Madras High Court
Madan Mohan vs The State on 6 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.OP.No.3697 of 2021
'IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.OP.No.3697 of 2021
and
Crl.MP.No.2211 of 2021
Madan Mohan ... Petitioner
Vs.
1.The State, represented by its
Inspector of Police,
Gobichettipalayam Police Station,
Erode
(crime No.705 of 2019)
2.Alavuthin ... Respondents
PRAYER:
Criminal original petition is filed under Section 482 of Cr.P.C. to call for
the records of SC.No.61 of 2020 on the file of the Principal District Judge,
Erode and to quash the same as illegal and without jurisdiction insofar as it
relates to the petitioner herein.
For Petitioner : Mr.Sharath Chandran
For Respondents
For R1 : Mr.A.Gopinath,
Government Advocate(crl.side)
https://www.mhc.tn.gov.in/judis
Page 1 of 14
Crl.OP.No.3697 of 2021
For R2 : No appearance
ORDER
This Criminal Original Petition has been filed to quash the proceedings in SC.No.61 of 2020 on the file of the Principal District Judge, Erode thereby taken cognizance for the offence under Sections 302, 202 & 176 of IPC as against the petitioner and others.
2. The case of the prosecution is that Al, A2 and the deceased were the employees of Sri Pavanambigai Paper and Board Private Limited. The petitioner is the son of the Managing Director of the company. It is alleged that A1, A2 and the deceased had received their salaries from the company on 19.11.2019 and proceeded to TASMAC shop to consume liquor. A1, A2 and the deceased returned to the employees' quarters, whereupon a quarrel began between A1, A2 and the deceased. It is alleged that the deceased questioned A1 as to why he was being paid only Rs.10,000 when Al had promised to get Rs.12,000/- from the company. It is alleged that the deceased had made derogatory remarks against the wife of A1, whereupon in a sudden fit of rage, Al and A2 assaulted the deceased with wooden logs. It is the further case of the https://www.mhc.tn.gov.in/judis Page 2 of 14 Crl.OP.No.3697 of 2021 prosecution that at about 7 pm on 20.11.2019, PW-11 went to check the deceased, whereupon he was learnt that the deceased was not breathing. PW- 11 alerted PW-1, who immediately alerted the police and called for an ambulance. It is alleged that the petitioner thereafter confronted PW-11 and scolded him for informing to the police, stating that he would have taken care of the body. A case in Crime No 705 of 2019 was registered by the 1st respondent under Section 174 Cr.P.C. The case was subsequently altered to one under Section 302 IPC. After investigation, the 1st respondent has filed a charge sheet.
3. The learned counsel for the petitioner would submit that the trial court ought not to have taken cogniance under Section 176 of IPC as against the petitioner on the basis of a police report, in the teeth of the express bar under Section 195(1)(a) of Cr.P.C. which prohibits a court from taking cognizance of such an offence except upon a complaint by a public servant. The charge under Section 202 of IPC cannot be framed if an accused did not know that an offence, of which he was illegally bound to give information, had been committed. In the case on hand, PW11 who was the watchman of the company had no clue about the death of the deceased at about 11 a.m. on https://www.mhc.tn.gov.in/judis Page 3 of 14 Crl.OP.No.3697 of 2021 20.11.2019. The death of the deceased was came to be known by PW11 only at about 7 p.m. on 20.11.2019. Therefore, the petitioner cannot be charged with failure to give information about the commission of an offence when he had no clue that such offence had taken place.
4. The learned Government Advocate(crl.side) appearing for the first respondent submitted that PW11 categorically stated that when he was informed about the occurrence, he said that he would take care of the matter and not to disclose to anybody. Therefore, offence under Section 202 of IPC is clearly made out as against the petitioner. That apart, there was salary due to the deceased and the same was questioned by him, for which A1 and A2 attacked him with wooden log. Therefore, he sustained grievous injuries and died. As such, the grounds raised by the petitioner can be considered only before the trial court during trial.
5. There are totally three accused, in which the petitioner is arrayed as A3. He is the owner of the Sri Pavanambigai Paper and Board Private Limited. The first and second accused were employees of the said company, which has room facilities to stay by employees. A1 and A2 were staying there https://www.mhc.tn.gov.in/judis Page 4 of 14 Crl.OP.No.3697 of 2021 and they recommended to appoint the deceased in the company owned by the petitioner herein. However, he was paid less salary and as such it was questioned by the deceased to A1 and A2. Therefore, he was brutally attacked by A1 and A2 by wooden log in their room. At that time, the watchman of the company heard about noise and immediately he visited the place. At that juncture, they had beaten the deceased and were coming out of their room. Therefore, the watchman had no knowledge that the deceased died. He had knowledge only to the extent that A1 and A2 had beaten by wooden log. It was informed to the petitioner herein. He stated that he will take care of the matter and not to disclose to anybody. The next day evening only, he visited the room and found that the deceased was without breath. Therefore, it was informed to the second respondent who is the Manager of the company and called ambulance immediately. The body of the deceased was taken to Government hospital and also informed to the petitioner. He scolded the watchman as to why he did not inform to him. Therefore, the watchman was examined as PW1. He categorically deposed that on 19.11.2019 at about 7.45 pm., A1 and A2 attacked the deceased with wooden log. Next day at about 11. a.m., he informed to the petitioner about the dispute between A1 & A2 and the deceased. Thereafter, evening at about 6 p.m., on 20.11.2019, he found that the https://www.mhc.tn.gov.in/judis Page 5 of 14 Crl.OP.No.3697 of 2021 deceased was breathless. Immediately, he informed to the Manager of the company i.e. the second respondent herein and also called ambulance. Therefore, the petitioner had no knowledge about the murder committed by A1 and A2. Even according to the PW11, the petitioner had no clue about the death of the deceased at about 11 am on 20.11.2019. It came to their knowledge only at 7 p.m. on 20.11.2019.
6. In this regard, the learned counsel for the petitioner relied upon the judgment of the High Court of Chattisgarh in the case of Kamal Prasad Patade Vs. State of Chhattisgarh rendered in WP(Cr).No.8 of 2016, wherein it is held as follows:
25. In the matter of Ramphal v. King Emperor10, it has been held that provisions contained in Section 202 IPC are not intended to be punitive in themselves, but are intended to be facilitate information as to the commission of an offence. The report states as under:-
"The second point is more serious and it is to the effect that the report as to the commission of the offence having been admittedly made in the presence of the applicant by the Chaukidar and that report being admittedly correct in all particulars no further duty or obligation lay upon the applicant under the terms of section 45 Cr.P.C., for adding his own https://www.mhc.tn.gov.in/judis Page 6 of 14 Crl.OP.No.3697 of 2021 weight to the information supplied by the Chaukidar by furnishing fresh information on the same lines. In my opinion the contention is sound and must be accepted. It is admitted that in consequence of the information furnished by the village Chaukidar the Sub-Inspector 9 1966 Cr.L.J. 1463 10 AIR 1921 Oudh 227 took action, the result of which was the conviction of the offender, Chote Lal. Consequently justice has been fully satisfied. The provisions of the section are not intended to be punitive in themselves but are intended to facilitate information as to the commission of an offence and thereby to facilitate steps being taken in the investigation of the same. All this object was attained by what happened in this case and particularly by what the Chaukidar had informed the Sub- Inspector in the clearest terms. This view of the law is supported by a series of authorities, three of which have been referred to by the learned counsel for the applicant in the course of the arguments before me. They are The Empress v. Sashi Bhushan Chuckrabutty11, The Queen Empress v. Gopal Singh12, in the matter of the Petition of Pandya Nayak13.
7. Thus it is clear that provision under Section 202 of IPC is not intended to be punitive in themselves but are intended to facilitate information as to the commission of an offence and thereby to facilitate steps being taken in the investigation of the same. Therefore, offence under Section 202 IPC is https://www.mhc.tn.gov.in/judis Page 7 of 14 Crl.OP.No.3697 of 2021 not at all attracted as against the petitioner.
8. Insofar as the offence under Section 176 of IPC is concerned, there is a bar under Section 195 (1)(a) of Cr.P.C. Which prohibits a court from taking cognizance of such an offence except upon a complaint by a public servant. In the case on hand, the petitioner has been charged for the offence under Section 176 of IPC on the police report submitted by the first respondent herein.
9. The point for consideration is that the offence under Section 176 I.P.C., omission to give notice or information to public servant by person legally bound to give it. It is mandatory that any such complaint would be made only by higher authority to the petitioner in view of provision under Section 195 (1) Cr.P.C which reads as follows:
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence ?
(1) No Court shall take cognizance?
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, https://www.mhc.tn.gov.in/judis Page 8 of 14 Crl.OP.No.3697 of 2021 or
(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub clause
(i) or sub clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate?
10. In this regard, the learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court of India rendered in Criminal Appeal https://www.mhc.tn.gov.in/judis Page 9 of 14 Crl.OP.No.3697 of 2021 No.211 of 2019 dated 04.02.2019 in the case of Sh.Narendra Kumar Srivastava Vs. The State of Bihar & Ors., wherein it is held as follows:
20. As already mentioned, clauses under Section 195(1)(b) of the Cr.P.C. i.e. sub section 195(1)(b)(i) and sub section 195(1)(b)(ii) cater to separate offences. Though Section 340 of the Cr.P.C. is a generic section for offences committed under Section 195(1)(b), the same has different and exclusive application to clauses (i) and (ii) of Section 195(1)(b) of the Cr.P.C.
21. In Sachida Nand Singh (supra) relied on by the learned counsel for the appellant, this Court was considering the question as to whether the bar contained in Section 195(1)(b)(ii) of the Cr.P.C. is applicable to a case where forgery of the document was committed before the document was produced in a court. It was held:
6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made https://www.mhc.tn.gov.in/judis Page 10 of 14 Crl.OP.No.3697 of 2021 by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference?
xxx xxx xxx
23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)
(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Accordingly we dismiss this appeal.?
22. In Sachida Nand Singh (supra), this Court had dealt with Section 195(1)(b)(ii) of the Cr.P.C unlike the present case which is covered by the preceding clause of the Section. The category of offences which fall under Section 195(1)(b)(i) of the Cr.P.C. refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) of Cr.P.C, where a dispute could arise whether the offence of forging a document was committed outside the court or when it was in the custody of the court. Hence, this decision has no application to the facts of the present case.
23. The case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) of the Cr.P.C. as the offence is punishable under Section 193 of the IPC. Therefore, the Magistrate has erred in taking cognizance of the offence on https://www.mhc.tn.gov.in/judis Page 11 of 14 Crl.OP.No.3697 of 2021 the basis of a private complaint. The High Court, in our view, has rightly set aside the order of the Magistrate. However, having regard to the facts and circumstances of the case, we deem it proper to set aside the costs imposed by the High Court.
11. The object of the above section is to protect person from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein. Therefore, it is mandatory that the Court has no jurisdiction to take cognizance of any of the offence mentioned therein unless there is a complaint in writing of 'the public servant concerned' as required by the section without which the trial under Section 176 I.P.C. becomes void ab initio.
12. Therefore, the trial court has no jurisdiction to take cognizance under Section 176 of IPC as against the petitioner and it becomes void ab initio. As such, the impugned proceedings cannot be sustained as against the petitioner and it is liable to be quashed. Accordingly, the entire proceedings in SC.No.61 of 2020 on the file of the Principal District Judge, Erode is quashed as against the petitioner alone and this criminal original petition is allowed. https://www.mhc.tn.gov.in/judis Page 12 of 14 Crl.OP.No.3697 of 2021 The trial court is directed to proceed with the trial as against A1 & A2 and complete the same within a period of six months from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is closed.
06.11.2023 Index :Yes/No Internet : Yes/No Speaking order/non-speaking order lok https://www.mhc.tn.gov.in/judis Page 13 of 14 Crl.OP.No.3697 of 2021 G.K.ILANTHIRAIYAN, J.
lok To
1.The learned Principal District Judge, Erode
2. Inspector of Police, Gobichettipalayam Police Station, Erode
3.The Government Advocate, High Court of Madras Crl.OP.No.3697 of 2021 06.11.2023 https://www.mhc.tn.gov.in/judis Page 14 of 14