remedy available in law by preference of complaint under section 200 Cr.P.Ccould not be found fault with. Amidst other decisions, learned counsel placed heavy reliance on the judgment of Apex court inA.R.Antulay vs. Ramdas Sriniwas Nayak .6. Learned Senior Counsel Mr.N.R.Elango, appearing on behalf of the 1st respondent would place heavy reliance on the judgment of this court reported in 2003 1 L.W. (Crl) 171, referred to here above. He would submit that if this court were now to take adifferent view the proper course would be to cause a reference upon the matter to a large bench. He would further contend that the decision of the Apex court in A.R. Antulay's case would not be of much relevance in the present matter. A.R. Antulay's case deals with offences under Prevention of Corruption Act. The objective behind such act was quite different from that of the Scheduled Caste and https://hcservices.ecourts.gov.in/hcservices/ the Scheduled Tribes (Prevention of Atrocities) Act.

It was to avoid abuse of the provisions of Scheduled Caste and the Scheduled Tribes(Prevention of Atrocities) Act given the inapplicability of Section438 of Cr.P.C in cases where the act stood attracted, that rules had been framed requiring investigation by a higher cadre of police and more particularly by one well suited to the job. Such provisions cannot be passed by resort to a private complaint.7. I am unable to accept the contentions of learned SeniorCounsel. Though it is with some reluctance that this court informsits inability to accept the views expressed in the decision ofK.P.Sathyamoorthy vs. State of Tamil nadu & 3 others in 2003 (1)L.W. (Crl.) 171, we are emboldened to do so given the decision of the Apex Court in A.R. Antulay vs. Ramdas Sriniwas Nayak 1984 2 SCC500 wherein it has been informed as follows: "16. Section 4 of the Code of Criminal Procedureprovides as under:4. (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” Section 4(1) provides for investigation, inquiry or trial for every offence under the Indian Penal Code according to the provisions of the Code. Section 4(2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. Inthe absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure.

In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations. "8. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 deals with certain offences and provides for punishment apart from fine by way of imprisonment for a period of six months upto life and in certain cases even death. The same provides for constitution of special courts to try cases there under https://hcservices.ecourts.gov.in/hcservices/ for conduct of prosecution by a Special Public Prosecutor. There isno specific provision therein which detracts from the prosecution ofa private complaint. Paragraph 6 of the judgment of the Apex courtin A.R. Antulay vs. Ramdas Sriniwas Nayak 1984 2 SCC 500 informs as follows:6. It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary.

The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only befiled but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section187-A of Sea Customs Act, 1878 (ii) Section 97 of GoldControl Act, 1968 (iii) Section 6 of Import and ExportControl Act, 1947 (iv) Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the ForeignExchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act.

This list is only illustrative and not exhaustive. While Section 190 of the Code of CriminalProcedure permits anyone to approach the Magistrate with acomplaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file acomplaint. But where an eligibility criterion for acomplainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of theCrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locusstandi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. Thisgeneral principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being inforce [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society.

The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State https://hcservices.ecourts.gov.in/hcservices/ representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standiunknown to criminal jurisprudence, save and except specific statutory exception.9.

Rule 7 of Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1995, reads as follows: "7. Investigating Officer. - (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the StateGovernment/ Director General of Police/ Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. (2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police to the State Government. (3) The Home Secretary and the Social WelfareSecretary to the State Government, Director of Prosecution, the officer in-charge of Prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the investigating officer.

"The above rule can only be read as applicable to a case which is to investigated pursuant to registration of a crime.10. As regards the other contention of learned Senior Counselon the objectives of the Prevention of Corruption Act and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act being different, this Court may state that the same cannot bepressed in aid while construing a statute. In A.C.Sharma vs. DelhiAdministration (1973) 1 SCC 726, the Hon'ble Supreme Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "12. Statement of objects and reasons for introducinga Bill in the Legislature is not admissible as an aid to the construction of the statute as enacted; far less can it control the meaning of the actual words used in the Act. It can only be referred to for the limited purpose of ascertaining the circumstances which actuated the sponsor of the Bill to introduce it and the purpose for doing so.

The preamble of a statute which is often described as akey to the understanding of it may legitimately be consulted to solve an ambiguity or to ascertain and fix the meaning of words in their context which otherwise bear more meanings than one. It may afford useful assistance asto what the statute intends to reach, but if the enactmentis clear and unambiguous in itself then no preamble canvary its meaning. While construing a statute one has also to bear in mind the presumption that the legislature does not intend to make any substantial alteration in the existing law beyond what it expressly declares or beyond the immediate scope and object of the statute. "11. For the above reasons, this court would set aside the order passed in Crl.M.P. No.15595 of 2005 in S.C.No.538 of 2005 on the file of learned Principal Sessions Judge, Chengalpet. The revision shall stand allowed and the learned Principal Sessions Judge, Chengalpet shall now take the case on file and proceed further in accordance with law. kprSd/-Deputy Registrar12.10.2011*Corrected as per Letter dated 10.11.2011 and made in Crl.RC.No.32/2007.Sd/-Deputy Registrar 24.11.2011//True Copy//Sub Asst.

Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal Sessions Judge, Chengalpattu. 2. The Public Prosecutor, High Court, Madras. To be substituted to the order already+ 1 cc to Mr. R. Vijayakumar, despatched on Advocate SR No.4979818.10.2011+ 1 cc to Mr. S. Parthasarathy, Advocate SR No.49306GGK(CO)SR/12.10.2011MG(CO)SR/24.11.2011Crl.R.C.No.32 of 2007