Thomas Joseph vs Suneesh Kumar R. and State

C.T. Ravikumar, J.—The petitioner is the Geologist attached to District Mining and Geology Department, Palakkad and he is facing indictment in C.C. No. 1098/2006 of the Judicial First Class Magistrate, Pattambi u/s 175 IPC. Annexure-VI summons has been issued to him pursuant to Annexure-VII complaint filed by the 1st respondent. It is with the prayer to quash Annexures-VI and VII that the above Crl.M.C. has been filed.

The 1st respondent is the investigating officer in crime No. 219/2005 of Thrithala police station registered u/s 12(6) read with Section 20 of the Kerala Protection of River Banks and Regulation of Sand Removal Act, 2001 and Section 4(1) read with Section 21(1) of Mines and Minerals (Development and Regulation) Act, 1957 against one Sethumadhavan, Eranjikkavil house, Nhangattiri P.O., Pattambi and his wife Smt. Sheela. On 10.8.2005, while on patrol duty, the Sub Inspector of the said police station and party suspected illegal mining and removal of sand by the aforesaid persons and thereupon took into custody of the vehicles and materials employed for such mining and removal of sand and consequently registered the said case. During the investigation, the said accused persons revealed to the investigating officer that they had been conducting mining and removal of sand on the strength of valid permit No. 440/DOP/3184/05/A1 dated 5.8.2005 and other required documents issued from the office of the petitioner, pursuant to which Annexure-I notice was issued u/s 91 Cr.P.C. by the 1st respondent to the petitioner. The case of the prosecution as revealed from Annexure-VII complaint is that the petitioner has failed to appear in person and to produce the documents before the 1st respondent despite the receipt of Annexure-I notice. It was in these circumstances that Annexure-VII complaint was filed and upon which Annexure-VI summons was issued. The petitioner has admitted the receipt of Annexure-I notice and according to him, it is a notice requiring him to produce the licence and other related documents regarding the issuance of permit and licence to the accused persons in crime No. 219/2005 of Thrithala police station for verification. It is his further case that in compliance with the said notice he has produced the required documents through a special messenger before the office of the 1st respondent at 11 am on 22.8.2005. However, the 1st respondent refused to accept the same and consequently he had again sent the required details to the 1st respondent by registered post on 23.8.2005 and thus delivered up the required documents. In short, according to the petitioner, there was absolutely no intentional omission on his part to comply with the directions in Annexure-I notice and, therefore, Annexure-VII complaint is illegal and unsustainable and the learned Magistrate ought not to have taken cognizance thereon. It is, inter alia, with the said contentions he seeks quashing of Annexures-VI and VII as abuse of process of court.

Admittedly, the petitioner is a public servant and he is legally bound to produce the documents required to be produced by the 1st respondent in discharge of his duty as investigating officer in the aforesaid crime. In this context, it is apposite to note, as evident from Annexure-I, that a crime was registered against the above named accused persons and the petitioner is not at all connected with the commission of the offence alleged against them. Annexure-VII complaint did not contain any such allegation against the petitioner. That apart, the tenor of Annexure-I would suggest that based on the assertions on the part of the said accused persons that they had been conducting mining and removal of sand on the strength of a valid permit and licence issued by the petitioner, the 1st respondent thought it fit to verify the veracity of the said assertions on their part. Evidently and essentially, it was for that purpose, that Annexure-I was issued requiring the petitioner to produce the permit and other related documents for permitting and authorising the said accused persons for mining and removal of sand. The recital in Annexure-I notice requires verbatim reproduction in this context.

office-

440/DOP/3184/05/A1 dtd. 5-8-05

sand

office- P

office- (

) office 22-8-

05 11

The above extracted portion of Annexure-I thus undoubtedly suggests that the purpose and intention of issual of the notice is not interrogation of the petitioner but it is for verification of the aforesaid documents. Therefore, a scanning of Annexure-I as also Annexure-VII persuaded me to agree with the contentions of the counsel for the petitioner Sri.T.G.Rajendran that Annexure-I has been issued presumably with the intention for production of the required documents and that there has been no intentional omission on the part of the petitioner in as much as he has delivered up the documents to the 1st respondent pursuant to his refusal to receive the said documents produced before him through special messenger. In Annexure-V report submitted before the Judicial First Class Magistrate, Pattambi, the petitioner has categorically stated the aforesaid facts and the copy of the relevant letter along with enclosures sent to the 1st respondent were also attached with Annexure-V. In fact, Annexure-VII complaint would fortify my view. A bare perusal of Annexure-VII would reveal that the offence alleged to have been committed by the petitioner is one u/s 175 IPC. Section 175 IPC reads thus:

Section 175. Omission to produce document or electronic record to public servant by person legally bound to produce it - Whoever, being legally bound to produce or deliver up any document or electronic record of any public servant, as such, intentionally omits so to produce or deliver up the same, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or if the document or electronic record is to be produced or delivered up to a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

A scanning of the said section would show that the essential ingredient to constitute an offence under the said section is the intentional omission on the part of the concerned public servant who is legally bound to produce or deliver up the required documents before the legally competent authority who directed for the production of the said documents. In short, the intentional omission to produce or deliver up the required documents alone will make the concerned public servant liable to face prosecution under the section. Non attendance in obedience to an order from a public servant calls for initiation of prosecution u/s 174 IPC and not u/s 175 IPC. Annexure-VII would show that the complaint of the 1st respondent is that despite the receipt of Annexure-I notice, the petitioner did not turn up in his office with the required documents. Though he has stated in Annexure-VII that the interrogation of the petitioner is essential after verification of the related documents, there is no such specific direction as such revealing the said intent in Annexure-I. As I have already held, Annexure-I would reveal the purport and intent of the issuance of the said notice is one for causing production of the related documents in crime No. 219/2005 of that police station. Further, it is evident that pursuant to receipt of Annexure-I notice, the petitioner has attempted to cause production of the required documents before the 1st respondent through special messenger who is an authorised officer attached to his office and thereafter, pursuant to the refusal to receive the same by the 1st respondent, he delivered them up by registered post. If that be so, it cannot be said, by any stretch of imagination, that the petitioner had intentionally omitted to produce or deliver up the documents before the 1st respondent as directed by Annexure-I notice.

There is no impediment at all for the court below to call for any document pertaining to the said crime either by suo motu or at the instance of the 1st respondent. In fact, going by the contention of the petitioner all the required details and documents have already been sent to the 1st respondent and perhaps it is for that reason that the 1st respondent has framed his complaint in such a way that the petitioner has failed to attend before him in person pursuant to Annexure-I. At any rate, after hearing both sides, I am not inclined to accept the contention on the part of the 1st respondent that the petitioner has intentionally omitted to carry out his directions in Annexure-I order and it will definitely go to show that he has actually complied with the directions and at any rate, there is no intentional omission going by the admitted facts.

In view of the aforesaid discussions, I am of the view that permitting to continue the proceedings against the petitioner based on Annexure-VII complaint will result in abuse of process of court and to secure ends of justice, it is imperative on this Court to interfere with the undeserved prosecution by exercising the inherent power u/s 482 of the Code of Criminal Procedure. Accordingly, Annexure-VII complaint dated 23.8.2005 filed by the 1st respondent in C.C. No. 1098/2006 of the Judicial First Class Magistrate, Pattambi is hereby quashed and it is made clear that no further proceedings shall be continued against the petitioner based on the said complaint.

The Crl.M.C. is accordingly allowed.