Madras High Court
R.Siva Subramanian vs The State Represented By on 21 September, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/09/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).Nos.8848 of 2007 Crl.O.P.(MD).Nos.8849 of 2007 and M.P(MD)Nos.2 and 3 of 2007 R.Siva Subramanian ... Petitioner in both the petitions Vs The State represented by The Inspector of Police, CCIW-CID, Virudhunagar. ... Respondent in both the petitions Prayer Petitions filed under Section 482 of the Code of Criminal Procedure, to call for the records relating to the charge sheet filed in C.C.No.184 and 185 of 2003 on the file of the learned Judicial Magistrate No.II, Virudhunagar and quash the same. !For Petitioner ... Mr.M.Subash Babu ^For Respondent ... Mr.Siva.Ayyappan :ORDER
These petitions have been filed to call for the records relating to the charge sheet filed in C.C.No.184 and 185 of 2003 on the file of the learned Judicial Magistrate No.II, Virudhunagar and quash the same.
2. Heard the learned Counsel for the petitioner as well as the learned Government Advocate (Criminal Side) for the State.
3. Broadly but briefly, narratively but concisely the case of the petitioner could be portrayed and parodied thus:
The petitioner was working as Special Officer at S.P.S.P.L. 113 Manthoppu Primary Agricultural Co-operative Bank by taking over the charge with effect from 06.07.2001. The fact remains that earlier to his taking over the charge, one other official namely R.Subbian(A.8) his predecessor, as against whom the proceedings were quashed by this Court vide order dated 23.08.2006 in Crl.O.P.(MD)Nos.162 and 1717 of 2006 was occupying the cited post.
4. The gravamen of the charge is that A.1, the Secretary and A.2 the Office Assistant, joined together and took away the pledged jewels of the Society and repledged it elsewhere and made money out of it. The prosecution would raise the accusative finger as against A.8 as well as the petitioner herein/A.9 as though they failed to bring to the notice of the higher officials relating to such misappropriation of the jewels.
5. Relating to the factual narration is concerned, the learned Government Advocate (Criminal Side) would have no contrary view.
6. The learned Counsel for the petitioner would develop his argument by pointing out that this Court vide order dated 23.08.2006 in Crl.O.P.(MD)Nos.162 and 1717 of 2006, exonerated A.8 from the case on the ground that he had nothing to do with the misappropriation and it at all, there might be any fault on his part, it would be only a supervisory lapse which would attract departmental action and not penal action.
7. Placing reliance on the said judgment, the learned Counsel for the petitioner would implore and entreat, pray and appeal that the same treatment may be meted out to this petitioner also by quashing the proceedings as against him.
8. The learned Government Advocate (Criminal Side) would generally narrate the case and highlight that the petitioner no sooner he had taken charge, he ought to have looked into the facts and brought it to the knowledge of the higher officials, but he failed to disclose the irregularities committed. In this factual matrix as detailed and delineated supra, I would like to refer to Kenny's Outlines of Criminal Law, (Nineteenth Edition - Indian Economy Reprint 2002 - by J.W.Cecil Turner) which would clearly and categorically, expatiate and list out the three stages of participation in a crime viz., (i) accessory before the fact, (ii) Principal Perpetrators and (iii) accessory after the fact. An excerpt from page No.116 of the Treatise cited supra, would run thus:
"Section.4 - ACCESSORIES BEFORE THE FACT.
69. An accessory before the fact is a person who 'being absent at the time of the felony committed, doth yet procure, counsel, commend, or abet to commit a felony.
Section.2 - PRINCIPALS IN THE FIRST DEGREE By a principal in the first degree we mean the actual offender-the man in whose guilty mind lay the latest blamable mental cause of the criminal act. Almost always, of course, he will be the man by whom this act itself was done. Section.5- ACCESSORIES AFTER THE FACT The accessory after the fact stands in a fourth and remoter degree of complicity, which in the case of misdemeanours involves no criminal responsibility at all."
(emphasis supplied)
9. It has to be seen as to whether the petitioner should be arrayed under anyone of the three categories. Certainly, he is not an accessory before the fact as it is not the case of the prosecution that he was a co-conspirator or an abettor. It is also not the case of the prosecution that he is the actual perpetrator of the offence by taking the jewels and repledging elsewhere. Then, the last one is accessory after the fact. No doubt, the prosecution would generally say that he failed to bring it to limelight all those misappropriations. Not to put too fine a point on it, I posed a question to both sides as to whether any of the penal sections of the Indian Penal Code could be attracted for such alleged supervisory lapse. Both sides could not cite any penal section in this regard and even in the Co-operative Societies Act also, there is no penal section which could be invoked.
10. In such view of the matter, there is no other way, but to simply quash the proceedings as against the petitioner in C.C.No.184 and 185 of 2003 on the file of the learned Judicial Magistrate No.II, Virudhunagar. In respect of the remaining accused, the prosecution shall proceed further. Accordingly, both these petitions are disposed of. Consequently, connected M.P(MD)Nos.2 and 3 of 2007 are closed.
rsb To
1.The Inspector of Police, CCIW-CID, Virudhunagar.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.