Madras High Court
V.Shanmugam vs The Sub Inspector Of Police on 21 July, 2017
Author: R.Mahadevan
Bench: R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 30.06.2017 PRONOUNCED ON : 21.07.2017 CORAM THE HON'BLE MR.JUSTICE R.MAHADEVAN Crl.O.P.No.11441 of 2017 and Crl.MP.No.7520 of 2017 V.Shanmugam ... Petitioner Vs The Sub Inspector of Police, Mudaliarpet Police Station, Puducherry. ... Respondent Criminal Original Petition filed under Section 482 Cr.P.C. to call for records pertaining to Crime No.32 of 2017 pending investigation on the file of the respondent police and quash the same. For Petitioner : Mr.Haja Nazirrudin, Sr.C for M/s.A.B.Ashok For Respondent : Mr.Tamizhvanan, GA (Crl.Side) (Pondy) ORDER
The above Criminal Original petition has been filed invoking the powers of this Court under Section 482 of the Criminal Procedure Code to quash the FIR in Crime No 32 of 2017 on the file of the respondent.
2. The case of the petitioner is that he joined the Pondicherry Home guards in 1990 and joined duty in the police department on 30.06.1998 after being recruited through sports quota.The petitioner though posted in the traffic department (East) now, has been part of the Special Task Force, Crime Team (South) and has solved many cases involving murder, theft, lottery case. The petitioner has received several accolades including Rajiv Gandhi Award on 16.08.2016. According to the petitioner, he had earned several enemies in the department as during the course of his investigation in many cases, it came to light that several police officers are involved in various crimes and one such instance is when a series of theft was occurring in Puducherry in 2011, the petitioner and his STF (South) members arrested few accused, who, in turn, made startling revelations that they handed over the jewels and household articles to two members of STF (North) headed by the Sub-Inspector P.Ramesh and that his brother was also involved. Whileso, when he was under medical leave from February 2017 onwards, news articles were published on 31.03.2017 alleging the involvement of the petitioner with an incident which resulted in registration of the FIR in Crime No.32/2017, on the file of Mudaliarpet Police Station, Puducherry under Sections 7 and 8 of the Pondicherry Gaming Act and sections 420 r/w 34 IPC. On the strength of the FIR, the petitioner was dismissed from service without any notice on 06.04.2017. Contending inter alia that the petitioner has nothing to do with the case, that prima facie the contents in the FIR would not constitute any offence punishable under Sections 7 and 8 of the Pondicherry Gaming Act and that Section 420 r/w Section 34 IPC are not applicable and that the name of the petitioner has been included with malafide intention at the instance of few officers to wreck vengeance, the Criminal Original Petition has been filed.
3. Mr.Haja Nazirrudin, learned Senior Counsel appearing for the petitioner contended that the case of the prosecution is that the defacto complainant, i.e the Sub-Inspector of police received information that some persons are gaming in a house at 1st main Road, Thirumagal Nagar, Velrampet, Pondicherry and after intimating and getting permission from the Inspector, raided the premises along with 12 others, which included Special Task Force members and then registered the assailed FIR.
4. The learned Senior Counsel further referred to the FIR to contend that indisputably, the petitioner was not present at the time of the alleged raid. It is only an afterthought, a 14th person is implicated. Further, the defacto complainant and other police officers knew the petitioner well. Had the petitioner been there at the time of raid, they would have specified the petitioner as PC 2167 or police constable Shanmugham. It was also pointed out that the FIR only specifies the name of the person present earlier as Shanmugam of Kuruvinatham. The learned senior counsel pointing out to the photographs of the alleged place, where the raid took place, contended that there is only one way to ingress and exit and that, it is not possible for anyone to escape after the police had entered into the premises, that too, when 13 police personnel were present. The Learned Senior counsel also referring to the statements of the accused in a theft case investigated by the petitioner, pointed out the involvement of the police officers in various crimes including the Sub Inspector - P.Ramesh, who was also part of the present raiding team. It was strongly contended by the learned senior counsel that the name of the petitioner has been included only with malafide intention to wreck vengeance and oust the petitioner from service. The Learned Senior Counsel further pointing out the averments made in the FIR, contended that the defecto complainant is the Sub-Inspector of Police and the FIR has been registered by the very same officer and he is also the investigating officer, which is perse illegal.
5. The Learned Senior Counsel further assailed the FIR contending that though the allegations in the FIR does not make out an offence under Section 420 IPC and that too in a complaint lodged by a police officer under the Gaming Act, Section 420 IPC, a compoundable, but non-bailable offence has been added to implicate the petitioner in a false case with malafides. It was also contended that attempts are also made to implicate the petitioner in other cases to wreck vengeance at the instance of the said Ramesh and Higher officers. To attract an offence of Section 420 IPC, there must be a legally enforceable contract with an inducement to part with some property. The averments on the face of it, does not constitute any such offence. Also, referring to Sections 7 and Section 8 of the Pondicherry Gaming Act, it was contended that for the above provisions to apply, the premises must fall within the definition of common gaming house. In the instant case, the contents of the FIR do not satisfy the requirement and there is no allegation that a commission or profit was paid to the owner of the premises. Also, for Section 8 to apply, the petitioner must have been present and secured. Even as per the FIR, the petitioner was not present. Hence, the trial of the case will only be a futile exercise. Under the above circumstances, the Learned Senior Counsel relying upon the decisions reported in (i)LAWS (MAD) -1983 -7-43 (Sundaram v. the State); (ii)(1996) 11 SCC 709 (Megha Singh v. State of Haryana); (iii)2005 Cri. LJ 377 (State of Karnataka, Paper Town.. v. Sheshadri Shetty and others); (iv)order of this Court dated 21.02.2007 in Crl.OP.No.27285 of 2006; (v)Order of this Court dated 19.12.2008 made in Crl.O.P.No.7571 of 2005; (vi)2009 (11) SCC 203 (Chunduru Siva Ram Krishna v. Peddi Ravindra Babu); (vii)2014 -1- LW 989 (Best Ramasamy v. The Deputy Superintendent of Police, Tiruppur and another); (viii)Order of this Court dated 04.02.2015 made in CRL.O.P.(MD)No.1573 of 2015; and (ix)2012 SCC OnLine Bom 832 (Jaywant Balkrishna Sail v. State of Maharashtra), contended that the lodging of the FIR against the petitioner is an abuse of process of law and if allowed to continue, would result in miscarriage of justice and therefore, the FIR registered by the respondent is liable to be quashed.
6. Per Contra, Mr.Tamizhvanan, learned Government Advocate (Criminal side) contended that on receipt of credible information that gaming activity was going on in the premises, the raid was conducted and the accused were playing vettucheetu by betting and hence, a FIR was registered. It was also contended that the investigation was underway, as such, the prosecution must continue. Apart from the above contentions, the learned Government Advocate was unable to answer the legal and other issues raised by the Learned Senior Counsel for the Petitioner.
7. Initially, when this Court during the course of hearing, questioned about the status of the investigation, the learned Government Advocate submitted that the charge sheet has been filed. The contention was seriously refuted by the learned counsel for the petitioner. The matter was adjourned to 28/06/2017 to ascertain the status. When the case was again taken up on 30/06/2017, the Learned Government Advocate, initially insisted that the charge sheet was filed, but when the certified copy obtained from the learned Judicial Magistrate No.III, Puducherry was produced by the Learned Senior Counsel to show that the charge sheet has not been filed, the Learned Government Advocate retracted the statement and fairly informed the court that he was instructed to say so. Then the arguments were heard and orders were reserved. In view of the fact that the charge sheet has not been filed, this Court is of the view that the judgments relied upon by the Learned Senior Counsel for the petitioner that the FIR can be quashed, if charge sheet is filed pending the quash proceedings need not be gone into.
8. Heard both sides and perused the typed set of documents.
9. This Court already had the occasion to consider and peruse the service file of the petitioner, which contained the FIR and certain notes drawn between 30.03.2017 and 06.04.2014 without any basis and evidence and after careful consideration, quashed the dismissal order dated 06.04.2017.
10. Now, the challenge to the FIR is before this Court. The contents of the FIR would reveal that the alleged offence took place at the residential house of the 15th accused. The raiding party headed by the defacto complainant with 12 other, arrived at the scene of occurrence at 11.30 pm. It is alleged that the accused were present there and were playing a card game namely vettucheetu and on seeing the police personal, they tried to escape and the police party secured all the 13 accused. After, initially claiming that all the 13 accused were secured, the name of the 14th person crops up as if he was there earlier and escaped. It is not known as to how the police party came to a conclusion that the persons allegedly present there and were playing vettucheetu as even according to the compliant, they attempted to flee on seeing the police. If they had attempted to flee, the police could not have seen them playing vettucheetu. It is also unbelievable that in a residential house, with inmates, people would play cards at 11.30 pm and continue to play even after seeing the large number of police party. For the police to come to such conclusion, they must have sent one of their men to trap the accused.
11. At this juncture, it is relevant to refer to the judgment of this Court in LAWS (MAD)-1983-7-43 (Sundaram v. The State), wherein, under similar circumstances, when the accused were charged for playing vettucheetu, this Court quashed the FIR holding as under:
There is absolutely no material in the case to show that the premises in question was a common gaming house. The mala fides of the officers can be seen from the fact that the 10th petitioner, who is a watchman of the Club, has been charged under section 8 of the Act for running a gaming house. The averments in the first information report that the members were playing Mangatha or VettuCheetu and shouting Open card, close card and continuing the game even after the arrival of the police, are too puerile a story to merit acceptance in any Court. Unless the police had sent someone to act as decoy to find out what was the nature of the cards game that was being played, they cannot conclusively alleges that a set of card-players were indulging in playing a game of chance like Mangatha or VettuCheetu. The essential ingredients of sections 8 and 9 of the Act have not been alleged. As such, the trial of the case, if it is to take place, will only be an exercise in futility. Hence, the petitioners should be spared the ordeal of a trial by quashing of the proceedings pending against them in the Court below.
12. This Court has in its order dated 19.12.2008 passed in Crl.O.P.No.7571 of 2005, held as follows:
2. As per the F.I.R, the complainant is the Inspector of Police, Pondy Bazaar Police Station, Chennai-17 and according to him, on receipt of information, he raided the premises of the petitioner at about 18 hours on 30.01.2005 and found in the premises that accused No.2 to 11 were playing card game Mangatha and accused No.1 had leased out the said premises for rent and therefore, they have committed the above said offence.
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15. The Court of 13th Metropolitan Magistrate, Egmore, Chennai, after conducting the trial acquitted all of them awarding benefit of doubt. The first petitioner herein and 13 others have filed Criminal O.P. No.172 of 2000 before this Court to quash the proceedings in C.C.No.10411 of 1999 pending on the file of 13th Metropolitan Magistrate Court, Egmore, Chennai, and this Court vide order dated 29.8.2000, has quashed the said proceedings and in paragraph 10 of the said order, it has been held as follows:
"But, one question which predominantly arises in this case and the answer to which militates against the prosecution has to be considered. It is evident that the respondent had booked several cases of gaming against the first petitioner and others and most of them were closed for want of witnesses and ended in acquittal, that the Centre had also obtained injunction against the respondent from entering into the premises without reliable information which had been confirmed in W.M.P.No.22071 of 1997 by this Court. Even according to the prosecution, there had been attempt of theft in a bank which is situate in the second floor of the building. As it is when information was given to the police regarding attempt of theft and the respondent and his men were to reach therein the broad-day-light, it can normally be expected that before even the police comes, persons with curiosity gather to look into the premises to find out as to what has happened. Further, when there had been a theft in the second floor and the police are about to come, it is unnatural that the persons in the third floor would not have been aware of the incident which took place in the second floor and awaited the arrival of the police, but would have continued to carry on gaming, that too, according to the prosecution as stated in the charge-sheet shouting inside and outside causing disturbance to the neighbours. Even if there had been such an incident, gamblers would have run away or would have wound up their shows in expectation of the arrival of the police. It appears, the action is motivated...
16. ..It is pertinent to point out at this juncture that the Station House Officer of the respondent himself was the complainant and has taken over jealous effort in registering of the case under Sections 45 and 46 of the Madras City Police Act.
13. The FIR has been registered for the offences committed under Sections 7 and 8 of the Pondicherry Gaming Act r/w Sections 34 and 420 IPC. For better appreciation, it is noteworthy to refer to Sections 7 and 8 of the Pondicherry Gaming Act, which read as follows:
7. Penalty for opening etc., a common gaming-house.- Who ever opens, keeps or uses of permits to be used any common gaming-house, or conducts or assists in conducting the business of any common gaming-house or advances or finishes money for gaming therein, shall be punishable with fine which may extend to five hundred rupees or with imprisonment for a term which may extend to three months or with both. 8. Penalty for being found gaming in a common gaming- house.- Whoever is found gaming or present for the purpose of gaming in a common gaming-house shall be punishable with fine which may extend to two hundred rupees or with imprisonment for a term which may extend to one month; and any person found in any common gaming-house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming. A perusal of the above would indicate that for the sections to attract, the place must come within the definition of 'common gaming house', which is defined under Sectioin 2 (a) of the Act. Also for Section 8 to attract, the accused must be found in the common gaming house. It is useful to look into Section 2 (a) of the Pondicherry Gaming Act,1965 which is extracted hereunder:
2. Definitions. - In this Act, unless the context otherwise requires-
(a) Common gaming-house means any house room tent, enclosure, vehicle, vessel of any place whatsoever in which cards, dies, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying using or keeping such house , room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instrument of gaming or of the house, room, tent, enclosure, vehicle, vessel or place or otherwise howsoever; and includes any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming;
14. The definition of common gaming house found in the Pondicherry Gaming Act, Tamil Nadu Gaming Act and Madras City Police Act are same. A perusal of the definition would indicate that for the premises to be termed as common gaming house, the person owning, occupying, using or keeping such house where the gaming activity is allegedly conducted must be making a profit or gain out of such act. The contents of the FIR do not make out such a case. This Court finds force in the submissions of the Learned Senior Counsel for the petitioner that unless the place could fall under the definition of common gaming house, which is a pre-requisite for trying the accused under Sections 7 and 8 of the Act, the FIR cannot be sustained. In this regard, it is pertinent to look into the decisions cited by the learned Senior Counsel for the petitioner, which are as follows:
(i) LAWS (MAD) 1983-7-43 (Sundaram v. The State, by the Sub-Inspector of Police, Kovilpatti Police Station) (cited supra).
(ii)2014-1- LW-989 (Best Ramasamy v. The Deputy Superintendent of Police, Tiruppur and another), wherein, this Court has held as follows:
14.Section 3 of the Tamil Nadu Gaming Act, 1930 defines a common gaming-house as under:- Common gaming-house' means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room tent, enclosure, vehicle, vessel or place or otherwise howsoever, and includes and house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened kept or used for the purpose of gaming:
15. Section 8 of the said Act which seeks to punish opening etc., of a common gaming house runs under:-
Whoever opens, keeps or uses or permits to be used any common gaming house, or conducts or assists in conducting the business of any common gaming house or advances or furnishes money for gaming therein, shall be liable on conviction of fine not exceeding five hundred rupees, or to imprisonment not exceeding three months, or to both.
16. Section 9 which prescribes penalty for being found gaming in a common gaming-house runs as under:-
Whoever is found gaming or present for the purpose of gaming in a common gaming-house shall, on conviction, be liable to fine not exceeding tow hundred rupees or to imprisonment not exceeding one month; and any peon found in any common gaming-house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.".
24. In Peer Appa v. Inspector of Police, Tenkasi, Tirunelveli District (2006 (2) MLJ (Crl) 78), police raided Peraringar Anna ManamahilMandram in Tenkasi where the accused were playing 'vettucheetu', Rs.243 also has been recovered from the table and the accused were prosecuted for offences under Sections 8 and 9 of the Tamil Nadu Gaming Act. The accused have challenged the prosecution in this Court and sought for quashment of the same under Section 482 of Cr.P.C. The prosecution contended that there are prima facie materials to proceed as against them.
This Court quashed the criminal proceedings observing as under:-
"5. ........Admittedly, the respondent police, on information received, has visited the club at 2.00 p.m. on 26.10.2005. It has been repeatedly held by the Supreme Court and by this Court that when a Police Officer visits a club of similar nature, he must appreciate the information received and must approach the nearest learned Magistrate to obtain a search warrant in this regard. In the instant case, though the respondent has visited the club during day time and when there is every possibility of getting such warrant, it has not been obtained. Admittedly, the petitioner and others are members of a club. In a case reported in Raman Nair and others v. State 1990 (2) MWN(Cr) HC 195 it has been held as follows:
7. .... To decide a question whether a club, where gaming in cards is carried on, is a gaming house or not, the relevant consideration is not whether any member of the club makes a profit but whether the club, as a person, occupying or using or keeping the house or room makes a profit. The fact that the police recovered huge sum of money on the table on the date in question is not sufficient to throw any light as to the club or the Secretary of the club deriving anything from out of the money available on the table at the relevant time. The fact that the members playing cards make a profit is not at all a criterion to decide the question of the premises being used as a gaming house. The huge amount, available on the table at the relevant time, may be going to the pockets of the members playing the game of cards. As already indicated, that is not sufficient to consider the premises of the club a gaming house under Section 3 of the Act. Once the premises is not proved to be a gaming house, it goes without saying that the petitioners cannot be stated to have committed the offences under Sections 8 and 9 of the Act.".
It has been repeatedly held that running of a common gaming house is a primordial requisite before a person could be convicted for offence under Sections 8 and 9 of the Act and gaming is not an offence perse. Even assuming that the allegations putforth by the prosecution is true, it cannot constitute an offence as alleged. Even if the prosecution is allowed to continue, in view of the facts and circumstance of the case, it would be a futile exercise and there is no scope for conviction.
26.Considering the facts and circumstances of the case before us, as rightly submitted by the learned Senior Counsel for the petitioner, the continuance of the prosecution as against the petitioner will be a futile exercise and it will be a waste of public time and energy.
27. In the facts and circumstances, the principles laid down in Bhajan Lal (supra) and in Peer Appa (supra) are squarely applicable to this case.
28. In view of the foregoings, the entire criminal proceedings in S.T.C.No.1060 of 2012 on the file of the learned Judicial Magistrate No.I, Tiruppur, so far as the petitioner is concerned is quashed.
(iii)Order dated 04.02.2015 in CRL.O.P.(MD)No.1573 of 2015, (D.Kannan v. Inspector of Police), wherein, under similar circumstances, this Court passed orders quashing the FIR holding as under:
3.This petitioner is one of the 9 accused against whom F.I.R. in Crime No.21 of 2015 stands registered by the respondent for offences under Sections 8 and 9 of Tamil Nadu Gaming Act, 1930. A reading of the F.I.R. informs of arrest of the 9 accused on 16.01.2015 on finding them gambling during a game of cards. A sum of Rs.1090/- was seized. The offence under Sections 8 and 9 of Tamil Nadu Gaming Act, 1930 deal with penalty for opening a common gaming house and penalty for being found gaming in a common gaming house. Therefore the pre-requisite for attraction of offence under Sections 8 and 9 is that the acts complained of must have been committed in a common gaming house.
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5. The complainant in the case is the first respondent Inspector of Police. In the instant case the accused admittedly have been found gambling in the house belonging to the second accused. The present case is an instance of persons gambling over a card game and there is no accusation of the second accused using his house as a gaming house and towards reaping profit or gain by so doing.
6. The observation in the judgment of the Panjab - Haryana High Court in Kanwardeep Singh vs. Union Territory Chandigarh on 24 December, 2008 in Crl.M.P.No.54959 of 2006 are apposite:
"In view of the facts and circumstances of the case, I am of the considered opinion that the premises, which was subjected to search and seizure under Section 5 of the Act, could not be termed as a common gaming house, and therefore, continuance of proceedings, as against the petitioner, would be a clear abuse of the process of law and the abuse of process of court. There is no dispute to the fact that the incident is in immediate proximity in time to Diwali festival. Any and every case of playing cards, particularly during festive season, in private property not for the gain and profit of the occupier or owner of property cannot be termed as gambling in a common gaming house, under the Act, to constitute an offence. I am of the opinion, taking in view the facts and circumstances of the case, that it is a case of playing cards during Diwali festivities. The incident is neither in a public place nor in a common gaming house (as defined under the Act). The facts and circumstances do not spell out commission of any offence under the Act."
8. This Criminal Original Petition is allowed and F.I.R. in Crime No.21 of 2015 on the file of the respondent police is quashed. Consequently, connected M.P.(MD) No.1 of 2015 is closed.
(iv)2012 SCC online Bom 832 (Jaywant Balkrishna Sail v. State of Maharashtra), wherein, the Division Bench of the Bombay High Court observed as follows:
19. Perusal of definition of the word "Gaming" reveals that when two or more persons play together a game of chance for a stake or wager which is to become the property of the winner, would fall within that definition. A distinction has to be drawn between the money which is used for gaming and the money which is found on the persons in the premises. In Emperor vs. Pyarelal Gokal prasad it has been held that combined reading of sections 3 and 8 of the Act does not suggest that all moneys are instruments of gaming. Similarly from definition of "Common gaming-house", it reveals that in order to constitute a house a common gaming house, there must be materials to indicate that the owner or occupier takes a fixed commission which is irrespective of result of gaming. Taking into consideration the aforesaid definitions, it will have to be seen whether the offence under sections 4 and 5 viz gaming in common gaming house is made out from the averments which are made in the FIR.
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20. As far as provisions of section 5 are concerned, the only averment which is made in the FIR is that the raiding party went to that place on the basis of reliable information which was received by the superior officers and when they went to that place they found that certain persons were playing cards and counters were kept on the table and the Investigating Officer questioned the person who was in-charge of the establishment viz Secretary of the Club as to whether he had any gambling license and when he gave reply in the negative, all the persons were arrested and the counters were confiscated and the monies which were on the person of those who were playing card were also seized. There is no material on record to indicate that the club where the Petitioners were playing cards in the Card Room was keeping any fixed amount as its share. It has to be seen from the averments made in the complaint whether the averments even if they are accepted in totality would constitute an offence under sections 4 and 5 of the Gambling Act.
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24. In our view, taking into consideration the relevant provisions of the Gambling Act viz sections 4 and 5 and averments made in the complaint, there is absolutely no material on record to indicate that the Petitioners were indulging in gambling activity or that the club was used as common gambling house.
15. A reading of the above judgments would reveal that Sections 8 and 9 of the Tamil Nadu Gaming Act are the parimateria provisions to Sections 7 and 8 of the Puducherry Gaming Act, Sections 4 and 5 of Bombay Prevention of Gambling Act 1887 and Sections 45 and 46 of the Madras City Police Act. The Definition of common gaming house is similar in all the Acts. Similar to the cases referred to above, the FIR does not make out a case, wherein the residential house of the 15th accused, who is living there with his family would fall under the definition of common gaming house and that a profit or gain or commission was received by the 15th accused. The contents in the FIR do not say so. Hence, no case is made out under Sections 7 and 8 of the Gaming Act. When the prerequisite for charging under sections 7 and 8 are absent and the continuation would only be a futile exercise and there is no chance of conviction.
16. Also, as rightly contended by the Learned senior Counsel for the petitioner, the presence of the petitioner at the time of raid is elemental to invoke Section 8, as to whether the petitioner escaped on seeing the police party or not. The fact remains that the petitioner was not secured. Also, considering the fact that there was only one exit and the fact that there were 13 police personnel present, this court finds force that if the petitioner had been present, it would be impossible for him to escape. The version of the police is too naive to be accepted. Further, a perusal of the FIR would reveal that the respondent had stated that secured all the 13 accused persons. If there were more people, the statement would not be as above. As rightly pointed out by the Learned senior Counsel for the petitioner, if the defacto complainant had seen the petitioner, he would have named the petitioner as police constable in the Complaint itself. In fact, the stand of the petitioner that he worked under the defacto complainant has not been countenanced. Therefore, the inclusion of a 14th person could only be termed as an afterthought with ulterior motive.
17. Next coming to Sections 34 and 420 IPC, the provisions of which, are reproduced thus:
Section 34 IPC Acts done by several persons in furtherance of common intention.When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Section 420 IPC 420. Cheating and dishonestly inducing delivery of property.Whoever cheats and thereby dishonestly induces the person de-ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 34 has no independent application, unless two or more persons are involved in any other offence punishable under the Indian Penal Code.
18. The learned Senior Counsel for the petitioner has contended that the allegations in the FIR do not make out a case under Section 420 IPC. The learned senior counsel relying upon the judgment reported in 2009 (11) SCC 203 (Chunduru Siva Ram Krishna v. Peddi Ravindra Babu), contended that the ingredients in the FIR do not satisfy the requirements of section 420 IPC. Also, in an offence booked under the Gaming Act by a police officer, Section 420 cannot be invoked. Further, Section 420 is compoundable. Hence, the FIR is vague and is not launched by any aggrieved party. Apart from that, neither the names of the aggrieved party nor the amount involved is mentioned. The section has been added to make the offence non-bailable and to harass the petitioner with ulterior motives.
19. As rightly pointed out by the Learned Senior Counsel for the petitioner, the contents of the FIR do not make out any case under Section 420 IPC. The Honble Supreme Court in the judgment reported in 2009 (11) SCC 203 (cited supra), after analysing various judgments has culled out the requirements to attract Section 420 IPC as under;
16. Further, this Court observed in S. W. Palanikar v. State of Bihar [2002 (1) SCC 241] that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. It observed as follows:
"8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position.
Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.
9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and(iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in HridayaRanjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 on facts of that case, has expressed thus: (SCC p. 177, para 15) 15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
17. The aforesaid discussion clearly pin-point the legal position on the subject which is by now well settled. The principle that could be culled out is that when at an initial stage a prosecution is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint filed prima facie establish the offence. It is also for the court to take into consideration any special feature that may appear in a particular case while considering whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose. The tests that are laid down in the case of Bhajan Lal (supra) are required to be applied very carefully and minutely when a prayer for quashing is laid before the court.
20. From a reading of the above judgment, it is clear that to attract the offence under Section 420 IPC, there must be a contract between the parties, needless to a say a lawfully binding contract and there must be an intention to deceive at the inception which deceit should have made the person so deceived to part with some property or omit to act in furtherance of such deceit which he otherwise would not have and such deceit must cause or is likely to cause damage or harm to the person induced in body mind, reputation or property. In the present case, the contents of the FIR do not satisfy any of the requirements attracting Section 420. The complaint is lodged by the Sub-Inspector of police and not by any aggrieved party. Also, the complaint is vague and silent about the persons who were deceived, what was the amount involved and who deceived them. Obviously, the Sub-Inspector of Police is not an aggrieved person as he does not claim to be cheated. Hence, he will not have any locus standi to lodge a complaint under Section 420 IPC. It is also pertinent to mention here that Section 420 is compoundable by the person deceived. Adding the offences of Section 420 and 34 IPC in a complaint lodged by a police officer regarding playing of cards, is misconceived and can only be termed as an abuse of process of law, as per se, an agreement regarding betting is void ab initio and it is banned in the country. Also, reading the FIR in tangent would disclose that initially, the defacto complaint wanted to stop the complaint after including the 15th accused, the owner of the house. However, suddenly, the allegations regarding Section 420 pop up. Therefore, it only reflects the malafides of the defacto complainant Sub Inspector of Police for some ulterior motive, may be to strengthen the case against the petitioner. In view of the fact that the ingredients in the FIR on a bare reading do not disclose any offence punishable under Section 420 IPC and hence Section 34 is also inapplicable.
21. Another limb of contention by the Learned Senior counsel for the petitioner is that the defacto complainant cannot lodge the complaint and also investigate it. What is evident from the FIR is that he is not only the complainant, but also registered it himself and took up the case for investigation. In support of the said contention, the Learned Senior Counsel has relied upon the following judgments:
(i)The Hon'ble Supreme Court in the decision reported in 1996 (11) SCC 709 (Megha Singh v. State of Haryana), has observed as follows:
4. After considering the fact and circumstance of the case, it appears that there is discrepancy in the depositions of the P.WS 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about of the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW-3. Siri Chand, head Constable arrested the accused and no search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal fist information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.
(ii)In the judgment reported in 2005 Crl.LJ 377 (State of Karnataka, Paper Town...v. Sheshadri Shetty and others), the Karnataka High Court, following Megha Singhs case, held as follows:
5. Smt. Nesargi, learned Counsel who represents the accused was very quick to point out to us that the spirit of the principle laid down by the Supreme Court was not that the Court would have to disregard the evidence of the Investigating Officer but it is her submission that the principle is much wider in so far as where the complainant happens to be the Investigating Officer and where he proceeds with the investigation that according to her, the entire investigation would be vitiated in law..
6. For purposes of resolving this rather complex legal issue, we have carefully applied our minds to the principle underlying the Supreme Court decision. The rule of fairness which is the bed-rock of criminal investigations pre-supposes impartiality and starting from this premise what emerges is that where the Investigating Officer is the complainant, he is offending the principle of impartiality as far as the quality of the investigation is concerned. Though the Government Pleader has tried to salvage the position by contending that the Court should totally disregard the evidence of the I.O. P.W. 8 and examine the question as to whether the prosecution case is established on the basis of the remaining evidence, we need to point out that this procedure would not pass the legal test of fairness. The reason for this is because in his capacity as the Investigating Officer, P.W. 8 has not only given evidence at the trial but P.W. 8 is really the main architect of the prosecution cases. Everything that P.W. 8 has done right from the recording of evidence to the drawing up of panchanamas and the like would be hit by the lurking suspicion that if he is the complainant in the cases he may not be acting impartially. It is precisely this underlying principle which effects the quality of the whole of the prosecution case because P.W./ 8 as the Investigating Officer is the architect of that edifice. Therefore, though initially it did appear to us that the submission canvassed by Smt. Nesargi was not on the strong side, on a total review of the legal position we find that the learned Counsel was right in advancing the submission because the principle laid down in Megha Singh's Case would virtually render the investigation as tainted and if this is the position, it is virtually the end of the prosecution case.
7...One of the submissions canvassed by the learned Government Pleader was that a scrutiny of the present investigation will indicate that there is not the slightest hint of bias or partiality and therefore the Court should not bend over backwards and apply the principle in a vacuum and virtually shoot down the prosecution case. This argument is not altogether correct because the principles of ethical jurisprudence hold good irrespective of what the consequences are. Where the law prescribes a prohibition to the Investigating Officer being the complainant, such as a situation in which the law would preclude a prosecutor from being a witness at a trial or a situation in which where the prosecutor is absent, the Presiding Officer takes over the role of the prosecutor. The law prescribes a certain bar for valid reasons, there can be no compromise and if the bar is transgressed then the consequences are automatic. It would be too dangerous to accept the argument that the Court should still test the material to find out whether there are traces of bias.
12. Before parting with this judgment, we need to remind the prosecuting authorities that the error that has occurred in the present case ought never to be repeated and the Director General of Police still bring it to the notice of all Investigating Officers in the state that there is a legal bar to an Investigating Officer functioning in the dual capacity of the complainant also and that this error should not be repeated because it would virtually vitiate even an otherwise reasonably good investigation.
(iii) The Apex Court followed the ratio in Megha Singhs case in the judgment reported in (2005) 5 SCC 258 (Mukhtiar Ahmed Ansari v. State) and acquitted the accused. However, the view of the Apex Court has been distinguished by the Apex Court in many cases including the case reported in (2015) 3 SCC 220 (Vinod Kumar v. State of Punjab) following the judgment reported in (2004) 5 SCC 230 (Jeevanantham v. State) holding that unless the defacto complainant, who also happens to be the investigation officer, is personally biased and prejudiced and personally interested to get conviction to the accused, the contention cannot be sustained.
22. Therefore, considering the law and examining the facts of the case on hand, it is evident from the contents in the FIR that the complaint was lodged by the Sub-Inspector of Police, registered by him and he is also the investigating officer. In column 4 of the FIR, the type of information is suo-motto, in column 6, the name of complainant/informant is R.Rajan, Sub Inspector of police. However, the complaint commences as if the raid was conducted based upon reliable information. It also appears that the 13 accused were arrested even before the complaint was lodged and registered, which occurred only after the raiding party reached the station at 04.15 hours. This Court has already discussed the probability of the petitioner escaping from the premises in the presence of 13 police officials, is next to impossible. Also, being from the same department and being a recipient of several accolades including Rajiv Gandhi Award on 16.08.2016 and have worked under the defacto complainant himself, it is incomprehensible to believe that none of the officers recognized the petitioner.
23. As already pointed out, the FIR does not identify the 14th person as police constable Shanmugham. The petitioner has made flabbergasting allegations about the conspiracy by certain police officers to frame him in false cases. Specific allegations have been made against P.Ramesh, an Special Task Force member who raided along with the complainant. The lateral inclusion of some Shanmugham of Kurivinatham in the FIR after initially describing that secured all the 13 accused and then implicating the petitioner to be that Shangmugham named in the FIR and terminating his services in a short span of time without any opportunity, reflects the malafide and prejudicial intention of some official with vested interest for whom the defacto complainant has acted as a stooge. It is pertinent to reiterate that the allegations were made by the higher officials in the note file without any basis, statements, documents or report to support the same. The contention of the Learned Senior Counsel for the petitioner is further substantiated by the fact that an attempt was made to misguide the learned Government Advocate to report to this Court as if the charge sheet was filed. The desperation to implicate the petitioner is clear and patent. Therefore, this Court is unable to come to any other conclusion that the petitioner is being targeted by the department, which, in my view, is vindictive and cannot be permitted.
24. The Hon'ble Supreme Court in the authority reported in 1960 AIR 862 (R.P. Kapur v. State of Punjab), held thus:
The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are :
Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not constitute the offence alleged; in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.
25. In the decision reported in AIR 1992 SC 604 (State of Haryana v. Bhajanlal), the Apex Court laid down some guidelines, wherein the powers under Article 226 of the Constitution of India or inherent powers under Section 482 of the Code of Criminal Procedure should be exercised. In paragraph 102 of the said judgment the Apex Court has observed thus:
In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
26. The facts of the case would clearly fall within the ratio enunciated by the Apex Court in R.P.Kapurs case and Bhajan Lal's case. The allegations made in the FIR are not only absurd, but also improbable, which do not make out the commission of any offence, particularly, under Sections 420 and 34 IPC, as held in respect of the charges under Sections 7 and 8 of the Pondicherry Gambling Act, for the reasons stated above. Further, mala fide and personal reasons are also patently visible in the FIR.
Permitting the FIR to continue on record and directing the petitioner to undergo the ordeal of trial would not only be futile, but would also be an abuse of process of law.
In the result, this Criminal Original Petition is allowed and the FIR in Crime No 32 of 2017 on the file of the respondent police and pending on the file of the learned Judicial Magistrate No.III, Puducherry is quashed. Consequently, connected Miscellaneous Petition is closed. No costs.
21.07.2017 Index: Yes/No rk NOTE: Issue today To
1.The Judicial Magistrate No.III, Puducherry.
2.The Sub Inspector of Police, Mudaliarpet Police Station, Puducherry.
3.The Public Prosecutor, High Court, Madras -104.
R.MAHADEVAN, J.
rk Crl.OP.No.11441 of 2017 21.07.2017