The Petitioner seeks to quash the proceedings in CC.No.5828/2006 on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai.
2. The brief facts, which are necessary for the disposal of this Criminal Original Petition, are as follows:-
The Petitioner has been working as Deputy Superintendent of Police in the Central Crime Branch, Chennai and he has been deputed by the Government to work as Vigilance Officer in the Corporation of Chennai. While he was working in that capacity, the Commissioner of Corporation of Chennai directed him to enquire into certain allegations of cheating and concealment of material facts against its staff the Respondent herein. As per the directions of the Commissioner of Corporation of Chennai, the Petitioner conducted enquiry and filed a report, stating that the Respondent had concealed his studies as a day college student in the Vivekananda College and joined the Chennai Corporation as a full time employee and that even thereafter he joined Madras Law College as a regular student and after completion of B.L. enrolled himself as an advocate and he was practicing as a full time advocate. However, he had managed to get full attendance and received salary from the Chennai Corporation. On the basis of the said report and pursuant to the order of the Commissioner of Corporation of Chennai, the Petitioner lodged a report against the Respondent with the Additional Commissioner of Police, on whose direction a case was registered in Cr.No.334/2005 for the offence punishable under
Sections 419 and
420 of IPC and investigation was proceeded with.
3. In the mean while, the Respondent had sent a telegram to the Petitioner on 5.1.2006, claiming a compensation of Rs.25 Crores and threatened to lodge a complaint against the Petitioner for the offences punishable under Sections
211, 193,
341,500 and
506(ii) of IPC. Later, he lodged a private complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai alleging that on receiving the telegram from the Respondent, the next day the Petitioner threatened him to cause danger to his life under
Sections 193,211 and
500 of IPC. It appears that after recording the statement of the complainant and two other witnesses, the Chief Metropolitan Magistrate, Egmore, Chennai had taken the complaint on file in CC.NO.5828/2006 and issued process to the Petitioner for his appearance, as against which, this Criminal Original Petition has been filed to quash the said proceedings.
4. The Petitioner has challenged the impugned proceedings on three grounds:-
(i). That the offence punishable under
Sections 211 and
193 of IPC cannot be taken cognizance of by a court on a complaint lodged by a private party and such cognizance is clearly barred under
Section 195 of Code of Criminal Procedure and therefore, the learned Magistrate has committed a serious error, illegality in taking cognizance of the complaint,
(ii). That the Petitioner has been accused of an offence punishable under
Sections 211,193,341,500 and
506(ii) of IPC. The Petitioner, Deputy Superintendent of Police being a public servant not removable from his Office save by or with the sanction of the Government when he is accused of committing certain offences as alleged in the complainant, no prosecution can be allowed without sanction of the Government in view of the bar provided under
Section 197 of Code of Criminal Procedure and
(iii) That the act of the Petitioner in initiating criminal prosecution against the Respondent is protected under
Sections 76 and
79 of IPC.
5. As regards ground (i), Section 195 (1)(b) of Code of Criminal Procedure bars the cognizance by any court of the offence 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. In order to attract
Section 195(1)(b), the alleged offence should be committed in relation to any proceedings in court and such bar would come into operation in this case, in view of the criminal proceedings in CC.No.5828/2006 pending on the file of the learned Chief Metropolitan Magistrate against the Petitioner and two others, pursuant to the complaint filed by the Respondent and process has been issued to the Petitioner.
6. The Full Bench of the Allahabad High Court in the case of P.C.Gupta Vs. state and another [1974-Cr.LJ-945] has observed thus:-
"The object of
Section 195(1)(b) of Code of Criminal Procedure is to protect persons from being needlessly harassed by vexatious prosecution in retaliation. A person, after having come to know that he is likely to be prosecuted on any information relating to commission of an offence may invariably file a complaint stating that a false report has been made against him. The situation thus created may result in confusion. The legislature, has, therefore, put a brake on such unscrupulous actions being taken by persons against whom the police or private persons may proceed by an information or complaint. It is a check to protect innocent persons from criminal prosecution which may be actuated by malice or ill-will."
7. The allegations made in the complaint against the petitioner is that despite the fact that no ingredient attracting an offence under
Sections 419 and
420 of IPC is made against the Respondent, but the Petitioner has filed a false report as though the said offences have been made out, which has resulted in registration of the case in Cr.NO.334/2005 by the Petitioner.
8. It is further alleged in the complaint that the Petitioner has fabricated false evidence against the Respondent and that the Petitioner has committed an offence punishable under
Sections 211 and
193 of IPC. Admittedly, the complaint is not filed by the officer of the court. Since the offences under
Sections 211 and
197 of IPC relates to giving false evidence and producing fabricated documents before the court, private prosecution are absolutely barred and only the public servant or the court concerned can make a complainant. Since the complaint is filed by the private party, the bar under
Section 195(b)(1) come into operation and the cognizance taken by the learned Magistrate on such complaint suffers from illegality.
9. It has been held by this Court in the case of Murugesan and Others Vs. State of Tamil Nadu [1989-Crl-LJ-1833] that a party should not be allowed to evade the provisions of
<act id=4LGxPokB_szha0nWDtBn section=195>Section 195 </act>of Code of Criminal Procedure by bringing a charge under another Section of Penal Law. The principle is that the facts should be considered as a whole without splitting them up and when they disclose a specific charge of graver offence requiring a complainant, then
<act id=4LGxPokB_szha0nWDtBn section=195>Section 195 </act>cannot be evaded by electing to prosecute for a general or lesser offence for which no complaint is necessary. In this case, though the petitioner is accused of committing offences under
Sections 341 and
506(ii) of IPC, but they cannot be split up and allow the petitioner to face trial for commission of those offences as it would amount to evading of the provisions of
<act id=4LGxPokB_szha0nWDtBn section=195>Section 195 </act>of Code of Criminal Procedure.
10. The next contention of the learned counsel for the Petitioner is that the learned Magistrate cannot take cognizance of the offence alleged in the complaint without prior sanction of the competent authority. The relevant portion of
Section 197 of Code 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 or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction:-
(a) in the case of a person who is employed or as the case may, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time commission of the alleged offence employed, in connection with the affairs of a State, of the State Government."
11. It is not disputed that if the offence is said to have been committed while acting or purporting to act in the discharge of the official duty, the provisions of
Section 197 Code of Criminal Procedure could be attracted and a prior sanction for Prosecution would be required. Hence, the sole point that arises for consideration is as to whether all or any one of the offences, for which the Petitioner is sought to be prosecuted, alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The Petitioner being the Deputy Superintendent of Police and when he worked as Vigilance Officer in the Corporation of Chennai, pursuant to the direction of the Commissioner of Corporation of Chennai, he had enquired into certain charges of cheating and concealment of material facts committed by the staff of the Corporation of Chennai, who is the Respondent herein and had found those charges to be true and filed a report substantiating the above said allegations. Pursuant to this, he had lodged a report with the Additional Commissioner of Police against the Respondent and on his direction, the FIR had been registered in Cr.No.334/2005 for the offences under
Sections 419 and
420 of IPC and the investigation is pending.
12. What the complainant labels an offence against the Petitioner is fabrication of false evidence and producing false report to the Commissioner of Corporation of Chennai. Therefore, the Respondent has alleged that the Petitioner has committed offence punishable under
Section 211 and
193 of IPC, which indisputably was performed by the Petitioner in exercise of his official duty as Deputy Superintendent of Police, as he had enquired into the allegations made against the Respondent and filed the report, substantiating the accusations made against the Respondent. The offence alleged to have been committed by the Petitioner under
Section 500 of IPC also appears to be connected with the performance of the Petitioner's duty as a Police Officer and it is based upon the act of the Petitioner in filing the report and the complaint and the same had become instrumental for the publication of defamatory allegation against the Respondent in a weekly magazine.
13. As regards the offence under
Section 341 and
506(ii), though it does not come within the performance of the duty of the Petitioner, when a public servant is prosecuted simultaneously for more than one offence and if any offence requires sanction, then without the prior sanction of the competent authority, the Magistrate cannot take cognizance of all the offences against the Petitioner and try him for those offences.
14. The learned counsel for the Respondent relied on the decision of the Honourable Supreme Court rendered in the case of P.P.Unnikrishnan and another Vs. Puttiyottil Alikutty and another [2001-1-CTC-239] in support of his contention that
Section 197 does not impose any absolute bar against taking cognizance of any offence, but only contemplates sanction of prosecution as a condition precedent for taking cognizance of such offence during the course of discharge of their official duty. In paragraph 21 of the said decision it is held thus:-
"21. If a police officer dealing with law and order duty uses force against unruly persons either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of
Section 197 of the Code as well as Section 64(3) of the K.P.Act. But if a police officer assaults a prisoner inside a lock up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of other or any property."
In the said decision, the Honourable Supreme Court has held that under Section 197 of the Code, no protection has been granted to a public servant for the type of acts committed by him, putting the accused in the lock-up room assaulting him with hands and lathis. The Honourable Supreme Court has referred to the decisions 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) of the Code thus:-
"There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course o the performance of his duty."
It has been further held that a superior officer who assaulted and ill-treated the accused for defying his orders could not be said 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 laid down by the Honourable Supreme Court in the case of P.P.Unnikrishnan and another Vs. Puttiyottil Alikutty and another [2001-1-CTC-239] and held that the court can decide as to whether the offence was committed during the course of the discharge of the official duty or not, after recording evidence and only after considering the defence of the concerned Police officials.
16. The facts of the present case is distinguishable and there is no quarrel over the proposition that
Section 197 (1) of Code of Criminal Procedure does not impose any absolute bar against taking cognizance of any offence and if a police officer commits an act unconnected with the discharge of his authority of exercise of his duty, then it would not be necessary to get any sanction before prosecution.
17. In the case of Prabhakar V. Sinari Vs. Shanker Anant Verlekar [AIR-1969-SC-686], the Honourable Supreme Court has held on facts that sanction is necessary when a Deputy Superintendent of Police who acted or purported to act in discharge of his official duty, which is complained of committing an offence under the IPC. It is held that the language of
Section 197 is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section, which would include the Deputy Superintendent of Police, when he is accused of an offence alleged to have been committed by him while acting or purported to act in the discharge of his official duty, it does not matter if the acts were strictly necessary for the discharge of his duty. What has to be found is that whether the act and official duty were so interrelated that one could postulate reasonably that it was done by the accused in performance of the official duty though possibly in excess of the needs and requirements of the situation.
18. In the present case, it is apparent that sanction for prosecution for the offences under
Sections 211,193 and
500 of IPC as against the Petitioner is clearly called for and since as already observed, the Petitioner being prosecuted for those offences along with the other two offences under
Sections 341 and
506(ii) of IPC, sanction would be necessary for the prosecution of the Petitioner jointly for all the said offences. The cognizance taken by the learned Magistrate in this case without sanction cannot be sustained and the same cannot be allowed to continue, when such illegality is committed.
19. The learned counsel for the Petitioner put forth yet another contention that if a party or a police officer bona fidely believed that he is acting in pursuance of a statute, then their 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 in conformity with law. He would further submit that the acts complained of against the Petitioner cannot be an offence, as the petitioner has just investigated the case based on the instructions of the Commissioner of Corporation of Chennai.
20. On a bare perusal of the provisions of
Sections 76 and
79 of IPC, it is apparent that it contemplates that there must be bona fide intention and legal justification in doing a particular act so as to claim protection under this provision. From the facts placed on record, it is evident that as per the directions of the higher authorities, the Petitioner acted in good faith and conducted enquiry and registered the case against the Respondent, which is still pending before the court concerned. I am of the considered view that the said action of the Petitioners, which is in conformity with the duty enjoined, who is bound to do such act under law, certainly would be protected 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 spell inevitable guilt if the law itself declares that in certain special circumstances it is not to be regarded as an offence. The chapter on General Exceptions operates in this province.
Section 79 makes an offence a non-offence. When? Only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. If, as here, the Board of Censors, acting within their jurisdiction and on an application made and pursued in good faith, sanctions the public exhibition, the producer and connected agencies do enter the statutory harbour and are protected because
Section 79 exonerates them at least in view of their bona fide belief that the certificate is justificatory. Thus the trial court when it hears the case may be appropriately apprised of the certificate under the Act and, in the light of our observations, it fills the bill under
Section 79 it is right for the court to discharge the accused as the charge is groundless. In the present case, the prosecution is unsustainable because
Section 79 is exculpatory when read with Section 5-A of the Act and the certificate issued thereunder. We quash the prosecution. The position that emerges is this. Jurisprudentially viewed, an act may be an offence, definitionally speaking; but a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances it is not to be regarded as an offence. The chapter on General Exceptions operates in this province.
Section 79 makes an offence a non-offence. When? Only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. If, as here, the Board of Censors, acting within their jurisdiction and on an application made and pursued in good faith, sanctions the public exhibition, the producer and connected agencies do enter the statutory harbour and are protected because
Section 79 exonerates them at least in view of their bona fide belief that the certificate is justificatory. Thus the trial court when it hears the case may be appropriately apprised of the certificate under the Act and, in the light of our observations, it fills the bill under
Section 79 it is right for the court to discharge the accused as the charge is groundless. In the present case, the prosecution is unsustainable because
Section 79 is exculpatory when read with Section 5-A of the Act and the certificate issued thereunder."
and quashed the prosecution. Therefore, Viewed at any angle, the criminal proceedings launched on the private complaint filed by the respondent cannot be sustained and it would be an abuse of process of court to allow the petitioner to face the trial before the learned Magistrate.
22. In view of the reasons stated above, I am of the considered view that the prosecution against the Petitioner cannot be sustained and the same is liable to be quashed.
23. In the result, the impugned proceedings in CC.No.5828/2006 is quashed and this Criminal Original Petition is allowed accordingly. Consequently, the connected MP is closed.
Srcm To:
The learned Metropolitan Magistrate, Egmore, Chennai