Sri.Murthi, Personal Assistant, District Collector, Cuddalore ... Petitioner in Crl.R.C.No.1818 of 2004
-Vs.-
1.Sri. Muthiah, Father Name, not known Deputy Superintendent of Police Cuddalore Police Station, Cuddalore
2.Sri.Sekar, Father name, not known Employed as Inspector of Police Cuddalore Police Station, Cuddalore
3.Sri. Udayakumar, Father name, not known Employed as Sub Inspector of Police, Tirupapupiyur Police Station, Cuddalore 2
4.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 2004 Criminal Original Petition No.38502 of 2004 filed under
Section 482 of the Criminal Procedure Code to set aside the order passed in C.R.P.No.10 of 2004 dated 24.08.2004 on the file of the Principal Sessions Judge, Cuddalore, in modifying the order in C.C.No.34 of 2004 dated 04.02.2004 by the Chief Judicial Magistrate, Cuddalore and allow the Criminal Original Petition.
Criminal Revision Case No.1818 of 2004 filed under
Sections 397 and
401 of the Criminal Procedure Code to suspend the operation of the order made in Crl.R.P.No.10 of 2004 dated 24.08.2004 on the file of the Principal Sessions Judge, Sessions Division, Cuddalore.
For Petitioner in Crl.O.P : Mr. R.Muralidharan For Respondents in Crl.O.P. : Mrs. M.Srividhya, for R-2.
For Petitioner in Crl.R.C. : Mr. M.C.Swamy For Respondent in Crl.R.C. : Mr. R.Muralidharan
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C O M M O N O R D E R The petitioner in the above Criminal Original Petition has filed a private complaint against the first accused, namely, Narayanan, Proprietor of Ananda Bhavan Hotel, Cuddalore, Murthy, P.A., to the District Collector, Cuddalore, Mathiah, Deputy Superintendent of Police, Cuddalore, Shekar (second respondent), Inspector, Udayakumar, Sub Inspector of Police (both were attached to Thirupapuliyur Police Station) and Viswanathan, Deputy Superintendent of Police, Vigilance and Anti Corruption, Cuddalore, alleging that the first accused who is the Proprietor of Hotel Ananda Bhavan, had announced a prize scheme viz., that for every bill of Rs.50/- issued between 20.11.2003 and 14.01.2004, a prize coupon will be issued and in the draw of lots, persons selected will be given a prize. The said prize scheme was announced in connection with the first anniversary of the Hotel.
2. It is further alleged in the complaint that the act of the first accused is against Section 3 of the Tamil Nadu Prize Schemes (Prohibition Act) 1979 (hereinafter referred to as "the Act") and therefore, is liable to be punished under
Section 4 of the said Act and under
Section 166 of the Indian Penal Code. In so far as the second accused is concerned, he being the Personal Assistant to the District Collector of Cuddalore District and that a Government Servant had participated in the said function, on 24.11.2003 and received the first prize coupon and as such he is liable to be punished under Section 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 sixth accused is concerned, it is alleged in the complaint that they being the guardian of law and order and duty bound to take action against the law breakers have filed to register a case against the first accused even though the prize scheme announced by the first accused has been widely published in 'Dhinamalar' and 'Daily Thanthi' Newspapers and therefore they are liable to be punished under
Section 166 of the IPC and under Section 4 of the Act.
4. The trial court after careful consideration of the materials available on record has taken cognizance of the offences alleged only against the first accused and dismissed the complaint in respect of the accused 2 to 6 on the ground that there is no prima facie material available to charge them under
Section 166 of the IPC and under Section 6 of the Act vide order dated 04.02.2004 in Crl.M.P.No.34 of 2004.
5. The petitioner in the above Criminal Original Petition / complainant aggrieved by the order of the Court of Judicial Magistrate, Cuddalore, in dismissing the complaint in so far as accused 2 to 6 are concerned has filed Criminal Revision Petition No.10 of 2004 before the Principal Sessions Court, Cuddalore. It is submitted that the Revisional Court has held that the second accused namely Murthy, P.A., to the District Collector, Cuddalore, had participated in the prize scheme and received the first coupon and as such a prima facie case against him for the offence under Section 6 of the 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 / Revision Petitioner therein has not lodged a complaint either orally or in writing and even if the complaint has been made in writing and action not being taken, can report the matter to the Superintendent of Police under
Section 154 (3) of the Cr.P.C. The Revisional Court further held that even in the complaint there is no specific allegation that accused 3 to 6, police officials, knew about the prize scheme conducted by the first accused and that it is not possible for the police to act upon the advertisement published in the newspapers. Therefore the Revisional Court by its order dated 24.08.2004 passed in Crl.R.C.No.10 of 2004 has confirmed the order of dismissal of the complaint in so far as accused 3 to 6 are concerned. Aggrieved by the same, the complainant has preferred this Criminal Original Petition seeking to set-aside the order of the Revisional Court, Cuddalore, in confirming the order of the dismissal of the complaint passed by the Court of Judicial Magistrate, Cuddalore. The second accused, being aggrieved by the order passed by the Revisional Court, has filed the above Criminal Revision Case.
7. Mr. Muralidharan, learned counsel for the petitioner, in the above Criminal Original petition, submitted that since the prize scheme 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 2 and since they had failed to initiate criminal proceedings against them, they have committed an offence under
Section 166 of the IPC. According to the learned counsel for the petitioner, the reasons assigned by the Revisional Court are unsustainable.
8. Since both the above Criminal Original Petition and the Criminal Revision Case arise out of the same cause, both of them are being disposed of by this common order.
9. I have considered the aforesaid submissions made by the learned counsel for the petitioner and the materials available on record.
10. At the outset, it has to be pointed out that the above Criminal Original petition filed by the complainant, being in the nature of a second revision, is barred under
Sections 397 (3) and 399 (3) of the Criminal Procedure Code.
11. In this context, it will be useful to refer to a decision of the Apex Court reported in (1997) 4 Supreme Court Cases 241 (KRISHNAN v. KRISHNAVENI). In the said decision, the Apex Court has held as under:-
"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 available under
Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under
Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below.
The object of
Section 483 and the purpose behind conferring the revisional power under
Section 397 read with
Section 402, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by
Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under
Section 397 (1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities / incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order.
Section 483 enjoins upon every High Court to so exercise its continuous superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. The power of the High Court of continuous supervisory jurisdiction is of paramount importance to examine the correctness, legality, or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior criminal courts.
Ordinarily, when revision has been barred by
Section 397 (3) of the Code, a person accused / complainant cannot be allowed to take recourse to the revision to the High Court under
Section 397 (1) or under inherent powers of the High Court under
Section 482 of the Code since it may amount to circumvention of the provisions of
Section 397 (3) or
Section 397 (2) of the Code. The High Court has suo motu power under
Section 401 and continuous supervisory jurisdiction under
Section 483 of the Code. So, when the High Court on examination of the records finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under
Section 397 (1) read with
Section 401 of the Code. It may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously."
12. In view of the aforesaid law laid down by the Apex Court, though a second revision is not maintainable, a petition under
Section 482 of the Criminal Procedure Code, under exceptional circumstance, is maintainable. Therefore, it has to be seen as to whether such an exceptional circumstance exists in the present case to entertain the above Criminal Original Petition. In the said decision, the Apex Court has categorically laid down that if, on examination of the records, this Court finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and 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, the complainant / petitioner in the above Criminal Original Petition had not brought to the notice of accused 3 to 6 / the respondents in the above Criminal Original Petition that an offence has been committed by accused 1 and 2 as alleged in the complaint and it is also not the case of the complainant that any complaint was lodged by him before them and therefore the Courts below have held that no offence under
Section 166 IPC is made out. The Courts below have also pointed out that accused 3 to 6, the respondents in the above Criminal Original Petition, cannot act on the advertisement appearing in the newspapers. The said reasons assigned by the Courts below for refusing to take cognizance of the offence alleged as against the respondents in the above Criminal Original Petition cannot be said to be either erroneous or illegal. It cannot be said that any miscarriage of justice has occasioned or the process of Court has been abused. Therefore, this Court is not inclined to accept the contentions of the learned counsel for the petitioner in the above Criminal Original Petition. This Court is of the considered view that the above Criminal Original Petition is devoid of merits and hence the same is liable to be dismissed and accordingly dismissed.
14. The learned counsel for the petitioner in the above Criminal Revision Case submitted that there is no specific allegation in the complaint against the revision petition that he has known about the prize scheme conducted by the first accused and the Revisional Court failed to consider the fact that the revision petitioner, as a customer of the hotel, had gone and taken food in the hotel and the price of which had exceeded Rs.50/- and therefore he was given a prize coupon and that was given to the second accused in the function organised by the first accused. He further submitted that simply because the second accused / revision petitioner herein had received the prize coupon in the function organised by the first accused, it will not amount to abetting or aiding the first accused in the commission of the offence under Section 4 of the Tamil Nadu Prize Scheme (Prohibition) Act, 1979 (hereinafter referred to as "the Act") and
Section 6 of the said Act is not attracted. He further submitted that nowhere in the complaint it is alleged that the revision petitioner actively participated or aided the first accused in conducting the prize scheme. He further submitted that the paper publications relied upon by the complainant to show that the revision petitioner / the second accused had participated in the function organised by the first accused ought not to have been taken notice of by the Revisional Court as the news item appearing in the newspapers are in the nature of hear-say evidence and unless someone connected with the publication of the news item has been examined as a witness, it will not become legal evidence. In support of the aforesaid contentions, the learned counsel for the petitioner relied upon the following decisions:-
(i) (1993) 3 Supreme Court Cases 151 (S.A.KHAN v. CH. BHAJAN LAL). In the said decision, the Apex Court has laid down as under:-
"21. ..... In support of his submission that the news item cannot be the basis for initiating contempt proceeding against the alleged maker of the statement, he relied upon a decision of this Court in Samant N.Balakrishna v. George Fernandez (1969) 3 SCC 238 : (1969) 3 SCR 603 wherein it has been held that news items when published are garbled versions and cannot be regarded as proof of what actually happened or was said without other acceptable evidence through proper witnesses. He also drew our attention to the dictum laid down by this Court in Laxmi Raj Shetty v. State of T.N. (1988) 3 SCC 319, 346 : 1988 SCC (Cri) 633 : (1988) 3 SCR 706, 735 with regard to the admissibility of the news item appearing 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 news item being in the nature of hearsay secondary evidence, unless proved by evidence alinude. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred referred to in
Section 78 (2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under
Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein.
It is now settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported."
(ii) (2004) 3 Supreme Court Cases 363 (B.SINGH (DR) v. UNION OF INDIA). In the said decision, the Apex Court has laid down as under:-
"It is too much to attribute authenticity or credibility of any information or fact merely because it found publication in a newspaper or journal or magazine or any other form of communication, as though it is gospel truth. It needs no reiteration that newspaper resorts per se do not constitute legally acceptable evidence."
15. Learned counsel for the revision petitioner further submitted that the complaint filed by the respondent in the above Criminal Revision Case as against the petitioner herein will amount to clear abuse of process of the Court. In support of the said contention, the learned counsel relied upon a decision of the Apex Court reported in 1993 Supreme Court Cases (Cri) 149 (PUNJAB NATIONAL BANK v. SURENDRA PRASAD SINHA) wherein in paragraph 6 it is laid down as follows:-
"6. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be means to wreak personal vengeance."
16. Countering the aforesaid submissions, Mr.Muralidharan learned counsel for the respondent / complainant in the above Criminal Revision Case submitted that the presence of the second accused / the Revision Petitioner herein in the function organised by the first accused is proved by the news item appearing in the newspapers and from the allegations contained in the complaint and in the sworn statement of the complainant. He further submitted that knowing that the prize scheme announced by the first accused is prohibited by the Act, since the second accused has participated in the function, it will amount to aiding or abetting the commission of the offence by the first accused and it will attract the provisions contained under
Section 6 of the Act and therefore liable to be punished under
Section 6 of the Act.
17. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.
18. As rightly pointed out by the learned Magistrate, there is nothing on record to show that the second accused inaugurated the prize scheme or he participated in the function organised by the first accused and even from the news item appearing in the newspapers, it does not appear so. The learned Magistrate has pointed out that as a customer of the hotel he having consumed food for a value exceeding Rs.50/- had received the prize coupon and that itself will not amount to aiding or abetting the first accused in the commission of the offence. The learned Magistrate has also pointed out that the second accused having full knowledge about the prize scheme had not gone to the hotel and consumed food and obtained the prize coupon and such allegations are conspicuously absent in the complaint. It has also not been alleged in the complaint that the second accused abetted the first accused in the commission of the offence. While the Revisional Court has rightly held that no offence has been committed by the second accused under
Section 166 of the IPC has held that the act of the second accused in receiving the prize coupon in the function organised by the first accused will amount to abetment as laid down in
Section 6 of the Act cannot be sustained. To arrive at such a conclusion the Revisional Court has relied upon the news item published in the 'Dhinamalar Daily' dated 25.11.2003.
19. The Revisional Court rejected the following contentions of the second accused, namely, that his name does not find place in the phamplets distributed by the first accused and the publication in the newspapers is inadmissible and it cannot be taken as judicial notice under
Sections 81,78(2) and
56 of the Evidence Act. In support of the said contention, the second accused had relied upon a decision of the Apex Court reported in 1988 Supreme Court Cases (Cri) 633 (LAZMI RAJ SHETTY v. STATE OF T.N.), but the Revisional Court has held that the said decision cannot be considered while the matter is at the stage of taking cognizance and the principles laid down therein can be considered only at the time of trial of the case.
20. A perusal of the order of the Revisional Court shows that it has heavily relied upon the news item appearing in the newspapers. The reasonings recorded by the Revisional Court that the principles laid 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 for the petitioner / revision petitioner herein, it has been clearly laid down that the news item appearing in the newspapers are in the nature of hearsay evidence and the same will become legal evidence only if the persons connected therewith are examined before the Court. Since, admittedly, none connected with such publication of the news item has been examined, in this case, the news item cannot be treated as a legal evidence and therefore the Revisional Court has committed an error in relying upon the same in considering the question as to whether any prima facie case has been made out against the Revision Petitioner herein. There is nothing on record to show that knowing that the prize scheme conducted by the first accused is prohibited under the Act, the revision petitioner participated in the function and received the prize coupon. As rightly pointed out by the learned Magistrate, the second accused, as a customer of the hotel had gone and consumed food and the price of which exceeded Rs.50/- and as a consequence thereof, has received the prize coupon and that itself will not amount to aiding or abetting the first accused in the commission of the alleged offence. This aspect has not been properly considered by the Revisional Court and thereby has committed an illegality in directing the learned Magistrate to take cognizance of the offence under
Section 6 of the Act as against the revision petitioner / the second accused. Therefore, the order of the Revisional Court is liable to the set-aside and accordingly the same is set-aside. The above Criminal Revision Case is allowed.
07.09.2009 Index : Yes / No Web : Yes / No srk K.MOHAN RAM, J., srk To
1.The Principal Sessions Judge, Cuddalore
2.The Chief Judicial Magistrate, Cuddalore Crl.O.P.No.38502 of 2004 & Crl.R.C.No.1818 of 2004 07.09.2009