Madras High Court
P.Ravindran vs State Rep. By on 17 February, 2010
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 17.02.2010
Coram
The Honourable Mr. Justice S.TAMILVANAN
M.P.No.2 of 2008 in CRL. RC. SR. No.39510 of 2008
and
M.P.No. Nil of 2008
in
CRL.RC.SR.No.39514 of 2008
P.Ravindran .. Petitioner in both the petitions
vs.
1. State rep. by
The Deputy Superintendent of Police
Vigilance and Anti-Corruption Wing,
Cuddalore. .. First respondent in both the petitions
2. Mr.M.R.K.Paneerselvam .. second respondent in
M.P.No.2 of 2008 in
CRL.RC.SR.No.39510 of 2008
3. Mrs.P.Senthamizhselvi .. second respondent in
M.P.No.Nil of 2008 in
CRL.RC.SR.No.39514 of 2008
Miscellaneous Petitions filed under Section 5 of Limitation Act to condone the delay of 310 days in filing the Crl.R.C.SR.Nos.39510 of 2008 and 39514 of 2008 against the order, dated 02.07.2007 made in Crl.M.P.No.1106 of 2006 and Crl.M.P.No.1105 of 2006 respectively.
For petitioner : Mr.V.Jayaprakash Narayanan
in both the petitions.
For respondents : Mr.P.Kumaresan
Public Prosecutor for R1 in both the petitions
Mr.C.Prakasam for R2 in both the petitions.
COMMON ORDER
The petition in M.P.No.2 of 2008 and the unnumbered miscellaneous petition have been filed under Section 5 of the Limitation Act, seeking an order to condone the delay of 310 days in filing the unnumbered Criminal Revision Petitions filed against the order passed in Crl.M.P.No.1106 of 2006 and Crl.M.P.No.1105 of 2006 in Spl.C.No.2 of 2006 on the file of the Chief Judicial Magistrate-sum-Special Judge, Cuddalore.
2. It is an admitted fact that the unnumbered Criminal Revision Petitions have been filed by the petitioner herein who was a third party to the criminal proceeding, that was disposed of by the court below, by a common order, dated 02.07.2007, whereby the accused were discharged from the alleged offence punishable under Sections 13 (2) read with 13(1) (2) of prevention of Corruption Act, 1988
3. Mr.V.Jayaprakash Narayanan, learned counsel appearing for the petitioner submitted that the second respondent who was arrayed as A1 in Spl.C.C.No.2 of 2006 on the file of the Chief Judicial Magistrate-cum-Special Judge, Cuddalore had filed a petition under Section 239 Cr.P.C. seeking an order of discharge. Similar petition was also filed by co-accused / A2. The second respondent / A1 & A2 have been facing charges for an offence punishable under Section 13(2) read with 13(1) (2) of prevention of Corruption Act, 1988. The Trial Court by a common order dated 02.07.2007 in Crl.M.P.No.1106 of 2006 and Crl.M.P.No.1105 0f 2006, allowed the petitions and discharged the petitioners / A1 & A2 from the alleged offence, that was punishable under Section 13(2) read with 13(1)(2) of Prevention and Corruption Act, 1988. Challenging the said order, the petitioner herein has preferred the unnumbered criminal revision petitions with the miscellaneous petition to condone the delay of 310 days. Learned counsel appearing for the petitioner / third party submitted that the petition filed under Section 5 of Limitation Act, may be considered first and after numbering of the revision petitions, the same be considered by this Court.
4. Per contra, learned Public Prosecutor and the learned counsel appearing for the respondents / A1 & A2 have submitted that the unnumbered revision petitions are not legally maintainable and there is no bonafide reason for the inordinate delay of 310 days to allow the petitions filed under Section 5 of Limitation Act and argued for dismissal of the miscellaneous petitions to condone the delay and reject the unnumbered revision petitions filed by the petitioner / third party.
5. Learned counsel appearing for the respondents submitted that the unnumbered criminal revision petition filed by the petitioner /third party are legally not maintainable and the miscellaneous petitions filed, seeking an order to condone the inordinate delay of 310 days in preferring the unnumbered revision petitions are liable to be dismissed.
6. Learned counsel appearing for the respondent drew the attention of this Court to the order passed by this Court in a similar criminal revision petition in J.M.Arumugam and another vs. State reported in 2009(2) MWN (Cr.) 95 and argued that the petitioner/third party has no locus standi to prefer the revision against the order of discharge recorded by the court below, apart from the fact that there is inordinate delay caused by the petitioner, that was not satisfactorily explained and on that ground, the learned counsel appearing for the respondents requested this Court to dismiss the petition filed in M.P.No.2 of 2008 and also the unnumbered miscellaneous petition filed under Section 5 of Limitation Act and to reject the unnumbered criminal revision petitions in Crl.RC.SR.No.39510 of 2008 and Crl.R.C.SR.No.39514 of 2008.
7. In order to enlighten the legal aspect the following decisions were referred to by both the learned counsel, apart from the decision rendered by this Court reported in 2009(2) MWN Crl.95.
1. Cricket Association of Begal and others vs. The State of West Bengal and others reported in AIR 1971 SCS 1925
2. Pratap vs. State of U.P. reported in AIR 1973 SC 786
3. Nadir Khan vs. The State (Delhi Administration) reported in 1975 (2) SCC 406
4. A.R.Antulay vs. Ramdas Sriniwas Nayak and another reported in 1984 SC 718
5. Sheo Nandan Paswan vs. State of Bihar reported in AIR 1987 SC 877.
6. Krishnan and another vs. Krishnaveni and another reported in 1997 CRL.L.J.1519.
7. R.Rathinam vs. State rep.by DSP, District Crime Branch, Madurai and another reported in 2000 SCC (Crl.)958.
8. K.Anbazhagan vs.Superintendent of Police and others reported in 2003 AIR SCW 6468.
9. K.Pandurangan vs. S.S.R.Velusamy and another reported in 2003 CRI.L.J.4964.
10. Purshottam Vijay and etc., vs. The State and others, reported in 1982 CRI.L.J.243.
11. Mohammed vs. State of Kerala reported in 1982 CRI.L.J.1120.
12. J.M.Arumugham vs. State reported in 2008 (1) L.W. (Crl.) 568.
13. P.Ravindran vs. State rep. By Deputy Superintendent of Police, Vigilance and Anti-corruption Wing, Cuddalore and Others reported in 2008 (3) M.L.J. (Crl.) 535.
8. In the petitions in M.P.No.2 of 2008 in Crl.R.C.SR.No.39510 of 2008 and in the unnumbered miscellaneous petition in Crl.R.C.SR.No.39514 of 2008, the relief sought for is to condone the delay of 310 days in filing the criminal revision petition by the petitioner / third party against the second respondents / A1 & A2, wherein A1 had been Minister for Backward Classes in the Government of Tamil Nadu, during the period 1996-2001. The petitioner / third party has stated that in the year 2006, the first respondent herein had filed final report against the second respondent / A1 and his wife (A2) for commission of offences, punishable under Section 13(2), 13(1)(e) of the Prevention of Corruption Act, 1998 read with Section 109 IPC, on account of acquisition and possession of disproportionate wealth to the known sources of their income and the same was taken cognizance by the Chief Judicial Magistrate-cum-Special Judge, Cuddalore by forming an opinion that a prima facie case was made out against the accused A1 & A2 in Spl.C.C.No.2 of 2006. According to the petitioner herein, the second respondent/A1 and the other accused A2 had purposely dragged on the case till his (A1) political party won in the general election. Again he became a Minister and suddenly proceeded with the case and filed a petition for discharge under Section 227 of Cr.P.C., seeking to discharge the second respondent / A1 and a similar petition was filed by the co-accused / A2 and both the petitions were allowed by the court below. Against which, the unnumbered revision petitions have been filed by the petitioner / third party.
9. The petitioner has averred in the petition that as a citizen of the country, he has the right, to be ruled by persons, whose honesty and integrity in public is not tainted with and also has a duty to maintain purity in administration of the State and according to him, if a Minister is acquitted or discharged or convicted by any criminal court, it will affect the citizens in general. The case was preferred against the second respondent / A1 & A2, under the Prevention of Corruption Act and the accused were charged with serious allegation of amazing wealth by misusing the power of A1's, public office and as a tax payer of the State. The petitioner herein for preferring the revisions, had filed petition requesting certified copy of the complaint, FIR, charge sheet, docket endorsements in relation to the criminal proceedings and finally obtained the copies, pursuant to the orders passed thereon by the Court.
10. It is seen from the records that in order to register the First Information Report and the case, a complaint was given by one Thiru.Ambikapathi, Inspector of Police, Vigilence and Anti Corruption, against Thiru.M.R.K.Paneerselvam (A1) former Minister for Backward class, Government of Tamil Nadu and his wife Tmt.P.Senthamizh Selvi / A2. The case was taken on file, subsequently, Crl.M.P.No.1106 of 2006 in Spl.C.C.No.2 of 2006 was filed by the respondent / A1 seeking discharge under Section 239 of Cr.P.C. Crl.M.P.No.1105 of 2006 in Spl.C.C.No.2 of 2006, a similar petition was filed by the respondent / A2, seeking and order of discharge and by the common order, dated 02.07.2007 passed in Crl.M.P.No.1105 of 2006 and Crl.M.P.No.1106 of 2006, learned Chief Judicial Magistrate-cum-Special Judge, Cuddalore, discharged the second respondent / A1 and the co-accused / A2 from the offences punishable under Sections 13(2), 13(1) (e) of P.C.Act 1988, read with 109 IPC.
11. It is seen that neither the State as complainant, nor the defacto-complainant has preferred any appeal or revision against the order of discharge recorded by the Court below. The petitioner / third party has filed the revision petition seeking an order to set aside the common order dated 02.07.2007 passed in Crl.M.P.No.1105 of 2006 and Crl.M.P.No.1106 of 2006 in Spl.C.C.No.2 of 2006 on the file of the Chief Judicial Magistrate-sum-Special Judge, Cuddalore, discharging the second respondent / A1 & A2 . As there is a delay in preferring the revision petition, the petitioner has filed the miscellaneous petition in M.P.No.2 of 2008 in Crl.R.C.SR.No.39510 of 2008 and M.P.No.Nil of 2008 in Crl.R.C.SR.No.39514 of 2008 to condone the delay of 310 days, in preferring the criminal revision
12. Learned counsel appearing for the respondents submitted that the criminal revision preferred by the petitioner / third party is not legally maintainable and further submitted that there is no bonafide reason stated by the petitioner herein to condone the delay of 310 days in filing the criminal revision petition. Accordingly, learned counsel appearing for the respondents requested the court to dismiss the miscellaneous petition and reject the unnumbered revision petition and another unnumbered miscellaneous petition filed by the petitioner herein.
13. Per Contra, Mr.V.Jayaprakash Narayanan, learned counsel appearing for the petitioner submitted that the petitioner / third party has locus standi to prefer the revision. It is not in dispute that neither the State nor the defacto-complainant has preferred any appeal or revision against the order of discharge recorded by the court below. According to the learned counsel appearing for the petitioner, the second respondent / A1 was holding a public office as Minister and A2 is his wife and therefore, as a citizen and tax payer, the petitioner / third party has locus standi to prefer the revision challenging the order passed by the court below and further contended that only after knowing about the impugned order he approached the court below for getting the certified copy and only after getting the same, he preferred the revision and hence, there is a delay of 310 days.
14. The Points for determination in this unnumbered revisions are as follows:
" 1. Whether the petitioner has satisfactorily explained the delay of 310 days in filing the unnumbered criminal revision petition?
2. Whether the unnumbered criminal revision petition is legally maintainable as stated by the petitioner/third party?"
15. The following decisions were referred to by the learned counsel appearing for the petitioner, for deciding the legal issue involved in the miscellaneous petition and the unnumbered criminal revision petitions.
In P.Ravindran vs. State rep. By Deputy Superintendent of Police, Vigilance and Anti-corruption Wing, Cuddalore and Others reported in 2008(3) MLJ (Crl.)535 this Court has held that third party is entitled to receive certified copies of certain documents from the trial court, in view of the provisions of Right to Information Act, 22 of 2005.
16. It is seen that the said revision was preferred seeking certified copies of certain documents by the petitioner herein. The aforesaid decision is nothing to do with the point for determination in this unnumbered revision preferred against discharge recorded by the court below, with the petition to condone the delay of 310 days.
17. In Pratap vs. State of Uttar Pradesh reported in AIR 1973 SC 786, the Honourable Supreme Court has held that the revision preferred by a brother of the deceased in a case registered under Section 302 of IPC is maintainable. It is not in dispute that the petitioner therein was the brother of the victim, deceased in the case registered under Section 302 IPC and therefore as an aggrieved person, brother of the deceased can maintain the revision. In such circumstances, the law does not expect that he should file any public interest litigation, since he being the brother, was an affected person.
18. However, in the instant case, as contended by the learned counsel appearing for the respondents, the petitioner, who is a third party cannot step into the shoes of the State or defacto-complainant in order to maintain the revision and therefore, the decision reported in AIR 1973 SC 786 (cited supra) is not applicable to the facts and circumstances of the case on hand, as the petitioner / third party cannot be construed as a person personally affected.
19. The Honourable Apex Court by its Constitution Bench in a decision in A.R.Antulay vs. Ramdas Sriniwas Nayak and another reported in AIR 1984 SC 718 has held that a private complaint in respect of offences committed by public servant is maintainable. The Honourable Apex Court has further held as follows:
"Having examined the matter from all the different angles, we are satisfied that the conclusion reached both by the learned special Judge and Division Bench of the Bombay High Court that a private complaint filed by the complainant was clearly maintainable and that the cognizance was properly taken, is correct."
20. In Janata Dal vs. H.S.CHowdhary reported in 1991(3) SCC (Crl.) 933 the Honourable Supreme Court has held thus:
"25.It is most relevant to note that none of the appellants before this Court save the Union of India and CBI is connected in any way with the present Criminal Proceedings initiated on the strength of the First Information Report, which is now sought to be quashed by Mr.H.S.Chowdhary. Although in the FIR, the names of three accused are specifically mentioned none of them has been impleaded as a respondent to these proceedings by any one of the appellants. Even Mr.Martin Ardbo, former President of M/s.A/B/Bofors, who was impleaded as a pro forma respondent in Criminal Appeal No.310 fo 1991 has been given up by the Solicitor General. Therefore, under these circumstances, one should not lost sight of the significant fact that in case this Court pronounces its final opinion or conclusions on the issues other than the general issues raised by the appellants as public interest litigants, without hearing the really affected person/persons, such opinion or conclusions may, in future, in case the investigation culminates in filing a final report become detrimental and prejudicial to the indicated accused persons who would be totally deprived of challenging such opinion or conclusions of this Apex Court, even if they happen to come in possession of some valuable material to canvass the correctness of such opinion or conclusions and consequently their vested legal right to defend their case in their own way would be completely nullified by the verdict now sought to be obtained by these public interest litigants."
21. In Thakur Ram vs. State of Bihar reported in AIR 1966 SC 911, the Honourable Supreme Court has held that in a case being proceeded on a police report, a private party has no locus standi to proceed further, when there is no appeal or revision preferred by the State. It is not in dispute that the defacto-complainant was the author of the complaint given before the police. Based on a criminal complaint, the State, on the principle of criminal jurisprudence holding that a crime is an act against the entire society initiates any criminal proceeding before the court of law, having jurisdiction.
22. The case on hand was registered by the first respondent / State against the second respondent / A1 and the co-accused / A2. Learned counsel appearing for the petitioner submitted that during the pendency of the case, the second respondent/A1 filed a petition for discharge before the court below. Similar petition was filed by the co-accused / A2. The Court below, considering the materials available on record and the arguments advanced by both the learned counsel passed the common order, dated 02.07.2007, discharging respondent /A1 and the co-accused (A2).
23. In Simranjit Singh Mann vs. Union of India reported in 1992(4) SCC 653 the Hon'ble Supreme Court has held as follows:
"Therefore, neither under the provisions of the Code nor under any other statute a third party stranger permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial. It is difficult to accept the contention that, such a public interest litigation commenced by a leader of a recognised political party who has a genuine interest in the future of the convicts should be entertained. The Court must not allow the process to be abused by politicians."
In the aforesaid decision, it has been categorically ruled by the Apex Court that neither under the provisions of the code nor under any other statute, a third party stranger could be permitted to question the correctness of conviction and sentence imposed by courts after regular trial and accordingly declined to accept the contention that such a public interest litigation commenced by leader of a recognised political party has no genuine interest for the petition, being entertained. In the said decision, the apex court has held that court must not allow the process to be abused by any third party.
24. In Vinoy Kumar vs. State of Uttar Pradesh reported in 2001 SCC (Crl.) 806 the Honourable Apex Court has held as follows:
"2... It is a matter of prudence, that the Court confines the exercise of Writ jurisdiction to cases where legal wrong or legal injuries are caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the Court can exercise the Writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason or poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief."
25. In K.Pandurangan vs. S.S.R.Velusamy and another reported in 2003 CRI.L.J.4964 the Honourable Apex Court has held that the accused in that case was entitled to acquittal and accordingly set aside the conviction and sentence though the revision was filed by the complainant before the High Court and the High Court had set aside the judgment of the lower Appellate Court. In the said case, the complainant, a party to the criminal proceeding, preferred the revision, wherein the Hon'ble Apex Court recorded acquittal, but in the instant case, neither the accused not the complainant has preferred the revision, only the third party has preferred the revision and therefore, the decision cited by the learned counsel appearing for the revision petitioner is not applicable to the facts and circumstances of the case on hand.
26. In J.M.Arumugham vs. State reported in 2008 (1) L.W.(Crl.) 568 has held that third party aggrieved by the order of discharge passed by the Chief Judicial Magistrate in a sensational case under the Prevention of Corruption Act can maintain revision seeking certified copies of the material records therein by invoking the Rule 339 of the Criminal Rules of practice. As the rule relates to the right of getting certified copies of any judgment or order of criminal court, however, the same is not applicable to this case, since the revision is against discharge preferred by a third party. This Court in the decision in J.M.Arumugam and another vs. State reported in 2009 (2) MWN (Cr.) 95 has held that a third party, to a criminal proceeding, has no right of subrogation for stepping into the shoes of the defacto-complainant and continue the prosecution case, following on the rulings rendered by the Honourable Apex Court in Rajiv Ranjan Singh "Lalan" (VIII) vs. Union of India reported in 2006(3) SCC (Crl.)125, wherein the Honourable Apex Court had held as follows:
"It is a criminal litigation exclusively between respondents 4 and 5 and the State. It is also important to note that in a case of this nature nobody else has got any right to interfere especially by way of public interest litigation or else such public interest litigation would only hamper the course of justice and may cause prejudice to the accused by denying them a fair trial. This unnecessary interference in the Criminal Case may cause, sometimes, damages to the prosecution case also. In any view of the matter, this sort of interference in the Criminal prosecution would only deny a fair trial to the accused."
27. As contended by the learned counsel appearing for the revision petitioner, he being a citizen of this country can file a criminal complaint against a person holding a public office, if a case is made out, so as to attract the provisions of the Prevention of Corruption Act. Based on the complaint given by the defacto-complainant, case can be registered by the State. In case of discharge or acquittal, the State being the complainant can prefer appeal against acquittal or discharge, even in case of appeal not preferred by the State, the defacto-complainant, who had set the law into motion against the public servant can prefer criminal revision against acquittal or discharge, but a third party cannot maintain a revision petition against acquittal or discharge.
28. In the instant case, admittedly, neither the complainant namely the State represented by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Wing, Cuddalore, nor the defacto-complainant has preferred any appeal or revision against the discharge recorded by the court below, the petitioner herein, a third party to the criminal proceeding has preferred this revision. Relying on the decision reported in 2009 (2) MWN (Cr.) 95 (cited supra), learned counsel appearing for the respondents submitted that the permission sought for by the petitioner to maintain the criminal revision, is only right of subrogation which is nothing but stepping into the shoes of the State or the defacto-complainant, which is not permissible in a criminal proceeding. As per P.Ramanatha Aiyar; Law Lexicon, Second Edition, the meaning of the term 'Subrogation' is given as 'substitution of one person in the place of another', with reference to lawful demand or right. As per Law of Indemnity, after making payment to the victim in a motor accident case, or after making payment, as per insurance coverage for the loss of goods in a consignment, by way of subrogation the concerned insurance company can step into the shoes of the person for whom it was made to pay damages therein and maintain the claim against the person, who caused the loss to the insurance company. As per the criminal jurisprudence the State has prosecuted the case, based on the complaint by assuming the role of the victim, as a crime is a wrong against the entire society. However, if it is a private wrong, it can be construed only as a tort for which, the affected party alone can seek the remedy by claiming damages. In a criminal case, for the benefit of a convicted accused, one can maintain public interest litigation to meet the ends of justice, in order to safeguard human rights, however, the same would not be available to any third party to proceed against the accused, based on the complaint given by a defacto- complainant and if it is permitted that would amount to opening of the flood gate, whereby permitting private persons, seeking remedy for their private vengeance and there would be no end for the same.
29. It is a settled preposition of law that a criminal proceeding cannot be used as an instrument of wrecking a private vengeance either on political reason or otherwise by a third party to the criminal proceeding. As the order of discharge was recorded by the court below, the State being the complainant or the defacto-complainant, could have preferred the appeal or revision against the order of discharge recorded by the court below. Though the revision petitioner could have maintained an independent complaint against the second respondent in M.P.No.2 of 2008 in Crl.R.C.SR.No.39510 of 2008, who was holding a public office, he cannot maintain the revision, based on the complaint given by the defacto-complainant, which was proceeded by the State and was subsequently ended in discharge. Considering the vital legal aspects, in the light of the various rulings of the Honourable Supreme Court, I am of the view that the petitioner / third party to a criminal proceeding is not legally entitled to maintain criminal revision against discharge or acquittal recorded by the trial court, unless he is also an aggrieved person.
30. If a petition to condone the delay, under Section 5 of Limitation Act is filed by a convicted accused, the Court has to show leniency, so as to decide the main revision or appeal on merits. However, in case of petition, filed under Section 5 of Limitation Act, by a complainant or third party, in an unnumbered revision petition, which is legally not maintainable, the Court need not show any leniency in allowing the petition. As the unnumbered revision petitions filed by third party are legally not maintainable, apart from the fact that there is no bonafide reason assigned by the petitioner to condone the inordinate delay of 310 days in filing the unnumbered criminal revision petitions, I answer both the points for determination against the petitioner / third party herein. Therefore, I am of the view that the miscellaneous petition is liable to be dismissed and the unnumbered miscellaneous petition and the unnumbered criminal revision petitions are liable to be rejected.
31. In the result, M.P.No.2 of 2008 in Crl.RC.SR.No.39510 of 2008 is dismissed and the unnumbered miscellaneous petition and the unnumbered revision petitions are ordered to be rejected.
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