Mohammed Yusuf vs R. Thirunavukkarasu

R. Mala, J.—This appeal is directed against the judgment of acquittal dated 27.09.2006 made in C.C. No.200 of 2001 on the file of the learned Chief Judicial Magistrate, Srivilliputhur.

The case of prosecution, in brief, is as follows:

(i) On 06.05.2001 the appellant herein and six other persons were canvassing the public for State Assembly Election and by giving pamphlet, they raised a voice against BJP. At that time, Jeyavel, Saravana Karthikeyan and Ramasamy and 7 others belonging to BJP prevented them from canvassing and took them to Srivilliputhur Police Station.

(ii) The first respondent Thirunavukkarasu is the Deputy Superintendent of Police. The second respondent Kanagasundram was the Sub Inspector of Police and the third respondent is the Constable.

(iii) On enquiry, the appellant gave a complaint against the said persons. However, the case has not been registered, but whereas the second respondent obtained a complaint from the said Jeyavel against the appellant and his friends.

(iv) The respondents kept the appellant and his friends in illegal custody and they tortured them brutally. The first respondent assaulted the appellant and his friends with fiber batons and abused them in filthy language and caused simple injury. The second respondent intimidated them and obtained signatures in blank papers. The third respondent manhandled them and caused simple injury and illegally took photographs and videograph and obtained the fingerprint from them. The respondents foisted a false case against the appellant and his friends and remanded them to judicial custody.

(v) Even though the appellant gave a complaint against the culprits, case has not been registered against them and hence, he filed a private complaint before the Jurisdictional Magistrate against the respondents for the offences punishable under Sections 298, 323, 325 and 506(ii) IPC, after coming out on bail.

(vi) The learned Chief Judicial Magistrate, Srivilliputhur, after recording the sworn statement of the appellant/complainant and following the procedures under Section 202 Cr.P.C., found prima facie case against the first respondent under Section 323 IPC and the second respondent under Section 506(1) IPC and the third respondent under Sections 298 and 323 IPC. Thereafter, the case was taken on file. To prove the case, P.W.1 to P.W.7 were examined and Exs.P.1 to P.7 were marked on the side of the appellant/complainant. However, the Trial Court, finding that the guilt of the accused has not been proved beyond all reasonable doubt, acquitted the respondents from the charges levelled against them.

Challenging the judgment of acquittal dated 27.09.2006 passed in C.C. No.200 of 2001, on the file of the learned Chief Judicial Magistrate, Srivilliputhur, the present appeal has been preferred by the complainant.

The learned counsel appearing for the appellant would submit that on 06.05.2001 the appellant and six persons were canvassing the people for State Assembly Election at Srivilliputhur. At that time, since they were canvassing against BJP, Jeyavel, Saravana Karthikeyan, Ramasamy and 7 others have caught hold of them and handed over them to the police station, where the second respondent herein was there. At that time, P.W.1 has given a complaint to him and that has not been registered, but whereas, he obtained a complaint from Jeyavel and registered a case and assaulted them and caused injury. Even though P.W.1 gave a complaint, case has not been registered. Hence, he preferred a complaint to the Superintendent of Police, Virudhunagar District, on 11.05.2001, after he was enlarged on bail on 10.05.2001. Though he has sustained injury, the police department has not taken any steps against the real culprits. Then, he gave a private complaint and cognizance of offence has been taken after considering the evidence of P.Ws.1 to 7 and Exs.P.1 to P.7. However, the accused have been acquitted from the charges levelled against them.

The learned Trial Judge, after considering the oral and documentary evidence adduced on the side of the prosecution, acquitted the respondents/accused on the following grounds:

(i) To prove that the respondents herein have assaulted them and made criminal intimidation, no wound certificate has been marked.

(ii) Even though O.P. sheet has been marked, to prove the same, doctor has not been examined before the trial Court.

(iii) At the time of remand in respect of the case in Crime No. 498 of 2001, the prosecution witnesses have not made any complaint before the concerned Magistrate, while they were remanded to judicial custody.

(iv) No sanction has been obtained before filing the private complaint.

Continuing his arguments, the learned counsel for the appellant would submit that the appellant filed Ex.P.3 and Ex.P.7 to show that P.W.4 and P.W.3 have sustained injury. He would further submit that after investigation of the case in Crime No. 498 of 2001, charge sheet has been filed and the same was taken on file in C.C. No. 128 of 2003, which was ended in acquittal, wherein it was specifically mentioned that the Investigating Officer has acted and supported only the BJP people viz., Jeyavel and his companion. Even though a copy of the said judgment was marked as Ex.P.6, the Trial Court has not considered the same.

He would further submit that sanction is not necessary and to substantiate the same, he relied upon a decision of the Supreme Court in S.B. Saha and Others Vs. M.S. Kochar, , wherein it was held that if the offence was not committed by the appellants therein while they were acting or purporting to act in the discharge of their official duty, sanction of the appropriate Government was not necessary. Hence, the learned counsel prayed for setting aside the judgment of acquittal and prayed for conviction against the respondents.

Resisting the same, the learned counsel for the respondents would submit that the Trial Court has given a cogent reason for acquittal. In such circumstances, there cannot be any interference. To substantiate the same, he relied upon the decision in Bahadur Singh Vs. State of Punjab, . He would further submit that even though the appellant filed Ex.P.3-O.P. sheet in respect of P.W.3 and Ex.P.7 - O.P. sheet in respect of P.W.7, no injury has been mentioned in both and to prove the same, the author of the document has not been examined. Except the close friends of P.W.1, no independent witnesses were examined before the Trial Court. The Trial Court has correctly held that the offences were not made out.

In support of his contention, placing reliance on a decision of the Apex Court in Om Prakash and Others Vs. State of Jharkhand and Another, , he would submit that sanction is mandatory and without obtaining sanction, the police officials shall not be prosecuted. All those aspects have been correctly considered by the Trial Court. Hence, he prayed for dismissal of the appeal.

Now, the first point to be decided is whether sanction is necessary to prosecute the respondents?

Admittedly, the first respondent/A-1 is the Deputy Superintendent of Police. The second respondent/A-2 is the Sub- Inspector of Police and third respondent/A-3 is the Constable. It is the admitted case that on the basis of the complaint given by one Jeyavel, a case in Crime No. 498 of 2001 has been registered in Srivilliputhur Police Station, which was marked as Ex.P.2. On 06.05.2001, the pamphlet Ex.P.1 has been distributed and they were canvassing against BJP.

Insofar as sanction is concerned, it is appropriate to consider the judgment rendered in S.B. Saha and Others Vs. M.S. Kochar, , wherein it was held that customs authorities have seized certain goods and when the consignment has been delivered to the owner of the goods, some of the goods have been missing and hence, a case has been registered under Sections 120-B and 409 IPC and it was stated that the offence is not connected while discharging public duty. Hence, the above citation is not applicable to the facts of the present case. It is appropriate to incorporate paragraph Nos. 17,18 and 23 of the said judgment, which read thus:

"17. The second contention advanced by Mr. Mookerjee is in the alternative. It is submitted that even if for the sake of argument, it is assumed that some of the goods were removed and set apart by the appellants after seizure, then also, the seizure and the removal being integrally connected with each other, the alleged act constituting the offence of criminal misappropriation/criminal breach of trust could but reasonably be viewed as an act - which includes dereliction of duty - done or purporting to be done in the discharge of their official duty by the appellants. It is argued that Section 197, CrPC cannot be construed too narrowly, in the sense that since the commission of offence is never a part of the official duty of a public servant, an act constituting an offence can never be said to have been done or purportedly done in the discharge of official duty. Such a narrow construction, it is submitted, will render the section entirely otiose. For law on the point, the learned counsel referred to several decisions of this Court. He took us through the relevant passages of the judgment in Matajog''s case (supra), and strongly relied on the ratio of Shreekanttah Rainayya''s case (supra) and Amrik Singh v. State of Pepsu.

The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J., in Baijnath v. State of M.P., "it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted".

19.................

20................

21................

22..................

The allegation against the appellants is about the commission of offences under Sections 409/ 120-B, Indian Penal Code. To be more precise, I the act complained of is dishonest misappropriation or conversion of the goods by the appellants, which they had seized and, as such, were holding in trust to be dealt with in accordance with law. There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or dominion over them, was an act committed by them while acting in the discharge of their official duty. But the act complained of is subsequent dishonest misappropriation or conversion of those goods by the appellants, which is the second necessary element of the offence of criminal breach of trust under Section 409, Indian Penal Code. Could it be said, that the act of dishonest misappropriation or conversion complained of bore such an integral relation to the duty of the appellants that they could genuinely claim that they committed it in the course of the performance of their official duty? In the facts of the instant case, the answer cannot but be in the negative. There is nothing in the nature or quality of the act -complained of which attaches to or partakes of the official character of the appellants who allegedly did it. Nor could the alleged act of misappropriation or conversion, reasonably said to be imbued with the colour of the office held by the appellants."

In Om Prakash and Others Vs. State of Jharkhand and Another, , it was held that while the police was discharging official duty, he acted in excess of his duty. However, public have always made allegation against the police. In such circumstances, in the said judgment, it was stated that police must give protection under Section 197 of the Code of Criminal Procedure. It is appropriate to incorporate paragraph No. 32 of the said judgment, which reads thus:

The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood."

Considering the above citations, I am of the view that sanction is necessary for prosecuting the respondents. Hence, the Trial Court has correctly held that the respondents shall not be prosecuted without obtaining sanction.

However, before considering the same, this Court has to decide whether the evidence of P.Ws.1 to 7 are reliable?

A perusal of the evidence of P.Ws.1 to 7 would go to show that they had deposed before the Court as a parrot-like evidence. They have not involved in the case. They had stated that they are not the members of any Muslim organization. They were canvassing against BJP. Hence, their evidence is not fully reliable.

Now, the learned counsel for the appellant would submit that insofar as the offence under Section 506(1) IPC against the second respondent/A-2 is concerned, even if the trial Court comes to a conclusion that the injury has not been proved by way of examining the doctor and producing the medical documents and they were not complaining to the Magistrate while they were produced before the Court for remand, he made criminal intimidation and that factum was not considered by the trial Court.

At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondents in Bahadur Singh Vs. State of Punjab, , wherein it was held that once the trial Court has given a cogent reasoning for acquittal, on considering all the evidence, as the view was clearly possible, the High Court should not have interfered in the matter in an appeal against acquittal. It is appropriate to incorporate paragraph No. 8 of the said judgment, which reads thus:

8......................... We may also highlight that the trial court had taken a view in favour of the accused on a consideration of the evidence, and as that view was clearly possible, the High Court should not have interfered in the matter in an appeal against acquittal."

Considering the above citation, I am of the view that the Trial Court, after considering the oral evidence of P.Ws.1 to 7 and documentary evidence of Exs.P.1 to P.7, came to the correct conclusion with the cogent finding that the appellant herein has not proved the guilt of the accused beyond all reasonable doubt and on that basis, the trial Court passed the judgment of acquittal.

It is also well settled that if two views are possible, High Court ought to have taken the view favouring the accused.

In view of the above stated position, I am of the view that there is no evidence produced before this Court to show that the respondents herein assaulted the appellant and made a criminal intimidation and caused simple and grievous injury. In such circumstances, the trial Court has considered all the aspects in proper perspective and given a well reasoned judgment and it does not warrant any interference at the hands of this Court.

In the result, the Criminal Appeal fails and is dismissed as devoid of merits.