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2013 DIGILAW 557 (KER)

Jomon Puthenpurackal v. Joy Kaitharath

2013-07-04

V.K.MOHANAN

body2013
ORDER : V.K. Mohanan, J. 1. As the petitioner herein is aggrieved by the order dated 20/05/2013 in CMP No. 1300/13 in CC No. 1190/09 of the Court of Additional Chief Judicial Magistrate-Ernakulam, by which the petitioner's application for impleading/intervening in CC No. 1190/09 is dismissed, the above petition is filed u/s 482 of Cr.P.C. with a prayer to set aside Annexure 8 order referred above and to issue appropriate orders to the Court below to permit the petitioner to intervene/implead in CC No. 1190/09 of the above Court. CC No. 1190/09 is instituted upon a private complaint preferred by the 1st respondent against the 2nd respondent who is presently the Union Minister, on the allegation that the 2nd respondent/accused has committed the offence punishable u/s 3 of the Prevention of Insult to National Honour Act, 1971, (herein after referred to for short as "the Act" only). The allegation is that the 2nd respondent/accused caused disturbance or disruption to the singing of National Anthem on 16/12/2008 at Le Meridian Convention Centre at Kochi. With above allegation, the 1st respondent herein preferred a complaint, (i.e., Crl. M.P. No. 212/09 before the Court below against the accused who is the 2nd respondent herein, and after due compliance of the procedure as contemplated in Chapter XV of the Code of Criminal Procedure, 1973 (hereinafter referred to for short as "Cr.P.C." only) cognizance was taken for the said offence and thus instituted CC No. 1190/09. While the proceedings in the Court below were in progress and at the stage of hearing, the accused therein preferred an application for his discharge from the above. While so, the complainant filed a petition to withdraw the complaint, stating that the 2nd respondent/accused has tendered a public apology on the issue and therefore he has no interest in pursuing the case further. After filing the above petition for withdrawal at the instance of the complainant therein, the petitioner herein approached the Court below by filing CMP No. 1300/13 in the above crime. According to the petitioner, the dismissal of the above petition is arbitrary, illegal and incorrect. Therefore, he preferred this petition invoking the inherent jurisdiction of this Court u/s 482 of Cr.P.C.. 2. Heard Adv. Sri. Thomas Abraham, learned counsel for the petitioner. I have also perused the impugned order as well as other materials produced along with the above MC. 3. Therefore, he preferred this petition invoking the inherent jurisdiction of this Court u/s 482 of Cr.P.C.. 2. Heard Adv. Sri. Thomas Abraham, learned counsel for the petitioner. I have also perused the impugned order as well as other materials produced along with the above MC. 3. Learned counsel for the petitioner vehemently submitted that the subject matter and the issue covered by the complaint and the case pending before the Trial Court, are touching the integrity of the Nation and National interest and particularly the interests of every citizen of India. It is the further contention of the counsel that, now the complainant in the above case, who is the 1st respondent herein, has preferred an application to withdraw the complaint and resultantly, nobody will be there to prosecute the complaint and to establish the guilt of the accused and to see that he is properly punished. According to the learned counsel, mere expressing of apology by the 2nd respondent will not absolve him from his penal liability, as contemplated by 'the Act'. According to the learned counsel, the petitioner being a human rights activist is entitled to get impleaded in the above case and prosecute the matter, but the learned Magistrate without considering the criminal liability of the 2nd respondent/accused and the constitutional rights of the petitioner, dismissed the petition. In support of the contentions raised by the learned counsel for the petitioner, he placed reliance upon some decisions, which are quoted in the subsequent pages. 4. I have carefully considered the contentions advanced by the counsel for the petitioner and I have thoroughly analysed the stages of the proceedings before the Court below and also scanned the materials produced by the petitioner along with the above MC and also gone through the authorities cited. 5. At the outset it is pertinent to note that the 1st respondent/complainant is also a human rights activist and is engaged in litigations to protect human rights and to weed out corruption. The petitioner also claims to be a human rights activist engaged in weeding out corruption and malpractice taking place in all realms of society. It is not necessary in the light of the facts already referred to above to repeat the facts and circumstances, which lead to the institution of CC No. 1190/09 in the Trial Court. The petitioner also claims to be a human rights activist engaged in weeding out corruption and malpractice taking place in all realms of society. It is not necessary in the light of the facts already referred to above to repeat the facts and circumstances, which lead to the institution of CC No. 1190/09 in the Trial Court. Thus it can be seen that CC No. 1190/09 is instituted purely on the basis of a private complaint and not upon any police report. If that be so, initially the complaint and the proceedings after the institution of CC No. 1190/09, are governed by the provisions as contemplated in Chapter XV of Cr.P.C. Since, the complaint has not been dismissed so far, as contemplated u/s 203 of Cr.P.C., Chapter XIX of Cr.P.C. which deals with the trial of warrant-cases by the Magistrates, is relevant and according to me, the learned Magistrate is bound to follow it in the present case. It is beyond dispute that considering the allegation raised against the 2nd respondent/accused and the offence involved in the case, it is a case which can be triable as a "warrant case" as defined in Section 2(X) of Cr.P.C. particularly when the sentence of imprisonment extends to 3 years or with fine or with both. So, the Court below has to proceed with the procedure as contemplated in sub Chapter B of Chapter XIX of Cr.P.C., as a case instituted otherwise than on police report. Nowhere in the Cr.P.C., any specific provision is incorporated to implead or intervene any stranger in a case which is instituted upon a private complaint. Thus, on a conjoined reading of the provisions in Chapters XV, XIX, XIX(B), XX and XXIV of Cr.P.C., I could not find any specific provision enabling a stranger to get impleaded in a case instituted upon a private complaint and the learned counsel for the petitioner has also miserably failed to bring to the notice of this Court any such provision. This Court, while exercising the inherent jurisdiction u/s 482 of Cr.P.C. cannot ignore the absence of any such provisions as indicated above and permit a stranger to implead or intervene in a case instituted upon a private complaint, for which there is no provision. 6. To circumvent from the above legal hurdles, the learned counsel for the petitioner heavily relied upon the decisions reported in V.S. Achuthanandan Vs. 6. To circumvent from the above legal hurdles, the learned counsel for the petitioner heavily relied upon the decisions reported in V.S. Achuthanandan Vs. R. Balakrishna Pillai and others, A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, Abdul Karim Vs. State of Karnataka and Others Etc., Sheonandan Paswan Vs. State of Bihar and Others, and an order dated 21/05/2008 in Crl. RP No. 1048/08 of this Court. Except the case covered by the decision in AIR 1984 Supreme Court 7185, all other cases are connected with the cases instituted upon the police report. If the State approaches the Court concerned to withdraw a case instituted upon a police report, where the offence involved is triable by procedure as a warrant case or summons case, any citizen aggrieved by such approach can raise a right to audi alteram partem and he can very well submit before the Court that, before passing an order upon the petition u/s 321 of Cr.P.C. for withdrawal of the prosecution, the Court has to hear him and he can convince the Court as to his stand against granting permission to withdraw such a prosecution. The principles laid down for those decisions; according to me, have no relevance and application in the present case, since the proceedings before the Court below are instituted upon a private complaint. 7. In this juncture it is relevant to note that in the decision reported in AIR 1984 Supreme Court 718 A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, the Honourable Apex Court has held that, taking cognizance for the offences punishable under Sections 6(1)(a) and (b) of the 1952 Act by a Special Judge upon a private complaint is legal and entertaining of such complaint has no legal impediment In paragraph 6 of the above judgment, the Honourable Apex Court, after considering the various provisions of the Prevention of Corruption Act (2 of 1947) and Criminal Law Amendment Act, has found that "it is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary". In paragraph 6 of the above judgment the Apex Court has further held that: ....While Section 190 of the Criminal PC permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Cr.P.C. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e., an act or omission made punishable by any law for the time being in force (See Section 2(n), Cr.P.C.) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision. In the matter of initiation of proceeding before a Special Judge u/s 8(1), the Legislature while conferring power to take cognizance had three opportunities to unambiguously state its mind whether the cognizance can be taken on a private complaint or not. The first one was an opportunity to provide in Section 8(1) itself by merely stating that the Special Judge may take cognizance of an offence on a police report submitted to it by an investigating officer conducting investigation as contemplated by Section 5A. While providing for investigation by designated Police Officers of superior rank, the Legislature did not fetter the power of Special Judge to take cognizance in a manner otherwise than on Police report. The second opportunity was when by Section 8(3) a status of a deemed public prosecutor was conferred on a private complainant if he chooses to conduct the prosecution. The Legislature being aware of a provision like the one contained in Section 225 of the Criminal PC, could have as well provided that in every trial before a Special Judge the prosecution shall be conducted by a Public Prosecutor, though that itself would not have been decisive of the matter. And the third opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases to be followed by Special Judge did not exclude by a specific provision that the only procedure which the Special Judge can follow is the one prescribed for trial of warrant cases on a Police report. The disinclination of the Legislature to so provide points to the contrary and no cannon of construction permits the Court to go in search of a hidden or implied limitation on the power of the Special Judge to take cognizance unfettered by such requirement of its being done on a Police report alone. In our opinion, it is no answer to this fairly well-established legal position that for the last 32 years no case has come to the notice of the Court in which cognizance was taken by a Special Judge in a private complaint for offences punishable under the 1947 Act. In our opinion, it is no answer to this fairly well-established legal position that for the last 32 years no case has come to the notice of the Court in which cognizance was taken by a Special Judge in a private complaint for offences punishable under the 1947 Act. If something that did not happen in the past is to be the sole reliable guide so as to deny any such thing happening in the future, law would be rendered static and slowly whither away. Of course, where the State fails to discharge its obligation to the general public and in setting the law in motion, any person or a private complainant can give a complaint, as the protector of the interest of the general public, including a case which involved the offence u/s 302 of Cr.P.C. But in the present case, the situation is entirely different. The prayer of the petitioner is to implead him in a case which was already instituted upon a private complaint, for which there is no provision. The position would have been quite different, if the petitioner initiated to file the complaint in the Court below and came forward with such a complaint and in that case, there is no legal impediment in proceeding with the trial of that case, as in the present case which is pending before the Trial Court. This Court, probably may not be justified in criticizing the petitioner in not filing a complaint at appropriate stage connected with the alleged offence said to have been committed by the 2nd respondent/accused, because the above alleged offence was claimed to have been committed in a meeting held in a Convention Centre and the petitioner was not a participant in it But in the absence of any specific provision, the petitioner cannot step into the shoe of the complainant, especially when the complainant is very much available before the Court below, in the case which was instituted upon his complaint. Suffice to say, though the complainant in the above case has fried a petition to withdraw the complaint, the learned Magistrate declined the request and dismissed the same. In a private complaint, when pecuniary interests or personal reputation etc. Suffice to say, though the complainant in the above case has fried a petition to withdraw the complaint, the learned Magistrate declined the request and dismissed the same. In a private complaint, when pecuniary interests or personal reputation etc. of the complainant or his legal heirs or his family and property are involved, on the death of such complainant, based upon the facts and circumstances involved in the case, the legal heirs can step into the shoe of such complainant and permit them to proceed with the prosecution. But here, the-factual scenario is entirely different, as I indicated earlier. The prosecution or non prosecution of a private complaint is exclusively vested with the complainant, who filed that complaint and the authority to take final decision upon the same is vested with the Court concerned. It is fallacious to hold that two complainants can prosecute a complaint. 8. In this juncture it is relevant to note that the accused in the complaint, approached this Court on two occasions, which resulted in order dated 16/01/2013 in Crl. MC 14/13 and another order dated 14/11/2012 in Crl. MC No. 3108/11, which reported in Sasi Tharoor Vs. State of Kerala, On that two occasions, this Court declined the request of the petitioner therein, who is the accused and 2nd respondent in the present case, to discharge him from the above case and to quash the proceedings pending against him. As I indicated earlier, though the complainant has approached the Court below to withdraw the complaint and the prosecution against the accused, the Court below has dismissed the said petition. So, according to me, there is no basis for the apprehension of the petitioner that the Court below will permit the complainant therein to withdraw the case. In this juncture, it is not out of contest to state that, like the petitioner herein, the complainant who is the 1st respondent herein, is also a public spirited man and human rights activist, who opted to withdraw the complaint. Thus, I am of the view that, in the absence of any specific provision in Cr.P.C. the petitioner's prayer to implead or intervene in a case instituted upon a private complaint cannot be allowed. Thus, I am of the view that, in the absence of any specific provision in Cr.P.C. the petitioner's prayer to implead or intervene in a case instituted upon a private complaint cannot be allowed. Further, when there is no specific provision incorporated in the Cr.P.C. for permitting a stranger to implead or intervene upon a case instituted upon a private complaint, this Court will not be justified in ignoring the absence of such specific provision in the Cr.P.C. and to create or confer such power to the petitioner which is not grafted in the Cr.P.C., which will be resulted in chaos and administrative anarchism in the administration of criminal justice. As CC No. 1190/09 is instituted upon a private complaint otherwise than on a Police report, the petitioner cannot claim that he has the right to be heard against the withdrawal of the case or to prosecute the case, which was instituted upon a private complaint. In the result there is no merit in this MC and accordingly the same is dismissed.