Madras High Court
Periyasamy vs State Rep. By The Inspector Of Police on 21 August, 2008
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 10.06.2019
Date of Judgment 06.09.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A(MD)No.397 of 2008
1.Periyasamy
2.Singaram : Appellants/A1 and A2
Vs.
State rep. by the Inspector of Police,
Vattathikottai Police Station,
Pattukottai District.
(Crime No.92 of 2005) : Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of the
Criminal Procedure Code against the judgment passed by the
Additional Sessions Judge & Fast Track Court No.1, Tanjore, in S.C
No.177 of 2008, dated 21.08.2008.
For Appellants : Mr.A.Thiruvadi Kumar
For t Respondent : Mr.A.Robinson,
Government Advocate
(Criminal side)
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2
JUDGMENT
This Criminal Appeal is directed against the judgment passed by the Additional Sessions Judge & Fast Track Court No.1, Tanjore, in S.C No.177 of 2008, dated 21.08.2008.
2.The case of the prosecution is that on 08.06.2005 at about 6.00 pm, the accused and the deceased were sitting in a Malayalee Tea Stall at Neyveli and the accused made an abusive comment on the deceased to shave and due to which, the deceased got angry and quarrel with the accused and both the accused pushed the deceased down and sat on his back and due to the pressure the neck bone fracture, the deceased admitted in a hospital and subsequently he died on 14.06.2005. The respondent police has registered a case against the accused for the offence under Section 302 r/w 34 IPC.
3.In the trial court, 12 witnesses were examined and 14 Exhibits were marked. When the accused were questioned about the incriminating circumstances, they denied the same. On the side of the accused, no witness was examined and no document was http://www.judis.nic.in 3 marked. The trial court convicted the appellants for the offence under 325 r/w 34 IPC, instead of 302 r/w 34 IPC and sentenced them to undergo two years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo six months simple imprisonment. Aggrieved by the judgment passed by the trial court, the appellants are before this court.
4.Heard both sides and perused the materials available on record.
5.The main contention raised on the side of the appellants/accused is that in Ex.P1, it is specifically stated that PW1 preferred the complaint, since her husband/deceased was not able to speak and further PW1 in her evidence admitted that her husband was admitted in the hospital as in-patient for 6 days. In all six days, he did not speak anything and further, the Investigating Officer admitted in his cross examination that he did not examine the deceased since he was not in a position to speak anything and further the alleged statement of the deceased Ex.P2 was recorded by PW10 from the deceased on 10.06.2005 at 10.00 am, but PW1 stated during her evidence that her husband was not in a position http://www.judis.nic.in 4 to speak, when he was admitted in the hospital and hence Ex.P2 is not a genuine one and hence, on the basis of Exs.P1 and P2, the appellants/accused cannot be punished and prays that the criminal appeal has to be allowed.
6.In this case, PW1 is the wife of the deceased and she gave Ex.P1 complaint. PW3 is the father of the deceased. PW1 in her complaint and evidence stated on 08.06.2005 at 4.00 pm, her husband gave fish to her, which was purchased by him in the market and then he told her that he is going to bazzar and at 6.00 pm, she heard that her husband was lying before the Malayalee Tea Stall and she, her father-in-law and mother-in-law went to the Malayalee Tea Shop and she enquired her husband and her husband told that when the accused and he were sitting in Malayalee Tea Stall in Neyveli, both the accused made an abusive comment on him to shave and for that, he got angry and got quarrelled with the accused and both the accused pushed him down and sat on his back and due to the pressure neck bone was fractured and then she took her husband to Vattathikottai Police Station. Since her husband was not able to speak, she gave the complaint and took her husband to Pattukottai Government http://www.judis.nic.in 5 Hospital and then, her husband was referred to Tanjore Government Hospital for further treatment. Hence, the evidence of PW1 is corroborated wit the contents found in Ex.P1 complaint.
7.PW3 deposed that on 08.06.2005, his son purchased fish and gave it to his wife and went to Bazaar and at 6.00 pm, he heard that her son was lying in Malayalee Tea Stall and then his daughter-
in-law and his wife went to the above tea stall and saw that his son was lying in the above tea stall and enquired and the deceased stated that due to abusive comment to shave by the accused, her husband told that when the accused and he were sitting in Malayalee Tea Stall in Neyvelli, both the accused made an abusive comment on him to shave and for that, he got angry and got quarrelled with the accused and both the accused pushed him down and sat on his back and due to the pressure neck bone was fractured and then his wife took her husband to Vattathikottai Police Station. Since his son was not able to speak, his daughter in law gave the complaint and took her husband to Pattukottai Government Hospital and then, her son was referred to Tanjore Government Hospital for further treatment.
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8.The Government Advocate (Criminal side) appearing for the respondent submitted that when the deceased was admitted in Tanjore Government Hospital, the police came and recorded the statement of the deceased, hence it can be treated as Dying Declaration of the deceased and in both the complaint and the statement of the deceased, it was categorically stated that due to the quarrel between the accused and the deceased due to the abusive comment to shave by the accused, and it was refused by him, they assaulted and caused injury to the deceased and due to the injury, the deceased died and hence the accused can be punished and they are not entitled for acquittal.
9.In this case, the statement given by the deceased has been marked as Ex.P2. On careful perusal of Exs.P1 and P2, it was categorically stated that on 08.06.2005 at 06.00 pm, when the accused and the deceased were sitting in Malayalee Tea Stall, both the accused made an abusive comment on the deceased to shave and due to it, the deceased got angry and quarrel arose between the accused and the deceased and both the accused pushed the deceased down and sat on his back and due to the pressure the http://www.judis.nic.in 7 neck bone was fractured and due to the injury the deceased died.
10.It is to be noted here that Ex.P1 was given on 08.06.2005, but Ex.P2 the statement of the deceased was recorded on 10.06.2005. As per the evidence of PW1 on 08.06.2005, her husband was not in a position to speak and she has stated that her husband was not able to speak fluently as before the occurrence and on 10.06.2005, the police came to Tanjore Government Hospital and recorded the statement given by the deceased.
11.The Doctor, who gave first treatment to the deceased was examined as PW4. PW4 deposed that on 08.06.2005 at 9.00 pm, when he was on duty, the deceased was brought to hospital and when he enquired the deceased, he stated that he was assaulted by known persons at 7.00 pm with hand and legs. On Examination of the injured, the injured told that he had pain on the spinal cord and not able to sit and stand and he gave first aid and referred to Tanjore Government Hospital for further treatment. PW4 has not stated that the injured was not in a position to speak on the date.
12.The Doctor, who gave further treatment to the deceased in Tanjore Hospital was examined as PW5. PW5 stated that he admitted the deceased as in-patient and X-ray for hip, two http://www.judis.nic.in 8 legs and left forearm was taken for the deceased.
13.The Doctor, who conducted post-mortem on the deceased was examined as P.W.11 and he found the following injuries:-
External injuries:
1. Abrasion 3 x 2 cm over the occipital region.
2. Bitoneporal surgical puncture wound(traction mark) noted over the scalp. (treatment purpose).
3. Partially healed abrasion with scab formation noted over:-
a) 2 x1/2 cm over the right side of chin
b) 3 x1/2 cm over the left side of chin
c) Multiple in number over and area 6x4 cm over the back and medial aspect of right elbow.
Internal injuries:
4. On dissection of front of neck, contusion over an area of 6x4 cm noted in the lower cervical region, involving the pre and para vertebral muscles. On dissection fracture dislocation of C5 over C6 noticed with injury the http://www.judis.nic.in 9 underlying spinal cord.
Extremities – Cyanosed ; Heart – Normal in size, all chambers contained fluid blood ; Valves – Normal, great vessels – normal, coronary vessels – patent ; Lungs – Both lungs congested and oedematous ; Larynx and hyoid bone – Intact ; Stomach – Contained 100 ml of reddish brown coloured fluid no specific smell.
Mucosa showed congestion with few haemorrhagic patches ; Liver, Spleen, Kidneys – C/S congested : Small Intestines – Empty, Mucosa congested : Bladder – Empty ; pelvis – Intact : Brain – Oedematous c/s normal.
14.PW13 found injuries on the back side of the scalp, right and left cheek, right hand, fracture of C5 and C6 on the neck and spinal cord of the deceased.
15.PW1 and the deceased stated in Ex.P2 that both the accused caused injuries on the neck of the deceased. Hence, the evidence of PW1 is corroborated with the evidence of the Doctors, PW4,PW5 and PW11.
16.It is settled law that when the medical evidence is corroborated with the oral evidence of the prosecution witnesses, http://www.judis.nic.in 10 the accused can be punished.
17.From the evidence of the Doctor PW4, it reveals that at the time of giving Ex.P2 statement, the deceased was in a position to speak. Hence, the argument put forth on the side of the appellants/accused stating that at the time of occurrence and after the occurrence, the deceased was not able to speak and hence, Ex.P2 cannot be relied on is not at all acceptable.
18.In this case, even though the learned counsel appearing for the appellants/accused argued on merits, however, the he filed a memo stating that the appellants/ accused were in jail for the past seven months and prays for leniency of sentence already undergone by the appellants/accused.
19.Keeping in view of the facts, this court is of the considered view that the judgment of the trial court does not require any interference by this court. However, considering the facts and circumstances of the case and also considering the family circumstances of the appellants/accused, the punishment imposed on the appellants/accused requires modification and accordingly, the punishment imposed on the appellants/accused is reduced to 7 months of Rigorous Imprisonment and the appellants are liable to http://www.judis.nic.in 11 pay compensation of Rs.50,000/- (Rs.25,000/- each) to PW1.
20.In the result the Criminal Appeal is partly allowed. The punishment imposed on the appellants is reduced to 7 months RI.
The appellants/accused are directed to pay Rs.50,000/- (each Rs.
25,000/-) to PW1 within a period of two week from the date of receipt of a copy of this order. The fine amount imposed by the trial court is confirmed. The period of sentence, if any already undergone by the accused is set off under Section 428 of Cr.P.C.
The appellants are set at liberty, if their further detention is no longer required in connection with any other case.
Post the matter after four weeks for reporting compliance.
06.09.2019 Index : Yes/ No Internet : Yes/No smn/er http://www.judis.nic.in 12 To
1.The Additional Sessions Judge (Fast Track Court No.1), Tanjore.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3.The Superintendent, Central Prison, Trichy.
http://www.judis.nic.in 13 T.KRISHNAVALLI,J smn/er CRL.A(MD)No.397 of 2008 06.09.2019 http://www.judis.nic.in 14 Regarding the body of a male aged about 30 years, named Rangasamy. Requisition received at 12.10 p.m on 15.06.05 from the Inspector of Police of Thiruchitrambalam Police Station with his letter No. Cr.No.92 of 2005 dated 15.06.05.
Body incharge of Police Constable No. H.C.No.2223 named N. Sambandam.
Identification and caste marks:
1. A black mole over the front of right side of chest situated just below the middle 3rd right clavicle.
2. An old scar 4 x 1 cm over the front of middle third of left leg.
http://www.judis.nic.in 15 The body was first seen by the undersigned at 12.45 p.m on 15.06.05 Its condition then was rigor morits present all over the body.
Post-mortem commenced at 12.45 p.m on 15.0605.
Appearances found at the post-mortem: Moderately nourished body of a male.
Opinion:
The deceased would appear to have died of neck injury involving the vital organ spinal cord 09.04.2019 T.KRISHNAVALLI,J.
http://www.judis.nic.in 16 Pre-Delivery Commmon Judgment made in Crl.A.(MD)No.151 of 2019 09.05.2019 It would be appropriate to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the Code reads as under:
"197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -
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(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
* * * (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government."
The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or unless the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, `no court shall take cognizance of such offence except with the previous sanction'. Use of the words, `no' and `shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word `cognizance' means `jurisdiction' or `the exercise of jurisdiction' or `power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is http://www.judis.nic.in 18 precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
Such being the nature of the provision the question is how should the expression, `any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? `Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar, [1979] 4 SCC 177, it was held :
"The words `any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, `it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."
Use of the expression, `official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have http://www.judis.nic.in 19 been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H. C. Bhari, AIR (1956) SC 44 thus:
"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ... there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed. In S.A. Venkataraman v. The State, AIR (1958) SC 107 and in C. R. Bansi v. The State of Maharashtra, [1970] 3 SCC 537 this Court has held that:
"There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a http://www.judis.nic.in 20 court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed."
The above position was illuminatingly highlighted in State of Maharashtra v. Dr. Budhikota Subbarao, [1993] 3 SCC 339. When the newly-worded section appeared in the Code (Section 197) with the words "when any person who is or was a public servant" (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure, 1898) a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa [1998] 6 SCC 411 that the legal position must be treated as changed even in regard to offences under the Old Act and New Act also. The said contention was, however, repelled by this Court wherein a two-Judge Bench has held thus:
"A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 197 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction."
The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application.
Section 197(1) provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government.
http://www.judis.nic.in 21 We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed "it appears to us that protection under the Section is needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It was in pursuance of this observation that the expression `was' come to be employed after the expression `is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.
Above position was highlighted in R. Balakrishna Pillai v. State of Kerala, AIR (1996) SC 901, in State of M.P. v. M.P. Gupta, [2004] 2 SCC 349, in State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew [2004] 8 SCC 40, and in Shri S.K. Lutshi and Anr. v. Shri Primal Debnath and Anr., [2004] 8 SCC 31. When the factual position is considered in the background of legal principles elaborated above the inevitable conclusion is that the High Court was not justified in holding that the Section 197 was not applicable to the facts of the case. In the instant case, therefore Section 197 of the Code had clear application. High Court only focused on the absence of the search warrant and totally ignored other relevant aspects. Though the allegations about alleged offences had their matrix on the absence of search warrant, the other circumstances noted above had a determinative role in the issue. The events, if any, which allegedly took place after 11.7.1996 on which emphasis was laid by the respondent no.2 have really no relevance for the issue under consideration. Their effect, if any, can be considered at the appropriate stage. We make it clear that the view expressed by us is only in respect of applicability of Section 197 of the Code.
The appeal in the above said circumstances is allowed. The order of the Magistrate taking cognizance consequently is set aside.
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