Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 557 (MAD)

Dr. A. Palaniswamy v. Dr. A. Palaniswamy

2003-03-28

V.KANAGARAJ

body2003
Judgment :- This petition has been filed praying to call for the records in S.T.R. Case No.1870 of 2002 on the file of the Court of Judicial Magistrate No.II, Karaikal, Pondicherry, and quash the same. 2. The averments of the petition are that the petitioner is employed as Medical Officer in the ONGC dispensary at Karaikal; that on 14.9.2002, while he was on duty at the dispensary, the respondent herein along with her husband, viz., Ganesh @ Arunachalam abused him by mentioning his caste name, attacked him on his left cheek and head since he had not sanctioned the respondent's overtime claim as she was working only for five hours a day and six days a week, which is not within the ONGC Rules to sanction her overtime; that immediately thereafter, he lodged a complaint before the P.C.R. Cell, Karaikal, and the complaint was registered in FIR No.2/2002 for an offence punishable under Section 7(1)(e) of the PCR Act r/w. Section 332 r/w. 34 IPC; that in the said case, the respondent surrendered before the lower court and later on came out on bail. 3. The petitioner would further submit that to circumvent the above case, the respondent herein lodged a false complaint with the Karaikal Police Station on 18.9.2002 alleging that the petitioner pushed the respondent by hands and attempted to outrage her modesty and a case has been registered in F.I.R. No.199/2002 for an alleged offence punishable u/s.354 IPC; that the respondent lodged a false complaint against the petitioner belatedly on which the said case was registered on 18.9.2002, for an offence alleged to have taken place on 14.9.2002 at 10.30 a.m.; that the respondent herein made false allegations against the petitioner with mala fide intentions and to circumvent the petitioner's case; that after investigation, the Karaikal Police have filed the referred charge sheet before the Court of Judicial Magistrate No.II, Karaikal, since the offence alleged by the respondent was not made out. 4. 4. The further averments of the petition are that after receiving the referred charge sheet, the respondent herein filed the present complaint before the Court of Judicial Magistrate No.II, Karaikal, for the same occurrence alleged to have taken place on 14.9.2002; that on the basis of the second complaint, the learned Magistrate issued process of summons to the petitioner for an offence u/s.354, 323 and 506(I) IPC; that the present complaint lodged by the respondent is not maintainable since in her earlier complaint, the learned Magistrate had not passed any orders on the referred charge sheet. On such averments, the petitioner seeks to quash the proceedings mentioned supra. 5. During arguments, the learned counsel appearing on behalf of the petitioner would submit that the petitioner is a Doctor and the respondent is a Staff Nurse in the ONGC dispensary at Karaikal; that on 14.9.2002, while the complainant was on duty in the hospital in his capacity as the Medical Officer, the respondent and her husband one Ganesan @ Arunachalam came to the work spot and voluntarily not only disturbed his work but also started abusing him in intemperate language making use of his caste name and also went upto the extent of attacking him on his left cheek and head in a motivated manner since the petitioner had not sanctioned the respondent the overtime claim and on the complaint of the petitioner, the Karaikal PCR Cell registered a case in their Cr.No.2/2002 under Section 7(1)(d) of the PCR Act and Section 332 r/w.34 IPC and as a retaliation, a false complaint was lodged with the Karaikal Town Police by the respondent and the said case also got registered on 18.9.2002 in Cr.No.199 of 2002 under Section 354 IPC and the said case having been investigated into, was found to be false and the police referred the case as `mistake of fact' as on 23.9.2002 against which a private complaint has been filed by the respondent under Section 190(1)(a) of the Code of Criminal Procedure with false allegations against which the petitioner has now come forward to file the above criminal original petition seeking to quash the same. 6. The learned counsel for the petitioner would cite a judgment of the Honourable Apex Court delivered in STATE OF HARYANA AND OTHERS vs. Ch.BHAJAN LAL AND OTHERS reported in 1992 AIR SCW 237. 6. The learned counsel for the petitioner would cite a judgment of the Honourable Apex Court delivered in STATE OF HARYANA AND OTHERS vs. Ch.BHAJAN LAL AND OTHERS reported in 1992 AIR SCW 237. This is the case wherein the Honourable Apex Court has framed certain guidelines for quashing the criminal proceedings wherein it has been held: "In following categories of cases, the High Court may in exercise of powers under Art.226 or under S.482 of Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases. 1)Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2)Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4)Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code. 5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 7. The learned counsel for the petitioner would further submit that due to the rival complaints lodged by the petitioner and the respondent, a departmental enquiry was conducted by the D.G.M.(Wells)/Enquiry Officer wherein it was held proved that the complaint of the respondent is false and that the respondent and her husband abused the petitioner in filthy language touching his caste and also assaulted him. At this juncture, the learned counsel for the petitioner would cite yet another judgment of the Honourable Apex Court delivered in P.S.RAJYA vs. STATE OF BIHAR reported in (1996) 9 SCC 1 wherein while considering the point `whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigillance Commission and concurred by the Union Public Service Commission', the Honourable Apex Court has held: "The standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. In the instant case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. In the instant case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. If the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings." "The appellant's case can be brought under more than one head of guidelines laid down in Bhajan Lal case (1992 SCC (Cri) 426: 1992 AIR SCW 237) for quashing of a complaint/FIR." "The High Court was not right in taking the view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant." 8. Citing the above judgments, the learned counsel for the petitioner would end up his argument stating that it is a case registered by the respondent before the Magistrate mala fide and with ulterior motives for wreaking vengeance on the petitioner and with the view to spite him and hence the said proceeding initiated by the respondent in the Court of Judicial Magistraste No.II, Karaikal, Pondicherry becomes liable to be quashed. 9. On the contrary, the learned counsel appearing on behalf of the respondent would also extract the facts of the case and would cite a judgment of the Kerala High Court delivered in N.K.MOHANRAJ vs. KANDIAN RAJEEV reported in 1999 Criminal Law Journal 824 wherein when a final report referring the case as false was accepted by the Court without notice to the informant/complainant and when a protest complaint was filed against the same by the informant alleging that the investigation was farce, one sided and conducted in order to help accused, the learned single Judge of the Kerala High Court has held that `protest complaint should be taken as objection by complainant against acceptance of final report though no separate objection application was filed and the complaint is not liable to be quashed.' Citing the above judgment, the learned counsel for the respondent would pray to dismiss the above criminal original petition. 10. 10. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what could be assessed is that the petitioner herein is a Doctor serving in ONGC Dispensary at Karaikal wherein the respondent is serving as a Staff Nurse. While so, on certain grievances of the respondent that the petitioner had not sanctioned her overtime claim, the respondent, joining hands with her husband, who is the third witness cited in her complaint filed before the Court of Judicial Magistrate No.II, Karaikal, Pondicherry, had gone to the hospital while the petitioner was performing his duties and have not only assaulted him but also abused him in filthy and vituperative language particularly making use of his caste name since he is belonging to a community falling under the Scheduled Caste as a result of which the petitioner had lodged a complaint before the Karaikal PCR Cell and a case in their FIR No.2/2002 had been registered for an offence punishable under Section 7(1)(d) of the PCR Act and Section 332 r/w.34 IPC against the respondent and her husband; that the respondent, as a retaliatory measure, had, on her part, lodged a complaint with the Karaikal Town Police alleging that the petitioner caught hold of her hand and while pulling, she fell down; that on the said complaint, a case was registered in Karaikal Town Police Station Crime No.199/2002 under Section 354 IPC on 18.9.2002 and on investigation, since the said police came to know that there was no truth in the complaint lodged by the respondent, they referred the same and served the RCS on the respondent, based on which the respondent has filed a private complaint before the Judicial Magistrate No.II, Karaikal, Pondicherry and the same has been taken on file as STR case No.1870/2002 by the said Magistrate and it is only this complaint lodged by the respondent before the said Court, the petitioner is seeking to quash in the above criminal original petition. 11. 11. On a perusal of the complaint lodged by the respondent before the Magistrate, there is no denying of the fact that the respondent's husband lodged a complaint in "The ONGC Report", an internal news bulletin meant for the ONGC staff, as early as on 13.9.2002 itself by E-mail and got it published in the bulletin thus causing his interference into the functioning of the hospital flashing something as a message in the web-site in a disparaging manner as admitted in para No.1 of the complaint. 12. The following day, i.e. on 14.9.2002, the respondent and her husband one Ganesan, have both gone to the hospital wherein the petitioner was attending to his duties and have not only obstructed him from discharging his lawful duties but also have assaulted him besides abusing him calling by his caste name resulting in a criminal complaint being lodged by the petitioner with the PCR unit of Karaikal which got registered by the said police promptly as afore-extracted. 13. Though on the part of the respondent, for pages in the complaint, she would make strenuous attempts to give a cause of action, would ultimately fail either to make out a prima facie case on the face of the complaint or even to show some iota of medical evidence for even some tenderness being noticed but would only complain that neither the petitioner since being the Medical Officer gave her the treatment nor the Karaikal hospital wherein she took asylum came to her rescue with proper treatment as a result of which, she would come forward to say that ultimately she had to go to a private nursing home which is unauthorised for dealing with medico-legal cases. Excepting for blabbering certain irrelevant matters in her complaint, nothing fruitful nor relevant seems to have been made out on the face of the complaint and the allegations levelled against the petitioner having been thoroughly investigated into have been concluded as false by the Karaikal police. It should be noted that knowing that it is a false complaint, for four days, the Karaikal police did not register the case and ultimately on 18.9.2002, they have registered the case and investigated into, but only to arrive at the conclusion that the complaint lodged by the respondent was false and hence referred the case as `mistake of fact'. 14. 14. Now the point for consideration is `whether the private complaint filed by the respondent and taken on file in the above STR Case No.1870 of 2002 by the Court of Judicial Magistrate Nods.2, Karaikal, is liable to be quashed as it is sought for on the part of the petitioner in the above criminal original petition?' 15. To answer this question, it is relevant to go into the position of law. Though a learned single Judge of the Kerala High Court has held that the protest complaint filed stating the investigation was farce, one sided and conducted in order to help the accused should be taken as an objection by the complainant against acceptance of the final report and the said complaint is not liable to be quashed, but still, the Honourable Apex Court in both the cases cited on the part of the petitioner, particularly in the case reported in 1992 AIR SCW 237 has evolved certain guidelines classifying the cases into seven categories in which the High Court can exercise its powers either under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure and interfere, of which the second and seventh categories of cases wherein the High Court can interfere with particularly the latter is `where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge'. 16. 16. The case in hand is one aptly and squarely falling under this category of cases chosen by the Honourable Apex Court for being quashed under Section 482 of the Code of Criminal Procedure as per the said judgment since neither the husband of the petitioner should have acted in the manner that he had leaked out certain official acts concerned with the petitioner in the internal bulletin nor himself nor his wife, the respondent, should have obstructed the petitioner from discharging his official duties on 14.9.2002 besides assaulting him and calling him by his caste name nor should they have manipulated and given a false complaint before the Karaikal Police, which, on investigation, came to be referred as false by the said police nor the respondent is in a position to substantiate her claim in the very complaint filed before the Judicial Magistrate No.II, Karaikal which has been taken on file in STR Case No.1804/2002 nor anything relevant nor any substantive material could be seen in the said complaint filed by the respondent so as to proceed against the petitioner for the offences punishable under Sections 354,332 and 506(I) under which the petitioner is sought to be punished. Since there is no basis for this complaint at all, nor any truth attached to the same, but only to spite the petitioner and as an act of vendetta, since the respondent has come forward to register the above said complaint before the Magistrate as the last resort, the Magistrate, in consideration of all these factors, should not have taken it on file and should have outright rejected the same on the face of the complaint itself since absolutely no relevant materials have been placed in the pleadings nor in support of the complaint nor is there any material for proof of the same prima facie placed on record and hence since the said complaint squarely falls under the 2nd and 7th category of cases falling under the guidelines evolved by the Honourable Apex Court in its judgment reported in 1992 AIR SCW 237, this Court is left with no option but to quash the case taken on file in STR Case No.1870 of 2002 by the Court of Judicial Magistrate No.II, Karaikal, Pondicherry and hence the following order: In result, (i) the above Criminal Original Petition succeeds and the same is allowed. (ii)The case in STR Case No.1870 of 2002 on the file of the Court of Judicial Magistrate No.II, Karaikal, Pondicherry is hereby quashed. Consequently, Crl.M.P.No.501 of 2003 is closed.