Madras High Court
K.Inbaraj vs The State on 31 August, 2010
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/08/2010 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.RC.(MD)No.579 of 2010 and M.P.(MD)No.1 of 2010 K.Inbaraj ... Petitioner Vs 1. The State Rep. by the Additional Superintendent of Police (Crime), Thanjavur, Crime No.261/2004 of Kumbakonam East Police Station. : Respondent/ Complainant 2. M.Palanisamy Chief Educational Officer, Thanjavur. 3. R.Kannan The Director, Elementary School Education, Chennai. ... Respondent /Accused No.6 & 24 PRAYER Criminal Revision filed under Sections 397 r/w 401 of Cr.P.C. praying to set aside the order passed in Crl.M.P.No.2257 of 2009 in S.C.No.275/2006 dated 30.07.2010 on the file of the learned Principal Sessions Judge, Thanjavur and allow this revision. !For Petitioner ... Mr.M.Subash Babu ^For R-1 ... Mr.P.Rajendran Govt. Advocate (Crl.side) For R-2 & 3 ... Mr.T.Sekar * * * :ORDER
The above Criminal Revision petition filed by the petitioner/ prosecution witness No.27 against the order of the withdrawal of the case against the 2nd respondent/A-6 and respondent No.3/A-24, passed by the principal Sessions Judge, Thanjavur in Cr.M.P.No.2257 of 2009 in S.C.No.275 of 2006 dated 30.07.2010 being aggrieved by the order, this petitioner preferred this Criminal revision to set aside the order.
2. The brief facts of the case are as follow:
2.1. One Bharathi, Village Administrative Officer had lodged a complaint with the Inspector of Police, Kumbakonam East Police Station on 16.07.2004 stating that on 16.07.2004 at about 11.00 a.m. Srikrishna aided primary school and Parvathi Girls High School Caught fire on the 1st floor of these institutions. In the said fire accident about 100 children perished. The said complaint registered by the Inspector of Police in Crime No.261 of 2004, an alleged offence under Section 304(A) of I.P.C. The said case was investigated and charge sheet filed against 24 accused persons. As per charge sheet the 2nd respondent's rank is accused No.6 and the 3rd respondent's rank is accused No.24. Subsequently the Government appointed a judicial commission headed by His Lordship Justice, K.Sampath His Lordship was pleased to conduct an enquiry and submitted his report.
3. The Charge Sheet was filed after the investigation before the learned Principal Sessions Judge, Thanjavur. At this stage the 2nd and 3rd respondents have filed Cr.M.P.No.2257 of 2009 in S.C.No.275 of 2006 to discharge from the framing charges. The learned Judge has passed the order as follows:
(a) The averments in the petition filed by the petitioner / complainant are as follows:- The respondents 1 and 2 herein are accused No.6 and 24 respectively. Originally the complainant had obtained the sanction for the prosecution against them. The respondents have filed separate petitions to discharge from framing the charges.
(b) Now the Government has passed orders in G.O.(I.D.) No.3 School Education (A2) Department and G.O.No.(I.D.) No.4 School Education (A2) Department dated 02.01.2009 to withdraw the prosecution against the above said accused persons
(c) In furtherance of the Government Orders, the District Collector, Thanjavur has sent a proceeding in R.C.No.97021/2004/C1 dated 07.01.2009 directing the prosecution to withdraw the case against the said accused in the interest of administration of criminal justice. Hence, the application for the withdrawal of prosecution is filed before this court. The proceedings of the District Collector, Thanjavur and the Government referred to above are filed herewith.
(d) The accused should be discharged in respect of such offences. The offences that are levelled against the respondents 2 and 3 herein are to be withdrawn and consent to withdraw the case against the respondents 2 and 3 may kindly be accorded and the respondents 2 and 3 herein/accused 6 and 24 may be discharged from the offences.
(d) Point for consideration in this petition is that Whether consent has to be given for withdrawal of this case against the respondents 2 and 3 herein?
(e)Point : The respondents herein are arrayed as accused No.6 and 24 respectively in S.C.No.275 of 2006. A-6 M.Palanisamy was the Chief Educational Officer, Thanjavur and A-24 A.Kannan was the Director of Elementary School Education, Tamil Nadu At Chennai at the time of alleged fire incident.
(f) The fire spread from Noon Meal Kitchen to the Sri Krishna Aided Primary School at Kumbakonam on 16.07.2004, which has resulted in the death of 94 young innocent school children besides causing grievous burn injuries to 18 other school children.
(g) A criminal case in Cr.No.261 of 2004 was registered by Kumbakonam East Police Station and after completion of investigation, charge sheet was filed against 24 accused including the respondents 2 and 3 herein.
(h) The Government has constituted a commission headed by the Hon'ble Mr.Justice K.Sampath, Retired Judge of Madras High Court to inquire into the fire incident that occurred on 16.07.2004. Accordingly, an inquiry was conducted and a report was sent to the Government by the Commission.
(i) The Government has accepted the report of the Hon'ble Mr.JUSTICE K.Sampath and passed G.O.Ms.No.131 School Education (B) Department dated 10.08.2006. The report of the commission is also incorporated in the Government Order. In the report, it is stated that the respondent Nos.2 and 3 herein are not in any way responsible for this fire tragedy. It is also stated in the report that the respondent Nos.2 and 3 herein have to be discharged in the absence of any other documentary evidence.
(j) Based on the said inquiry report, the Government has passed G.O.(1D)No.3 School Education (A2) Department dated 02.01.2009 in respect of the respondent No.2 herein and G.O.(1D) No.4 School Education (A2) Department dated 02.01.2009 in respect of the respondent No.3 herein for withdrawal of this case against the respondents 2 and 3 herein respectively. The copy of the said Government Orders are enclosed along with the petition.
(k) In the above said Government Orders, the Collector of Thanjavur District was requested to address the Public Prosecutor incharge of this case to withdraw the prosecution against the respondents 2 and 3 herein who are arrayed as A-6 and A-24 respectively in this case.
(l) The Collector of Thanjavur has requested the Additional Government Pleader cum Additional Public Prosecutor, Thanjavur to take proper action to withdraw the prosecution against the respondents 2 and 3 herein. Accordingly, the Additional Public Prosecutor has filed this petition under Section 321 of Cr.P.C.
(m) The Government in the order has stated that in the interest of administration of criminal justice, the case against the respondents 2 and 3 herein has to be withdrawn. As has already been stated, the Government has passed the above orders for withdrawal of this case against the respondents 2 and 3 herein based on the report of the commission headed by the Hon'ble Mr.Justice K.Sampath, Retired Judge of Madras High Court. The reasons stated in the Government Orders and in the petition are convincing. Hence, consent is to be given for withdrawal of this case against the respondents 2 and 3 herein and accordingly this petition is allowed. As per Section 321(a) of Cr.P.C. if the order of withdrawal is passed before framing of charge, the accused have to be discharged. In this case, charge has not been framed so far. Hence, the respondent 2 and 3 herein are discharged from this case and the point is answered accordingly.
(n) In the result, this criminal miscellaneous petition is allowed as prayed for. The respondents 2 and 3 herein are discharged from this case in S.C.No.275 of 2006 under Section 321(a) of Cr.P.C.
4. Aggrieved by this order the revision petitioner/persecution witness No.27 has filed the above Criminal Revision Petition. The learned counsel for the revision petitioners vehemently argued that the respondents 2 and 3 are the main accused in the said criminal case. The said case is ready for trial, at this juncture the respondents were discharged from the proceedings which is not sustainable under law. The learned counsel further pointed out that the respondents 2 and 3 are Chief Educational Officer and Director of Elementary School Education respectively, under whom the said aided school was functioning. This school building was covered by a roof, as per school buildings rules and regulations the institute was unfit for running in the normal manner. Knowing this fact the 2nd and 3rd respondents are the competent authorities who have not discharged their responsibilities in order to ensure the safe running of the school. It is a clear case of negligence and omission of proper service resulting in this the said accident occurring. If the respondents are allowed to be discharged before from the Criminal proceedings, a lacuna will arise in the adjudication since innocent children had perished in a public educational institution so in the interest and confidence of the public, the respondents should be held responsible. Hence, the learned counsel prays to dismiss the discharge petition of the respondents and allow this Criminal Revision Petition.
5. The learned counsel for the revision petitioner relied upon a judgment in Abdul Karim vs. State of Karnataka reported in CDJ 2000 SC 512 the operative portion is as follow:-
"The self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these needs nearly all other considerations are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision. In the present case, without consideration of these aspects the decision was taken to withdraw the TADA charges. Its evident from material now placed on record before this Court that Veerappan was acting in consultation with secessionist organisations/groups which had the object of liberation of Tamil from India. There is no serious challenge to this aspect. None of the aforesaid aspects were considered by the Government or the Public Prosecutors before having recourse to Section 321 Cr.P.C.
43. With these additional reasons, I am in complete respectful agreement with the conclusion and opinion of my senior colleague Hon'ble Mr.Justice S.P.Bharucha.
Appeals allowed."
6. The learned counsel for the revision petitioner relied upon a Judgment in Hon'ble Supreme court of India in Avinash Mehrotra vs. Union of India and others reported in W.P(Civil)No.483 of 2004, the operative portion is as follows:-
(i) Before granting recognition or affiliation, the concerned State Governments and Union Territories are directed to ensure that the buildings are safe and secured from every angle and they are constructed according to the safety norms incorporated in the National Building Code of India.
(ii) All existing government and private schools shall install fire extinguishing equipments within a period of six months.
(iii) The school buildings are to be kept free from inflammable and toxic material. If storage is inevitable, they should be stored safely.
(iv) Evaluation of structural aspect of the school may be carried out periodically. We direct that the concerned engineers and officials must strictly follow the National Building Code. The safety certificate be issued only after proper inspection. Dereliction to duty must attract immediate disciplinary action against the concerned officials.
(v) Necessary training be imparted to the staff and other officials of the school to use the fire extinguishing equipments."
7. The learned counsel for the revision petitioner relied upon a judgment in Hon'bel Supreme Court of India in Rajender Kumar Jain vs. State Throught Special Police Establishment and Others (Criminal Appeal No.287 of 1979) and Mahohar Lal vs. Bansi Lal and Others (Special Leave Petition (Criminal) No.3135 of 1979) and Attorney-General of India vs. State of Haryanan and others (Criminal Miscellaneous Petition No.3890 of 1979) reported in CDJ 1980 SC 351, the operative portion is as follows:-
"Thus, from the precedents of this Court, we gather:
1.Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the executive.
2.The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3.The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4.The government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5.The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammary Hall enterprises.
6.The Public Prosecutor is an officer of the Court and responsible to the Court.
7.The Court performs a supervisory function in granting its consent to the withdrawal.
8.The court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."
8. The learned Public Prosecutor has filed counter statement and narrated the facts as follow:-
(a) The 2nd and 3rd respondents were charged for offences under Sections 120(B) r/w 304, 338, 285, 167, 197, 465, 467, 468 and 471 of I.P.C and Rule 15(1) (2) r/w. 16 of Tamil Nadu Public Building (Licensing) Act, 1965 and Section 5 r/w. 47 of Tamil Nadu Recognised Private Schools (Regulation) Act and Section 23 of Juvenile Justice (Care and Protection of Children) Act 2000 and Municipalities Act r/w 108(1), 109 of I.P.C. The respondent No.2 has filed an application under Section 227 Cr.P.C to discharge him from the above case before the learned Principal District and Session Judge, Thanjavur. During the pendency of the above application for discharge, the Government of Tamil Nadu Revenue (SER 4/2) Department in G.O.No.(2D) 654 dated 29.12.2009 to withdraw the Prosecution side. Directed the prosecution to withdraw the case against the Accused in the interest of Administration of Criminal Justice. Accordingly, application was filed by the learned Public Prosecutor, who was in charge of the case at that time had filed an application under Section 321 of Cr.P.C before the learned Principal District and Sessions Judge, Thanjavur. The above said application under Section 321 Cr.P.C was taken an file in Cr.M.P.No.806 of 2010 in S.C.No.275 of 2006 before the learned Principal District Sessions Judge, Thanjavur.
(b) On 30.07.2010 the learned District Judge had passed order by allowing the application and discharged the Accused from the above case. The learned District and Sessions Judge in paras. 7 and 10 in his order has considered above the involvement of the Respondent Nos.1 and 2 in the Hon'ble Justice Thiru.K.Sampath's Report also. Based on the said enquiry report the Government has passed the order of withdrawal of the case against the Respondent Nos.2 and
3. The learned District and Session Judge has convinced and accordingly allowed the application filed by the Respondent No.2 and 3 in Cr.M.P.No.2257 of 2009 in S.C.No.275 of 2006.
(c) The contention of the petitioner about the death of 94 Children and 18 Students sustained serious injury in the occurrence is not relevant for the application for withdrawal.
(d) The contention of the petitioner that the District Collector has directed the Public Prosecutor to withdraw the case against the Accused is not correct, only the Government has passed the relevant G.O. in this case. The District Collector has not directed the Public Prosecutor to withdraw but he has forwarded the G.O. only passed by the Government for the withdrawal of the cases.
(e) The learned District Judge has correctly appreciated the contention of the party and has come to a correct conclusion in this case.
(f) The learned District Judge has followed the principles laid down in the decisions of our High Court as well as the Apex Court in this case and has passed the orders accordingly.
(g) I most submit that this Hon'ble Court may be pleased to consider my submissions stated supra and pass orders accordingly and thus render justice.
9. The learned Public Prosecutor argued that the state Government passed a G.O. and directed the prosecution to withdraw the case against the A-6 and A-24. As per G.O. the learned Public Prosecutor has observed legal formalities before the sessions court and discharged the respondents from the criminal proceedings. The discharged order passed by the learned judge after application of mind. As such, there is no impediment in the said order.
10. The 2nd respondent has filed a counter statement and narrated the facts of the case which are as follows:.
(a) The second respondent and third respondent was charged for offences u/s.120(B), r/w 304, 338, 285, 167, 197, 465, 467, 468 & 471 IPC and rule 15(1)(2) r/w 16 of Tamilnadu Public Building (Licensing) Act, 1965 and section 5 r/w 47 of Tamilnadu Recognized Private (Regulation) Act and Section 23 of Juvenile Justice (care and Protection of children) Act 2000 and Municipalities Act r/w. 108(1), 109 IPC. Second and third respondents have filed application u/s.227 Cr.P.C. to discharge us from the above case before the Learned Principal District and Sessions Judge, Thanjavur. During the pendency of the above application for discharge, the Government of Tamil Nadu has perused the commission's report of Hon'ble Justice K.Sampath and relevant documents of this case and case incharge of the Public Prosecutor's Opinion and have passed the orders in G.O.No.(ID) No.3, School Education Department (A2) Department and G.O.No.(ID) No.4, School Education Department (A2) Department, dated 02.01.2009 directing the prosecution of withdrawing the case against us in the interest of Administration of Criminal Justice. Accordingly, application was filed by the Learned Public Prosecutor, who was in charge of the case at that time has filed an application u/s.321 Cr.P.C, before the Learned Principal District and Sessions Judge, Thanjavur. The above said application u/s.321 Cr.P.C. was taken in file in Crl.M.P.No.2257/2009 in S.C.No.275/2006 before the Learned Principal District and Sessions Judge, Thanjavur. At the time of filing, the 1st respondent u/s.321 Cr.P.C. petition, I have with drawn in 227 Cr.P.C Discharge Petition.
(b) With reference to the Kumbakonam fire accident an inquiry commission was appointed by the State Government headed by the Hon'ble Mr.Justice K.Sampath, and the commission has submitted its report on 13.07.2003 to the Govt. The finding of the inquiry commission of M.Palanisamy, (A-6) is as follows " the then Chief Education Officer of Thanjavur District is absolutely blameless. He had an excellent record of Service. He had no control on Jurisdiction over the Elementary Schools. Chief Education Officer had been so instructed several times, he had perused the file relating to the high school with the noting of Pinagapani the then DEO and on the basis recommended continuous recognition from 2002-2005 subject to certain conditions. According to him if only the education department officials who inspected the school had brought it to the notice of the higher officials and taken proper action the accident could have been averted".
(c) The then D.E.O. Thanjavur Thiru.Pinagapani, who recommended the continuous recognition for the High School visited the School and based on the visit he recommended for fourth renewal of the recognition of the school he informed that there is sufficient place in that school. He never revealed that there are three schools in the same premise.
(d)Public Prosecutor after verifying Justice K.Sampath's Commission inquiry report and analyzing evidence, came to the conclusion that the said Thiru.M.Palanisamy, is absolutely blameless and he had an excellent record of service. Finally the charges were also dropped by the Govt. Since there is no culpability, no fresh evidence is going to be adduced before the trial court than the enquiry commission. So nothing is going to be proved afresh. The fact that there was an earlier order of sanction for prosecution of the accused (Public Servant) by the state Government is not a ground to refuse consent by the court as per the case law reported in 1991 Cr.L.J.2457. Considering all the facts and circumstances of the case I am of the opinion that the criminal prosecution against the said Thiru.M.Palanisamy, can be withdrawn in the interest of administration of Justice.
(e)I have been charged for offence u/s.120(B), r/w 304, 338, 285, 167, 197, 465, 467, 468 & 471 IPC and rule 15(1) (2) r/w 16 of Tamilnadu Public Buildings (Licensing) Act, 1965 and section 5 r/w. 47 of Tamilnadu Recognized Private Schools(Regulation) Act and section23 of Juvenile Justice (care and Protection of children) Act 2000 and Municipalities Act r/w.108(1), 109 IPC. The above said offences were not made out to me. On 30.07.2010 the Learned District Judge has passed order by allowing the application and withdrawing the accused from the above case. The Learned District and Sessions Judge's observations in para 11 is as follows "The Government has accepted the report of the Hon'ble Justice Thiru.K.Sampath and passed G.O.Ms.No.131 School Education (A2) Department dated 10.08.2006. The report of the commission is also incorporated in the Government order. In the report, it is stated that the respondents 3 and 3 herein are not in any way responsible for this fire tragedy. It is also stated in the report that the respondents 2 and 3 herein have to be discharged in the absence of any other documentary evidence. The Hon'ble District and Sessions Judge passed orders after considering the report of Mr.Justice K.Sampath Commission, the report, of the departmental enquiry officer as mentioned in the G.O. and other relevant case records have passed the orders dated 30.07.2010 in Cr.M.P.No.2257/2009 in S.C.No.275 of 2006.
(f)The contention of the petitioner is that the District Collector has directed the Public Prosecutor to withdraw the case against the accused is not correct. Only the Government has passed the relevant G.O.for withdrawal in this case. The District collector has only directed the Public Prosecutor to withdraw the case based on the G.O.Passed by the Government for withdrawal. Further contention of the petitioner is that the Public Prosecutor without verifying the materials, satisfied himself and filed petition that the charge against the accused can be withdrawn automatically and mechanically is not correct. The public prosecutor has carefully perused the relevant documents, Mr.Justice K.Sampath's Commission Report and Departmental enquiry reports were submitted as legal opinion to the Government and the Government in turn issued the above G.O. Subsequently the prosecutor had filed the withdrawal petition.
(g)The learned District Judge has correctly appreciated the contention of the party and has come to a correct conclusion in this case.
(h)The learned District Judge has followed the Principles laid down in the decisions of Hon'ble High Court well as the Apex Court in this case and has passed the orders accordingly.
(i)I most humbly submit that this Hon'ble Court may be pleased to consider my submissions stated supra and pass orders accordingly and dismiss the petition.
11. The 3rd respondent also filed a counter statement and disclosed the facts of the case as follows:
(a) 2nd and 3rd respondents were charged for offences under Sections 120(B) r/w 304, 338, 285, 167, 197, 465, 467, 468 and 471 of I.P.C and Rule 15(1) (2) r/w. 16 of Tamil Nadu Public Building (Licensing) Act, 1965 and Section 5 r/w. 47 of Tamil Nadu Recognised Private Schools (Regulation) Act and Section 23 of Juvenile Justice (Care and Protection of Children) Act 2000 and Municipalities Act r/w 108(1), 109 of I.P.C. The 2nd and 3rd respondents have filed an application under Section 227 Cr.P.C to discharge him from the above case before the learned Principal District and Session Judge, Thanjavur.
During the pendency of the above application for discharge, the Government of Tamil Nadu has perused the commission's report of Hon'ble Mr.Justice Sampath and relevant documents of this case and case incharge of the Public Prosecutor Opinion and have passed the orders in G.O.No.(ID)No.3, School Education Department (A2) Department and G.O.No.(ID)No.4, School Education Department (A2) Department, dated 02.01.2009 directing the prosecution withdraw the case against us in the interest of Administration of Criminal Justice. Accordingly, application was filed by the learned Public Prosecutor, who was in charge of the case at that time, has filed an application under Section 321 of Cr.P.C, before the learned Principal District and Session Judge, Thanjavur. The above said application under Section 321 of Cr.P.C was taken in file in Cr.M.P.No.2257 of 2009 in S.C.No.275 of 2006 before the learned Principal District and Sessions Judge, Thanjavur. At the time of filing, the 1st respondent under 321 of Cr.P.c. petition, I have with drawn in 227 Cr.P.C Discharge Petition.
(b) With reference to the Kumbakonam fire accident an inquiry commission was appointed by the State Government headed by the Hon'ble Mr.Justice Sampath who headed the commission, has submitted its report on 13.07.2003 to Government. The finding of the inquiry commission have been mentioned in para 279.21. as follow. "Thiru R.Kannan" (CW-251) the director of Elementary Education (under suspension) has simply acted on the recommendations found in the file. Though he had visited Kumbakonam in July 2004 there is nothing to show that it had anything to do with the granting of recognition to the necessary school.
(c) As per the G.O.(2d) No.41 dated 03.09.2007 school education (A2) department the charges under Section 17(b) levelled against Thiru.R.Kannan was dropped. The enquiry officer Mr.Machendra Nathan I.A.S. Principal Secretary to Government of Tamil Nadu in charge of food and consumer Protection Department has given his observations as follows as mentioned in the G.O. in the above case :
"ne;epiyapy; ru!;tjp kHiyah; kw;Wk; bjhlf;fg; gs;spf;fhd chpkk; g[Jggpg;gjw;fhd tpz;zg;gk; naf;Fehpd; fl;Lg;ghl;oy; gzpg[hpa[k; gphpt[ rhh;e;j cjtpahsh;, fz;fhzpg;ghsh; kw;Wk; Jiz naf;Feh;. niz naf;Feh; mth;fshy; ghprPyid bra;ag;gl;L mDg;gg;gl;lJ vd;Wk;, chpa MtzA;fSld; rhpahf cs;sJ vd;W ghpe;Jiuf;fg;gl;ljhy; bjhlf;f fy;tp naf;Feuhy; chpkk; g[Jg;gpg;gjw;F mDkjp mspf;fg;gl;Ls;sJ vd;Wk; Fw;wk; rhl;lg;gl;l mYtyh;, jdJ tpsf;fj;jpy; bjhptpj;Jssijg;Bghy; 43,000f;Fk; Beuoahf ghh;itapl;L chpkk; tHA;f nayhJ vd;gij Vw;Wf;bfhs;s Btz;oa[s;sJ vd;Wk; rhh;epiy mYtyhf;fspd; ghpe;Jiuapd; mog;gilapByBa xU khepy mstpyhd naf;Fehpd; eltof;if vLf;f naYk;. ne;epiyapy; me;je;j khtl;lj;jpy; bjhlf;fg;gs;sp, eLepiyg;gs;sp, Bky;epiyg; gs;spfSf;Fk; chpkk; tHA;Fk; mjpfhuk;. khtl;l mstpyhd fy;tp mjpfhhpfSf;Bf tHA;fg;gLkhdhy; mth;fs; rk;ge;jg;gl;l fsmYtyh;fSld; (field officers of various departments like, Revenue, Rural Development, Municipalities Health etc.,) chpa gs;spia Behpy; fz;fhzpj;J jFjp[a[ila gs;spfSf;F kl;Lk; chpkk; tHA;f Vjthf nUf;Fk; vd;Wk; njpy; jtW Vjk; elg;gpd;, jtWf;fhd bghWg;ig chpa mYtyh; kPJ eph;zak; bra;a naYk; vd;W fUJtjhft[k; BkYk; mt;thW chpkk; tHA;fpa gpd;dh;, khepy mstpyhd naf;FeUf;F Mz;LBjhWk; Fwpg;gpl;l ehspy; ne;bje;j gs;spfSf;F chpkk; tHA;fg;gl;Ls;sJ vd;w mwpf;ifia mDg;gyhk; vd;Wk; fUjg;gLfpwJ" vd tprhuiz mYtyh; bjhptpj;Js;shh;.
""ePjpgjp FG jdJ mwpf;ifapy; bjhptpj;Js;sJBghy; nj; jP tpgj;jpw;F KGf;f KGf;f bghWg;Bgw;f Btz;oath;fs; gs;spj; jhshsh;fs; kw;Wk; gs;spfis eph;tfpj;J te;j mtuJ cwtpdh;fs;, rj;Jzt[ mikg;ghsh;fspd; ftdkp;d;ik FiwghLfBs vd;W fUj;J bjhptpj;Js;sdh;. njw;F naf;Feh; ve;j tpjj;jpYk; bghWg;ghf khl;lhh;. jP tpgj;J ele;j clBdBa bghJkf;fspd; ftdj;ijj; jpir jpUg;g, mth;fsJ bfhe;jspg;ig Fiwg;gjw;fhf Btz;o rhh;epiy mYtyh;fSld; Brh;;e;J naf;FeUk; jw;fhypf gzpePf;fk; bra;ag;gl;lhh;. nJ mj;jUzj;jpy; rhpahf nUg;gpDk; mtiu ePz;l ehl;fshf jw;fhypf gzp ePf;fj;jpy; itj;jpUe;jJ jtW vd;Bw fUJfpBwd;. ne;epiyapy; Fw;wk; rhl;lg;gl;l mYtyhpd; tpsf;fk; kw;Wk; ePjpgjp FGtpd; ghpe;Jiuapida[k; Vw;W jpU.nuh.fz;zd; bjhlf;f fy;tp naf;Feh; (jw;BghJ gs;spf; fy;tp naf;Feh;) kPJ Rkj;jg;gl;l Fw;wr;rhl;L epUgzk; Mftpy;iy vd;W Kot[ bra;fpBwd;" vdt[k; tprhuiz mYtyh; jdJ mwpf;ifapid mspj;Jsshh;.
(d) I issued a Circular for Renewal of the Aided Elementary and Middle Schools in ;e.f.vz;.44688/$p.3/2003 Bjjp 24.12.2003 with the following observations.
Ma;t[ mYtyh;fs; xt;bthU Mz;Lk; Ma;t[ gzpfis Bkw;bfhs;tJld; ghh;ita[k; nLfpd;wdh;. khtl;l bjhlf;f fy;tp mYtyh;fSk; ghh;itapLfpd;wdh;. fl;olj;jpd; cWjp jd;ikr;rhh;e;J cldo eltof;if vLf;fhjjd; fhuzkhf ng;gog;gl;l epfH;t[fs; Vw;gLfpd;wd. ng;gog;gl;l epfH;t[fs; Vw;glhky; nUf;f Ma;tpd;BghJ fl;olj;jpd; cWjpj;jd;ik Fwpj;J tpHpg;g[ld; nUf;f Btz;Lk;.
epue;ju mA;fPfhuk; bgw;Ws;s gs;spfs; epue;ju fl;olA;fspy; cs;sdth vd;w epiyapida[k; mg;BghJ cWjp bra;J bfhs;s Btz;Lk;.
fl;olj;jpd; cWjpj;jd;ik nHf;fpd;wJ vd;whByh, Bghjpa fl;ol trjp ny;iy vd;whByh my;yJ tFg;giwfs; gad;gLj;j nayhj epiy nUe;jhByh gs;spfs; mA;fPfhuj;ij jpUk;g bgw;W khzth;fspd; fy;tp bjhluYf;F khw;W Vw;ghL bra;J jkpH;ehL mA;fPfhpf;fg;gl;l jdpahh; gs;spfs; xGA;F gLj;Jk; rl;lk; 1973 kw;Wk; tpjp 1974 go bray;gl Btz;Lk;."
(e)Public Prosecutor after verifying Mr.Justice K.Sampath's Commission enquiry report and analysing evidence, came to the conclusion that the said Thiru.R.Kannan, is absolutely blameless and he had an excellent record of service. The departmental enquiry officer Thiru.Machendra Nathan I.A.S also came to the conclusion that the charges leveled against Thiru.R.Kannan has not been proved. Finally the charges were also dropped by the Government. Since there is no culpability, no fresh evidence is going to be adduced before the Trial Court than the enquiry commission. So nothing is going to be proved afresh. The fact that there was an earlier order of sanction for prosecution of the accused (Public servant) by the state Government is not a ground to refuse consent by the Court as per the case law reported in 1991 Crl.L.J.2457. Considering all the facts and circumstances of the case, I am of the opinion that the criminal prosecution against the said Thiru.R.Kannan can be withdrawn in the interest of administration of Justice.
(f) I have been charged for offences under Section 120(B), r/w 304, 338, 285, 167, 197, 465, 467, 468 and 471 of I.P.C and Rule 15(1) (2) r/w. 16 of Tamil Nadu Public Building (Licensing) Act, 1965 and Section 5 r/w. 47 of Tamil Nadu Recognised Private Schools (Regulation) Act and Section 23 of Juvenile Justice (Care and Protection of Children) Act 2000 and Municipalities Act r/w 108(1), 109 of I.P.C. The above said offences were not made out to me. On 30.07.2010 the learned District Judge has passed order by allowing the application and discharged the accused from the above case. The learned District and Sessions Judge's observations in para 11 is as follow " The Government has accepted the report of the Hon'ble Justice Thiru.K.Sampath and passed G.O.Ms.No.131 School Education (A) Department dated 10.08.2006. The report of the commission is also incorporated in the Government order. In the report, it is stated that the respondents 1 and 2 herein are not in any way responsible for this fire tragedy. It is also stated in the report that the respondents 1 and 2 herein have to be discharged in the absence of any other documentary evidence. The Hon'ble District and Sessions Judge passed orders after considering the report of Justice K.Sampath's Commission, the report, of the departmental enquiry officer as mentioned in the G.O. and other relevant case records had passed the order dated on 30.07.2010 in Cr.M.P.No.2257 / 2009 in S.C.No.275 of 2006.
(g) The contention of the petitioner is that the District Collector has directed the Public Prosecutor to withdraw the case against the accused is not correct. Only the Government has passed the relevant G.O.for withdrawal in this case. The District Collector has only directed the Public Prosecutor to withdraw the case based on the G.O.passed by the Government for withdrawal. Further contention of the petitioner is that the Public Prosecutor without verifying the materials, satisfied himself and filed petition that the charge against the accused can be withdrawn automatically and mechanically is not correct. The public prosecutors has carefully perused the relevant documents, Mr.Justice K.Sampath's Commission Report and Department enquiry reports as mentioned in the G.O.41 and submitted the legal opinion to the Government and the Government in turn issued the above G.O. Subsequently the prosecutor had filed the withdrawal petition.
(h) The learned District Judge has correctly appreciated the contention of the party and has come to a correct conclusion in this case.
(i) The learned District Judge has followed the principles laid down in the decisions of Hon'ble High Court all well as the Apex Court in this case and has passed the orders accordingly.
12. The learned senior counsel for the 2nd and 3rd respondents argued that the respondents are not at all involved in the said case. They are higher officer in the educational department of the state and have rendered lengthy service in the department with an unblemished record. At the time of the incident the respondents were not present at the site. So this criminal case registered in Crime No.261/04 under Section 120 B r/w 304, 338, 285, 108(1), 109, 167, 197, 465, 467, 468, 470 of I.P.C and Section 5(5) of Tamil Nadu Recognised Private Schools Regulation Act and rule 15(1) (2) of Madras Public Buildings (licensing) Act, 1965 and Section 23 of Juvenile Justice Act (Care and Protection of Children) Act 2000.
13. The learned senior counsel further argued that a judicial commission was appointed by the Government and in the said commission His Lordship Mr.Justice K.Sampath was pleased to duly conduct the inquiry and render his findings. A portion of the findings is as follows:-
"279.19. So also M.Palanichamy(P.W.6) the then CEO of Tanjore District is absolutely blameless. He had an excellent record of service. He had no control or jurisdiction over the elementary schools. Chief Educational Officers had been so instructed several times. He had perused the file relating to high School with the notings of Pinagapani, the then DEO and on that basis recommended continuous recognition from 2002 to 2005 subject to certain conditions. According to him, if only the Education Department officials who inspected the schools had brought it to the notice of the higher official and taken proper action, the accident could have been averted."
14. The learned senior counsel further argued that as per the findings of the Hon'ble Mr.Justice K.Sampath, the 2nd respondent is innocent. The learned senior counsel further argued that the first principle of law says that the accused may escape from the punishment, but the innocent should not suffer punishment. The learned senior counsel further elaborated that the respondents were not present and they had no role or overt act at the site of the incident. Hence, he prays to dismiss the criminal revision petition.
15. On considering the facts and circumstances of the case, counter statements of the respondents arguments of the learned counsel for the petitioners, arguments of the learned public prosecutor for the 1st respondent, arguments of the learned senior counsel for the 2nd and 3rd respondents and the order of the learned Sessions Judge, Thanjavur, this Court is of the view that the Criminal Case was registered by the 1st respondent on behalf of the state, hence he is more responsible to establish the prosecution case. The state has passed a G.O. on the basis of the judicial commission report and discharged the 2nd and 3rd respondents from the criminal case after observing legal formalities of the trial Court. As such there is no discrepancy in the order passed by the learned Principal Sessions Judge, Thanjavur in Cr.M.P.No.2257 of 2009 in S.C.No.275 of 2009 dated 30.07.2010. Hence, this Court confirms this order.
16. With the result the above Criminal Revision Petition No.579 of 2010 is dismissed. Consequently the order passed by the learned Principal Sessions Judge, Thanjavour, in Crl.M.P.No.2257 of 2009 in S.C.No.275 of 2006 dated 30.07.2010 is confirmed. Connected miscellaneous petition is closed. There is no order as to costs. This Court further directs the 2nd and 3rd respondents to co-operate with the prosecution case in the interest of Justice and confidence of the public, accordingly ordered.
SKN To
1.The Additional Superintendent of Thanjavur,
2.The Addl. Public Prosecutor, Madurai Bench of Madras High Court, Madurai.