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Ramani v/s Perumal

    Crl.O.P.(MD)No. 1145 of 2019 & Crl.M.P.(MD)Nos. 505 & 506 of 2019

    Decided On, 17 August 2022

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE K. MURALI SHANKAR

    For the Petitioner: R. Gandhi, Advocate. For the Respondent: K. Prabhu for G. Mathavan, Advocates.



Judgment Text

(Prayer: Criminal Original Petition has been filed under Section 482 Cr.P.C, to call for the records relating to the private complaint in C.C.No.89 of 2016, on the file of the Judicial Magistrate Court No.1, Madurai and quash the same.)

This Criminal Original Petition has been filed, invoking Section 482 Cr.P.C., seeking orders to call for the records pertaining to the case in C.C.No.89 of 2019, pending on the file of the Judicial Magistrate Court No.1, Madurai and quash the same.

2. The petitioner is the first accused in C.C.No.89 of 2016, on the file of the Court of Judicial Magistrate No.I, Madurai. The respondent has filed a private complaint under Section 200 Cr.P.C., against three persons including the petitioner and after complying with the necessary formalities, the case was taken on file in C.C.No.89 of 2016, for the alleged offences under Sections 188, 294(b), 447, 448 and 506(ii) I.P.C. and the same is pending on the file of the Court of the Judicial Magistrate No.I, Madurai.

3. Admittedly, the petitioner, who is the first accused, is the police official and was the Inspector of Police, Law and Order, Theppakulam Police Station, Madurai. The main contention of the petitioner is that while the petitioner was discharging his official duty, the alleged occurrence had taken place and as such he has been protected under Section 197(1) Cr.P.C., and the complainant should have obtained sanction to prosecute the petitioner and that in the absence of the said sanction, the proceeding initiated against the petitioner is liable to be quashed.

4. It is necessary to refer Section 197(1) Cr.P.C., which is extracted hereunder:

“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 be, 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 of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.

5. No doubt, Section is intended to guard against vexatious proceedings against the Judges, Magistrates, Public Servants not removable from office except by or with the sanction of the Government. The words in the above Section “ not removable from his office save by or with the sanction of the Government” refer to Public Servant and not to Judge or Magistrate. In the case of Public Servant, he must come within the category of Public Servants not removable from their office without the sanction of the Government and the above Section does not apply to Public Servants whom some lower authority has by Law or Rule or Order has been empowered to remove. To put it in other way, sanction under Section 197(1) Cr.P.C., is required, when the accused Public Servant can be removed from his office only by the Government or with the sanction of the Government.

6. The learned Counsel for the petitioner has relied on the decision of the Hon'ble Supreme Court in D.T.Virupakshappa V. C.Subash reported in AIR 2015 Supreme Court 2022, wherein the Hon'ble Apex Court held as follows:

“In our view, the above guidelines squarely apply in the case of the appellant herein. Going by the factual matrix, it is evident that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order.”

7. The learned Counsel for the petitioner has also relied on the judgment of this Court in P.Kalai Kathiravan Vs Ramaiah passed in Crl.O.P.(MD)No. 4756 of 2016, dated 24.09.2018, wherein this Court has held as follows:

“10. It is seen very clearly from the complaint filed by the respondent that the respondent has aggrieved by the act of the petitioner in discharge of this official duty. The petitioner admittedly falls within the definition of Public Servant under Section 21 of IPC and therefore, it is mandatory to follow the provisions under Section 197 of CrPC, which gives a special protection to public servants. The Public Servants are treated as a special class of person enjoying the said protection, so that they can perform their duties without any fear or favour and without threats of malicious prosecution. Sine qua non for the applicability of Section 197 of CrPC is that the offence charged, be it one of commission or omission, must be one which has been committed by the Public Servant either in his official capacity or under the colour of the office held by him. The moment, the act of the Public Servant falls within the above said requirement, the protection given under Section 197 of CrPC starts operating automatically and there can be no prosecution without obtaining a sanction.”

8. In both the decisions, the point that was decided is as to whether the alleged offence committed is reasonably connected with the performance of the official duty of the accused and if the answer is in the affirmative, previous sanction for prosecution is necessary. At this juncture, it is necessary to refer the decision of the Hon'ble Supreme Court in Fakhruzamma Vs. State of Jharkhand and another reported in CDJ 2013 SC 1089 and the relevant portion is as follows:

“Whether sanction under Section 197 of Cr.P.C., is necessary from State Government before prosecuting Appellant as Sub-Inspector of Police. The question that has come up for consideration in this case is whether sanction under Section 197 Cr.P.C., is necessary from the State Government before prosecuting the Appellant, though he was removed from service following the procedure laid down .................. Police Manual and an Inspector General of Police can dismiss a Sub-Inspector and, therefore, no sanction of the State Government for prosecution of the appellant was necessary even if he had committed the offences alleged while acting or purporting to act in discharge of this official duty.”

(emphasis supplied)

9. A learned Judge of this Court in Muthuswamy Gounder Vs. C.P.Singharam reported in (1979)1 MLJ (Crl.)705, has specifically held that since the Inspector General or Deputy Inspector General or District Superintendent of Police is the competent authority to dismiss or to impose punishment of reduction to a lower post, or for a lower stage in time scale with respect to any officer of the Subordinate Police which includes all Police Officers below the rank of Inspector of Police, no sanction of the State Government for the prosecution of the Police Officer below the rank of Inspector of Police is necessary.

10. In the case on hand, as already pointed out, the petitioner is the Inspector of Police. Considering the legal position above referred and the petitioner being the Inspector of Police, prior sanction for prosecution is not at all necessary. Hence, the main contention of the learned Counsel for the petitioner in this regard is devoid of substance and the same is liable to be rejected.

11. Now turning to the merits of the case, it is the specific case of the prosecution that the respondent/complainant and some others are enjoying the property in dispute for several years, that they have already filed a civil suit in O.S.No.15 of 2000 and obtained an interim order in I.A.No.508 of 2000, on the file of III Additional Subordinate Court, Madurai, that on 20.01.2012, the accused 2 and 3 along with their henchmen had trespassed into the property and threatened the respondent to vacate and hand over the possession or otherwise he will be done to death, that on 24.01.2012 at about 01.00p.m., all the accused came to the respondent's house and threatened him with dire consequences and at that time, the petitioner/first accused asked the complainant to appear for enquiry at about 07.00p.m., that when the respondent attended enquiry on 26.01.2012, the petitioner had threatened him to vacate the house, otherwise he will be done to death in the lock up room and that since his complaints to the higher officials were all not avail, he is constrained to file the above private complaint.

12. The petitioner's case is that when the petitioner was serving as Inspector of Police, Theppakulam Police Station, Madurai, misunderstanding developed between the respondent/complainant and one Kathirvel Kannan leading to filing of the civil suit, that the complainant sent several petitions by making false allegations in order to pressurize the police, that the respondent has never turned up for enquiry despite issuance of summons and that, at that juncture he has filed the above false complaint without any iota of truth.

13. The learned Counsel for the petitioner would submit that the respondent/complainant to wreck vengeance against the police officer for having exercised his lawful duty, has abused the process of Court by initiating the above false complaint, that the respondent has arrayed the petitioner for his alleged act discharging his duty as Inspector of Police, that the above complaint has been filed to preempt the petitioner from legally proceeding against the accused and as such, the same was filed by misusing and abusing the legal process and that therefore, the proceedings initiated against the petitioner is liable to be quashed.

14. As rightly pointed out by the learned Counsel for the petitioner, though the respondent in his complaint has alleged that a civil suit was filed in O.S.No. 15 of 2000 and interim order was obtained in I.A.No.508 of 2000, he has nowhere whispered about the nature of the suit filed and the nature of the interim order obtained from the Court. In the private complaint, the respondent has alleged that he has filed the suit proceedings against Juvala Ammal, her daughter Suganthi Baby and others, but he has not stated anywhere about the ownership of the property in dispute and the way in which or based on which he entered into possession of the suit property.

15. It is the case of the respondent that after the death of Juvala Ammal, her daughter Suganthi Baby, in collusion with the accused 2 and 3, by violating the interim order, have trespassed into the house of the respondent and claimed ownership over the property and threatened the respondent to vacate the premises or else, they would kill. It is the further case of the respondent that on the next date ie., on 21.01.2012, he went to the Theppakulam police station and gave a complaint to the Inspector of Police, but he refused to receive the same and hence, he sent a telegram and thereafter sent the complaint through the registered to the first accused and to the Commissioner of Police. It is the further case of the respondent that on 23.01.2012, he presented the complaints to the first accused and the Commissioner of Police directly and that the first accused, after receiving the complaint had abused him in filthy language and threatened him that he would be killed as lock up death and that on 24.01.2012 at about 01.00p.m., the first accused in his jeep and the accused 2 and 3 and their henchmen in two wheelers came to the property in dispute and trespassed into the house and threatened the respondent directing him to appear at about 07.00p.m, in the police station for enquiry and that on 26.01.2012 at about 10.00a.m., the respondent, his wife and his friend Manoharan had appeared before the first accused and the first accused commenced enquiry at about 01.30p.m.

16. The main contention of the respondent is that the first accused during enquiry had all along been supporting the accused 2 and 3 and claimed that the civil Court's interim order will not bind him and that since the respondent is not having proof, he has to vacate the premises within 24 hours or else, the houses would be demolished with the help of the police team.

17. As rightly contended by the learned Counsel for the petitioner, the learned Magistrate has recorded the sworn statement of the respondent/complainant and examined the respondent's friend Manoharan as C.W.1 in the enquiry in Cr.M.P.NO.127 of 2012 under Section 202 Cr.P.C. The said Manoharan as C.W.1 in his statement has specifically stated that on 26.01.2012, enquiry was commenced by 01.30p.m., that the accused 1 to 3, the respondent – Perumal were present, that the Inspector of Police had enquired the respondent and Manoharan, as to whether they were having any documents to show that the property in question was owned by them, that the respondent has produced the Court records, that the first accused has not accepted the version of the respondent, but supported the case of the accused 2 and 3 and threatened them to vacate the premises or else, a case will be registered and that the police have directed them to appear as and when required.

18. As rightly contended by the learned Counsel for the petitioner, a cursory perusal of the private complaint and the sworn statement of the complainant and the statement of the witness C.W.1 would reveal that the first respondent had visited the property in dispute and directed the parties concerned to appear for enquiry and in pursuance of the same, he conducted enquiry. Just because, the Investigating Officer had spoken something in support of one party, the same cannot be taken as that the Investigating Officer was only supporting that party.

19. The learned Counsel for the petitioner would submit that the private complaint does not disclose any abusive words allegedly uttered by the petitioner so as to attract the offence under Section 294(b) I.P.C., that the complaint does not disclose anything so as to attract the offence under Section 506(ii) I.P.C., that the Investigating Officer cannot be prosecuted for the offence of criminal trespass and that the very reading of the complaint does not disclose any disobedience of order duly promulgated by the public servant and as such, the petitioner cannot be prosecuted for the offence under Section 188 I.P.C.

20. The petitioner has relied on the decision of this Court in Jeevanandham and Others vs State, represented by the Inspector of Police, reported in 2018(2) LW (Crl.,) 606, wherein, a learned Judge of this Court after surveying the judgments of the Honourable Apex Court and of this Court, has held that the Police Officer cannot register a First Information Report, for an offence under Section 188 I.P.C., and the Judicial Magistrate cannot take cognizance of the offence, based on the final report filed under Section 173(2) Cr.P.C.

21. As per the above settled legal position, there must be a complaint by a public servant who is lawfully empowered under Section 195 Cr.P.C., and it is mandatory and that therefore, the non-compliance of the same, will make the proceedings void ab initio and as such, the charge sheet laid for the offence under Section 188 I.P.C., has to necessarily be quashed. As rightly contended by the learned Counsel for the petitioner, the complaint does not disclose anything to show that there was any disobedience of order duly promulgated by public servant and hence, the question of invoking Section 188 I.P.C., does not arise at all.

22. Regarding the offence under Section 294(b) I.P.C., according to the prosecution, the petitioner had abused the defacto complainant in filthy language. The Kerala High Court in Latheef Vs. State of Kerala reported in 2014 (2) KLT 987 relying on the earlier judgements of Kerala High Court has held that abusive words or humiliating words or defamatory words will not as such amount to obscenity as envisaged in Section 292 and 294 (b) IPC and to make it punishable under Section 294(b) of IPC, the alleged words must be in a sense lascivious, or it must be appeal to the prurient interest, or will deprave or corrupt persons.

23. As rightly contended by the learned counsel for the petitioner, even assuming that the petitioner had uttered the words as alleged by the prosecution, the same will not satisfy the definition of obscenity and as such no offence under Section 294(b) is made out. Even assuming that the accused had uttered obscene words, there is no materials to show that the same had caused annoyance to others.

24. Regarding the offence under Section 506 I.P.C, there is nothing on record to show that the complainant was criminally intimidated. Moreover, it is necessary to show that the threat held by the accused is real and substantial. It is necessary to refer the judgment of this Court reported in (1988) L.W.(Crl.)178 ( Noble Mohandass V. State) and the relevant paragraph is extracted hereunder:

“7. As far as the offence under Section 506(2) is concerned, the learned counsel for the revision petitioner contended that the threat was not a real one, that it was of the kind of words which are currently and frequently used by people when they are angry and that further the threat was not spoken to by P.W. 3 and P.W. 4 who by that time had already come to the scene of occurrence. It is, in fact, found from the records that the threat would have been lashed out after P.Ws. 3 and 4 came to the place and separated both the husband and wife. Therefore, the evidence of P.W. 1 should have been corroborated by the evidence of P.W. 3 and P.W. 4 who were necessary witnesses to the occurrence. Since they did not corroborate the testimony of P.W. 1 in this aspect, the offence cannot be held to be proved. Further for being an offence under Section 506(2) which is rather an important offence punishable with imprisonment which may extend to seven years, the threat should be a real one and not just a mere word when the person u

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ttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. In fact P.W. 1 when she filed the complaint to the police officer, did not express any fear for her life nor asked for any protection. Therefore, the offence under S. 506(2) is not made out.” 25. As rightly contended by the learned Counsel for the petitioner, the petitioner in the capacity of Investigating Officer had visited the property in dispute and at that time directed the parties to appear for enquiry in the police station. Considering the above, as rightly contended by the learned Counsel for the petitioner, no offence under Section 447 and 448 I.P.C., are made out. 26. Recently, this Court, in Crl.O.P.(MD)No.3653 of 2019, dated 07.07.2022, on noticing that a new trend has been emerging in implicating the Advocates as accused along with their clients, has specifically observed that such practice of implicating the Advocates for the offence alleged to have been committed by the clients is to be condemned and such practice should be deprecated. Similarly the practice of implicating the Investigating Officer or the Police Officers conducting enquiry as accused along with the original accused in the private complaint is on rise and the same has also to be condemned and such practice should be deprecated. 27. Considering the above facts and circumstances, this Court is of the clear view that permitting the prosecution to proceed against the petitioner is totally unwarranted and the same would amount to be an abuse of process of the law. Hence, this Court concludes that the proceedings as against the petitioner in C.C.No.89 of 2016, pending on the file of the Judicial Magistrate Court No.1, Madurai, is liable to be quashed. 28. In the result, the Criminal Original Petition is allowed and the proceeding in C.C.No.89 of 2016, pending on the file of the Judicial Magistrate Court No.1, Madurai, as against the petitioner is quashed. Consequently, the connected Miscellaneous Petitions are closed.
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