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Showing contexts for: section 188 of indian penal code in C. Muniappan & Ors vs State Of Tamil Nadu on 30 August, 2010Matching Fragments
Conviction and sentence of death against accused Nos. 2 to 4 was confirmed by the High Court along with all other sentences under different heads.
14. Hence, these seven appeals.
15. Shri Sushil Kumar and Shri Udai U. Lalit, learned senior counsel appearing for all these appellants, have submitted that the facts and circumstances of the case did not warrant any trial. The case of the prosecution had been inherently improbable. There had been material contradictions in the statements of witnesses in respect of the involvement of the accused and the nature of offences committed by them. The inquest reports were not consistent with the charge-sheets. Confessional statements made by some of the accused before the police, could not be relied upon nor read as a whole in the court, as it is not permissible in law. The reading of the full text thereof, had materially prejudiced the mind of the court. Two separate FIRs, i.e., in respect of Crime No.188/2000 and 190/2000 could not be clubbed, resulting in one consolidated charge sheet. All the accused had been charged by the Salem Court even for the offence under Section 188 IPC. In this respect, as no complaint had been filed by the competent officer whose prohibitory order had been violated, the charge could not have been framed. In any case, as it was not permissible for the trial court to frame any charge under Section 188 IPC in absence of any written complaint by the public servant concerned, the genesis of the prosecution case becomes doubtful and the appellants become entitled to the benefit of doubt. Further, cases under Section 188 I.P.C. are triable by the Magistrate. In this case, it has been tried by the Sessions Court. Such a course has caused great prejudice to the appellants. The statements made by the witnesses particularly, by Dr. Latha (PW.1), Akila (PW.2), P. Kandasamy, Driver (PW.4) and N. Jagannathan, Cleaner (PW.
The fourth version is based on the Report (Ex.D.12), dated 6.3.2000, by Dr. Latha (PW.1), according to which, when the bus was parked, at about 2.25 p.m., after two minutes thereof, one person poured the petrol on the front seats and set the bus on fire.
All the aforesaid versions are contradictory to each other. Thus, the case of prosecution is not trustworthy.
Thus, in view of the above, appeals deserve to be allowed.
17. Per contra, Shri Altaf Ahmad, learned senior counsel appearing for the State, has tried to defend the prosecution's case submitting that the contradictions were trivial in nature. He has submitted that framing of charges under Section 188 IPC in absence of written complaint of the public servant concerned, could not be fatal to the prosecution's case. The entire prosecution case cannot be discarded merely on the grounds of improperly framing the charges under Section 188 I.P.C. Clubbing the two crimes, i.e., 188/2000 and 190/2000 did not cause any prejudice to any of the accused. Both the crimes were found to be parts of the same incident. The court has to examine the facts in a proper perspective where the said ghastly crime had been committed, where three university girl students stood roasted and 18 girl students suffered burn injuries. At the initial stage, the investigation was conducted by Shri Shanmugaiah (PW.116), as the Inspector, Shri Vilvaranimurugan (PW.119) was on court duty on 2.2.2000. Thus, PW.119 took over the investigation after being free from the court duty. Considering the gravity of the offences, the investigation was handed over to the CBCID, thus, the change of Investigating Officer was inevitable. The Test Identification Parade was conducted by the experienced Judicial Officer in accordance with law and there was no haste in conducting the same. There is no rule of law that deposition of a hostile witness is to be discarded in toto. The appeals lack merit and are liable to be dismissed.
18. We have considered the rival submissions made by learned counsel for the parties and perused the records. Charges under Section 188 IPC:
19. Section 195 Cr.PC reads as under :
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (1) No Court shall take cognizance -
(a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or ........
26. Learned counsel for the appellants have submitted that no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, entire prosecution case falls.
27. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC. However, we do not agree with the further submission that absence of a complaint under Section 195 Cr.PC falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no `Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned.