Madras High Court
G.Kannan vs Ganesan on 22 July, 2020
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.7391 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.07.2020
PRONOUNCED ON : 22.07.2020
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.7391 of 2013 and
Crl.M.P.Nos.1 & 2 of 2013
G.Kannan,
Inspector of Police,
now posted as
Inspector of Police,
Security, Chennai Police
at Secretariat, St.George Fort,
Chennai 600 009. ... Petitioner
Vs.
Ganesan ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure, to quash the complaint filed by the complainant in
C.C.No.4544 of 2012 pending on the file of learned XIII Metropolitan
Magistrate, Egmore, Chennai in so far as the petitioner is concerned.
For Petitioner : M/s.Svaak Legal
For Respondent : Mr.R.Nandhakumar,
Legal Aid Counsel
*****
ORDER
The petitioner/A1 is facing trial in a private complaint filed by the respondent in C.C.No.4544 of 2012 for offence under Section 294(b), 341, Page 1 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 324 r/w 34 IPC pending on the file of the XIII Metropolitan Magistrate Court, Egmore.
2.The petitioner along with three others/A2 to A4 are facing trial in C.C.No.4544 of 2012. The petitioner was then, the Inspector of Police, L & O, D-6, Anna Square Police Station, Chennai. The gist of the case is that on 03.03.2009 at about 08.30 a.m., the respondent, who is the Chennai District Joint Secretary of the Revolutionary Students Youth Front, Tamil Nadu organized demonstration relating to Sri Lankan Tamil issue, along with Mathivanan, Arulgopinath, Muthukumar and Vinothkumar and the college students participated in a gate meeting at the gate of the Presidency College, Chennai. The petitioner along with A2 to A4, who are the other police personnels armed with lathis, used abusive language and assaulted the respondent and four others by uttering “why do you repeat after witnessing the beatings at the High Court”. The respondent and others were taken to D-1, Triplicane Police Station, where the respondent was beaten with lathis, boots and hands of the petitioner, the 2nd accused caught hold, the said Mathivanan beaten with hands and lathi. The 4th accused on the right elbow of the respondent, the 3rd accused stripped off the clothing of Mathivanan and beat Page 2 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 him with hands, the said Arulgopinath and Vinothkumar were beaten with hands by the 3rd and 4th accused, also stripped off their clothss, the said Muthukumar was beaten with hands on the head and face by all the accused and he was stripped of his clothing. Thereafter, a case came to be registered against the respondent and others in Crime No.37 of 2009 for offence under Section 147, 353, 294(b), 506(i) IPC r/w 188 IPC and Section 3 of the Tamil Nadu Public Property Damage Act. During remand, the respondent and others complained to the learned Magistrate about the brutal assault while in police custody. The respondent and others were directed for medical examination under Section 54 of Cr.P.C., and were examined by the Doctors in Government Royapettah Hospital, Chennai. In the complaint, it is mentioned that since the offences have been committed at the jurisdiction of D-1, Triplicane Police Station, which is far of place, while D-6, Anna Square Police Station registered the case which amounts to custodial torture. Hence, the petitioner/public servant are not entitled for protection afforded to him under Section 197 Cr.P.C. Initially, the respondent has filed private complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai, thereafter, on the point of jurisdiction, the complaint was transferred to the file of the XIII Metropolitan Magistrate Court, Egmore. Challenging the same, the present Page 3 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 quash petition.
3.Despite notice served to the respondent, no representation for the respondent and the notice returned as 'Door Locked' and affidavit of service dated 03.09.2019 is filed. Thereafter, paper publication was caused in Malai Malar on 24.02.2020 and copy of the same is filed on 26.02.2020. Despite the same, the respondent failed to appear before this Court. Hence, this Court by order dated 12.03.2020 appointed Mr.R.Nandakumar as Legal Aid Counsel for the respondent.
4.The learned counsel for the petitioner submitted that on 03.03.2009 at about 08.30 a.m., the respondent along with other students of Presidency College and Madras Christian College had gathered illegally held demonstration at the main entrance of the Madras Presidency College in Kamarajar Salai, which is for free flow of vehicles mostly by VIPs. The respondent and others were raising slogans through megaphone and distributing pamphlets to the students and public against inaction of the Indian Government to stop war on Sri Lanka genocide against the Sri Lankan Tamils, thereby obstructing the free flow of vehicles and causing disturbance to the Page 4 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 public order. The Sub-Inspector of Police, L & O, D-6, Anna Square Police Station, Chennai, D.Sadhanandam/A2, who was on duty in a patrol vehicle, advised the respondent and other students, to disperse the gathering and drop the demonstration, clear the place, the meeting was without any prior permission. Thereafter, the 2nd accused continued with his duty. The place where the demonstration was conducted is at Kamarajar Salai before the Presidency College, Chennai, which is a daily route used by State Chief Minister, Ministers, High Court Judges and other high dignitaries. At about 09.00 a.m., the Sub-Inspector of Police, D.Sadhanandam/A2 found the respondent contuning holding demonstration with megaphones in the same place, blocking the traffic in Kamarajar road. The 2nd accused asked them to stop the demonstration and disburse the crowd. At that time, the respondent started abusing the 2nd accused and women police constable on patrol duty. The respondent attempted to use force against the patrol duty, the 2 nd accused informed the same to the petitioner, the petitioner reached the spot along with police team, arrested the respondent and others which was resisted and scuffle ensued, crowd became violent, the police personnels were assaulted and they sustained injuries. Thereafter, by using requisite force, the respondent and four others were arrested and taken for remand. During the remand, the Page 5 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 respondent and others complained use of force by the petitioner and other police personnels for the injuries sustained by them to the remanding Magistrate. Thereafter, they were taken for examination and treatment to the Casualty Doctor, Government Royapettah Hospital and Accident Register was obtained.
5.The learned counsel for the petitioner further submitted that the respondent as a counter blast, filed the above complaint, against the petitioner and three other police personnels attached to D-6, Anna Square Police Station. Two of the arrested demonstrators, A.Mathivanan and Vinothkumar, who are students of Madras Christian College, Tambaram were suspended and debarred from writing exams for their illegal activity in participating in the demonstration and for assaulting the police and for the case pending against them. The said two persons filed writ petitions before this Court, challenging their suspension order issued by the college authorities in W.P.Nos.6227 & 6228 of 2009. In the writ proceedings, they filed an affidavit of undertaking wherein they gave an unconditional apology, to attend the college in future regularly, maintain discipline in the college campus, not to indulge in any acts of violence, not to participate in political agitations and to concentrate only on Page 6 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 studies. In view of the undertaking, this Court by order dated 23.06.2009, quashed the suspension order dated 31.03.2009 against them.
6.The learned counsel for the petitioner further submitted that in this case, it is not in dispute with regard to demonstration held by the respondent and others in front of the Presidency College by using megaphones, distributing pamphlets to the students against inaction of the Indian Government to stop war on Sri Lankan Tamils. It is also not in dispute that Kamarajar Salai is an important artery Road, which is the daily route for the State Chief Minister, Ministers, High Court Judges and high dignitaries. The 2nd accused, initially, warned them and asked to vacate the place. Despite warning, the respondent and others failed to disburse the demonstration and continued their agitation. Thereafter, the petitioner along with the police personnels had to use force to disburse them and arrested the respondent and others. It is also not in dispute that there was no prior permission to hold such demonstration and same was held violating the rules in a illegal manner, against the respondent and others, FIR came to be registered, they were arrested on the same day at about 09.30 a.m., they were taken for remand before the concerned Magistrate is also not disputed. Page 7 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013
7.The allegations in the complaint against the petitioner and other police personnels is that the respondent and others brutally attacked them, they were taken to D-1 Triplicane Police Station, which is far of place and for the injuries sustained by them, they were produced before the Government Royapettah Hospital and Accident Register certificate was obtained, remanding Magistrate recorded their grievances which for part of the records in Crime No.37 of 2009. The petitioner has produced the copy of the pamphlets, medical records for the injuries sustained by him to justify the reason for using requisite force in apprehending and arresting the respondent and others. In this case, the sanction under Section 197 Cr.P.C., has not been obtained which is admitted in paragraph No.7 of the complaint. The sanction under Section 197 Cr.P.C., is a condition precedent to proceed against the public servant who is accused of any offence alleged to have been committed by him while acting and purporting to act in discharge of his official duty. No Court shall take cognizance of such offence except with the previous sanction. As stated earlier, in this case there is no sanction, for not obtaining sanction the respondent reason is that they were taken to D-1 Triplicane Police Station and not to D-6 Anna Square Police Station which is without any material. The respondent and others were immediately produced before the concerned Page 8 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 Magistrate for remand without delay. The respondent did not make allegations, which are found in the complaint during any of the proceedings earlier more so when they approached this Court by way of writ proceedings.
8.The allegations made in the complaint are only for the purpose of foisting a case against the petitioner and other police personnel to deter them from proceedings. The learned counsel for the petitioner for the point of sanction, relied upon the decision of Hon'ble Apex Court in the case of “D.Devaraja Versus Owais Sabeer Hussain in C.A.No.458 of 2020” which is arising out of SLP(CRL.)No.1882 of 2018, dated 18.06.2020. Hence, prayed to quash the proceedings against the petitioner.
9.The learned counsel for the respondent submitted that the respondent and others demonstrated in a peaceful manner against the atrocities committed against Sri Lankan Tamilans. The demonstration held by them is a fundamental right and they have not violated the rules and obstructed the traffic. It was only a gate meeting wherein the plight and sufferings of Tamilans in Sri Lanka were explained. It is only an educative demonstration. The petitioner and other police personnels used excessive force in assaulting Page 9 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 the respondent and others. Thereafter, instead of taking them to D-6 Anna Square Police Station, the jurisdiction police station, they were taken to D-1 Triplicane Police Station, where they were beaten by using lathis, boots and hands. Further, they were stripped off which amounted to custodial torture. When the respondent and others produced before the learned Magistrate for remand, they complained of the ill-treatment, assault and torture sustained by them at the hands of the petitioner and others. The learned Magistrate had directed the police to produce them before the Government Hospital Royapettah for examination and treatment. They were produced before the Casualty Medical Doctor at Royapettah Government Hospital, who recorded the injuries sustained by them.
10.Thus from the medical records and from the statement of respondent and others, it is proved that they were subjected to custodial torture for holding a demonstration which is a fundamental right. The petitioner being the police personnel have to follow the rules and not to take the law into their own hands. Using the force, brutally assaulted the respondent and others. The points raised by the learned counsel for the petitioner has to be decided only during trial and not in the quash petition. The sanction for prosecution Page 10 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 has not been obtained in this case. It is not necessary, since it is a case of custodial torture.
11.This Court considered the rival submissions and perused the materials available on records.
12.It seen that the demonstration held on 03.03.2009 at about 09.00 a.m in front of Presidency College gate at Kamarajar Road is without any permission from the concerned authorities. It is not in dispute that Kamarajar Salai is an artery road through which high dignitaries are plying. The one of the charges against the respondent is violation of Section 188 IPC and prohibitory orders. In view of violation of prohibitory orders and without permission holding a demonstration, gathering a crowd and creating obstruction in the Kamaraj Salai cannot be justified for any reason. Further, A2/the Sub-Inspector of Police had earlier warned the respondent and others to vacate the premises and disperse. Despite the same, the demonstration continued. Thereafter, the petitioner along with the police personnels reached the place of obstruction/demonstration and took steps to disburse the demonstration. The petitioner having no other alternative, used force to Page 11 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 disburse the crowd. The use of force is not suppressed as could be seen from the FIR in Crime No.37 of 2009. The petitioner and other police personnel were on duty is also not disputed. Hence, the petitioner and other police personnels while on duty, used force for taking the accused to the police station. Thereafter, they were produced before the concerned Magistrate for remand.
13.In view of the above, this Court finds that the sanction for prosecution under Section 197 Cr.P.C., ought to have been obtained launching the complaint against the public servants. Without sanction of the Government, the trial Court taking cognizance of the complaint is bad in law. Further, the the act committed by the petitioner is related to discharge of public servant official duty, for which they would be protected under Section 197 Cr.P.C. As held by the Hon'ble Apex Court in the case of “D.Devaraja Versus Owais Sabeer Hussain in C.A.No.458 of 2020”, the act of the petitioner and other police personnels relates to discharge of official duty. It is imperative to protect them from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his Page 12 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 official duties efficiently, without fear of vindictive retaliation by initiation of criminal action.
14.On the submissions and facts and circumstances of the case, the protection to the petitioner and other police personnels are available and the act done by them is reasonable and connected with the discharge of their official duty and their official duty is not merely a cloak for doing the objectionable act as projected by the respondent. If public servant while discharging his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, public servant cannot be prosecuted without sanction, otherwise it will deprive the policemen of the protection of Government Sanction for initiation of criminal action against him. In this case, the petitioner and other police personnels reasonably acted while discharging their official duty.
15.Thus this Court finds that the act of the petitioner and other police personnels/A2 to A4 in C.C.No.4544 of 2012 are reasonable connected discharge of their official duty. Therefore, cognizance ought not to have taken by the trial Court, unless sanction had been obtained under Section 197 Page 13 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 Cr.P.C. The criminal proceeding is manifestly prompted by malafides and instituted with the ulterior motive of vengeance due to private and personal grudge, power under Section 482 of CrPC. ought to be exercised to prevent abuse of the process of Court or to secure the ends of justice.
16.In this case, all the accused/A1 to A4 are police personnels of D-6, Anna Square Police Station, Chennai. The sanction point is applicable not only to the petitioner, but also to other accused A2 to A4. Further the Hon'ble Apex Court in the cases of “Dandu Lakshmi Reddy Vs. State of A.P reported in 1999 (7) SCC 69; Rajaram and others Vs. State of M.P reported in (1994) 2 SCC 568; Akhil Ali Jehangir Ali Sayyed Vs. State of Maharashtra reported in JT 2002 (2) SC 158.” have consistently held that on the evaluation of the case, if the Court reaches the conclusion that the prosecution cannot be proceeded against an accused and the same benefit to be extended to the co-accused. It can be done. In this case, the petitioner is A1 and other accused are A2 to A4, who are similarly placed. Though A2 to A4 have not challenged their prosecution, the benefit of petitioner/A1 is available to them. This benefit is extended on parity of reasoning and justice. Page 14 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013
17.In the instant case, though A2 to A4 have not challenged their case, this Court is inclined to quash the proceedings against A2 to A4 also, who are similarly placed as that of the petitioner/A1. In the result, the proceedings in C.C.No.4544 of 2012 pending on the file of the XIII Metropolitan Magistrate Court, Egmore, is hereby quashed against all the accused/A1 to A4. The petition is, accordingly, allowed. Consequently, the connected miscellaneous petitions are closed.
18.This Court places its appreciation to the Legal Aid Counsel Mr.R.Nandhakumar for making thorough preparation and putting forth his arguments strenuously.
22.07.2020 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 To The XIII Metropolitan Magistrate Court, Egmore, Chennai.
Page 15 of 16 http://www.judis.nic.in Crl.O.P.No.7391 of 2013 M.NIRMAL KUMAR, J.
vv2 PRE-DELIVERY ORDER IN Crl.O.P.No.7391 of 2013 22.07.2020 Page 16 of 16 http://www.judis.nic.in