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Judgment
M. Jeyapaul, J.—The revision is directed against the dismissal of discharge petition filed by A13 to A16 in M.P. No. 51 of 2007 in S.C.
No. 108 of 2007 on the file of the I Additional Sessions Judge, Erode.
The first petitioner is the Sub Inspector of Police and petitioners 2 to 4 are the police constables in Armed Reserve. A1 to A6 in Sessions Case
No. 108 of 2007 allegedly committed murder of Ravindranathan @ Ravi on 2.6.2004 at 6.00 pm in pursuance of the criminal conspiracy hatched
by them. The allegation as against the petitioners herein ranked as A13 to A16 is that when they escorted A8 Ravi alias Steel Ravi to the court on
20.5.2004 at 4.30 pm and also at 6.20 pm, the aforesaid criminal conspiracy was hatched by the aforesaid accused with A4 Balan, A9
Madeswaran and A10 Tajudeen to murder Ravindranathan @ Ravi in their very presence. But, the petitioners, who had knowledge about the said
criminal conspiracy failed to inform the police authorities and thereby they committed an offence u/s 176 of the Indian Penal Code.
The petitioners would contend that there is a bar u/s 195(1)(a)(1) of the Code of Criminal Procedure to take cognizance of such offences
alleged to have been committed by the public servant. Further, the joint trial of the petitioners along with the other accused is not permissible u/s
223 of the Code of Criminal Procedure.
The State would contend that the court can take cognizance of any offence when it is clubbed with other cognizable offences. As the offence has
been allegedly committed by the petitioners during the course of same transaction which began with a criminal conspiracy and terminated with
murder, joint trial is permissible u/s 223 of the Code of Criminal Procedure, it is further submitted.
The Trial Court has observed that the charge sheet laid by the Inspector of Police who recorded the statement can be considered as a complaint
for the purpose of Section 195(1)(a)(i) of the Code of Criminal Procedure. Therefore, there is no lacuna on the part of the State in prosecuting the
petitioners based on the charge sheet which was tantamount to complaint for the scope of Section 195(1)(a)(1) of the Code of Criminal
Procedure. The Trial Court has also held that the offence has been allegedly committed by the petitioners only during the course of the very same
transaction and therefore, as per Section 223 of the Code of Criminal Procedure, joint trial is permissible. So saying, the Trial Court dismissed the
application seeking discharge.
The points that arise for determination are
i) Whether the charge sheet laid by the respondent would amount to complaint for the purpose of Section 195(1)(a)(1) of the Code of Criminal
Procedure.
ii) Whether joint trial of the offence u/s 176 of the Indian Penal Code alleged to have been committed by the petitioners along with the offence u/s
320 of the Indian Penal Code is permissible u/s 176(d) of the Code of Criminal Procedure.
Learned Counsel appearing for the petitioners would vehemently contend that the Trial Court has totally ignored the bar u/s 195(1)(a)(i) of the
Code of Criminal Procedure for taking cognizance of the offence u/s 176 of the Indian Penal Code without any complaint in writing of the public
servant concerned or of some other public servant to whom he is administratively subordinate. It is his further submission that the alleged offences
charged as against the petitioners cannot be said to have been committed during the course of the very same transaction. The offence alleged to
have been committed by the petitioners does not have any nexus with the criminal conspiracy or the murder alleged to have been committed in the
aftermath of such criminal conspiracy. Therefore, joint trial is not at all permissible even as per Section 223(3) of the Code of Criminal Procedure.
Learned Government Advocate (Criminal Side) would submit that our High Court has held in a similar situation that the charge sheet laid by the
Inspector of Police who is a public servant would amount to a complaint for the purpose of Section 195(1)(a)(1) of the Code of Criminal
Procedure. The knowledge as to the conspiracy had been allegedly acquired by the petitioners during the conspiracy which was hatched by the
other accused in this case. Therefore, Section 223(d) of the Code of Criminal Procedure is squarely attracted to the facts and circumstances of the
case.
Section 195 of the Code of Criminal Procedure would read that no court shall take cognizance of any offence punishable under Sections 172 to
188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is
administratively subordinate. It is quite clear from the aforesaid provision of law that it is not permissible for the court to take cognizance of offence
u/s 176 of the Indian Penal Code as against the petitioners except on a complaint in writing of the public servant.
It has been held by this Court in Periyasamy Nadar, In re 1965 MLJ 348 as follows:
It would be unreasonable to classify the complaints of public servants u/s 195(1)(a) into complaints by public servants other than Police Officers
and complaints by Police Officers and police reports by Police Officers and to exclude Police Reports by Police Officers from the purview of the
section. The scope of the section is that before the Court could take cognizance of an offence against a public servant, the public servant should
himself prefer a complaint in writing. There is no justification for treating the Police Officer differently and excluding the complaint from the Police
Officer which is preferred in the form of a Police Report. The context of Section 195 clearly warrants the construction of the word ''complaint'' in
Section 195(1)(a) to include even report of the Police Officer, when this is made by the Police Officer concerned as a public servant with a view to
taking action against a person.
This Court has chosen to authoritatively hold in the aforesaid case that when the concerned public servant is the police officer who laid the
charge sheet, the charge sheet laid by him cannot be excluded from the definition of the complaint. Such a charge sheet laid by the police officer
who is the public servant concerned shall be considered as a complaint for the purpose of Section 195(1)(a) of the Code of Criminal Procedure.
In this case, based on Section 161 statement given by the witnesses before the investigating officer and also based on the 164 statement
recorded in this case, the investigating officer has chosen to lay a final report not only against the other accused but also against the petitioners who
allegedly committed the offence u/s 176 of the Indian Penal Code.
The learned Counsel appearing for the petitioners submits an authority reported in Durgacharan Naik and Others Vs. State of Orissa, wherein
it has been held that without a complaint in writing for the distinct offence u/s 186 of the Indian Penal Code, the same cannot be taken cognizance
of by the court concerned. Further to circumvent the provision u/s 195(1) of the Code of Criminal Procedure, the investigating agency cannot
charge a person with an offence to which Section 195 does not apply. Merely by changing the garb or label of an offence which is essentially an
offence covered by Section 195 of the Code of Criminal Procedure, the court cannot take cognizance of such offence.
The question whether a charge sheet laid by the Inspector of Police, a public servant who came to know of the offence alleged to have been
committed by the petitioners herein can be construed as a complaint for the purpose of Section 195(1)(a) of the Code of Criminal Procedure had
not arisen in the aforesaid judgment. Further, that was a case where some of the police officials and other public servants were the victims of the
occurrence. But, in the instant case, the victim is not the public servant. The public servants are the alleged perpetrators of the crime u/s 176 of the
Code of Criminal Procedure. The Inspector of Police who has come to know of such an offence alleged to have been committed by the
petitioners, has rightly laid the charge sheet u/s 176 of the Indian Penal Code also against the petitioners. Such a charge sheet can be construed, as
per the ratio laid down by this Court, as a complaint for the purpose of Section 195(1)(a) of the Code of Criminal Procedure. Here, in this case,
the respondent, Inspector of Police is the public servant concerned.
It has been held in Daulat Ram Vs. State of Punjab, that the complaint must be in writing by the public servant concerned before taking
cognizance of an offence u/s 182 of the Indian Penal Code by the court concerned. In that case, it appears that a public servant was attacked and
the official documents in his possession were robbed by the accused. Neither the public servant who was attacked nor the Tahsildar concerned
submitted any complaint in writing as per the mandates of Section 195(a) of the Code of Criminal Procedure. But, in this case, the petitioners, who
are public servants have allegedly perpetrated the crime. The Inspector of Police, who has been entrusted with the task of investigation is the
proper public servant who can lodge a complaint. As already held by this Court, the charge sheet laid by the Inspector of Police amounts to a
complaint.
In view of the above, the court finds that the court concerned has rightly taken cognizance of the case for offence u/s 176 of the Indian Penal
Code based on the final report filed by the investigating officer.
As per Section 223(d) of the Code of Criminal Procedure, the persons accused of different offences committed in the course of same
transaction may be charged jointly. The question that arises for determination is whether the alleged act of the petitioners has been committed
during the course of same transaction of the alleged criminal conspiracy which culminated in murder. Of course, a person can be tried for several
distinct offences if they are committed in one series of acts so connected together as to form the same transaction u/s 223(d) of the Code of
Criminal Procedure. The Only condition is that different offences should have been committed in the course of the very same transaction. The
phrase ""same transaction"" implies continuity of action and purpose. It must be established that each one of the accused was so connected with the
other accused that the act done by one of them may be said to have been done jointly with the others. In other words, the expression ""same
transaction"" would imply onerous of purpose.
In this case, the hatching of criminal conspiracy and commission of murder would come under the category of ""same transaction"". Being a mere
spectator of the criminal conspiracy without participating actively therein or in the murder that followed does not amount to participating in the very
same transaction, the reason being that the action of the spectator does not render continuity of purpose for the criminal act committed by the other
accused in hatching the conspiracy and committing the murder. Inasmuch as the act of the petitioners who escorted the accused concerned was not
closely connected by continuity of purpose and progressive action towards a common object of committing the murder, the act of the petitioners
does not fall u/s 223(d) of the Code of Criminal Procedure. Further, Section 223 implies discretion vested on the Trial Court for the sake of
convenience of the Trial. Even if persons are accused of committing different offences in the course of the same transaction, it can very well charge
the persons separately and try the offences. The legislature has carefully worded the provision in order to confer discretion on the Trial Court.
As it is found that the offences alleged to have been committed by the accused u/s 176 of the Indian Penal Code is a distinct offence which has
no connection either with the criminal conspiracy hatched or the murder allegedly committed by the other accused, in the interest of justice, the
petitioners will have to be tried separately by the Trial Court.
In view of the above, the learned Trial Judge is directed to charge the petitioners separately for offence u/s 176 of the Indian Penal Code and
try them simultaneously with the other accused and proceed with the trial of the case in accordance with law.
With the above direction to the Trial Court, the revision preferred as against the dismissal of discharge petition stands dismissed. M.P. No. 1
of 2007 also stands dismissed.