Andhra Pradesh High Court - Amravati
M.Padmanabham vs The State Of A.P., on 28 October, 2024
APHC010720092018
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
MONDAY ,THE TWENTY EIGHTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL REVISION CASE NO: 353/2022
Between:
Sugan Chandra Gupta ...PETITIONER
AND
Shri M M K Murty and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. PARTY IN PERSON
Counsel for the Respondent(S):
1. CH B R P SEKHAR
2. PUBLIC PROSECUTOR (AP)
The Court made the following:
2
Dr. VRKS, J
Crl.R.C.No.353 of 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.353 of 2022
ORDER:
This Criminal Revision Case filed under Sections 397 and 401 of Code of Criminal Procedure (Cr.P.C.) impugns the order dated 01.08.2018 of the learned VIII Additional Chief Metropolitan Magistrate, Gajuwaka in DDR No.4299 of 2018. By the said order the complaint filed by the revision petitioner was dismissed.
2. Various grounds are alleged in the revision and the revision petitioner- Sri Sugan Chandra Gupta having been permitted as per the rules appeared and argued in person. For respondents, Sri Ch.B.R.P.Sekhar, the learned counsel appeared and submitted arguments. There is on record counter affidavit filed on behalf of the respondents and a reply counter affidavit filed by the revision petitioner.
3. According to the revision petitioner, these respondents committed offences under Sections 166,167, 192, 120A, 107 and 119 read with 34 and Section 44 I.P.C and the learned Chief Metropolitan Magistrate ought to have summoned them and 3 Dr. VRKS, J Crl.R.C.No.353 of 2022 prosecuted them and its failure resulted in injustice. In such circumstances, it is relevant to find out what is stated in the complaint and for that purpose the complaint is extracted as below:
"IN THE HONOURABLE COURT OF VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT GAJUWAKA, VISAKHAPATNAM.
DDR NO. 4299/2018
BETWEEN
Sugan Chandra Gupta Complainant
And
1. Sri MMK Murty ED(MM-Retd), RINL, Visakhapatnam Steel Plant.
2. 2.Sri NR Prasad, GM(MM), RINL, Visakhapatnam Steel Plant.
Accused COMPLAINT FILED UNDER SECTION 200 OF Cr.P.C. FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 166, 167, 192, 120A, 107 AND 119 READ WITH Sec 34 AND 44 OF IPC I. The Complainant is:4
Dr. VRKS, J Crl.R.C.No.353 of 2022 Shri Sugan Chandra Gupta, S/o Late Jagadish Prasad Gupta, Hindu, Aged 58 yrs, Hindu residing at Dr.No.31-45- 7/2, Vudanagar Ph-2, Kurmanpalem, Visakhapatnam-530049 (AP) is an employee of Rashtriya Ispat Nigam Limited, (RINL), Visakhapatnam Steel Plant, Visakhapatnam 530031.
The address of the complainant for the purpose of service of summons, notices etc is as stated above. II The Accused are:
1. Shri MMK Murty Executive Director(MM) RINL, Retd. s/o Not known to Complainant, Aged-61 years, Hindu, residing at Fiat no 102, Sai Krishna Towers, Opposite HP Gas, Muralinagar, Visakhapatnam (A. P) PIN-530007.
2. Shri N R Prasad, GM(MM-Stores, RINL), s/o Not known to Complainant, Aged-57 years, Central Stores Department.
Visakhapatnam Steel Plant, Visakhapatnam (A.P.) PIN- 530031.
All the accused are major and the addresses of the accused are for the purpose of service of notices and summons as stated above.
1. The complainant submits that the accused Al and A2 are 'Public Servant' within the meaning of Section 21 of Indian Penal Code 1860, during the relevant period of commission of the offences. The complainant, also submits that the accused being officers of a Government company, do not require prior sanction for prosecution under Sec 197 of Cr.P.C., and also as per Hon'ble Supreme Court Judgment in 5 Dr. VRKS, J Crl.R.C.No.353 of 2022 Mohmd, Hadiraja vs State of Bihar delivered on 28th April 1998.
2. The complainant submits that Rashtriya Ispat Nigam Ltd, Visakhapatnam Steel Plant is a company incorporated under Companies Act 1956 and is a Government Company within the meaning of Sec 617 of Companies Act, 1956 and therefore is 'State' under Art 12 of Constitution of India. The accused A1 and A2 were responsible for the management of Materials Management Department of the Visakhapatnam Steel Plant during the relevant period.
3. The Complainant further submits the procedure and rules of Visakhapatnam Steel Plant are law for the Complainant as well as to the A1 and A2, under Art 13(3) of the Indian Constitution. The Complainant submits that A1 and A2 are under obligation to prevent commission of offences under Sec 119 of IPC, instead of that, they themselves committed the offences directly or by abetting(Sec 107 of IPC) causing injury(Sec 44) to the complainant.
4. The Complainant most respectfully submits that A1 and A2, who were/are responsible for the management of Central Stores Department of RINL, Visakhapatnam Steel Plant, caused injury (under Sec 44 of IPC) to the Complainant by committing or abetting criminal acts under Sec 166,167,192 and 120A in furtherance of common intention, by conspiring together (Sec 34,107, and 120A of IPC). The subject relates to transfer order issued on 10th Oct 2015, by A-2 in the Visakhapatnam Steel Plant. (Exhibit-1, Page- 8) 6 Dr. VRKS, J Crl.R.C.No.353 of 2022
5. The complainant submits that he has been working in the executive capacity in Visakhapatnam Steel Plant from 5th July, 1983 and is in the present position of Dy General Manager (MM) from 30.06.2007. He was and is working in the same position in the Central Stores Department and reporting to A2, who in turn was reporting to A1, at the time when offences were committed.
6. The organization has four levels of officers/executives i.e., Top level that includes Directors, Chairman-cum- Managing Director, Sr Management level of E7 TO E9 that includes Dy General Manager(E7) level to Executive Director(E9) level, Middle Management (E5 and E6) level and Frontline Management(JO E0, E1, E2, E3 and E4) level. Each level of management is associated with certain types of function, powers, prestige and responsibility. Sr Management level is associated with the overall functional responsibility of an area with secretarial assistance and several middle level officers reporting to him. The transfer and assignment of functional responsibility of the Sr Management level is the function of Top Management and guided by Delegation of Powers issued by the organization, which is the law (The relevant extract of General powers relating to transfer of executives is at Exhibit
-2).
7. The complainant had a suspicion of violation of delegation of powers and therefore made a complaint to Vigilance Department of the PSU, but to utter disappointment of Complainant no action was forthcoming and therefore he was constrained to approach the authorities under RTI to furnish the investigation and action taken report. It was not furnished 7 Dr. VRKS, J Crl.R.C.No.353 of 2022 under one pretext or other even by Appellate Authority. Appeal to Central Information. Commission was filed and on case being heard after almost an year CIC passed order for providing the report on 15th Dec 2018. (Exhibit-3, Page 13). The report, that was provided was also an incomplete one, against which a communication is submitted, to which reply is awaited. (Exhibit-4, Page-16 & 49). The report reveals the mens rea of the accused, misrepresentation and false statements of the accused.
8. The Complainant received the information/document on his transfer through RTI(Exhibit 6 Page-41) and to his utter surprise found that offences Under Sec 166, 167, 192, 120A, 107, 119 read with Sec 32 and 44 of IPC 1860 are committed by the Accused.
9. The Complainant submits that A1, under law (Page 12) is not empowered to transfer the individuals at E7 level and illegally approved the transfer of the complainant, illegally proposed by A2 knowing fully well the law on the subject, that they do not have powers to effect the transfer and no additional delegation for transfer was made by the company as stated in the Vigilance report. (Exhibit-6, Page- 42). The A1 has falsely certified that the transfer(Exhibit-1, Page-8) has the approval of competent authority (Page 8). Thus A2 has fabricated the document at Exhibit-1, having fabricated the evidence of approval by A1, also in connivance with Al knowing fully well the law on the subject, being executives of the organization for more than three decades. 8
Dr. VRKS, J Crl.R.C.No.353 of 2022
10. The complainant submits that in the process the accused A1 and A2 injured the Complainant by transferring him without authority and also affecting his reputation, positional authority by assigning him no job, no subordinate not even a secretarial assistance (Sec 44 of IPC).
11. The Accused were/are public servant and it was their duty to prevent the commission of various offences stated in the Petition. Even the concealment of design to commit such an offense is punishable under law, as it is their duty to prevent commission of such offence. The individual Accused in the petition, who all were/are public servant at the time of commission of offence and whose duty was to prevent commission of such offence, instead of it, have committed the offences themselves and therefore also attract punishment under Section 119 of the Indian Penal Code.
12. The Petitioner affirms that the learned Magistrate's jurisdiction is invoked for criminal acts carried out by the Accused 1 and 2, and not for any civil relief. There is no patent absurdities in the evidence produced by the Complainant and they are obtained through legal process of RTI.
13. The Complainant submits that the accused Al and A2 in connivance with each other have prepared false documents, violating the procedure relating to delegation which is the law, with common mala fide intention of promoting their own nefarious design. The Complainant therefore submits that following offences under Indian Penal Code has taken place or/and abetted.
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Dr. VRKS, J Crl.R.C.No.353 of 2022
1. Public servant disobeying law with intent to cause injury, i.e., non-following of delegation of powers (Sec 166 of IPC).
2. Public servant framing incorrect document i.e., the transfer order of 10th Oct 2015 (Sec 167 of IPC).
3. Fabricating false evidence i.e., Fabricating the proposal and the approval for transfer effected on 10th Oct 2015 (Sec 192 of IPC).
4. Criminal conspiracy to cause injury to complainant (Sec- 120A of IPC). The accused Al and A2 are fully aware of the law. Knowing fully well the law they have connived together to cause injury to the complainant by their acts of commission, connivance and abetment (Sec 107 of IPC).
5. The accused A1 andA2 are/were public servant have concealed design to commit offences which they are under legal obligation to prevent (Sec 119 of IPC). The offences took place at Visakhapatnam Steel Plant which is within the jurisdiction of this Honourable Court. It is therefore prayed, that the Hon'ble court may kindly take cognizance of the offences, order police investigation and punish the accused with utmost sentence according to law.
COMPLAINANT, SUGAN CHANDRA GUPTA 10 Dr. VRKS, J Crl.R.C.No.353 of 2022 VERIFICATION The above stated facts are true and correct to the best of my knowledge, belief and information.
SUGAN CHANDRA GUPTA, COMPLAINANT Dr. no 31-45-7/2 Vudanagar Ph-2, Kurmanpalem.
Visakhapatnam-530049, Mob 9949473560"
4. Learned Chief Metropolitan Magistrate recorded the sworn statement of the complainant and considered the material on record and stated that prima facie no case is made out from the averments in the complaint and the sworn statement and the documents filed along with the complaint as the matter involved was with reference to transfer of the complainant and the dispute raised is civil in nature and therefore criminal process could not be granted. One of the aspects that fell for consideration before the learned Chief Metropolitan Magistrate was whether the respondents were public servants and whether Section 197 of Cr.P.C. requiring prior sanction for prosecution was required or not. After noticing the definition of public servant in Section 21 I.P.C. and after noticing the precedent, it held that to take cognizance under Sections 166 and 167 I.P.C. against public servants sanction for prosecution under Section 197 Cr.P.C. was 11 Dr. VRKS, J Crl.R.C.No.353 of 2022 required. It held that the respondents were public servants. With the aforesaid reasons, it dismissed the complaint in terms of Section 203 Cr.P.C. stating that there are no sufficient grounds to proceed further.
5. The point that falls for consideration is:
"Whether on facts it could be said that respondents have committed a crime to be prosecuted under any of the penal provisions of the Indian Penal Code and whether the impugned order of the trial Court is illegal or irregular requiring interference?
POINT:
6. The essence of the allegations as seen from the averments in the complaint and as seen from the grounds urged in the revision is to the following effect:
There are Rules and Regulations governing transfer of employees and officers in Rashtriya Ispat Nigam Limited, Visakhapatnam Steel Plant which is a Government Company incorporated under the Companies Act, 1956. There are Rules and set guidelines delegating powers to certain authorities to do 12 Dr. VRKS, J Crl.R.C.No.353 of 2022 certain acts. The respondents, in violation of powers delegated, acted illegally and affected transfer of the revision petitioner and put him in such inconvenient position where he was not allocated requisite work and left him idle and left him without any secretarial assistance which he was authorized and entitled by virtue of the cadre he has been holding. In the light of those acts of the respondents, the contention raised is that all those Rules and Regulations governing transfers and delegation of powers are law and the respondents with a view to injure the revision petitioner violated those laws and therefore, they should be prosecuted and punished. It is specifically mentioned in the complaint that the revision petitioner is not seeking any civil relief, and he intends criminal prosecution only. While the counter affidavit filed by the respondents asserts that the orders dated 10.10.2015 issued by respondent No.2 are not transfer orders and they relate only to allocation of distribution of work in the material management department. It further asserts that the revision petitioner was neither reduced in rank nor demoted and in fact he has been working in pursuance of the disputed orders and has been drawing his salary and any grievance of him concerning his service matter may have to be adjudicated before relevant 13 Dr. VRKS, J Crl.R.C.No.353 of 2022 superior authorities and take proceedings before Grievance Cell and instead of doing that, the revision petitioner gave a colour of criminal law and intends to initiate criminal process while no crime was committed by record.
7. It has to be stated that on considering all the facts, the fact that emerges on record is a dispute raised with reference to transfer or allocation of work and violation of powers and a delegatee exercising more power than what was delegated.
Though complaint is annexed with several documents, none of them do indicate any penal consequences for violation of any of those Rules and Regulations. Criminal law cannot be set in motion unless the facts alleged prima facie indicate commission of an offence. Wrongs are divided into private wrongs and public wrongs. Private wrongs are an infringement of private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed as civil injuries. A breach and violation of public rights and duties which affect the whole community considered as a community, and acts that are deemed by law to be harmful to society in general, even though its immediate victim is an individual are called as crimes. Those 14 Dr. VRKS, J Crl.R.C.No.353 of 2022 who commit such acts are proceeded against in order to punish them.
8. The facts asserted in the case at hand are purely civil in nature and they pertain to service irregularities or violation of certain rules governing the services of officers working in the said organization. Even if the respondents conspired and procured orders harming the career of the revision petitioner, they cannot be termed as crimes. Chapter IX of Indian Penal Code pertains to offences by or relating to public services. Sections 166 and 167 I.P.C. are cited in the complaint. Section 166 I.P.C. is about public servant disobeying law with intent to cause injury to any person. Section 167 I.P.C. is about public servant framing an incorrect document with intent to cause injury. Section 44 I.P.C. states that "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. The grievance of the revision petitioner is that he is injured by the orders passed by the respondents. The only submission of the revision petitioner is that law mentioned in Sections 166 and 167 I.P.C. is the service rules of his organization and respondents intentionally violated them to injure him. It is undisputed that he complied with 15 Dr. VRKS, J Crl.R.C.No.353 of 2022 those orders and has been serving in the position in which he was placed and was discharging his duties and has been drawing his salary. He does not want to pursue his civil remedies. He wants the Court to see such acts on part of respondents within the conspectus of Sections 166 and 167 I.P.C. All that submission goes to show that what was done by respondents was not to the desire of the revision petitioner. Be it noted that the acts attributed against the respondents did not injure his body or property. It is only the belief of the revision petitioner that those orders are not befitting his cadre and therefore, injured his reputation. The belief he holds is personal and the orders passed need not meet his beliefs. At any rate, belief of the nature held by the revision petitioner is not relevant for consideration since the acts alleged by themselves have no nexus to be called as crimes. The Service Rules and Regulations in the organization were to govern the human resources and any violation in them do not amount to a penal offence under the Indian Penal Code. In fact, the Rules and Regulations relied on by the revision petitioner also do not indicate any penal consequences to follow when there is a violation.
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Dr. VRKS, J Crl.R.C.No.353 of 2022
9. Chapter XI of Indian Penal Code is about false evidence and offences against public justice. The revision petitioner mentions Section 192 I.P.C. in his complaint. Section 192 I.P.C. is about fabricating false evidence such as making false entry in any book or any record or making any document intending that such false statements or entries may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant. Be it noted that the entire contents of complaint and the grounds urged in the revision do not indicate that any such proceedings are prepared with a view that they could be evidence in a judicial proceeding so as to attract the provision. Coming to making a fabricated document which the complaint alleges, the fact is that relevant proceedings were issued by respondents and they were complied with by the revision petitioner. There was no false entry or preparation of a false document. What was alleged was that incompetent person incorrectly passed such orders in violation of powers delegated to them. The complaint mentions Section 120A I.P.C. which defines what is criminal conspiracy. Complaint also mentions Section 107 I.P.C., which defines abetment of a thing. Complaint mentions Section 119 I.P.C. which provides a public servant 17 Dr. VRKS, J Crl.R.C.No.353 of 2022 concealing design to commit offence which it is his duty to prevent. Complaint further refers to Section 34 I.P.C. which says about acts done by several persons in furtherance of common intention. Thus, Sections 120A, 107, 119 and 34 I.P.C. would come into operation only when the others substantive offences are made out in a case. As stated above, even after considering all the facts alleged by the revision petitioner are taken to be true, they do not attract any of these penal provisions. Thus, the view held by the trial Court that it found no prima facie case to initiate criminal prosecution and that what was complained before the Court was only civil in nature is right on facts and law and no interference is needed at all.
10. The other contention of the revision petitioner which questions the impugned order of the learned Chief Metropolitan Magistrate is to whether respondents are public servants or not and whether the sanction for prosecution was required or not. They are immaterial for consideration since the complaint did not indicate a crime so as to proceed further. Therefore, the order of the trial Court in dismissing the complaint in terms of Section 203 of Cr.P.C. has to be upheld. There is no irregularity or illegality or 18 Dr. VRKS, J Crl.R.C.No.353 of 2022 impropriety in the said order requiring any interference by this revisional jurisdiction. The revision is misplaced and shall be dismissed. The point is answered against the revision petitioner.
11. In the result, this Criminal Revision Case is dismissed.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 28.10.2024 Ivd 19 Dr. VRKS, J Crl.R.C.No.353 of 2022 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.353 of 2022 Date: 28.10.2024 Ivd