S.Venugopala Chary, vs The State Of Ap Rep By Its Pp Hyd.,Boath ...

Telangana High Court

S.Venugopala Chary, vs The State Of Ap Rep By Its Pp Hyd.,Boath ... on 3 May, 2024

Author: K. Lakshman

Bench: K. Lakshman

               HON'BLE SRI JUSTICE K. LAKSHMAN

              CRIMINAL REVISION CASE No.1574 OF 2008

ORDER:

Heard Mr. L. Ravichander, learned Senior Counsel representing Mr. K.R. Prabhakar, learned counsel for the petitioner - accused and Mr. T.V. Ramana Rao, learned Additional Public Prosecutor appearing on behalf of the respondent.

2. This Criminal Revision Case is filed challenging the judgment dated 21.10.2008 in Crl.A. No.20 of 2006 passed by the Sessions Judge, Adilabad (for short 'appellate Court') dismissing the appeal by modifying the conviction of the accused into one under Section 323 of IPC and confirming the sentence of imprisonment imposed by the Judicial Magistrate of First Class, Boath (for short 'trial Court') in C.C. No.140 of 1999.

3. The petitioner herein is the sole accused in C.C. No.140 of 1999. The offence alleged against him is punishable under Section - 332 of IPC. The allegations levelled against him are as follows:

i) PW.9, the then MRO received a telephone call from Parliament Secretariat in between 3.30 and 4.00 p.m. to pass the information on to the accused, who is the then Member 2 KL,J Crl.R.C. No.1574 of 2008 of Parliament. Then, he passed on the said information to the police station, Boath.

ii) PW.1, the complainant having received the said information from PW.9, went to the Inspection Bungalow, where the accused was staying, to inform the same to the accused.

Accordingly, PW.1 informed the said message and in the meanwhile, the accused called him back and asked him about two cases i.e., Crime No.7 of 1999 and 8 of 1999. He told PW.1 not to harass and arrest the accused persons therein, on which PW.1 informed that it is not in his purview and it is within the purview of the Circle Inspector of Police. Then, the accused scolded PW.1 saying that he was talking in a drunken state and thereafter gave a fist blow on the mouth of PW.1 due to which, PW.1 received bleeding injury on his lower lip. The accused also caught hold of his shirt collar.

iii) Thus, the petitioner - accused committed the offence punishable under Section - 332 of IPC.

4. During the course of investigation, the Investigating Officer recorded the statements of witnesses including PW.1 and after completion 3 KL,J Crl.R.C. No.1574 of 2008 of investigation, laid the charge sheet. The same was taken on file as C.C. No.140 of 1999.

5. During trial, on behalf of the prosecution, PWs.1 to 13 were examined and got marked Exs.P1 to P5 and MO.1 was also marked. On behalf of the accused, he himself examined as DW.1 and got marked Exs.D1 to D4.

6. On consideration of the entire evidence, both oral and documentary, vide judgment dated 06.02.2006, learned trial Court recorded conviction against the accused for the offence under Section - 332 of IPC and accordingly imposed sentence of simple imprisonment for a period of six (06) months and to pay a fine of Rs.500/- in default to suffer simple imprisonment for one (01) month.

7. Challenging the said conviction and sentence of imprisonment, the accused preferred an appeal vide Crl.A. No.20 of 2006. The learned appellate Court, vide judgment dated 21.10.2008, dismissed the said appeal modifying the conviction of the accused into one under Section - 323 of IPC, however, confirmed the sentence of imprisonment.

8. Challenging the same, the accused filed the present revision on the following grounds:

KL,J Crl.R.C. No.1574 of 2008

i) There is no previous sanction to prosecute the case against the accused as he was a Member of Parliament (Lok Sabha). A trial without sanction is without jurisdiction. The appellate Court totally ignored the law laid down by the Apex Court with regard to the sanction and dealt with the said issue casually.

ii) There is no iota of evidence except the evidence of PWs.2 to 7

- interested witnesses, to prove the case against the petitioner herein;

iii) The prosecution foisted a case against the petitioner herein with an intention to harass him;

iv) PW.1 cannot be treated as a public servant as he was not in uniform on the date of alleged incident and, therefore, offence under Section - 332 of IPC would not attract.

v) The petitioner - accused is entitled for acquittal on the ground of benefit of doubt as the prosecution failed to prove the offence under Section - 332 of IPC beyond any reasonable doubt.

9. In the light of the aforesaid submissions, it is relevant to note that Section - 321 of IPC deals with 'voluntarily causing hurt', and it says that whoever does any act with an intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to 5 KL,J Crl.R.C. No.1574 of 2008 any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". Section - 323 of IPC deals with the punishment for the said offence.

10. To prove the aforesaid offence, the prosecution has examined PW.1 - victim; Head Constable, PW.2 - Police Constable; PW.3 - Assistant Sub-Inspector of Police (Armed Reserve); PWs.4 to PW.6 - Police Constables, Andhra Pradesh Special Police; PW.7 - Sub-Inspector of Police; PW.8 - one of the panch witness for seizure of blood stained shirt - MO.1; PW.9 - retired Mandal Revenue Officer, a circumstantial witness; and PW.10 - doctor who treated PW.1 - victim, and filed Exs.P1 to P5 - documents including Ex.P3 - medical certificate of PW.1. MO.1 - Lalchi/Shirt of PW.1 with smeared blood. To prove that the petitioner - accused is not guilty of the said offence, he has examined himself as DW.1 and marked Exs.D1 to D4.

11. The petitioner herein contended that he was the Member of the Parliament as on the date of incident, a public servant within the meaning of Section - 21 of the IPC. Therefore, without obtaining sanction he cannot be prosecuted.

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12. It is relevant to note that challenging the said judgment in C.C. No.140 of 1999 of learned trial Court, the petitioner herein has filed a petition under Section - 482 of Cr.P.C. vide Crl.P. (SR) No.3938 of 2006, and vide order dated 02.03.2006, the High Court of Andhra Pradesh at Hyderabad disposed of the said petition sustaining the objection raised by the Registry that the petition under Section - 482 of Cr.P.C. is not maintainable. However, it was made clear that the appellate Court shall have to proceed with the case on its own merits preferably by proceeding to decide the issue of sanction in the first instance. Therefore, the appellate Court considered the said issue. On examination of the facts and relying on the principle laid down by the Hon'ble Supreme Court in P.V. Narasimha Rao v. State 1; Shambhunath Mishra v. State of U.P. 2; and the High Court of Delhi in State v. Ravinder Singh 3; the appellate Court categorically held that the complaint against the accused cannot be said to have been performed in discharge of his duties as it is no part of the duty of a Member of Parliament to assault a public servant. In the present case, the allegation against the petitioner - accused is that on 05.03.1999 at about 5.00 P.M., PW.1 sent a telephone message from PW.9 to the effect that he received a message from the Secretary to the 1 . AIR 1998 SC 2120 2 . AIR 1997 SC 2102 3 . 1995 Crl.L.J. 3428 7 KL,J Crl.R.C. No.1574 of 2008 Speaker of Lok-Sabha that the accused should contact the Speaker. Thereupon, on the instructions of his superiors, PW.1 himself reached the inspection bungalow to convey the said message to the accused. The accused questioned PW.1 in connection with two (02) cases registered in the police station, when PW.1 admittedly a public servant did not accept suggestions or request of the accused. Therefore, the said act of the accused cannot be said to be connected with his duty as a Member of Parliament. As rightly held by the appellate Court, the accused being the representative of the people as a Member of Adilabad Lok Sabha Constituency expected to enquire a Police Officer about the case registered in the police station situated within his Constituency. He has to end the matter on enquiring the same and replies given by PW.1. He cannot assault PW.1 - Police Constable on the ground that his replies were not proper or he was showing an adamant attitude. It was open for the accused to take up the issue with Superior Officers if the cases registered were really registered implicating the people of his constituency falsely.

i) With the said observations, the appellate Court rightly held that in such a situation the act complained against the accused cannot be said to have been performed in discharge of his duties as it is no part of the 8 KL,J Crl.R.C. No.1574 of 2008 duty of a Member of Parliament to assault a public servant. The said finding is on sound reasoning. Therefore, the petitioner - accused cannot contend that the appellate Court totally ignored the law laid down by the Apex Court with regard to non-obtaining necessary sanction from the Government for prosecution of the accused.

ii) In Shadakshari v. State of Karnataka 4, the Apex Court held as under:

"22. Even in D. Devaraja v. Obais Sanders Hussain [(2020) 7 SCC 695] relied upon by learned counsel for respondent No.2, this court referred to Ganesh Chandra Jew (supra) and held as follows:

"35. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40: 2004 SCC (Cri) 2104] this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty."

23. Thus, this court has been consistent in holding that Section 197 Cr.PC does not extend its protective cover to every act or omission of a public servant while in service. It is restricted 4 . 2024 INSC 42 9 KL,J Crl.R.C. No.1574 of 2008 to only those acts or omissions which are done by public servants in the discharge of official duties.

Therefore, the contention of the appellant that without obtaining necessary sanction, the Investigating Officer laid the charge sheet is unsustainable.

13. As discussed above, PW.1 went to the Inspection Bungalow where the accused was staying to convey the message from PW.9 that the accused has to contact the Hon'ble Speaker. Thereafter, the accused enquired with PW.1 regarding two cases. Even the petitioner as DW.1 admitted the said fact in his deposition that PW.1 met him in the Inspector Bungalow in the evening of 05.03.1999.

14. PW.1 specifically deposed about the actual incident and that the petitioner assaulted him and caused hurt. The appellate Court extracted the deposition of PW.1 in paragraph No.16 of the impugned judgment.

15. PW.2 - police constable, who was on duty at the Inspection Bungalow on the date of the incident, specifically deposed that he was standing outside the inspection bungalow and did not see the incident, but he deposed that when PW.1 came out of the inspection bungalow, he saw his (PW.1) shirt was torn and there was a bleeding injury on his mouth. 10

KL,J Crl.R.C. No.1574 of 2008 Like-wise, PW.3 - Assistant Sub-Inspector of Police in the Armed Reserve at Boath, deposed that he was also on duty at the inspection bungalow at the time of the incident. The said deposition of PW.3 is corroborative with the evidence of PW.1. PW.4, PW.5 and PW.6 - Police Constables in A.P. Special Police, were also on duty at the inspection bungalow on the date of the incident. Their deposition is corroborative with each other and also corroborative to the version of PW.1.

16. PW.7 - Probationary Sub-Inspector of Police at Boath, also specifically deposed about the incident. The appellate Court extracted his deposition in paragraph No.18 of the impugned judgment.

17. Thus, on consideration of entire evidence, more particularly, the depositions of PW.1 and 7 and material particulars supported by PWs.3 to 6, the appellate Court held that the petitioner - accused committed the offence, assaulted PW.1 and thereby caused hurt. The appellate Court also considered that though the accused cross-examined the said prosecution witnesses at length, nothing was elicited from them. The appellate Court gave a specific finding with regard to the contention of learned counsel for the petitioner that though several independent persons are available at the inspection bungalow, the Investigating Officer failed to examine any of them is a serious lapse and the evidence 11 KL,J Crl.R.C. No.1574 of 2008 of PWs.1 to 7 should be rejected on the said ground. The appellate Court referred to Section - 118 of the Indian Evidence Act. Therefore, the said finding is based on sound reasons.

18. As discussed above, PW.1 was treated by PW.10 - Medical Officer and gave Ex.P3 Medical Certificate. However, it is contended by the petitioner that PW.1 was examined by PW.10 on 08.03.1999 i.e., after 72 hours of the incident and, therefore, Ex.P3 wound certificate given by him cannot be relied upon. On the analysis of the entire evidence, the appellate Court held that though there was delay in medical examination of PW.1, nothing was elicited from PW.1 to hold that the injury suffered by him on the left part of his lower lip was more than 72 hours old or that it was fresh injury, which could not have been caused 72 hours before. On consideration of the said evidence only, the appellate Court held that the injury described by PW.10 as lacerated wound of ¼" x ¼" x ¼" on the left part of the lower lip of PW.1. Lip is a delicate part of the body and a fist blow can cause such an injury. Therefore, merely delay in medical examination of PW.1 cannot be a ground to reject the prosecution case.

19. In paragraph Nos.25 and 26 of the impugned judgment, the appellate Court specifically considered the contentions raised by the 12 KL,J Crl.R.C. No.1574 of 2008 petitioner that he gave report against PW.1 which is evident from Ex.D4 - certified copy of the docket order in Cr.No.13 of 1999. With the said findings and on consideration of the depositions of PWs.1 to 7, PW.10 and Ex.P3 - wound certificate, the appellate Court categorically held that the petitioner - accused committed the offence by assaulting PW.1 and causing hurt. It is a reasoned order.

20. The appellate Court also considered the contents of Section - 332 and 323 of IPC. In paragraph No.30 of the impugned judgment, the appellate Court held that the evidence on record would establish the offence under Section - 323 of IPC, which relates to causing of simple hurt by a person to another, instead of an offence under Section - 332 of IPC.

21. With the said findings, the appellate Court confirmed the judgment of the trial Court and accordingly dismissed the appeal filed by the petitioner - accused, modifying the conviction of the accused into one under Section - 323 of IPC instead of Section - 332 of IPC. However, the appellate Court confirmed the sentence of imprisonment imposed by the trial Court i.e., six (06) months imprisonment and fine of Rs.500/-.

22. Section - 323 of IPC deals with punishment for voluntarily causing hurt and it says that whoever voluntarily causes hurt to any 13 KL,J Crl.R.C. No.1574 of 2008 person shall be punished with imprisonment, which may extend to one year, or a fine to one thousand rupees, or both. Section - 332 of IPC deals with voluntarily causing hurt to deter public servant from his duty and shall be punished with imprisonment either description for a term which may extend to three (03) years or with fine, or with both.

23. The trial Court having held that the petitioner herein is guilty of the offence under Section - 332 of IPC convicted him and imposed sentence of imprisonment for six (06) months and also to pay fine of Rs.500/-. However, the appellate Court modified the said sentence into one under Section 323 IPC from 332 of IPC, however, confirmed the sentence of imprisonment for six (06) months and fine of Rs.500/- imposed by the trial Court.

24. As discussed above, learned trial Court on consideration of the entire evidence convicted the petitioner herein. The said judgment was confirmed by the learned appellate Court. Both the judgments are well considered, reasoned and well founded. The findings are concurrent. The petitioner failed to make out any case to interfere with the said judgments. This criminal revision fails and the same is liable to be dismissed.

KL,J Crl.R.C. No.1574 of 2008

25. The present Criminal Revision Case is accordingly dismissed confirming the impugned judgment dated 21.10.2008 passed by the learned Sessions Judge, Adilabad in Crl.A. No.20 of 2006.

As a sequel thereto, miscellaneous petitions, if any, pending in this criminal revision case shall stand closed.

_________________ K. LAKSHMAN, J 3rd May, 2024 Mgr