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Madras High Court · body

2007 DIGILAW 3115 (MAD)

Muthusankaralingam v. R. Suresh

2007-09-21

T.SUDANTHIRAM

body2007
Judgment : 1. The petitioner who is the accused in C.C.No. 22 of 2003 on the file of the learned Chief Judicial Magistrate, Madurai, filed against him by the respondent herein for the offences punishable under Sections 454 and 324 I.P.C., seeks to quash the proceedings pending against him. 2. Learned counsel for the petitioner submits that the petitioner is the Inspector of Police and the respondent herein had filed the complaint falsely against the petitioner in order to take vengeance against him since the respondent herein is an accused in C.C.No. 911 of 2003 along with two other accused for offences punishable under Section 341, 387 and 506 (1) I.P.C. which was investigated by the petitioner herein and the respondent was also arrested by him and remanded to judicial custody. 3. Learned counsel for the petitioner submitted that filing the complaint against the petitioner directly before the learned Chief Judicial Magistrate without giving any complaint to the police initially which could have been registered under Section 154 Cr.P.C. and without exhausting the legal remedies available under Section 154 Cr.P.C., and taking congnizance of the said complaint, is not maintainable. 4. Learned counsel for the petitioner further submitted that the alleged occurrence is said to have taken place on 24.4.2003 and the petitioner had acted in the discharge of the duty and as such, the prosecution was barred by limitation in view of the provision under Section 53 of the Tamil Nadu District Police Act, 1859, according to which the prosecution should have commenced within three months after the complaint was lodged. 5. Learned counsel for the respondent who was heard had submitted that the complaint against the petitioner was filed under Section 190 Cr.P.C. and the learned Magistrate has proceeded as per Section 200 Cr.P.C. and absolutely there is no bar in approaching the Court directly by giving a complaint under Section 190 Cr.P.C. without approaching the police. Learned counsel also submitted that the complaint itself was against the police officer and no useful purpose would be served by giving a complaint to the police and as such, the complaint has been filed directly before the learned Chief Judicial Magistrate. Learned counsel for the respondent further submitted that Section 53 of the Tamil Nadu Police Act, 1859 is not applicable to prosecution of this case since the act done by the petitioner is not an official act. 6. Learned counsel for the respondent further submitted that Section 53 of the Tamil Nadu Police Act, 1859 is not applicable to prosecution of this case since the act done by the petitioner is not an official act. 6. This Court has gone through the copy of the complaint and also considered the rival submissions made by both parties. 7. The respondent / complaint herein has filed the complaint against the petitioner under Section 190 Cr.P.C. which reads as follows: 190. Cognizance of offences by Magistrates. (1) Subject tot he provisions of this Chapter, any Magistrate of the first class, specially empowered in this behalf under sub-section- (2) may take cognizance of any offence - (a) Upon receiving a complaint of facts which constitute such offence; (b) Upon it police report of such facts; (c) Upon information received form any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” 8. As per Section 190 Cr.P.C. the learned Magistrate may take cognizance either upon receiving a private complaint or upon a police report or even on information form anyone and even on his own knowledge. If only a report is given to the police officer and if it discloses commission of cognizable offence, then the police is bound to register the said information and to proceed further. Therefore, it cannot be said that for giving the complaint under Section 190(1)(a) Cr.P.C. a report should have been given to the police. If a complaint is given under Section 190 (1) (a) Cr. P.C. Chapter XV of the Code deals about the further procedure with regard to it. 9. In fact, Section 210 Cr.P.C. deals with a situation where there is complaint case and a police investigation in respect of the same offence. Section 210 Cr.P.C. reads as follows : “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. 9. In fact, Section 210 Cr.P.C. deals with a situation where there is complaint case and a police investigation in respect of the same offence. Section 210 Cr.P.C. reads as follows : “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the Police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under Section 173 and on such export cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not the cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” 10. Apart from that if a complaint even under Section 190(1) (a) Cr.P.C. is given the learned Magistrate may either proceed under Chapter XV as mentioned above or under Section 156(3) Cr.P.C. may order for an investigation by the police. Therefore, the contention of learned counsel for the petitioner that the complaint filed directly before the learned Chief Judicial Magistrate is not maintainable without giving any information to the police as contemplated under Section 154 Cr.P.C. is not acceptable in view of the reasons stated above. 11. The next contention whether the prosecution is barred by limitation in view of the provision under Section 53 of the Tamil Nadu District Police Act, 1859 has to be seen. 11. The next contention whether the prosecution is barred by limitation in view of the provision under Section 53 of the Tamil Nadu District Police Act, 1859 has to be seen. Section 53 of the Act reads as follows : “ Limitation of action - All actions and prosecutions against any person which may be lawfully brought for anything done or intended to be done, under the provisions of this Act, or under the provisions of any other law for the time being in force conferring powers on the Police shall be commenced within three months after the act complained of shall have been committed and not otherwise?.” 12. In the decision rendered by the Hon‘ble Supreme Court in S. P. Vaithaianathan v. K. Shanmuganathan AIR 1994 SC 1771 : (1994) 4 SCC 569 , it is observed in paragraphs 6 and 7 as follows : “..6. It seems clear to us that before a prosecution is terminated as barred by Section 53 of the Act, the accused must show that on the allegations made in the complaint, it exfacie appears that the act complaint of was done under the provisions of the Act or under the provisions of any other law for the time being in force where under powers are conferred on the police. It is true that under Section 21 of the Act, a police officer can be said to be on duty all the 24 hours. The prosecution launched against he respondent is in regard to the ill-treatment meted out to the appellant when the latter visited the former in response to the summons. It was no part of the duty under the Act, Code or any other law for the time being in force conferring power on the police to be and torture the appellant when he presented himself before the respondent in response to the summons. By no stretch of reasoning can it b said that the respondents action of torturing the appellant was in discharge of any duty or function under the Act or under any law. It is also difficult to say, the allegations made or taken at their face value, that the respondents action was incidental to or in furtherance of his duties and functions under any law. It is also difficult to say, the allegations made or taken at their face value, that the respondents action was incidental to or in furtherance of his duties and functions under any law. It must be realised that in order to avail of the benefit of Section 53 of the Act, the respondent must show that he acted ‘under‘ the Act or any other law. Merely because the appellant was called through a summons issued under law, the conduct of beating and torturing the appellant on the latter appearing in obedience to the summons can not establish any nexus between the official act of issuance of summons and the acting of the respondent on the appearance of the appellant. Unless a relationship is established between the provision of law ‘under‘ which the respondent purports to act and the misdemeanor complaint of, the provision of Section 53 will not be attracted. In the present case, the allegation in the complaint is that while the appellant was called by service of a summons, presumably to inquire into allegations of illicit distillation the respondent had merely used it as an excuse to secure his presence but in fact his real intention was to beat him up to prevent him form complaining against those who were paying him ‘mamool‘ [illegal gratification) money. Thus, according to the appellant the respondent bore a grudge against him and, therefore he misused his power, issued a summons, secured his presence and then tortured him. He has charged him for the commission of offences under Section 341, 342, 363, 364, 506 (Part II) and 307 I.P.C. This do not attract the provision of Section 53 of the Act. 7. In this view which we are inclined to take in the facts and circumstances of this case, we are fortified by a three-Judge Bench decision of this Court is State of A.P. vs. N. venugopal. The background facts in which this decision was rendered were that during the course of investigation, information was received that one Ramanna had received stolen articles. Ramanna was, therefore, taken into custody and within less than 3 days, the raftered his dead body was found with a number of injuries. The Police officers were prosecuted for having caused the injuries to Ramanna for the propose of extorting from him information which might lead to the detection of an offence and restoration of stolen property. Ramanna was, therefore, taken into custody and within less than 3 days, the raftered his dead body was found with a number of injuries. The Police officers were prosecuted for having caused the injuries to Ramanna for the propose of extorting from him information which might lead to the detection of an offence and restoration of stolen property. The police officers pleaded that the prosecution was barred by limitation by reason of the provisions of Section 53 is not confined only to acts done or intended to be done under the provisions of the Act but extends to acts done or intended to be done under the provisions of any other law conferring powers on the police such as the Code of Criminal Procedure which confers numerous powers of prosecution in respect of any act done or any of these laws has also to be commenced within the period prescribed by Section 53; but the Court held: “ it becomes the task of the Court, whenever any questionwhether this Section applies or not arises to below particular care on its decision. In long this it has to ascertain first what act is complained of an then to examine if there is any provision of the Police Act or other law conferring powers on the police under which it may be said to have been done or intended to be done. The Court has to remember in this connection that an act is not ‘under‘ a provision of law merely because the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done ‘under‘ a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done ‘under‘ the petitioner provision of law”. Proceeding further this Court pointed out that the act of beating or the act of confining was, it is true, alleged to be done at a time when the Police officer was engaged in investigation. But it is not possible to see what reasonable relationship these acts had with the process of investigation. Proceeding further this Court pointed out that the act of beating or the act of confining was, it is true, alleged to be done at a time when the Police officer was engaged in investigation. But it is not possible to see what reasonable relationship these acts had with the process of investigation. Nor an on evidence se how the act of sending away the injured person had any relation to the process of investigation. This Court pointed out that the High Court fell into an error in thinking that whatever a police officer does to a person suspected of a crime at the time when the said officer is engaged in investigating that crime should be had to be done in the discharge of has official duties to investigate and would, therefore, be covered by Section 53 of the Act. Taking this view, this Court reversed the finding recorded by the High Court in this behalf. Applying the said principles to the facts alleged against the officer in this case, it is difficult to agree with the High Court that the case falls within the mischief of Section 53 of the Act‘. 13. The allegations made in this case is that on the particular day of occurrence, the petitioner herein entered into the house of the complaint/respondent herein and kicked him with legs and scolded him saying (TAMIL) and thereafter, instigated the other constables to attack the respondent herein. 14. In view of the decision rendered by the Hon‘ble Supreme Court cited supra, it cannot be said that the petitioner had acted only in the discharge of his official duty. Therefore, Section 53 of the Tamil Nadu District Police Act, 1869, also is not applicable to this case. 15. In the result, this Court finds no merit in the petition. Accordingly, the criminal original petition is dismissed. Consequently, connected miscellaneous petition is also dismissed.