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2006 DIGILAW 3227 (MAD)

S. Raman v. Ayyappan

2006-11-24

M.JEYAPAUL

body2006
Judgment The petition is filed seeking quashment of the criminal proceedings in C.C.No.5 of 2006 on the file of the Chief Judicial Magistrate, Pudukottai. 2. The petitioners have been arraigned as A-1, A-2 and A-3 in the aforesaid case launched by the respondent on the basis of the private complaint for offences punishable under Sections 341, 342, 348, 352, 500 and 506(I) of the Indian Penal Code. 3. The allegation in brief found in the complaint launched by the respondent is as follows: About a month prior to the occurrence, some prostitutes were brought to Viralimalai Police Station, where the first accused was serving over there as Inspector of Police and the prostitutes were let off without taking any criminal action as against them. As there was some motive for such release of those prostitutes by the first accused, the respondent, who is a Reporter, attached to Thinakaran Daily Newspaper, lodged a complaint with respect thereto to the Superintendent of police. On 23.03.2006 at about 02.00 p.m., the respondent descended on the said police station for the purpose of collecting news. The second accused is also an Inspector of Police, attached to Iluppur Police Station and the third accused is the Deputy Superintendent of Police, Keeranur. All the three accused were found in the chambers of the first accused in Viralimalai Police Station at that time. Questioning the attitude of the respondent in lodging a complaint directly to the Superintendent of Police, the first accused abused him and pushed him away and as a result of which the respondent fell down. The second accused on his part kicked him and warned him that a case under the NDPS Act would be booked as against him. The second accused also openly said that on account of the complaint lodged by the respondent with the Superintendent of Police, the first accused was affected. The second accused again kicked the respondent with an instruction to him to report that incident also to the Superintendent of police. Thereafter, the second accused made the respondent to stand up and slapped him on cheek and back. The Nokia cell phone found in the possession of the respondent was also taken away by him. The third accused, who watched the whole occurrence, warned him that he would include his name in the K.D. list. Thereafter, the second accused made the respondent to stand up and slapped him on cheek and back. The Nokia cell phone found in the possession of the respondent was also taken away by him. The third accused, who watched the whole occurrence, warned him that he would include his name in the K.D. list. Further the incoming Police Officers also would be informed about the activity of the respondent to take severe action as against the respondent in future. Thereafter, all the accused took the respondent to Iluppur Police Station by jeep and obtained his signature in blank papers under coercion and threat. The respondent also meekly submitted himself to the intimidation flowed from the petitioners herein. 4. Under the above serious allegation as against the petitioners herein, the respondent has sought for criminal action as against the petitioners herein based on the private complaint launched by him under Section 190(1)(b) and Section 200 of the Code of Criminal Procedure. 5. In the grounds of appeal, it has been contended that without obtaining sanction for prosecution, the learned Chief Judicial Magistrate, Pudukottai has taken cognizance of the aforesaid private complaint in C.C.No.5 of 2006 and, therefore, quashment of the charges as against these petitioners is warranted. 6. The learned counsel for the petitioners would strenuously contend that the occurrence had allegedly taken place only in the police station. While discharging their function as police officials, they had allegedly misbehaved with the respondent herein. He would further contend that the respondent was, in fact, brought to the police station for the purpose of investigation in a case booked as against him for offences under Section 4(1) J.J. of the Tamil Nadu Prohibition Act r/w Section 420 of the Indian Penal Code. Therefore, this case has been filed just to counterblast the initiation of criminal proceedings as against the respondent. 7. The learned counsel for the respondent would contend that the complaint reflects commission of cognizable offence. Further, it would show that the petitioners had not committed the aforesaid offences during the discharge of their official function. The trial Court has rightly taken cognizance of the case as against the petitioners sans sanction for prosecution. 7. The learned counsel for the respondent would contend that the complaint reflects commission of cognizable offence. Further, it would show that the petitioners had not committed the aforesaid offences during the discharge of their official function. The trial Court has rightly taken cognizance of the case as against the petitioners sans sanction for prosecution. Even otherwise the petitioners have every right to canvass the lack of sanction for prosecution during the stage of trial at which it comes to light that the occurrence took place only during the course of discharging their public duty. 8. The complaint was thoroughly perused by this Court. As rightly pointed out by the learned counsel for the respondent, it reflects commission of various offences under the Indian Penal Code. Therefore, the private complaint is fit for taking cognizance. But the only surviving question is whether the complaint lodged by the respondent as against the police officials can be taken cognizance of, when there is no sanction for prosecution as against them under Section 197 of the Code of Criminal Procedure. As per Section 197 of the Code of Criminal Procedure, if the offence has been committed by a public servant while acting or purporting to act in the discharge of his official duty, then previous sanction for taking cognizance of the offence is required. Further if a public servant is removable from his office not by the State Government or by the Central Government but by some other top level officer, then in that case no sanction is required under Section 197 of the Code of Criminal Procedure for taking cognizance of the offences under the Indian Penal Code. 9. As the first and second petitioners are only Inspectors of Police, who are not removable by the Government of Tamil Nadu, no sanction for prosecution under Section 197 of the Code of Criminal Procedure is required from the State of Tamil Nadu. 10. Coming to the allegation found in the complaint, it is alleged that the petitioners, who were simply present in Viralimalai Police Station, started attacking the respondent on account of previous motive. It is not alleged that the respondent came down for the purpose of co-operating with the process of investigation, nor had the occurrence allegedly unfolded when the petitioners embarked upon any enquiry or investigation. It is not alleged that the respondent came down for the purpose of co-operating with the process of investigation, nor had the occurrence allegedly unfolded when the petitioners embarked upon any enquiry or investigation. Further, there is no allegation in the complaint that the occurrence took place when the petitioners were in the process of effecting arrest or when they were employed in the duty to quell a rioting. The complaint does not divulge any nexus between the official duty of the petitioners and the alleged commission of offence. Though the occurrence had taken place in the precincts of the police station, the allegation found in the complaint does not disclose that the occurrence took place when the petitioners were in discharge of their official duty. 11. During the course of trial, it may come to light as contended by the petitioners that the occurrence took place only when the respondent was brought for the purpose of investigation in connection with the prohibition case. The trial Court will have to look into when called upon to decide such a controversy the date of registration of such a prohibition case as against the respondent to arrive at a conclusion whether the sanction is required for prosecution. 12. The learned counsel for the petitioners cited an authority reported in Sankaran Moitra v. Sadhna Das [2006(1) M.L.J. (Crl) 470], wherein the Honourable Supreme Court has held that when the fact remained that the alleged occurrence had taken place during the course when the Police Officer was engaged in quelling the rioting, it had to be construed that the occurrence had taken place only during the discharge of the official duty of the police officer. Under such circumstances, the Honourable Supreme Court held that previous sanction of the State for prosecution based on such a complaint was warranted. 13. As already pointed out by this Court, the allegation found in the complaint does not divulge that the respondent was attacked when he was brought for investigation. The entire allegation would indicate that only on account of the complaint already lodged by the respondent as against the first petitioner before the Superintendent of Police, Keeranur, the petitioners attacked the respondent and committed the offence. The entire allegation would indicate that only on account of the complaint already lodged by the respondent as against the first petitioner before the Superintendent of Police, Keeranur, the petitioners attacked the respondent and committed the offence. At a pre-cognizance stage, there is no material available before the learned Chief Judicial Magistrate, Pudukottai to come to a conclusion that the occurrence took place when the petitioners discharged their official duty. Therefore, the aforesaid ratio of the Honourable Supreme Court does not apply to the facts and circumstances of this case. 14. This Court in State rep. by Dy. Superintendent of Police, CBI/SCB vs. K.Kalimuthu (Crl.R.C.No.1215 of 2001 and Crl.M.P.Nos.8117 and 8677 of 2001) has held that the reasonable connection between the act complained of and the official duty may surface at any stage of the criminal proceedings. If the prosecution fails to put forth convincingly that the act was not done during the discharge of official duty of the accused, the defence has every right to establish that the act purported to be done was in discharge of official duty. The question of sanction under Section 197 of the Code of Criminal Procedure can be raised at any stage after the cognizance of the offence. There may be cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. 15. The aforesaid Judgment pronounced by this Court was confirmed by the Honourable Supreme Court in K.Kalimuthu V. State, by D.S.P. [2005(2) L.W. (Crl) 719]. The Honourable Supreme Court has categorically held that the question relating to the requirement of sanction under Section 197 of the Code of Criminal Procedure need not necessarily be considered as soon as the complaint is lodged. That question may arise at any stage of the proceeding and it may be determined from stage to stage. The accused has every right to raise that question, if occasion so arises, at an appropriate stage during trial. 16. Drawing inspiration from the aforesaid authorities, it is held that the decision as to the requirement of sanction as contemplated under Section 197 of the Code of Criminal Procedure is not restricted to pre-cognizance stage. The issue may arise at any stage of the trial proceedings depending upon the evidence let in before the trial Court. 16. Drawing inspiration from the aforesaid authorities, it is held that the decision as to the requirement of sanction as contemplated under Section 197 of the Code of Criminal Procedure is not restricted to pre-cognizance stage. The issue may arise at any stage of the trial proceedings depending upon the evidence let in before the trial Court. Sometimes the defence may come out with sufficient material to establish that there had been nexus between the official duty and the act complained of. At that stage, a direction shall be issued to the prosecuting agency to obtain sanction for prosecution. 17. Therefore the proceedings in C.C.No.5 of 2006 taken cognizance of by the learned Chief Judicial Magistrate, Pudukottai based on the allegations found in the complaint and the statements recorded in support thereof cannot be quashed on the sole ground that sanction was not obtained for prosecution as against the third petitioner. The third petitioner is at liberty to raise the point of sanction at any stage of the trial. 18. Under the above facts and circumstances, this Court finds that there is no substance in the grounds seeking quashment of the criminal proceedings in C.C.No.5 of 2006 on the file of the learned Chief Judicial Magistrate, Pudukottai. Therefore, the petition seeking quashment stands dismissed. Consequently, connected M.P.No.1 of 2006 is also dismissed.