Madras High Court
B.Sundari vs K.Ar.Meenaasi Suntar on 12 April, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.04.2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
CRL.OP No. 17858 & 17898, 16375 & 16376 of 2022
1.B.Sundari
2.Murugaraj
3.Vadivel Mugundhan ...petitioners in Crl.O.P No. 16375, 16376 of
2022
K.Krishnamurthy .... petitioners in Crl.O.P No. 17585 &17898, of 2022
Vs.
K.AR.Meenaasi Suntar
...Respondent in all petitions
PRAYER in Crl.O.P No. 17858 of 2022 : This petition has been filed
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under Section 482 of Cr.P.C, To call for the records and quash the private
complaint preferred by the respondents in C.CNo. 830/2022 registered for
offences u/s. 177 182 and 193 IPC.
PRAYER in Crl.O.P No. 17898 of 2022 : This petition has been filed
under Section 482 of Cr.P.C, To call for the records and quash the private
complaint preferred by the respondent in CC.831/2021 registered for
offences under 211 IPC.
PRAYER in Crl.O.P No. 16375 of 2022 : This petition has been filed
under Section 482 of Cr.P.C, To Call for the records and Quash the Private
Complaint in CC.830/2022 on the file of the XVII Metropolitan Magistrate
at Saidapet Chennai for and Offence u/s 177 182 and 193 IPC
PRAYER in Crl.O.P No. 16376 of 2022 : This petition has been filed
under Section 482 of Cr.P.C, To call for the records and Quash the Private
Complaint in CC.831/2022 on the file of the XVII Metropolitan Magistrate
at Saidapet Chennai for and Offence u/s 211 IPC.
For Petitioners : Mr.V.Karthik, Senior counsel.
(Crl.O.P. Nos. 16375 & 16376 of 2022)
For Petitioners : Mr.John Sathyan, Senior counsel.
(Crl.O.P. Nos. 17858 & 17898 of 2022)
For Respondent : Mr. A.Mohan (for all petitions)
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ORDER
The petitions petitions have been filed to quash the C.C.830 and 831 of 2022 on the file of the XVII Metropolitan Magistrate at Saidapet, Chennai.
2. The respondent herein lodged a two complaint before the XVII Metropolitan Magistrate at Saidapet, Chennai, against the petitioners herein and the same taken cognizance in C.C No. 830 & 831 of 2022. Challenging the said C.C No. 830 & 831 of 2022, the accused 1 to 4/petitioners filed these petitions to quash the same.
3. The Brief facts of the case:
The complainant was an employee of St.John's Ambulance Association, Tamil Nadu,(hereinafter referred to as ''Association'') on February, 2015 he was tortured by the several means by A3 to give voluntary retirement as he was not obeyed A3 had preferred the complaint A1- Chairman of the said Association, A2-Honorary secretary of the said association, A3- Vice president of the said association, A4- Inspector of Police, and other accused persons A5 and A6 are Sub Inspector of Police. https://www.mhc.tn.gov.in/judis 4 According to the complainant, he was appointed as record clerk in the said Association in the year 1991 and thereafter he was promoted to the post of Junior Assistant w.e.f., 13.01.1994 and he was regularized in the said post on 05.01.1995. Later the complainant was promoted to the level of Assistant w.e.f 01.08.1999. Then his post was upgraded to the level of Superintendant w.e.f from 01.08.2008. Thereafter, in order to recognizing his sincerity, hard work and devotion to duty, he was awarded an adhoc monthly special allowance per month and he was conferred with Best Service Award by then Governor of the said Association. While being so, the A3/Vadivel Murugan was taken over as the Chairman of the said Association. Thereafter, the complainant was subjected to all sort of mental pressure joint together with A1 secretary they had planned to lodge a false complaint to the Commissioner of police as if one Mahalingam made a phone call to the A3 and allegedly threatened him and it was further alleged as if the complainant has also joined with him in the said process of threatening calls. Thereby complaint was forwarded to Mambalam Police Station and the case was registered in crime No. 3999 of 2015 under Section 294(b), 506(i) r/w 109 IPC and the complainant was arrested on 19.12.2015. Before the complainant was brought to the Court for remand, he was subjected to all https://www.mhc.tn.gov.in/judis 5 sorts of threatening with dire consequences by A4 and the complainant was forced to opt for VRS at the instigation of A1 to A3. A1 is the close relative of then DGP. Thereafter he was remanded to Central prison for a week due to the nexus betwen the A1 to A3 with police officials the complainant was forcifully implicated in the criminal case. In the meanwhile, the Association held the enquiry for misconduct and terminated the complainant from his service arbitrarily then the final report was filed in C.C No. 6099 of 2016 the Court taken cognizance on receipt of summons this complainant as one of the accused in the above case the petitioner filed the quash petition before this Court in Crl.O.P No. 8715 of 2017 and the same was allowed on 13.03.2018. Since the proceedings was quashed the allegations of final report was falsely fabricated one the complainant preferred the present case against the A1 to A2 for collusion and false evidence knowing the same to be false and those committed offence under Section 177, 182 and 193 of IPC, the Trial Court take cognizance and assigned C.C No. 830 of 2022 under the aforesaid section and another complaint filed by the complainant was assigned as C.C No. 831 of 2021 and summons were issued to A1 to A3 to deal with in accordance with law under Section 211 IPC having laid down false charges against the complainant. Aggrieved the same the https://www.mhc.tn.gov.in/judis 6 petitioners filed these petitions to quash the same.
3.1. The learned counsel for the petitioners submits that the said association was started in the year 1912 having headquarters at New Delhi.
The St. John Ambulance(India) is a National Federation consisting of 36 state/Union Territory Centres, 12 Railway Centres apart from over 600 Regional, District and Local Centres. The said association consists of a president, His excellency, Governor of Tamil Nadu and the executive committee consisting of chairman and vice chairman, Honorary Secretary, Honorary Treasurer, 5 Executive committee members and 3 ex-officio members being the commissioner of police, chennai, District collector, chennai, Director of Medical Education. The first accused was appointed as chairman in the year 2010 along with other committee members. Based on the complaint given by the first accused one Suryanarayanan was arrested by CBCID, Metro wing in connection with crime No. 6 & 7 of 2018 for the offence punishable under Sections 468, 471 and 420 IPC. In the heat that there was threat by the accused mentioned in crime No. 3999 of 2015 and hence a complaint was preferred. The incidents were true and the police officials filed a charge sheet with authentic supporting materials. The trial Court on perusal of materials, was prime facie satified of the commission of https://www.mhc.tn.gov.in/judis 7 offence, took cognizance and assigned C.C No. 6099 of 2016. Further, on perusal of this court order dated 13.03.2018 in Crl.O.P No. 8715 of 2017, it is clear that the second respondent therein the first petitioner herein was not represented by any advocate. Even on perusal of the order, it is clear that nowhere it had been stated that the prosecution case is false one or foisted one. In fact, charge memo dated 24.11.2018 and the order of dismissal dated 30.12.2012 speaks volumes about the respondent/complainant but the respondent has not challenged the order of dismissal dated 30.12.2016. But in order to harass the petitioners the respondent/complainant lodged present case with malafide intention as such is not maintainable. The learned counsel for the petitioners filed this petition to quash the C.C No. 830 and 831 of 2022.
4. In order to prefer a complaint for an offence under 177,182 and 193 IPC, the procedure under Section 195 Cr.P.C should be followed mandatorily. But the Trial Court failed to take note of Section 195 Cr.P.C as language of the section is couched in negative. Therefore, the Trial Court should not have taken cognizance for the offences punishable under Sections 177, 182 and 193 IPC without following procedures as https://www.mhc.tn.gov.in/judis 8 contemplated under Section 195 Cr.P.C on that ground alone the private complaint lodged by the respondent herein is quashed. Further, he would submit that nature of the ground is that offence made out under Section 177, 192 and 193 IPC for the reason that based upon the complaint given by the A1 final report was filed and C.C No. 6999 of 2016 before the Trial Court while taking cognizance perused all prime facie materials but theTrial Court not rejected the said final report as it was foisted case. Even while quashing the said C.C this court not been opined that the case against the respondent is foisted and malacious. Therefore, the offence under Section 172 has not been made out but the Trial Court issued the summons without application of mind in C.C No. 830 and 831 of 2022. Further, while taking private complaint the Trial Court failed to taken note of the procedures as mandated under Section 195 Cr.P.C therefore the cognizance taken up by the trial Court for the offence under Section 211 IPC as such is erroneous and prayed to quash the proceedings.
5. The learned counsel for the fourth accused submits that the petitioner is police official he discharged his duty as a official capacity that the complaint was lodged by the said association represented by its secretary. Accordingly, in crime No. 399 of 2015 was filed and the final https://www.mhc.tn.gov.in/judis 9 report was submitted and the same was taken cognizance by the Trial Court in C.C No. 6999 of 2016. Therefore, in his official capacity he did his duty without any malafide intention nor he colluded with members of the said association he was falsely implicated in this case. Even then the procedures not been followed. Further, submitted that as per Section 211 IPC, on receipt of the complaint dated 15.12.2015 from his higher official and perused the same as it disclosed cognizance offence he lodged a FIR and arrested the respondent herein. Thereafter, the final report was filed and the same was not rejected by the Trial Court as false fabricated one. Even while allowing the quash petition this Court has not mentioned that the case is false and fabricated one, in the absence of the said observations, the petitioner herein was protected under section 195 Cr.p.C the previous sanction from State Government is must even if it is private complaint but the case in hand no previous sanction was obtained as per the said section, hence final report filed against this petitioner is liable to be quashed.
6. The learned counsel for the respondent submitted that the petitioners gave a all sort of torture to the respondent to opt for VRS for which he refused hence the petitioner 1 to 3 lodged false case against the respondent as if he threatened the members of the said association. Based on https://www.mhc.tn.gov.in/judis 10 the said complaint, the other three accused filed a FIR in crime No. 399 of 2015 and the final report was filed in C.C No. 6999 of 2016. As it is false case there is no prime facie material against the respondent, he along with other accused person filed the petition before this court to quash the proceedings and this court allowed the said petition by quashing the said final report. Hence the respondent filed the present complaint as such is maintainable thereby he prays to dismiss this petition as no merits. Further, he submits that on the date of filing the ealier complaint the first petitioner was not holding the post of chairman but by giving false information he lodged the complaint at the instigation of A3 chairman of the said association. Therefore, all the petitioners were knowing well that they have acted upon on the false complaint and fabricated evidence based on that complaint police officials filed the false charge sheet thereby all the petitioners joint together in collusion with common intention had laid down the chargesheet based on the false complaint of A1 they are liable to be prosecuted for having given false and fabricated evidence therefore offence under Section 177, 192 and 193 and 211 IPC also maintainable. Therefore, he prayed to dismiss this petition.
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7. The foremost objections on the side of the petitioners is that private complaint cannot be preferred for offences under Sections 177, 182 and 193 IPC owing to the bar under Section 195 Cr.P.C. Further while taking cognizance Trial Court failed to follow the madatory procedure as per Section 195 Crl.P.C. Section 195 Cr.P.C read 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, or attempt to commit, such offence, or
(iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate;
(b)(i)of any offence punishable under any of the following sections 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 by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that https://www.mhc.tn.gov.in/judis 12 Court is subordinate.] [Substituted by Act 2 of 2006, Section 3 for "except on the complaint in writing of that Court, of of some other Court to which that Court is subordinate" (w.e.f. 16-4-2006).] (2)Where a complaint has been made by a public servant under clause (a) of sub-
section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint :Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3)In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court and includes a Tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section.
(4)For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinarily original civil jurisdiction within whose local jurisdiction such Civil Court is situate :Provided that -(a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;(b)where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.[195-A. Procedure for witnesses in case of threatening, etc. - A witness or any other person may file complaint in relation to an offence under Section 195-A of the Indian Penal Code (45 of 1860).] [Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 17. ] https://www.mhc.tn.gov.in/judis 13
8. On combine reading of the above provisions, it prescribes the procedures as to how the complaint may be preferred under Section 195 Cr.P.C. On receipt of private complaint under Section 340 Cr.P.C it prescribes the procedures as to how that complaint may be preferred. There two pre conditions for initiating proceedings under Sections 340 Cr.P.C
(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-Section (1) of Section 195 of the CrPC and (ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.
9. Section 195 (1)(b)(ii) of the Cr.P.C. bars the court from taking cognizance of any offence punishable under Section 193 of the IPC and other offences indicated thereon, unless, there is a written complaint made by the concerned court. The object of this Section is to stop private persons from prosecuting the persons as amongst all wreaking vengeance the offence must have been committed in relation to any proceeding in the trial court.
Section 177:- Furnishing false informationA, a landholder, knowing https://www.mhc.tn.gov.in/judis 14 of the commission of a murder within the limits of his estate, willfully misinforms the Magistrate of the district that the death has occurred by accident in consequence of the bite of a snake. A is guilty of the offence defined in this section.
[182. False information, with intent to cause public servant to use his lawful power to the injury of another person.-- Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 193 IPC Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either https://www.mhc.tn.gov.in/judis 15 description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
9.1. Therefore the Magistrate cannot have taken cognizance of the offence based on the private complaint for the offences under punishable under Section 177, 182 and 193 IPC
10. According to the defacto complainant by giving false information that A1-sundari claimed herself as Honorary Secretary to the said Association gave a false complaint on 15.12.2014 and A2 and A3 as per the information obtained through RTI itself clearly established the tenure of A2 and A3 came to end Knowingfully they did not held their posts as honorary secretary, Vice chairman but they claimed themselves as if they occupied that post, thereby they committed the offence for fabricated false evidence and they are punishable under Section 193 IPC. In respect of A4 he is the Inspector of Police, the contention of the respondent herein is that at the instigation of A2 and A3 based upon the false complaint, he lodged FIR. https://www.mhc.tn.gov.in/judis 16 A1 holding office of Honorary secretary through which he induced the subordinate A5 and A6 foisted the false case against him.
11. By summing up the above , the learned counsel for the respondent argued that since it is false complaint, proceedings initiated against the respondent herein was quashed by this Court in Crl.O.P No. 8715 of 2017. Therefore all the accused are liable to be prosecuted for the aforesaid offences.
12. On perusal of the above order it reveals that this Court quashed the proceedings against the respondent and other two accused in respect of C.C No. 6999 of 2016. The relevant portion of the above order extracted below:
8.In order to attract the offences under Sections 294(b) and 506(i) IPC are concerned, the reciting of obscene words or causing threat should be made by some individual and the offence gets attracted only against that individual. In the present case, it is alleged that the obscene words and threat was caused only by the first accused and that the accused 2 to 4/petitioners herein did not have any role to play in it. As such, these two offences may not be attracted, as against these petitioners herein.
9.Insofar as the offence of abetment is concerned, neither the complainant nor had any of the witnesses spoken that the petitioners herein had instigated or engaged or intentionally aided the first accused for having caused the threat or using obscene language over the phone. The witnesses only speak about the first accused of having spoken over the phone stating that none should interfere into the affairs of the petitioners https://www.mhc.tn.gov.in/judis 17 herein. This statement cannot be taken as an instigation or a conspiracy of these petitioners to make threatening call or can it be deemed to be intentionally aiding the first accused to make the phone call. As such, it can only be concluded that the offence of abetment punishable under Section 109 IPC also has not been made out, insofar as the petitioners herein are concerned.
13. Therefore as rightly pointed out by the learned counsel for the petitioner the proceedings against the respondent is quashed not been on the ground that false evidence nor there is observation about the false evidence or fabricated evidence. Indeed there is no prime facie material against these petitioners that they have fabricated the evidence. Moreover, before taking cognizance of the case the Trial court ought to have conducted the enquiry under Section 340 Cr.P.C r/w 195 (1)(b) Cr.P.C which dealt that the Court alone empower to put law in motion to prefer the complaint. Therefore the private complaint filed by the respondent herein as such is not maintainable to that effect the petitioner relied the following authorities.
1.Amarsang Nathaji As Himself And As Karta ... vs Hardik ... reported in 2017 (1) SCC:
6. There are two pre conditions for initiating proceedings under Section 340 CrPC – (i) materials produced before the court https://www.mhc.tn.gov.in/judis 18 must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-Section (1) of Section 195 of the CrPC and (ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.
11.No doubt, such an opinion can be formed even without conducting a preliminary inquiry, if the formation of opinion is otherwise possible. And even after forming the opinion also, the court has to take a decision as to whether it is required, in the facts and circumstances of the case, to file the complaint. Only if the decision is in the affirmative, the court needs to make a complaint in writing and the complaint thus made in writing is then to be sent to a Magistrate of competent jurisdiction.
2.Kailash Mangal vs Ramesh Chand(Dead) reported in 2015 (15) SCC 729
8. Section 195 (1)(b)(ii) of the Cr.P.C. bars the court from taking cognizance of any offence punishable under Section 193 of the IPC and other offences indicated thereon, unless, there is a written complaint made by the concerned court. The object of this Section is to stop private persons from prosecuting the persons as amongst all wreaking vengeance the offence must have been committed in relation to any proceeding in the trial court. Sections 191 and 192 of the IPC are the Sections dealing with offences of giving false evidence or fabricating false evidence. Punishment for intentionally giving false evidence in any stage of judicial proceeding is provided under Section 193 of the IPC. In the case at hand, the offence is alleged to have been committed by the appellant-accused under Sections 193 IPC and 419 of the IPC. For an offence punishable under Section 193 of the IPC, the proceedings are to be initiated in accordance with Section 195 (1)(b)(ii) of the Cr.P.C. The magistrate could not have taken cognizance of the offence punishable under Section 193 of the IPC on a private complaint. For the alleged filing of false affidavit in the civil suit, the appellant was charged for the offence punishable under Section 193 of the IPC. If any offence was committed under Section 193 of the IPC, the respondent- complainant ought to have moved the concerned court praying for initiation of appropriate proceedings against the appellant. The magistrate could not have taken cognizance of the said offence punishable under Section 193 of the IPC.
29. The test of whether there is evasion or non-compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a https://www.mhc.tn.gov.in/judis 19 public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.
3. Sh. Narendra Kumar Srivastava vs The State Of Bihar reported in 2019(3) SCC 318
5. In the petition alleging contempt, it was contended that in the contempt case, the respondents filed a showcause showing compliance of the order dated 29.06.2014, and accordingly, the contempt case was dropped with liberty to the appellant to challenge the order passed in compliance of the court’s directive before an appropriate forum. Instead of challenging the said order, the appellant filed a private complaint against respondent Nos. 2 to 4 before the Assistant Chief Judicial MagistrateVII, Motihari alleging commission of offence punishable under Section 193 read with Section 34 of the IPC alleging that because of the false and wrong statement made by the respondents in their showcause affidavit, the High Court dropped the contempt case. The Magistrate by an order dated 22.12.2016 took cognizance of the same and summoned respondent Nos. 2 to 4.
On the other hand, learned counsel appearing for the respondents, submits that the punishment for offence giving false evidence in judicial proceedings is stipulated in Section 193 of the IPC and the law governing taking of the cognizance of such an offence is contained in Section 195 of the Cr.P.C. Section 195 of the Cr.P.C. puts a clear bar on taking of cognizance by a Court, of an offence punishable under Section 193 of the IPC, unless it is on a complaint in writing of the Court or such officer of the Court as that Court may authorize in writing in this behalf, in relation to a judicial proceeding of which Court, the offence is alleged to have been committed. Since no such complaint has been made, the igh Court was justified in quashing the order of the Magistrate. In this connection, reliance is https://www.mhc.tn.gov.in/judis 20 placed on the judgment of this Court in M.S. Ahlawat v. State of Haryana and another, (2000) 1 SCC
9. Having regard to the contentions urged, the question for consideration is whether the Magistrate was justified in taking cognizance of an offence punishable under Section 193 of the IPC on the basis of a private complaint?
14. Section 195 of the Cr.P.C. lays down a rule to be followed by the court which is to take cognizance of an offence specified therein but contains no direction for the guidance of the court which desires to initiate prosecution in respect of an offence alleged to have been committed in or in relation to a proceeding in the latter court. For that purpose, one must turn to Section 340 which requires the court desiring to put the law in motion to prefer a complaint either suo motu or an application made to it in that behalf.
4. Dr. S.K. Packiaraj Vs. T.V.mathan Kumar reported in 2018 (1) L.W (crl) 653
9. ........... To prosecute someone for the offence committed under Section 193 of IPC, it is only the Court concerned Court alone that can be the complainant. Provisio to Section 195 Cr.P.C reads that no court shall take cognizance of any offence punishable under Section 193 of IPC except on the complain in writting of that court or some other court to which that court is subordinate. The provision underwent an amendement with effect from 16.04.2006. Even an officer of the Court authorised in writing in that behalf can be the complainant.
5. Duraisamy Vs. Valliathal reported in Manu/TN/8148/2021
4. It is a trite law that for taking action for giving false evidence and for punishing the person for the said Act, the special procedure that has contemplated under Section 195(1)(b) of Cr.P.C should be complied with.
14. According to the defacto complainant, the petitioner A1 to A3 have not hold office on the date of alleged complaint in the year 2018, knowingfully well they gave a complaint that as if they holding office on the https://www.mhc.tn.gov.in/judis 21 alleged date in the said Association. Further he relied the information obtained under RTI Act, wherein, it was stated that there '' No proposal for nomination of the above office bearers was received from St. John Ambulance since 2015. Hence, no details are available to furnish''.
15. Petitioner/accused produced the copy of the minutes of the Annual General Body Meeting held in the said Association (AGM) on 15.07.2016 through which the petitioners able to establish that the AGM was held on 15.07.2016 at Durbar Hall, Raj Bhavan, Guindy, Chenniaai- 22 under the presidentship of his excellency The Governor of Tamil Nadu and The president of St. John Ambulance, Tamil Nadu, wherein the first petitioner/A1 welcomed the member and the presented the Annual Report for the year 2014-15 and 2015-16 and the second petitioner was vice chairman and the third petitioner was Chairman. Therefore from the above minutes of Annual General Body Meeting, it clearly reveals that the petitioners A1 to A3 were officer bearers of the said Association at the time of filing the complaint. Hence, the allegation levelled by the respondent that the petitioners were not holding office at the time of filing the alleged complaint as such is totally false. Therefore, the prime facie evidence proves that petitioners A1 to A3 were holding office at the time of the alleged https://www.mhc.tn.gov.in/judis 22 complaint. Furthermore, the judgements relied by the respondent is not applicable to the facts of the present case, on the other hand, referred case relied by the petitioner supporting their contention.
16. Furthermore, the allegation against the A4 is that on receiving false complaint from the A1/first petitioner herein he lodged a FIR and filed the final report without any supporting materials and having satisfied with prime facie material the Trial Court taken the cognizance on record in C.C No. 6999 of 2016. The learned counsel for the petitioner/A4 submitted that as Inspector of Police, he discharged his duty nor he has colluded with the petitioners or foisted the false case against the respondent. According to the respondent the Inspector of Police lodged a false complaint against him and foisted false case based upon the false complaint given by the petitioner. As a Inspector of Police of that station he received the complaint and did investigation thereafter he filed the final report so the allegations levelled against the A4 is pertaining to his discharging his official duty. Further, the learned counsel submitted that A4 discharged his duty as a Inspector of Police, but the respondent filed the private complaint not purportedly to be https://www.mhc.tn.gov.in/judis 23 filed against the policemen. Furthermore, before taking cognizance of an offence against the police officer allegedly committed by the police officer, as per Section 197 Cr.P.C necessary prior sanction should be obtained from the Government to that effect relied the judgment of the Supreme Court in the case of D.Devaraja Vs. Owais Sabeer Hussain reported in 2020 (7) SCC 695.
67. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above. 68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer 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 official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.
17. The case in hand A4 was Inspector of Police, hence prior sanction from the Government is necessary before initiating proceeding https://www.mhc.tn.gov.in/judis 24 against him. But no such sanction was obtained, which clearly shows that cognizance was taken by the Trial judge as such is illegal, on that ground proceeding against A4 is liable to be quashed. The judgment relied by the petitioner counsel is squarely applicable to the facts of the present case.
18. Furthermore, the respondent counsel relied the judgment r in the case of Devinder Singh and others Vs. State of Punjab through CBi reported in 2016 (12) SCC 87 “87. Both these judgments were followed in Atma Ram case AIR 1966 SC 1786 where the question was as to whether the action of a police officer in beating and confining a person suspected of having stolen goods in his possession could be said to be under colour of duty. It was held as under:
3. … The provisions of Sections 161 and 163 of the Criminal Procedure Code emphasise the fact that a police officer is prohibited from beating or confining persons with a view to induce them to make statements. In view of the statutory prohibition it cannot, possibly, be said that the acts complained of, in this case, are acts done by the respondents under the colour of their duty or authority. In our opinion, there is no connection, in this case between the acts complained of and the office of the respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the respondents and they are not entitled, therefore, to the mantle of protection conferred by Section 161(1) of the Bombay Police Act.”
19. The above judgment relied by the respondent is not applicable to the facts of the present case.
https://www.mhc.tn.gov.in/judis 25
20. In respect of C.C No. 831 of 2020, the respondent prayed to issue summons and initiate proceedings for the offence committed under Section 211 IPC Section 211 IPC read as follows:
211. False charge of offence made with intent to injure.— Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
21. To invoke Section 211 IPC false complaint is to be filed in Court or police but the case in hand as discussed above there is no findings against the petitioners that complainant was false or foisted. Eventually, in the order passed by this Court in Crl.O.P No. 8715 of 2018 no observation was made that the complainant is false one. Therefore, C.C No. 831 of 2022 as such is https://www.mhc.tn.gov.in/judis 26 not maintainable. Accordingly, C.C No. 830 and 831 of 2022 is hereby quashed.
22.In the result, these petitions are allowed. No Costs.
12.04.2024 pbl To The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis 27 T.V.THAMILSELVI, J.
pbl CRL.OP No. 17858 & 17898, 16375 & 16376 of 2022 & Crl.MP. 14565 & 14566 of 2022 12.04.2024 https://www.mhc.tn.gov.in/judis