High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.09.2009C O R A MTHE HONOURABLE MR.JUSTICE K.MOHAN RAMCriminal Original Petition No.38502 of 2004and Crl.R.C.No.1818 of 2004Peoples Legal awareness and Consumer Protection Forumby its President, Sri Sri RamuluNo.47 Saraswathy Nagar,Cuddalore ... Petitioner in Crl.O.P.No.38502 of 2004 & Respondent in Crl.R.C.No.1818 of 2004Sri.Murthi, Personal Assistant,District Collector, Cuddalore... Petitioner in Crl.R.C.No.1818 of 2004-Vs.-1.Sri. Muthiah, Father Name, not knownDeputy Superintendent of PoliceCuddalore Police Station, Cuddalore2.Sri.Sekar, Father name, not knownEmployed as Inspector of PoliceCuddalore Police Station, Cuddalore3.Sri. Udayakumar, Father name, not knownEmployed as Sub Inspector of Police,Tirupapupiyur Police Station, Cuddalore – 24.Sri Viswanathan, Father name, not known,Employed as Deputy Superintendent of Police,(Anti Corruption and Vigilance Department)Anna Nagar, Cuddalore ... Respondents in Crl.O.P.No.38502 of 2004Criminal Original Petition No.38502 of 2004 filed under Section 482 ofthe Criminal Procedure Code to set aside the order passed inC.R.P.No.10 of 2004 dated 24.08.2004 on the file of the PrincipalSessions Judge, Cuddalore, in modifying the order in C.C.No.34 of 2004dated 04.02.2004 by the Chief Judicial Magistrate, Cuddalore and allowthe Criminal Original Petition.Criminal Revision Case No.1818 of 2004 filed under Sections 397 and401 of the Criminal Procedure Code to suspend the operation of theorder made in Crl.R.P.No.10 of 2004 dated 24.08.2004 on the file ofthe Principal Sessions Judge, Sessions Division, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in Crl.O.P :Mr. R.MuralidharanFor Respondents in Crl.O.P.:Mrs. M.Srividhya, for R-2.For Petitioner in Crl.R.C. :Mr. M.C.SwamyFor Respondent in Crl.R.C.:Mr. R.MuralidharanC O M M O N O R D E R The petitioner in the above Criminal Original Petition has fileda private complaint against the first accused, namely, Narayanan,Proprietor of Ananda Bhavan Hotel, Cuddalore, Murthy, P.A., to theDistrict Collector, Cuddalore, Mathiah, Deputy Superintendent ofPolice, Cuddalore, Shekar (second respondent), Inspector, Udayakumar,Sub Inspector of Police (both were attached to Thirupapuliyur PoliceStation) and Viswanathan, Deputy Superintendent of Police, Vigilanceand Anti Corruption, Cuddalore, alleging that the first accused who isthe Proprietor of Hotel Ananda Bhavan, had announced a prize schemeviz., that for every bill of Rs.50/- issued between 20.11.2003 and14.01.2004, a prize coupon will be issued and in the draw of lots,persons selected will be given a prize. The said prize scheme wasannounced in connection with the first anniversary of the Hotel.2. It is further alleged in the complaint that the act of thefirst accused is against Section 3 of the Tamil Nadu Prize Schemes(Prohibition Act) 1979 (hereinafter referred to as "the Act") andtherefore, is liable to be punished under Section 4 of the said Actand under Section 166 of the Indian Penal Code. In so far as thesecond accused is concerned, he being the Personal Assistant to theDistrict Collector of Cuddalore District and that a Government Servanthad participated in the said function, on 24.11.2003 and received thefirst prize coupon and as such he is liable to be punished underSection 6 of the Act and under Section 166 of the Indian Penal Code.3. In so far as police officials i.e., the third accused to sixthaccused is concerned, it is alleged in the complaint that they beingthe guardian of law and order and duty bound to take action againstthe law breakers have filed to register a case against the firstaccused even though the prize scheme announced by the first accusedhas been widely published in 'Dhinamalar' and 'Daily Thanthi'Newspapers and therefore they are liable to be punished under Section166 of the IPC and under Section 4 of the Act.4. The trial court after careful consideration of the materialsavailable on record has taken cognizance of the offences alleged onlyagainst the first accused and dismissed the complaint in respect ofthe accused 2 to 6 on the ground that there is no prima facie materialavailable to charge them under Section 166 of the IPC and underSection 6 of the Act vide order dated 04.02.2004 in Crl.M.P.No.34 of2004. https://hcservices.ecourts.gov.in/hcservices/

5. The petitioner in the above Criminal Original Petition /complainant aggrieved by the order of the Court of JudicialMagistrate, Cuddalore, in dismissing the complaint in so far asaccused 2 to 6 are concerned has filed Criminal Revision PetitionNo.10 of 2004 before the Principal Sessions Court, Cuddalore. It issubmitted that the Revisional Court has held that the second accusednamely Murthy, P.A., to the District Collector, Cuddalore, hadparticipated in the prize scheme and received the first coupon and assuch a prima facie case against him for the offence under Section 6 ofthe Act alone is made out but not under Section 166 of the IPC.6. The Revisional Court, in so far as the police officials,accused 3 to 6 are concerned, has held that the complainant / RevisionPetitioner therein has not lodged a complaint either orally or inwriting and even if the complaint has been made in writing and actionnot being taken, can report the matter to the Superintendent of Policeunder Section 154 (3) of the Cr.P.C. The Revisional Court furtherheld that even in the complaint there is no specific allegation thataccused 3 to 6, police officials, knew about the prize schemeconducted by the first accused and that it is not possible for thepolice to act upon the advertisement published in the newspapers.Therefore the Revisional Court by its order dated 24.08.2004 passed inCrl.R.C.No.10 of 2004 has confirmed the order of dismissal of thecomplaint in so far as accused 3 to 6 are concerned. Aggrieved by thesame, the complainant has preferred this Criminal Original Petitionseeking to set-aside the order of the Revisional Court, Cuddalore, inconfirming the order of the dismissal of the complaint passed by theCourt of Judicial Magistrate, Cuddalore. The second accused, beingaggrieved by the order passed by the Revisional Court, has filed theabove Criminal Revision Case.7. Mr. Muralidharan, learned counsel for the petitioner, in theabove Criminal Original petition, submitted that since the prizescheme announced by the first accused had appeared in the newspapers,it should be presumed that the accused 3 to 6, the police officials,had knowledge about the commission of the offence by accused 1 and 2and since they had failed to initiate criminal proceedings againstthem, they have committed an offence under Section 166 of the IPC.According to the learned counsel for the petitioner, the reasonsassigned by the Revisional Court are unsustainable.8. Since both the above Criminal Original Petition and theCriminal Revision Case arise out of the same cause, both of them arebeing disposed of by this common order. 9. I have considered the aforesaid submissions made by thelearned counsel for the petitioner and the materials available onrecord.10. At the outset, it has to be pointed out that the aboveCriminal Original petition filed by the complainant, being in thenature of a second revision, is barred under Sections 397 (3) and 399(3) of the Criminal Procedure Code. https://hcservices.ecourts.gov.in/hcservices/

11. In this context, it will be useful to refer to a decision ofthe Apex Court reported in (1997) 4 Supreme Court Cases 241 (KRISHNANv. KRISHNAVENI). In the said decision, the Apex Court has held asunder:-"Though second revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3)thereof, inherent power of the High Court is still availableunder Section 482 of the Code and as it is paramount power ofcontinuous superintendence of the High Court under Section483, the High Court is justified in interfering with the orderleading to miscarriage of justice and in setting aside theorder of the courts below.The object of Section 483 and the purpose behind conferringthe revisional power under Section 397 read with Section 402,upon the High Court is to invest continuous supervisoryjurisdiction so as to prevent miscarriage of justice or tocorrect irregularity of the procedure or to mete out justice.In addition, the inherent power of the High Court is preservedby Section 482. The power of the High Court, therefore, isvery wide. However, the High Court must exercise such powersparingly and cautiously when the Sessions Judge hassimultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has beenfailure of justice or misuse of judicial mechanism orprocedure, sentence or order is not correct, it is but thesalutary duty of the High Court to prevent the abuse of theprocess or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in itsjuridical process or illegality of sentence or order.Section 483 enjoins upon every High Court to so exercise itscontinuous superintendence over the Courts of JudicialMagistrates subordinate to it as to ensure that there is anexpeditious and proper disposal of cases by such Magistrates.The power of the High Court of continuous supervisoryjurisdiction is of paramount importance to examine thecorrectness, legality, or propriety of any finding, sentenceor order, recorded or passed as also regularity of theproceedings of all inferior criminal courts.Ordinarily, when revision has been barred by Section 397 (3)of the Code, a person – accused / complainant – cannot beallowed to take recourse to the revision to the High Courtunder Section 397 (1) or under inherent powers of the HighCourt under Section 482 of the Code since it may amount tocircumvention of the provisions of Section 397 (3) or Section397 (2) of the Code. The High Court has suo motu power underSection 401 and continuous supervisory jurisdiction underSection 483 of the Code. So, when the High Court onexamination of the records finds that there is gravemiscarriage of justice or abuse of the process of the courtsor the required statutory procedure has not been complied withor there is failure of justice or order passed or sentence https://hcservices.ecourts.gov.in/hcservices/ imposed by the Magistrate requires correction, it is but theduty of the High Court to have it corrected at the inceptionlest grave miscarriage of justice would ensue. It is,therefore, to meet the ends of justice or to prevent abuse ofthe process that the High Court is preserved with inherentpower and would be justified, under such circumstances, toexercise the inherent power and in an appropriate case evenrevisional power under Section 397 (1) read with Section 401of the Code. It may be exercised sparingly so as to avoidneedless multiplicity of procedure, unnecessary delay in trialand protraction of proceedings. The object of criminal trialis to render public justice, to punish the criminal and to seethat the trial is concluded expeditiously before the memory ofthe witness fades out. The recent trend is to delay the trialand threaten the witness or to win over the witness by promiseor inducement. These malpractices need to be curbed andpublic justice can be ensured only when trial is conductedexpeditiously."12. In view of the aforesaid law laid down by the Apex Court,though a second revision is not maintainable, a petition under Section482 of the Criminal Procedure Code, under exceptional circumstance, ismaintainable. Therefore, it has to be seen as to whether such anexceptional circumstance exists in the present case to entertain theabove Criminal Original Petition. In the said decision, the ApexCourt has categorically laid down that if, on examination of therecords, this Court finds that there is grave miscarriage of justiceor abuse of the process of the courts or the required statutoryprocedure has not been complied with or there is failure of justice ororder passed or sentence imposed by the Magistrate requirescorrection, it is but the duty of the High Court to have it correctedat the inception lest grave miscarriage of justice would ensue,therefore, to meet the ends of justice or to prevent abuse of theprocess that the High Court is preserved with inherent power and wouldbe justified, under such circumstances, to exercise the inherent powerand in an appropriate case even revisional power under Section 397 (1)read with Section 401 of the Code. 13. In this case, as pointed out by the Courts below, thecomplainant / petitioner in the above Criminal Original Petition hadnot brought to the notice of accused 3 to 6 / the respondents in theabove Criminal Original Petition that an offence has been committed byaccused 1 and 2 as alleged in the complaint and it is also not thecase of the complainant that any complaint was lodged by him beforethem and therefore the Courts below have held that no offence underSection 166 IPC is made out. The Courts below have also pointed outthat accused 3 to 6, the respondents in the above Criminal OriginalPetition, cannot act on the advertisement appearing in the newspapers.The said reasons assigned by the Courts below for refusing to takecognizance of the offence alleged as against the respondents in theabove Criminal Original Petition cannot be said to be either erroneousor illegal. It cannot be said that any miscarriage of justice hasoccasioned or the process of Court has been abused. Therefore, thisCourt is not inclined to accept the contentions of the learned counselfor the petitioner in the above Criminal Original Petition. This https://hcservices.ecourts.gov.in/hcservices/ Court is of the considered view that the above Criminal OriginalPetition is devoid of merits and hence the same is liable to bedismissed and accordingly dismissed. 14. The learned counsel for the petitioner in the above CriminalRevision Case submitted that there is no specific allegation in thecomplaint against the revision petition that he has known about theprize scheme conducted by the first accused and the Revisional Courtfailed to consider the fact that the revision petitioner, as acustomer of the hotel, had gone and taken food in the hotel and theprice of which had exceeded Rs.50/- and therefore he was given a prizecoupon and that was given to the second accused in the functionorganised by the first accused. He further submitted that simplybecause the second accused / revision petitioner herein had receivedthe prize coupon in the function organised by the first accused, itwill not amount to abetting or aiding the first accused in thecommission of the offence under Section 4 of the Tamil Nadu PrizeScheme (Prohibition) Act, 1979 (hereinafter referred to as "the Act")and Section 6 of the said Act is not attracted. He further submittedthat nowhere in the complaint it is alleged that the revisionpetitioner actively participated or aided the first accused inconducting the prize scheme. He further submitted that the paperpublications relied upon by the complainant to show that the revisionpetitioner / the second accused had participated in the functionorganised by the first accused ought not to have been taken notice ofby the Revisional Court as the news item appearing in the newspapersare in the nature of hear-say evidence and unless someone connectedwith the publication of the news item has been examined as a witness,it will not become legal evidence. In support of the aforesaidcontentions, the learned counsel for the petitioner relied upon thefollowing decisions:-(i) (1993) 3 Supreme Court Cases 151 (S.A.KHAN v. CH. BHAJANLAL). In the said decision, the Apex Court has laid down as under:-"21. ..... In support of his submission that the news item cannotbe the basis for initiating contempt proceeding against thealleged maker of the statement, he relied upon a decision of thisCourt in Samant N.Balakrishna v. George Fernandez (1969) 3 SCC 238: (1969) 3 SCR 603 wherein it has been held that news items whenpublished are garbled versions and cannot be regarded as proof ofwhat actually happened or was said without other acceptableevidence through proper witnesses. He also drew our attention tothe dictum laid down by this Court in Laxmi Raj Shetty v. State ofT.N. (1988) 3 SCC 319, 346 : 1988 SCC (Cri) 633 : (1988) 3 SCR706, 735 with regard to the admissibility of the news itemappearing in a Press report. The dictum reads thus: (SCC p.346,paras 25 and 26)"We cannot take judicial notice of the facts stated in a newsitem being in the nature of hearsay secondary evidence, unlessproved by evidence alinude. A report in a newspaper is onlyhearsay evidence. A newspaper is not one of the documentsreferred referred to in Section 78 (2) of the Evidence Act,1872 by which an allegation of fact can be proved. The https://hcservices.ecourts.gov.in/hcservices/ presumption of genuineness attached under Section 81 of theEvidence Act to a newspaper report cannot be treated as provedof the facts reported therein.It is now settled that a statement of fact contained in anewspaper is merely hearsay and, therefore, inadmissible inevidence in the absence of the maker of the statementappearing in court and deposing to have perceived the factreported."(ii) (2004) 3 Supreme Court Cases 363 (B.SINGH (DR) v. UNION OFINDIA). In the said decision, the Apex Court has laid down as under:-"It is too much to attribute authenticity or credibility ofany information or fact merely because it found publication ina newspaper or journal or magazine or any other form ofcommunication, as though it is gospel truth. It needs noreiteration that newspaper resorts per se do not constitutelegally acceptable evidence."15. Learned counsel for the revision petitioner further submittedthat the complaint filed by the respondent in the above CriminalRevision Case as against the petitioner herein will amount to clearabuse of process of the Court. In support of the said contention, thelearned counsel relied upon a decision of the Apex Court reported in1993 Supreme Court Cases (Cri) 149 (PUNJAB NATIONAL BANK v. SURENDRAPRASAD SINHA) wherein in paragraph 6 it is laid down as follows:-"6. It is also salutary to note that judicial process shouldnot be an instrument of oppression or needless harassment.The complaint was laid impleading the Chairman, the ManagingDirector of the Bank by name and a host of officers. Therelies responsibility and duty on the Magistracy to find whetherthe concerned accused should be legally responsible for theoffence charged for. Only on satisfying that the law castsliability or creates offence against the juristic person orthe persons impleaded then only process would be issued. Atthat stage the court would be circumspect and judicious inexercising discretion and should take all the relevant factsand circumstances into consideration before issuing processlest it would be an instrument in the hands of the privatecomplaint as vendetta to harass the persons needlessly.Vindication of majesty of justice and maintenance of law andorder in the society are the prime objects of criminal justicebut it would not be means to wreak personal vengeance."16. Countering the aforesaid submissions, Mr.Muralidharan learnedcounsel for the respondent / complainant in the above CriminalRevision Case submitted that the presence of the second accused / theRevision Petitioner herein in the function organised by the firstaccused is proved by the news item appearing in the newspapers andfrom the allegations contained in the complaint and in the swornstatement of the complainant. He further submitted that knowing thatthe prize scheme announced by the first accused is prohibited by the https://hcservices.ecourts.gov.in/hcservices/ Act, since the second accused has participated in the function, itwill amount to aiding or abetting the commission of the offence by thefirst accused and it will attract the provisions contained underSection 6 of the Act and therefore liable to be punished under Section6 of the Act.17. I have considered the aforesaid submissions made by thelearned counsel on either side and perused the materials available onrecord.18. As rightly pointed out by the learned Magistrate, there isnothing on record to show that the second accused inaugurated theprize scheme or he participated in the function organised by the firstaccused and even from the news item appearing in the newspapers, itdoes not appear so. The learned Magistrate has pointed out that as acustomer of the hotel he having consumed food for a value exceedingRs.50/- had received the prize coupon and that itself will not amountto aiding or abetting the first accused in the commission of theoffence. The learned Magistrate has also pointed out that the secondaccused having full knowledge about the prize scheme had not gone tothe hotel and consumed food and obtained the prize coupon and suchallegations are conspicuously absent in the complaint. It has alsonot been alleged in the complaint that the second accused abetted thefirst accused in the commission of the offence. While the RevisionalCourt has rightly held that no offence has been committed by thesecond accused under Section 166 of the IPC has held that the act ofthe second accused in receiving the prize coupon in the functionorganised by the first accused will amount to abetment as laid down inSection 6 of the Act cannot be sustained. To arrive at such aconclusion the Revisional Court has relied upon the news itempublished in the 'Dhinamalar Daily' dated 25.11.2003. 19. The Revisional Court rejected the following contentions ofthe second accused, namely, that his name does not find place in thephamplets distributed by the first accused and the publication in thenewspapers is inadmissible and it cannot be taken as judicial noticeunder Sections 81, 78(2) and 56 of the Evidence Act. In support ofthe said contention, the second accused had relied upon a decision ofthe Apex Court reported in 1988 Supreme Court Cases (Cri) 633 (LAZMIRAJ SHETTY v. STATE OF T.N.), but the Revisional Court has held thatthe said decision cannot be considered while the matter is at thestage of taking cognizance and the principles laid down therein can beconsidered only at the time of trial of the case. 20. A perusal of the order of the Revisional Court shows that ithas heavily relied upon the news item appearing in the newspapers.The reasonings recorded by the Revisional Court that the principleslaid down in 1988 Supreme Court Cases (Cri) 633 (referred to supra)cannot be considered at the stage of taking cognizance is erroneous.As laid down in the decision relied upon by the learned counsel forthe petitioner / revision petitioner herein, it has been clearly laiddown that the news item appearing in the newspapers are in the natureof hearsay evidence and the same will become legal evidence only ifthe persons connected therewith are examined before the Court. Since,admittedly, none connected with such publication of the news item hasbeen examined, in this case, the news item cannot be treated as a https://hcservices.ecourts.gov.in/hcservices/ legal evidence and therefore the Revisional Court has committed anerror in relying upon the same in considering the question as towhether any prima facie case has been made out against the RevisionPetitioner herein. There is nothing on record to show that knowingthat the prize scheme conducted by the first accused is prohibitedunder the Act, the revision petitioner participated in the functionand received the prize coupon. As rightly pointed out by the learnedMagistrate, the second accused, as a customer of the hotel had goneand consumed food and the price of which exceeded Rs.50/- and as aconsequence thereof, has received the prize coupon and that itselfwill not amount to aiding or abetting the first accused in thecommission of the alleged offence. This aspect has not been properlyconsidered by the Revisional Court and thereby has committed anillegality in directing the learned Magistrate to take cognizance ofthe offence under Section 6 of the Act as against the revisionpetitioner / the second accused. Therefore, the order of theRevisional Court is liable to the set-aside and accordingly the sameis set-aside. The above Criminal Revision Case is allowed.srk Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo 1.The Principal Sessions Judge, Cuddalore2.The Chief Judicial Magistrate, Cuddalore3. -do- through Chief Judicial Magistrate Cuddalore.4.The Princial Sessions Judge Session Division Cuddalore.Copy to The section Officer Crl. Section High Court Madras.+ 1 cc to Mr. R. Muralidharan Advocate CC SR 45520+ 1 cc to Mr. N.S. Sivakumar Advocate CC SR.45034.Crl.O.P.No.38502 of 2004& Crl.R.C.No.1818 of 2004 RSY(CO)EU 9.10.2009.