Madras High Court
S.Suresh Kumar vs The Inspector Of Police on 17 August, 2023
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
Crl.O.P.No.18228 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.08.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.O.P No.18228 of 2023
and
Crl.M.P.Nos.12097 & 12098 of 2023
S.Suresh Kumar
...Petitioner
vs.
1.The Inspector of Police,
F5, Law and Order Police Station,
Choolaimedu.
2.K.Narayanan
...Respondent
PRAYER:
Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to call for the records in CC.No.2042 of 2023 pending
before the learned XVII Metropolitan Magistrate, Saidapet, Chennai and quash
the same.
https://www.mhc.tn.gov.in/judis
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Crl.O.P.No.18228 of 2023
For Petitioner : Mr.Manishankar, Senior counsel,
for Mr.Rahul M.Shankar
For Respondent : Mr.A.Gopinath,
Government Advocate, for R1
*********
ORDER
This criminal original petition has been filed to quash the proceedings in CC.No.2042 of 2023 pending on the file of the learned XVII Metropolitan Magistrate, Saidapet, Chennai.
2. The case of the prosecution is that on 07.09.2015, the deceased Shankar had gone to Chitra Avenue Apartment Complex at Choolaimedu in order to assist the civil work that was carried out in the Apartment. He is said to have used the lift in order to go to the third floor. The lift had gone beyond the third floor and as a result, there was a gap. The deceased Shankar did not notice the same and when he opened the lift door, he fell down through the gap and as a result, he died.
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3. The complaint was given by the brother of the deceased on 08.09.2015 and the FIR came to be registered under Section 174 of CrPC in Crime No.2519 of 2015.
4. In the course of investigation, the alteration report came to be filed before the learned XVII Metropolitan Magistrate, Saidapet and the offence was altered to Section 304A of IPC and Sections 5(1) and 13 of the Tamil Nadu Lifts Act read with Section 10 of the Tamil Nadu Lifts Rules, 1997. In the alteration report, apart from naming one Devaraj (who was not added as accused in the final report) and Akbar (A3), there is a passing reference about the petitioner on the ground that the petitioner was appointed as an Administrator by this Court and he was incharge of administering the Apartment Complex. Ultimately the final report came to be filed before the Court below against the three accused persons and the petitioner has been arrayed as A1. The Court below has taken the final report on file in CC.No.2042 of 2023 against all the three accused persons and the Court below has taken cognizance for offences mentioned Supra. Aggrieved by the same, the petitioner (A1) had approached this Court. https://www.mhc.tn.gov.in/judis Page No.3/11 Crl.O.P.No.18228 of 2023
5. Heard the learned Senior counsel for the petitioner and the learned counsel for the respondent and also perused the materials available on record.
6. It is seen from the records that this Court by order dated 08.04.2015, made in Cont.P.No.3040 of 2014, appointed the petitioner as an Administrator to administer the Apartment Complex. Even during the pendency of proceedings, some complaints were made against the petitioner and this Court came down very heavily on such compliant by an order dated 02.06.2017. This Court rendered findings to the effect that the petitioner, who is an officer of this Court cannot be made personally liable and should not be attacked in his individual capacity. That apart, this Court also recognised the fact that the work of the petitioner was complimented by the occupants of the flat. However, this Court, in order to avoid any further embarrassment, discharged the petitioner and appointed yet another advocate as an Administrator.
7. There is no dispute with regard to the occurrence that had taken place on 07.09.2015. The only issue is as to whether the petitioner can be made as an accused in this case and whether the Court below had really applied its mind while taking the final report on file.
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8. The petitioner, who is an Advocate by profession was appointed as an Administrator to take care of the affairs and functions of the Apartment Association. Thus, the petitioner was an officer of the Court. Even though the petitioner had taken charge by order dated 08.04.2015, he was discharged by order dated 02.06.2017. In the interregnum period, this incident had taken place and the respondent police have assumed that the petitioner being Administrator had also contributed to the accident. Therefore, the petitioner has been added as A1 in the final report.
9. On carefully going through the alteration report as well as the final report, it is seen that there was some problem in the lift and the lift, instead of halting in third floor, had gone beyond that. This was not noticed by the deceased and he had opened the door and fell down through the gap and unfortunately, he died. For this incident, by no stretch the petitioner can be made responsible and can be added as an accused just because he was performing his role as an Administrator appointed by this Court. The respondent police had recklessly made the petitioner as an accused in this case and the recklessness further confounded when the Court below had taken cognizance of the final report even without properly going through the final report. It must be kept in mind that adding a person as an accused in a criminal case directly https://www.mhc.tn.gov.in/judis Page No.5/11 Crl.O.P.No.18228 of 2023 affects the life and liberty of that person guaranteed under Article 21 of the Constitution of India. Therefore, before anyone is added as an accused, there must be sufficient prima facie material.
10. The final report has been filed for offence under Section 304A of IPC and Sections 5(1) and 13 of the Tamil Nadu Lifts Act read with Section 10 of the Tamil Nadu Lifts Rules, 1997. As far as Section 304 of IPC is concerned, the offence is made out under this provision only if the accused person has involved in a rash and negligent act. That apart, there must be some connection between the accused person and the incident that took place, which in law is called as causa causans. By no stretch, the petitioner can be proceeded against for offence under Section 304A of IPC since there is no rash or negligent act on his part. The other provisions, for which the petitioner is prosecuted, pertains to the maintenance of lift. The petitioner is a practicing Advocate and he has not involved himself in maintenance of lift. Just because the petitioner acted as an Administrator to take care of the affairs of the Association, that does not mean that the petitioner will be going around and undertaking the maintenance work of the flat. A person in the Stature of an Advocate should not be demeaned in this manner. In view of the same, the non-maintenance of the lift can never be attributed against the petitioner.
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11. There is yet another vital issue that was brought to the notice of this Court by the learned Senior counsel appearing on behalf of the petitioner. The incident had taken place on 07.09.2015 and the FIR came to be registered on 08.09.2015. However, the final report was filed by the Investigation Officer only on 14.07.2023. The Court below had taken cognizance against the accused persons for offence under Section 304A of IPC and Sections 5(1) and 13 of the Tamil Nadu Lifts Act read with Section 10 of the Tamil Nadu Lifts Rules, 1997. The maximum punishment that is provided for offence under Section 304A of IPC is two years. For offence under Sections 5(1) and 13 of the Tamil Nadu Lifts Act read with Section 10 of the Tamil Nadu Lifts Rules, 1997 the punishment, that is provided, is only payment of penalty under Section 15 of the Act. That apart, Section 17 of the Act also specifically provides that the cognizance of any offence under the Act can be taken only upon a complaint made by the Inspector within a period of 3 months from the date on which the alleged commission of offence came to the knowledge of the Inspector. Therefore, if at all the final report was filed in this case, it should have been filed within a period of 3 years as provided under Section 468(2)(c) of CrPC and beyond that, the Court below cannot take cognizance and it is a bar. If any Court wants to take cognizance beyond the limitation period prescribed under Section 468 of CrPC, a separate order must be passed under Section 473 of https://www.mhc.tn.gov.in/judis Page No.7/11 Crl.O.P.No.18228 of 2023 CrPC and that has not been done in this case. This is yet another illegality that was pointed out by the learned Senior counsel appearing on behalf of the petitioner and this Court completely concur with the same.
12. It is quite an unfortunate case where the petitioner, who has 47 years of standing in the bar, has been made to knock the doors of this Court, since he has been made as an accused person for an incident over which he had absolutely no control or was not responsible for the same. The respondent police have mechanically added the petitioner as an accused and to add insult to injury, the petitioner is shown as A1 in the final report as if he is the prime accused in this case. This shows the conditioned mind with which the police officer had discharged his functions. Even though the police officer had committed such a gross mistake, the Court below at least should have applied its mind before taking the final report on file. The Hon'ble Apex Court has repeatedly held that the trial Court does not act like a post office and taking cognizance is a judicial act, which involves the application of mind. If only the Court below had cared to go through the final report and materials filed along with the same, the Court below would not have taken cognizance against the petitioner. Obviously the Court below had mechanically acted upon the final report and had issued summon to the petitioner. Therefore, while condemning https://www.mhc.tn.gov.in/judis Page No.8/11 Crl.O.P.No.18228 of 2023 the act of the Investigation Officer, this Court must also equally condemn the act of the learned trial Judge in taking cognizance of the final report against the petitioner.
13. The proceedings against the petitioner should not be allowed to continue even for a minute and it has to be quashed forthwith by this Court. Accordingly, the proceedings in CC.No.2042 of 2023 on the file of the learned XVII Metropolitan Magistrate, Saidapet, Chennai is hereby quashed.
14. The learned XVII Metropolitan Magistrate, Saidapet, Chennai is directed to file a report before this Court as to how the final report was taken cognizance as against the petitioner when there were no materials against the petitioner and during the relevant point of time, the petitioner was only acting as an Administrator appointed by this Court. The report has to reach this Court within a period of 4 weeks from the date of receipt of copy of this order and the Registry is directed to call for the report and the notice calling for the report shall be accompanied with a copy of this order.
15. The investigation officer, who had added the petitioner as an accused in this case cannot be left scot-free. Hence, there shall be a direction to the https://www.mhc.tn.gov.in/judis Page No.9/11 Crl.O.P.No.18228 of 2023 Deputy Commissioner, Anna Nagar Range, to initiate disciplinary proceedings against the concerned Investigation Officer namely, the Inspector of Police, F5, Law and Order Police Station, Choolaimedu and proceed further in accordance with law.
16. In the result, this criminal original petition is allowed with the above direction. Consequently, the connected miscellaneous petitions are also closed.
17.08.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
nsa
1.The XVII Metropolitan Magistrate,
Saidapet, Chennai.
2.The Deputy Commissioner,
Anna Nagar Range, Chennai.
3.The Inspector of Police,
F5, Law and Order Police Station,
Choolaimedu.
4.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
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Crl.O.P.No.18228 of 2023
N. ANAND VENKATESH, J.
nsa
Crl.O.P No.18228 of 2023
and Crl.M.P.Nos.12097 & 12098 of 2023
17.08.2023
https://www.mhc.tn.gov.in/judis
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