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Judgment
Maheswaran, J.—This petition is to quash the proceedings in Sessions Case No. 169 of 1983 on the file of the Third Additional Assistant Sessions Judge, Madurai. The allegations in the affidavit filed in support of the petition briefly are: The Petitioner was recruited as a Sub-Inspector of Police in November, 1979. He was working as Sub-Inspector of Police at Vadipatti Police Station between 13.5.1981 and 13.2.1982. He has earned a good reputation as a police officer. He has also been awarded cash rewards. One Bairava Singh, Reserve Assistant Sub-Inspector submitted a petition on 15.12.1981 at Vadipatti Police Station stating that he was assaulted by Nallakaman Thevar when he requested him to hand over vacant possession of his house. He made an enquiry into that complaint and asked the said Nallakaman Thevar to hand over possession of the house to Bairava Singh and also to give in writing that he will vacate the house on or before 1.2.1982. But on 1.2.1982, the Reserve Assistant Sub-Inspector, Bairava Singh, again complained that possession was not given to him. The Petitioner again intervened in the matter and asked Nallakaman to keep his promise, but he behaved rudely towards the Petitioner and all on a sudden he tried to throttle the neck of the Petitioner and the sentry, one Ramakrishnan, intervened and caught hold of Nallakaman and one Mathivanan and four others who came with Nallakaman tried to assault the Petitioner and other constables resorted to mild force to bring the situation under control and apprehended Nallakaman and two others. The Petitioner sustained injuries on his neck as well as on the chest and Ramakrishnan, the police constable, also sustained five injuries. As Sub-Inspector of Police, the Petitioner registered a case in Crime No. 53 of 1982 on the file of Vadipatti Police Station under S. 147, 148, 353, 332 and 307, I.P.C. But, Nallakaman filed a private complaint against the Petitioner and eleven others and the case is pending in S.C. No. 21 of 1984 on the file of the Additional Assistant Sessions Judge. Madurai. The Collector of Madurai directed the Revenue Divisional Officer, Usilampatti, to hold an enquiry regarding the allegation of torture by police under the Police Standing Order in respect of the same occurrence. The Revenue Divisional officer commenced enquiry on 27.2.1982, examined witnesses. In the enquiry, the witnesses told the Revenue Divisional Officer that the police were attacked by Nallakaman and others. But the Revenue Divisional Officer has gone on with the enquiry contrary to the provisions of Order 145(3) of the Police Standing Orders. The Petitioner says that the Revenue Divisional Officer has not followed the amended Order 145(3), but on the other hand, the Revenue Divisional Officer has filed a complaint against the Petitioner and three others before the Sub-Divisional Judicial Magistrate, Dindigul, and the complaint is contrary to the provisions of the police Standing Orders. The Petitioner says that the enquiry itself was not done in accordance with the rules, that witnesses were examined behind the back of the Petitioner in his absence and that the Revenue Divisional Officer has acted illegally and was going on with enquiry. The case in Sessions Case No. 169 of 1983 on the file of the Assistant Sessions Judge, Madurai is pending for a long time without any progress. Even though the Petitioner has filed several applications before the Court and orders were passed by High Court to expedite the trial, the trial is not yet completed. The case has been filed with a view to harass the Petitioner. The Petitioner has taken all steps for the speedy culmination of the trial, but the trial is still kept pending. For those reasons, the Petitioner prays that the proceedings in S.C. No. 169 of 1983 on the file of the third Additional Assistant Sessions Judge, Madurai be quashed.
The Public Prosecutor has filed the remarks of the Revenue Divisional Officer, Madurai, in answer to the contentions raised by the Petitioner. Only those remarks pertaining to the case may be stated. He states that the Revenue Divisional Officer, Usilampatti, who conducted the enquiry, was not aware of the private complaint filed by Nallakaman and therefore he completed the enquiry and submitted his findings to the Collector. As regards the examination of witnesses behind the back of the Petitioner, the remark of the Revenue Divisional Officer is that this is only a fact finding enquiry and that it is not necessary to conduct the enquiry in the presence of the Petitioner.
The unamended Police Standing Order 145(3) runs thus:
When a complaint of torture has been filed in the Court of a Judicial Magistrate by the affected party, the Revenue Divisional Officer conducting the informal enquiry under paragraph (2) above should not terminate it, but should continue it and arrive at his own findings on the individual responsibility of each police official, each findings should, however, be kept confidential pending the result of the judicial enquiry or trial emanating from the complaint. On the completion of such judicial enquiry, the Revenue Divisional Officer should decide on the further course of action to be followed, in the light of the judicial decision and take appropriate steps.
It is clear from the records in this case that a private complaint was filed by Nallakaman. In such circumstances, under the unamended Police Standing Order 145(3), the Revenue Divisional Officer should not terminate the proceedings, but should arrive at his own findings on the individual responsibility of each police official and such findings should be kept confidential pending judicial enquiry. But, on the other-hand, what has been done in this case is that the Revenue Divisional Officer has filed a complaint. The amended Police Standing Order 145(3) is as follows:
When a complaint of such an offence as mentioned supra has been filed before the Court of Judicial Magistrate by the affected party, the Executive Magistrate should not conduct the informal enquiry afresh or where he has already started conducting the informal enquiry, be shall not continue it any further and on completion of the judicial proceedings, the Executive Magistrate shall decide on follow up action in the light of the Judicial findings in the matter.
According to the amended Police Standing, Order 145(3) when a complaint of an offence has been filed before a Court of Judicial Magistrate by the affected party, the Executive Magistrate should not conduct the informal enquiry and where he has started the enquiry he shall not continue it further till the completion of judicial enquiry and the Executive Magistrate shall decide on the follow up action in the light of the Judicial finding in the matter. But, here the Revenue Divisional Officer has continued the proceedings notwithstanding the fact that a complaint has been filed by Nallakaman Thevar. There is no point in saying that the Revenue divisional Officer was not aware of the private complaint lodged by Nallakaman Thevar. He has examined many witnesses, condly, the enquiry seems to have gone in the absence of the Petitioner who the accused in the private complained by Nallakaman Thevar. S.4 of the Madras Revenue Enquiry Act, 1898 states at a statement, when taken in the absence of a public servant, whose conduct is older enquiry, shall not be used as evidence against such public servant in any judicial proceedings. According to the learned Counsel appearing for the Petitioner, the statements were taken in the absence of the Petitioner, a public servant and the statements cannot be used as evidence in any judicial proceedings. But, it should be noted that the trial is not yet over rid it is also not clear and it cannot be now said whether the statements are intended to be used against the Petitioner. jeopardy . As here are two complaints, one by the affected party as a private complaint and another by the Revenue Divisional officer ignoring the pendency of the private complaint, it would put the Petitioner to double jeopardy . It is in those circumstance; the Petitioner prays to quash the proceedings in Sessions Case No. 169 of 1983 on the file of the Third Additional Assistant sessions Judge, Madurai. As the Revenue Divisional Officer has continued the proceeding ignoring the provisions of Police Standing Order 145(3) and the unamended Order 145(3), the proceedings are liable to be quashed. The proceedings in Sessions Case No. 169 of 1983 on the file of the Third Additional Assistant Sessions Judge, Madurai are hereby quashed.