Madras High Court
Mrs.Shameem vs ) Boopathi on 28 February, 2008
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.02.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.560 and 832 of 2005 Mrs.Shameem ... Petitioner Vs. 1) Boopathi 2) State Rep. by Inspector of Police B.4, Race Course Police Station, (Crime) Coimbatore ... Respondents Criminal Revision Case No.560 of 2005 has been filed under Section 397 and 401 of Criminal Procedure Code against the order dated 28.03.2005 directing her to pay compensation of Rs.100/- to the first respondent under Section 358 of Criminal Procedure Code and for expunging the adverse remarks made against the Revision petitioner and one Periasamy examined as P.W.8 incorporated the judgment of the learned Judicial Magistrate No.III, Coimbatore made in C.C.No.1027 of 2004. Criminal Revision Case No.832 of 2005 has been preferred against the said judgment dated 28.03.2005 acquitting the first respondent herein passed by the learned Judicial Magistrate No.III, Coimbatore in C.C.No.1027 of 2004. For Petitioner : Mr.C.S.Dhanasekaran For Respondents : Mr.R.Nalliyappan (for R1) Amicus Curiae Mr.R.Munniappa Raj (for R2) Govt. Advocate (Crl.Side) JUDGMENT
Criminal Revision Case No.832 of 2005 is directed against the order of acquittal made in C.C.No.1027 of 2004 on the file of the learned Judicial Magistrate No.III, Coimbatore. Criminal Revision Case No.560/2005 is directed against the order directing payment of compensation to the accused in the said C.C.No.1027 of 2004 and for expunging the remarks made against the Revision Petitioner and another Police officer (P.W.2) found in the above said impugned judgment.
2. Boopathy, the first respondent herein/sole accused in C.C.No.1027 of 2004 was prosecuted for an alleged offence punishable under Section 380 IPC. The case was registered on the file of B-4 Race Course Police Station (Crime), Coimbatore as Crime No.741/2004 based on Ex.P1 - complaint lodged by Kishor Kumar (P.W.1) alleging that the first respondent herein/accused committed theft of the jewels marked as MOs.1 to 6 worth Rs.48,000/- from the house of P.W.1 to P.W.3 at about 1.30 p.m. on 12.05.2004. As per the prosecution case, the first respondent herein/accused was arrested at about 5.30 p.m. on 13.05.2004 and based on his confession, the above said jewels marked as MOs.1 to 6 were recovered from the persons who helped him to pledge them. The case was initially investigated by P.W.8 - Periasamy, the then Sub-Inspector of Police attached to B-4 Race Course Police Station, Coimbatore. After the initial investigation, the investigation was continued by one G.G.Ramasamy, the then Inspector of Police, B-4 Race Course Police Station (Crime), Coimbatoe who submitted the final report after completion of investigation. The same was taken on file by the learned Judicial Magistrate No.III, Coimbatore in C.C.No.1027/2004. After having BEEN furnished with the copies of the material papers under Section 207 of Criminal Procedure Code, the first respondent herein/accused denied the allegations made against him. After considering the records, the learned Judicial Magistrate No.III, framed the charges for an offence under Section 380 IPC against the first respondent herein/accused. He denied the charge and pleaded not guilty. Hence he was tried for the said offence.
3. In order to substantiate the charge against the accused, the prosecution examined seven witnesses as P.W.1 to P.W.7 and marked nine documents as Ex.P1 to P9 and also produced MO.1 to 6 jewels as the stolen properties. After the evidence for the prosecution was over, the first respondent herein/accused was questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. He denied them as false and contended that the case had been foisted against him because he continued his friendship with P.W.3, the daughter of P.W.1 and P.W.2 and that the entire case was foisted at the instance of P.W.2 who was then working as an Inspector of Police, All Women Police Station, Karur.
4. The learned Judicial Magistrate, after hearing the arguments advanced on both sides considered the evidence and came to the conclusion that the prosecution had failed to prove the charge against the accused, namely the one for an offence punishable under Section 380 IPC and hence acquitted the first respondent herein/accused in respect of holding him not guilty of the said offence. The learned Judicial Magistrate No.III, Coimbatore proceeded further to hold that the case was foisted against the first respondent herein/accused by P.W.2, the petitioner in both the revision cases, misusing her official position as an Inspector of Police in the Tamil Nadu Police Department, with a view to force the first respondent herein/accused to discontinue his friendship with P.W.3, the daughter of P.W.1 and P.W.2 and consequently directed P.W.2 to pay a sum of Rs.100/- as compensation under Section 358 of Criminal Procedure Code to the first respondent herein/accused for causing his arrest without there being sufficient ground for the same. The learned Judicial Magistrate also directed that P.W.2, the revision petitioner shall undergo imprisonment for a period of one month in case of default in payment of the said amount within the time allowed in the said order.
5. The learned Judicial Magistrate No.III, Coimbatore also passed certain remarks against P.W.8 - Periyasamy, the then Sub-Inspector of Police, B4-Race Course Police Station, Coimbatore who registered the case and G.G.Ramasamy, the Inspector of Police who completed the investigation and submitted the final report. The remarks were made along with a recommendation to the higher officials to take departmental action against them. As against the order directing payment of compensation under Section 358 Cr.P.C. and for expunging the remarks made against P.W.2 (the petitioner in these revision petitions) and the investigating officers, namely P.W.8 - Periyasamy. Challenging the order of acquittal, P.W.2 herself has filed Criminal Revision Case No.832/2005.
6. Though notice was served on the first respondent herein/accused in both the revision cases, he has not chosen to enter appearance either in person or through counsel. Hence Mr.R.Nalliyappan, Advocate was appointed as Amicus Curiae representing first Respondent in both the revision cases. The arguments advanced by Mr.C.S.Dhanasekaran, learned counsel appearing on behalf of the petitioner in both the revision cases, Mr.R.Nalliyappan, learned Amicus Curiae representing the first respondent herein and Mr.R.Munniappa Raj, learned Government Advocate appearing on behalf of the 2nd Respondent herein in both the revision cases were heard. The materials available on records were also perused.
7. The defacto complainant based on whose complaint the case was registered against the first respondent herein/ accused is P.W.1 - Kishor Kumar. P.W.2 - Shameem is his wife, P.W.3 - Nisha is their daughter. As against the order of acquittal P.W.2 - Shameem has preferred a revision in Criminal Revision Case No.832/2005. The learned counsel for the petitioner advancing arguments on behalf of the petitioner, submitted that without properly appreciating the evidence adduced on the side of the prosecution, the court below came to an erroneous conclusion that the charge against the accused was not proved and that the case against the accused was a foisted one; that the court below erroneously disbelieved the evidence adduced on the side of the prosecution regarding the arrest of the accused and recovery of jewels marked as MOs.1 to 6; that the court below gave unnecessary importance to the snap answer given by P.W.3 to the effect that she was available in her house on the date of occurrence and the accused did not come there and that the finding of the court below holding the accused not guilty of the offence was perverse. The learned Amicus Curiae submitted that the court below properly appreciated the evidence and came to the correct conclusion that the prosecution miserably failed to prove the charge framed against the accused; that there was no error or illegality in the judgment of the court below holding the accused not guilty and acquitting him of the offence with which he stood charged and that hence the revision against the acquittal was liable to be dismissed.
8. This court after carefully going through the records, gave its due consideration to the said submissions made on behalf of the appellant and the first respondent herein/accused. The only witness for the occurrence who spoke in favour of the prosecution case is P.W.1 - defacto complainant. The material contradictions found in his evidence in comparison with Ex.P1 complaint has been brought to light by the lower court in its judgment. P.W.1 in his complaint Ex.P1 has stated that on 12.05.2004 at about 1.30 p.m. when he went to his house for lunch, he saw the first respondent herein/accused standing near the bureau and that on seeing him, the respondent herein/accused pushed him to the ground and ran away. This particular aspect that he saw the accused standing near the bureau and the accused pushed him to the ground and ran out is not found in the evidence of P.W.1 in chief examination. In his testimony, he simply stated that on 12.05.2004 at about 1.30 p.m. he saw the bureau in his house found open and some of the jewels weighing 12 = sovereigns were missing. As per the complaint, he found the bureau kept open when he returned home at 1.30 p.m. for lunch. But in the chief examination he has not stated that he found the bureau kept open when he returned home for taking lunch and he had simply stated that while he was in the house on 12.05.2004 he saw the bureau kept open at about 1.30 p.m.
9. According to the evidence of P.W.1, he went to the police station along with his daughter P.W.3, he got the complaint written by his daughter (P.W.3), signed it and handed over the same to the police. Of-course the signature of P.W.3 is also found in Ex.P1 as its scribe. But the case of the prosecution as if P.W.3 also accompanied P.W.1 to the police station and wrote the complaint for P.W.1 in the police station becomes unbelievable as there is nothing in the evidence of P.W.3 to that effect. She has simply stated that her father gave a complaint in the police station. P.W.3 would admit in the cross-examination that the complaint was written by her to the dictation of the Inspector of Police. The same will give room for a suspicion that the complaint itself was prepared using the brain of the police. Attempt made by the prosecution to show that P.W.3 was not there in their house when the occurrence took place and that she saw the accused leaving their house when she returned after meeting her friend, becomes untenable in the light of the admission made by P.W.3 in cross-examination. She has clearly admitted that the first respondent herein/accused was her friend even on the date on which she was giving evidence; that on the date of alleged occurrence she was available in her house and that the first respondent herein/accused did not come there on the date of occurrence. The same will falsify the case of the prosecution that the accused came there on 12.05.2004 and committed theft of the jewels marked as M.O.1 to 6. when the test of careful scrutiny is applied to the testimonies of P.W.1 and P.W.2, in the light of the contradictions pointed out above, the finding of the court below that their evidence was not reliable cannot be held either erroneous or infirm.
10. If the testimonies of P.W.1 and P.W.2 are eschewed, then the remaining evidence is regarding the alleged arrest and recovery. Regarding the arrest and recovery, apart from the official witnesses, namely P.W.7 and P.W.8, P.W.5 and P.W.6 are the witnesses examined on the side of the prosecution. P.W.4 is the attestor of the observation mahazar prepared at the scene of occurrence. As he pleaded ignorance of the contents of the observation mahazar and stated that he and one Syed Mohamed affixed their signatures in the observation mahazar, his signature alone is marked as Ex.P2. The observation mahazar prepared for the alleged scene of occurrence does not have any importance in this case as the same does not in any way help the prosecution to prove its case that there was theft and it was committed by the first respondent herein/accused. One of the attestor, confession statement and recovery mahazar has been examined as P.W.5. P.W.5 does not support the case of the prosecution. Hence he was treated hostile and was cross-examined on behalf of the prosecution. Even then no useful answer was elicited from him. The other witness for arrest, confession and recovery has not been examined. It is the evidence of P.W.6 that on 13.05.2004 at about 5.00 p.m. he along with one Tamilselvan saw the police conducting an enquiry near V.O.C. Park; that their signatures were obtained in that place and that thereafter at about 7.30 p.m. at Tudiyalur and then at Kattur, their signatures were obtained by the police. It is his further testimony that they had been taken to Tudiyalur and Kaattur by the police, but they did not see the recovery of jewels and that they did not know the contents of the documents in which their signatures were obtained.
11. Under these circumstances, though P.W.7 - Tamilselvan to some extent supported the case of the prosecution regarding the recovery of M.O.s.1 to 6, his evidence in chief examination will suggest that he was not the attesting witness for the recovery of the same. Though, he has supported the case of the prosecution that the confession statement was recorded by the police and they subscribed their signatures as witnesses, he would state that he was not aware of the contents of the confession statement. It is true he has also stated that the jewels were recovered from two finance companies, one functioning at Tudiyalur and another functioning at Ram Nagar and that the said jewels were said to be recovered by the police based on the admission of the accused that they were the jewels stolen by him. But the further evidence of P.W.7 that P.W.1 - Kishor Kumar was not present in the place where the accused was arrested and his confession statement was recorded is quite contra to what is found in the Remand Report. In the Remand Report, it has been stated that P.W.1 identified the accused and there upon he was arrested by the police. But at the same time P.W.1 would also state in his evidence that he got the information from the police on 13.05.2004 at about 8.00 p.m. that the jewels had been recovered. According to his further statement there upon he went to the police station and identified the jewels and identified the accused who was there in the police station. According to the prosecution case, the accused was arrested near V.O.C. Park at 7.30 p.m. on 13.05.2004 and he was brought to the police station after effecting recoveries at 10.30 p.m.. Therefore, the evidence of P.W.1 that he went to the police station at 8.00 p.m. on 13.05.2004 and identified the jewels and the accused is quite unbelievable. The court below has properly appreciated the evidence adduced on the side of the prosecution regarding arrest, confession and recovery and upon such appreciation, came to a correct conclusion that the prosecution miserably failed to prove the same.
12. It is not the case of the revision petitioner that the court below omitted to consider any evidence or considered inadmissible evidence. The finding of the court below can at no stretch of imagination be termed perverse. When such is the case, there is no scope for interference with the finding of the court below that the charge against the accused was not proved beyond reasonable doubt.
13. Yet another aspect is worth mentioning in support of the finding of the trial court though the same has not been adverted to in the judgment of the trial court. According to the prosecution case, the occurrence took place at 1.30 p.m. on 12.05.2004 and the complaint was lodged at 4.00 p.m. on the very same day. However, the complaint and the First Information Report reached the court on 17.05.2004. Meanwhile, the accused was shown to be arrested at 5.30 p.m. on 13.05.2004. Why there was such an inordinate delay in despatching the FIR to the court has not been explained? Same will give rise to an inference that the case papers could have been created after securing the arrest of the accused. Under such circumstances, this court finds no scope for interference with the order of acquittal passed by the court below holding the first respondent herein/accused not guilty of the offence with which he stood charged. There is no scope, whatsoever, for interference with the same in exercise of the revisional powers of this court. There is no merit in the Criminal Revision case No.832/2005 and hence the same deserves to be dismissed.
14. So far as Criminal Revision Case 560/2005 is concerned, there is some substance in the challenge made by the Revision Petitioner. Criminal Revision Case No.560/2005 is directed against the Order of the lower court directing P.W.2, the revision petitioner to pay a sum of Rs.100/- as compensation to the first respondent herein/accused, as she had caused the first respondent herein/accused to be arrested without there being reasonable ground for doing so. The said order was passed in exercise of powers conferred on the Judicial Magistrate under Section 358 of Criminal Procedure Code. In accordance with the said section default sentence has also been provided in the judgment of the trial court. The said order directing payment of compensation is challenged on the ground that there was violation of principles of natural justice in so far as she was not heard regarding the same before such an order was passed. According to the learned counsel for the petitioner, opportunity of being heard is a valuable right before any adverse order is passed against a prosecution witness, especially before passing an order directing payment of compensation and in this case since no opportunity of being heard was given to the Revision Petitioner (P.W.2) the said order becomes unsustainable and hence the same should be set aside by this court in exercise of its revisional powers.
15. In support of the said contention, the learned counsel for the petitioner relied on the judgment of Gujarat High Court in Shah Chandulal Gokaldas, and others, v. Patel Baldevbhai Ranchhoddas and others, reported in 1980 CRI.L.J.514. The following were the observations made therein.
"under Section 358 of the Code of Criminal Procedure which deals with compensation to persons who have been arrested without sufficient ground an order can be passed if the Magistrate who hears the case holds that there was no sufficient ground for causing such arrest. Section 250 deals with compensation for accusation without reasonable cause. In the procedure laid down in Section 250 it has been provided that if the person against whom the order is proposed to be passed in present in Court, he can be heard forthwith to show cause whey he should not pay compensation to such accused or to each or any of such accused when there are more than one; or, if such person is not present, the Court has to direct the issue of a summons to him to appear and show cause. Such opportunity of showing cause before the order contemplated by Section 250 Criminal Procedure Code is not t be found in specific terms in Section 358. It must be borne in mind that under sub-section (3) of Section 358, all compensation awarded under Section 358 may be recovered as if it were a fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid, Looking to the consequences which are likely to follow from the order of payment of compensation and looking to the fact that the Magistrate has to come to the conclusion that there was no sufficient ground for causing such arrest, principles of natural justice which must be read into all such Sections and provisions of law require that an opportunity of showing cause and trying to satisfy the Magistrate that there was sufficient ground for causing the arrest should be given to the complainant or the person who caused the alleged wrongful arrest to be made. To that extent the order passed by the learned Additional Sessions Judge is correct. It may be pointed out that if this requirement based on principles of natural justice is not to be read into the provisions of Section 358 of the Code of Criminal Procedure, it is likely that the Section may be struck down on the ground of violation of reasonable procedural requirement contemplated by Articles 14 and 19 of the Constitution. Rule of law which is the basis of the procedural requirements of Articles 14 and 19 of the Constitution presupposes the underlying basis of principles of natural justice and hence by reading down Section 358 the requirement that principles of natural justice have to be adhered to must be read into Section 358.
The said judgment squarely applied to the case on hand. Following the same, this court hereby holds that the order directing the revision petitioner has got to be interfered with and set aside.
16. So far as the adverse remarks passed against P.W.2, P.W.8 are concerned, the learned counsel for the petitioner submitted that such remarks should be expunged as they were passed without giving an opportunity by calling upon them to show cause against the said remarks. In support of the said contention, the learned counsel for the petitioner relied on the judgment of a single judge (A.Ramamurthi, J.) of this court in Smt.M.Rangathal, Inspector of Police, All Women Police Station, Tiruppur, Coimbatore District V. State, rep. by the Deputy Inspector General of Police, Coimbatore Range reported in 1999(2) MWN(Cr.) 130 and a judgment of another single judge of this court (K.N.Basha, J.) in V.Kannapiran v. State rep. by Inspector of Police, K2 Ayanavaram Police Station, Chennai reported in (2007) 2MLJ (crl) 621. In both judgments, the judgment of the Apex Court in Dr.Dilip Kumar Deka V. State of Assam, reported in 1996 (6) SCC 234 has been referred to and relied on. In the said case, the Hon'ble Supreme Court has made the following observations:-
"The tests to be applied while dealing with the question of expunction of disparaging remarks against a person or authorities whose conduct comes in for consideration before court of law in case to be decided by it were succinctly laid down by this Court in State of U.P. v. Mohd.Naim, AIR 1964 SC 703. Those tests are:
(a) Whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself;
(b) Whether there is evidence on record bearing on that conduct justifying the remarks; and
(c) Whether it is necessary for the decision of the case, as an integral part thereof, to animate on that conduct.
The above tests have been quoted with approval and applied by this Court in its subsequent judgments in Jage Ram V. Hans Raj Midha 1972 (1) SCC 181, R.K.Lakshmanan v. A.K.Srinivasan, 1975 (2) SCC 466 and Niranjan Patnaik v. Sashibhusan Kar, 1986 (2) SCC 569.
We are surprised to find that inspite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition, to defend themselves. It cannot be gainsaid that the nature of remarks the learned judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Condemnation of the appellants without giving them an opportunity of being heard was a complete negation of the fundamental principle of natural justice."
17. Following the said judgments and applying the said principle enunciated by the Hon'ble apex court, this court hereby holds that the adverse remarks made against the prosecution witnesses P.W.2 (revision petitioner) and P.W.8 Periasamy and the direction issued to the higher official of the police department (Commissioner of Police, Coimbatore) to take departmental action against them are unsustainable for want of opportunity of being heard and that hence the same are liable to be expunged.
In the result:
i) Crl.R.C.No.560 of 2005 is allowed. The order of the trial court directing the revision petitioner to pay a sum of Rs.100/- as compensation to the first respondent/accused is set aside. The adverse remarks made against the Revision Petition and P.W.8 Periasamy and also the direction to mark a copy of the judgment to the Commissioner of Police, Coimbatore for taking departmental action against them are hereby expunged.
ii) Crl.R.C.No.832 of 2005 is dismissed.
28.02.2008 Index : Yes/No Internet : Yes/No To :
1)The Judicial Magistrate No.III, Coimbatore
2) The Inspector of Police B.4 - Race Course Police Station, (Crime) Coimbatore P.R.SHIVAKUMAR, J., ASR Judgment in Crl.R.C.Nos.560 and 832 of 2005 28.02.2008