Madras High Court
M.K.Elangovan vs State By Inspector Of Police on 15 November, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15 / 11 /2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.929 of 2009 & M.P.No.1 of 2009 M.K.Elangovan .. Petitioner Vs. State by Inspector of Police, Coonoor Police Station, Nilgiris District, Crime No.934 of 2007. .. Respondent PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to set-aside and revise the order passed by the Judicial Magistrate Court, Coonoor in C.M.P.No.3154 of 2008 in S.T.R.No.390 of 2008, dated 15.07.2009. For Petitioner : Mr.S.Veeraraghavan, Senior Counsel For Mr.S.Venkatesh For Respondent : Mr.C.Balasubramaniam Additional Public Prosecutor ******* O R D E R
The brief facts of the case are as follows:-
The respondent herein, viz., the Inspector of Police, attached to the Coonoor Police Station, Nilgiris District, had registered a criminal case in Crime No.934 of 2007 for the offence under Sections 186 and 353 of I.P.C. against the revision petitioner herein, viz., M.K.Elangovan. The defacto complainant, Mr.M.P.Janarthanam, Personal Assistant to the Assistant Collector, Coonoor, has stated in his complaint that on 20.09.2007 an enquiry was conducted by the Sub Divisional Magistrate, Coonoor under Section 138 of Criminal Procedure Code and at that point of time, the defacto complainant recorded the evidence of one Mr.Penthose, President of Kodanad Panchayat, who is a petitioner in the said case. The revision petitioner herein has filed a vakalat on behalf of the Estate Manager, Kodanad Tea Estate,and snatched away the records and the evidence recorded from the defacto complainant and tore it off., hence, the case lodged against the revision petitioner herein.
2. Thereafter, the Inspector of Police had conducted an enquiry in the said criminal case and filed a charge sheet before the learned Judicial Magistrate of Coonoor. At this stage, the revision petitioner herein had filed C.M.P.No.3154 of 2008 in S.T.R.No.290 of 2008 to discharge him from the criminal case. The said petition was resisted by the respondent-police. After hearing the arguments of learned counsels on both sides, the discharge petition was dismissed. The learned Magistrate, had assigned the reason stating that the charge sheet has been filed for the offence under Sections 204 and 353 of IPC along with the torn records. Under the circumstances, the revision petitioner cannot be discharged from the proceedings since a full fledged trial is of paramount importance.
3. Aggrieved by the said dismissal order passed in C.M.P.No.3154 of 2008 in S.T.R.No.390 of 2008, dated 15.07.2009, on the file of the Judicial Magistrate, Coonoor, the above revision has been filed by the revision petitioner / accused.
4. The learned senior counsel for the revision petitioner argued that the trial Court failed to appreciate that in order to attract an offence under Section 204 of IPC, the documents which are seen to have been destroyed by the accused should have been summoned by any Court as evidence, whereas, in this case, the accused is alleged to have slit the deposition of the third person, who was recorded by the P.A. to the Collector, i.e, the defacto complainant in the instant case, before a public servant or any Court which does not cover an offence under Section 204 of I.P.C. The learned senior counsel specifically pointed out that the trial Court failed to consider three aspects before deciding the discharge petition, viz.,
(a) that a document should be in the hands of the accused
(b) the accused has to be summoned to mark the document before the public servant or Court,
(c) the accused himself could have damaged or destroyed the same with an intention of preventing the same from being produced or used as evidence before the Court or public servant.
5. But, as per the prosecution case, the petitioner herein is alleged to have picked the depositions from the defacto complainant / Personal Assistant regarding one of the evidence of the case and damaged the same and therefore this would not satisfy any of the mandatory requirements of this Section in 204 of I.P.C. Therefore, the criminal case which has been registered under Section 204 of I.P.C. is not maintainable. The learned senior counsel for the revision petitioner further submitted that the trial Court failed to appreciate that as far as Section 353 of I.P.C., is concerned, it will be attracted when the accused commits an offence before a public servant, whereas the case of the prosecution is that, while discharging quasi judicial duty, the above said occurrence was alleged to have taken place,and therefore, the offence under Section 353 of I.P.C. has not been made out. The trial Court had committed an error by not considering that as far as Section 353 of IPC is concerned, the accused should act against the public servant by using criminal force with intent to prevent the public servant from discharging his duties or he should have acted in some other way, but in this case ,the complaint as per the defacto complainant does not express anything about the incident to show that while the defacto complainant was in the discharge of government duty, the accused herein with a criminal intention had snatched the deposition from the defacto complainant and had torn it and prevented the defacto complainant from discharging his duty. Therefore, the charge levelled against the accused under Section 353 of I.P.C. is not maintainable. The learned senior counsel further argued that the prosecution case does not disclose that the public servant was interrupted by the accused. The learned senior counsel further submitted that the entire Court proceedings under Section 133 of Cr.P.C. is to be recorded by the Sub Collector and not by his Personal Assistant,and as such, the criminal complaint is not maintainable.
6. The learned senior counsel appearing for the revision petitioner further submitted that initially the criminal case has been registered under Section 186 and 353 of I.P.C. Thereafter, without following the procedure under Section 195 of Cr.P.C., the offence levelled against the accused has been changed as 204 instead of 186. The learned senior counsel further submitted that the Sub Collector had not conducted his Revenue Court Proceedings in a proper manner, the learned Sub Collector had committed many irregularities and illegalities while the enquiry was going on in the open Court. In order to prove such irregularities, the revision petitioner herein has filed an affidavit in his name and narrated the entire incident that happened in the open Court on the relevant date. The revision petitioner is a practicing lawyer and part of the judiciary as such, he is unable to tolerate all the irregularities and behaviour of the learned Sub Collector. The learned senior counsel has pointed out some of the incidents that happened in the open Court. The ruling party a dominant person at Coonoor, viz., Minister, M.L.A, party lawyer and top most functionaries of the party had directly and indirectly instructed the Sub Divisional Magistrate, Coonoor, for their favour. The Sub Collector is a young I.A.S. Officer from another state and he does not understand the vernacular language, therefore, he has to learn the vernacular language of Tamil Nadu and he has to participate in the vernacular examination test of this State. If the Sub Divisional Magistrate obtains success in the tamil examination, then he will be assured of future prospects. Therefore, the learned Sub Collector had fully extended his co-operation to the ruling party of members of yesteryears. As such, the Sub Collector had not adhered to all Court procedures.
7. The learned senior counsel for revision petitioner further submitted that the criminal complaint had been lodged against the revision petitioner, in order to satisfy the ensuing ruling party cadres. Actually, there is no prima facie case against the revision petitioner. The revision petitoiner is a practicing lawyer and he is an equally important person to maintain law and justice,and he has never misbehaved in the Revenue Court. Actually, the revision petitioner sought for certified copies of some documents, the same was not furnished by the Sub Collector or his Subodrinates, viz., Tahsildar, wantonly and deliberately and proceeded the case for his own convenience. As such, the Sub Collector had not granted sufficient opportunities to the revision petitioner to defend the case on behalf of his client. The learned senior counsel further submitted that the Sub Collector's orders were set-aside by this Court in Crl.R.C.Nos.1486 and 1506 of 2007, dated 28.04.2008. Therefore, the main case is not existing, hence, the subsequent case which is registered against the revision petitioner is not maintainable since the criminal case has arisen from part of original cause of action.
8. The learned senior counsel appearing for the revision petitioner has cited the following judgments in support of his contentions:-
(i) P.D.Lakhani and another Vs. State of Punjab and another (SC) reported in 2008 (2) T.N.L.R.91 (SC) "(A) Criminal Procedure Code, 1973 - Section 195 - Indian Penal Code, 1860 - Section 182 - Complaint under - Lodged before the Magistrate by S.H.O. under the directions of S.S.P.- Not by S.S.P. - Trial in pursuant thereto to would be wholly without jurisdiction - Statute does not contemplate delegation of his power by the S.S.P.- Complaint is unsustainable - Quashed - Another complaint petition would be maintainable at the instance of the appropriate authority.
(B) Practice and procedure - A power to delegate, when a complete bar is created, must be express, it being not an incidental power.
(C) Criminal Procedure Code, 1973 - Section 195 - Complaint - To be filed only by the public servant concerned or his superior Officer - It cannot be done by an inferior officer - No provision for delegation of the function of the public servant concerned."
(ii) The Manager Kodanad Estate Kothagiri Taluk, the Nilgiris District, Rep. by R.R.Ravichandran Versus The Sub-Divisional Magistrate and the Assistant Collector, Coonoor, Nilgiris District reported in CDJ 2008 MHC 1991 "Criminal Procedure Code - Section 133 - Existence of Public way - Order of SDM to remove the obstruction - The action of the SDM in taking cognizance of a complaint which did not address any question of any imminent danger or obstruction of a pathway, ought not to have taken note of by him. In addition, the petition signed by the villagers, which was addressed to the Grama Sabha and the Grama Sabha's resolution sent to the Collector wanted the State to find a permanent solution. There is no imminent threat of any obstruction had arisen - A conjoint reading of all the Exhibits including the oral and documentary evidence clearly shows that the people of the two hamlets wanted only a free access to their vehicles and also the road being opened during night times without restriction and, therefore, there was no obstruction of passage as such for the public to use the pathway. The obstructions complained were in existence as stated by the deponents right from the year 1995 when the present management took over the Estate. It is as old as 12 years and hence, there was no occasion to use the emergency power under Section 133 Cr.P.C. by the SDM. In any event, the complaint that the toll is being collected is not an issue coming with Section 133 Cr.P.C. and it is open to the private owners to collect toll to allow the Estate Road to be used each time when a vehicle was taken and it established that practice was done on licence granted by the owners of the property. If it is a dispute over licence conditions, then, it only relates to a civil right between the parties and the parties ought to have been relegated to the Civil Court's jurisdiction - In the present case, even by the admission of the parties, the road was a private patta land and the land public were allowed on a permissive usage of the road over the period and it does not create any public right overnight. Even assuming that such right is claimed in their favour, they should have approached the Civil Court to establish their right to free passage and ought not to have invoked the proceedings under Section 133 Cr.P.C. Further, while the complainants themselves have demanded for providing a public road, by resorting to land acquisition proceedings, in the evidence, they cannot turn back and say that they have a right to use the private road freely and resort to proceedings under Section 133 Cr.P.C. In the guise of exercising an emergency power under Section 133 Cr.P.C., the authorities cannot create new rights in favour of so-called complainants - In any event, after the preliminary order was passed by the SDM and when an objection was raised in the form of an interim response that the property was a private property, the SDM should have referred the matter for a Civil Court's decision under Section 137(2) Cr.P.C. and must have stayed his own proceedings. On the contrary, in the impugned order, there is no reference to the application of mind with reference to the exercise of discretion under Section 137(2) Cr.P.C. When a valuable right of a owner of a property is at stake, merely because there is a group demand or a mob desire, the power under Section 133 Cr.P.C. cannot be used or rather misused. The evidence placed before the SDM does not disclose that there is any imminent danger to public tranquility or peace and the complaint made by the local people is only a petition to the State to acquire the property - It is only when the State takes steps in terms of the demand and resort to land acquisition proceedings, then the question of deciding the public purpose behind the acquisition will arise. Therefore, the argument that this Court must read equity and justice into the order does not hold water while scrutinizing the order under Section 133 Cr.P.C. In the same way, the Intervenor's prayer that the gates should be kept open by the orders of the Court and it is a fundamental right in terms of Article 19 and 21 of the Constitution is also to be rejected. Such a right is not available as against a private establishment - While the people of the locality wanted a permanent and lawful solution, the authorities including the respondent should not have resorted to short-cut solutions by having recourse to the proceedings initiated under Section 133 Cr.P.C. Hence, both the criminal revision petitions will stand allowed and the orders of the Sub-Divisional Magistrate, dated 01.08.2007 and 20.09.2007, will stand quashed."
9. The learned counsel for the State submitted that it is an admitted fact that the learned Sub Collector's order was quashed by this Court which has been originally filed under Section 133, 137(2) of Criminal Procedure Code on the file of Sub Divisional Magistrate, Coonoor. This incident was committed by the revision petitioner while the proceedings were going on. Now, the main case is not existing. Learned counsel for the State further submitted that a charge sheet has been filed after enquiry and investigation, and now the case is ready for trial. It was submitted that the legal suggestions raised by the counsel can be decided after the trial, further the same points can be raised before the trial Court at the time of the trial, and that sufficient opportunities will be granted to the revision petitioner also.
10. Per contra, the learned senior counsel submitted that the revision petitioner is a practicing lawyer and is part of the judiciary and a law abiding person for maintaining law and justice across the nation. Durring his practice, he has never misbehaved in any judicial forum or quasi judicial forum. The instant criminal case has been registered against the revision petitioner with mala-fide intention and with political motivation. The learned Assistant Collector has been functioning fairly and it clearly proves that the Sub Collector and his Subordinates have not furnished copies of the documents, which were filed for the said case, which was sought by the revision petitioner to enable to conduct his case, in an effective manner on behalf of his client. As such,it is evident that the Subordinates of the Sub Collector, i.e., the defacto complainant had lodged a criminal complaint only to satisfy his superiors. The witness is also below the rank of Sub Collector and erstwhile ruling party lawyer.
11. From the foregoing instructions, this Court is of the view:-
(i) Charge sheet has been filed and nine witnesses have been listed including the Sub Collector and one Mr.Manoj Kumar, Advocate. The Sub Collector is a recognized person, attached to the State Government and also a responsible person to maintain law and order in his area of jurisdiction, and such evidence from a responsible officer, cannot be ignored. The sixth witness, Mr.Majoj Kumar is a leading practicing advocate and he is also an equally responsible person to maintain law and justice, hence the evidences of such responsible persons cannot be ignored.
(ii) The learned senior counsel has raised questions of law in this case that can be decided after framing necessary issues and after recording evidence of the listed witnesses.
(iii) the relevant material, i.e., the evidence paper allegedly torn by the revision petitioner is mentioned as material object in the charge sheet.
12. On verifying the facts and circumstances of the case and arguments advanced by the learned senior counsel for the revision petitioner and on hearing the arguments of learned Additional Public Prosecutor and on perusing the impugned order passed by the learned Magistrate in C.M.P.No.3154 of 2008 in S.T.R.No.390 of 2008, on the file of Judicial Magistrate Court, Coonoor, dated 15.07.2009, this Court does not find any discrepancy in the order. Hence, the revision petition is dismissed. However, the revision petitioner is a practicing lawyer and his appearance is dispensed with before the Judicial Magistrate, Coonoor, but his presence may be necessary, if required by the learned Judicial Magistrate, Coonoor. This Court further directs the learned Judicial Magistrate, Coonoor to dispose the case in S.T.R.No.390 of 2008 on topmost priority basis.
13. In the result, the above revision is dismissed. Consequently, the order passed in C.M.P.No.3154 of 2008 in S.T.R.No.390 of 2008, on the file of Judicial Magistrate, Coonoor dated 15.07.2009 is confirmed. Consequently, connected miscellaneous petition is closed. Accordingly ordered.
r n s To
1. The Inspector of Police, Coonoor Police Station, Nilgiris District, Crime No.934 of 2007.
2. The Judicial Magistrate Court, Coonoor