Madras High Court
K.Murali vs State on 3 December, 2021
Crl.O.P No.14230 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
Crl.O.P.No.14230 of 2019
and Crl.M.P.No.6900 of 2019
K.Murali ... Petitioner
Vs.
1.State
Assistant Commissioner of Police,
Meenambakkam Range,
Chennai – 600 027.
Cr.No.360 of 2017.
2.A.G.Vimalraja Sekaran ...Respondents
Prayer: The Criminal Original Petition filed under Section 482 of Cr.P.C., to
call for records in charge sheet in S.C.No.133 of 2018 on the file of Principal
District and Sessions Judge, Chengalpattu, quash the proceedings as against
the petitioner for offences under Section 3(1)(r)(s), The Scheduled Castes &
The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act”).
For Petitioner : Mr.A.Ramesh Senior counsel
For Mr.B.A.Sujay Prasanna
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor for R1
: No appearance for R2
1/20
https://www.mhc.tn.gov.in/judis
Crl.O.P No.14230 of 2019
ORDER
The petitioner has filed this petition seeking to quash the
proceedings in S.C.No.133 of 2018 on the file of Principal District and
Sessions Judge, Chengalpattu, which was registered based upon the
complaint given by the informant/R2, by invoking the provisions of The
SC/ST Act.
2. The petitioner seeks to quash the proceedings pending against
him on the following grounds:-
(i) No offence made out as against the petitioner
(ii) No sanction for prosecution
(iii) Ulterior motive to wreck vengence
(iv) Inherently improbable prosecution
(v) Delay in lodging FIR
3. The brief facts of the case are as follows:-
The petitioner herein was working as Assistant General Manager in
Air India Limited, Chennai and the informant/second respondent herein was
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Crl.O.P No.14230 of 2019
working as Senior Manager (Flight Despatch) in Air India, Chennai (as a sub
- ordinate to the petitioner). The Petitioner as AGM of the same section was
duty bound to prepare, public maintain roaster of the sub-ordinate to delegate
the work. It is a vital section and needs to be manned 24 x7 all 365 days on
man-to-man replacement basis. Non-availability of technically qualified
officers will affect flight services. The misunderstanding crept in between the
informant and the petitioner due frequent non-adhering of the published
roaster duty and non-cooperation with the Section by the informant. The
informant availed unauthorized/unplanned leave/absented, thereby causing
inconvenience not only to the petitioner but also to other officers working in
the same Section, causing disruption to the office, due to which, the
informant in the habit of frequently reporting sick over telephone and making
himself unavailable for duty, more so unilaterally i.e., by merely informing
the staff of Movement Control/Flight Dispatch section, without any prior
sanction from the Section of the department on various dates, having note of
the above, the department initiated disciplinary proceedings against the
informant/second respondent, and through charge sheet dated 14.11.2017
framed five charges. In order to wreck vengeance, immediately the informant
has foisted this false case against the petitioner.
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Crl.O.P No.14230 of 2019
4. In addition to the above, the informant is habitually abusing the
process of law by preferring false complaint against various other authorities,
under SC/ST Act, namely, Capt, S.Velraj (General Manager – Operations),
Shri K.Subramanian (AGM Administration), Mr.Balaji (Senior Manager –
Personnel), Mr.Anand Stephen, (AGM), and various others, including
General Manager (Personnel) also is a member of SC/ST Liaison Officer,
General Manager (Commercial), Vigilance Head Southern Region. As per the
complaint given by the informant, FIR was registered bearing Crime No.360
of 2017 dated 20.11.2017 for offence under Section 3(1)(r), SC/ST Act
against the petitioner herein for an occurrence said to taken place on
06.11.2017. After the completion of investigation, charge sheet was filed on
24.07.2018 against the petitioner for the offence under Section 3(1)(r)(s) of
The SC/ST Act.
5. Notice was issued to the second respondent/informant. In spite
of receipt, he has not appeared either himself or through his counsel. The
learned Additional Public Prosecutor appeared for the first respondent.
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Crl.O.P No.14230 of 2019
6. Contending that no offence was made out against the petitioner,
the learned counsel would submit that the trial Judge took cognizance of the
offence and framed charges on 11.12.2018 for offences under Sec.3(1)(r)(s),
SC/SC Act. As per the charges, the petitioner while working as the AGM and
Supervisory officer of the informant on 06.11.2017, he abused the informant
by mentioning his caste name in the office corridor,
''.............v‹W T¿ mtiu mtkhddggL¤Jth® v‹W«, Ïijbašyh«
bghW¤J¡bfhŸs Koahkš Ï«khj« 6« nj kÂa« Rkh® 01.40 PM
kâaséš mYtyf jhHthu¤Âš mtiu gh®¤j nghJ V‹ rh® vd¡F
Ãu¢rid¡F nkš Ãu¢rid bfhL¡»Ö®fŸ v‹W.....''
7. The contention of petitioner is that the informant was not abused by
him on that day and no such alleged occurrence happened on 06.11.2017.
On the other hand, the informant is in the habit of abusing the petitioner and
other employees in the office by sending emails to higher officials as if they
were abused him by mentioning his caste name. The learned counsel for the
petitioner would submit that there is no offence made out as against the
petitioner. The ingredients required to constitute an offence under Sec
3(1)(r), SC/ST Act are as follows:-
(i)The victim should be a member of SC/ST Community.
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Crl.O.P No.14230 of 2019
(ii)The offender should not belong to a SC/ST Community.
(iii)Intentionally insults or intimidates with an intent to humiliate a
member of SC/ST/
(iv)The above act must be within public view,
8. The ingredients required to constitute an offence under Sec
3(1)(s), SC/ST Act are as follows:-
(i) The victim should be a member of SC/ST Community;
(ii) The offender should not belong to a SC/ST Comminity;
(iii) The offender should have abused the victim by the caste name;
and
(iv) That abuse should have been in a place within public view.
9. Relying the above provisions of law, the learned counsel for the
petitioner submits that in order to prosecute under Section 3(1)(r)(s) there
must be Insulted intimidation with an intention to cause harassment to the
member of the SC/ST and the same must be committed within 'public view'.
however, the learned counsel pointed out that the alleged occurrence was said
to have taken place in the office corridor during office hours.
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Crl.O.P No.14230 of 2019
10. But as required under the relevant provision, the offence must
have been committed within public view; which means the offence must be
witnessed by any member of the public. To that effect the allegation made in
the FIR are as follows:-
mYtyf¤Âš ju¡Fiwthf mtUila Birth Status ia F¿¡F«
éj¤Âš šhœ¥òz®¢Áæ‹ fhuzkhf gyKiw. - ---- - -, v‹W T¿ mth
mtkhddggL¤Jth® v‹W«, Ïijbašyh« bghW¤J¡bfhŸs Koahkš
Ï«khj« 6« nj kÂa« Rkh® 01.40 PM kâaséš mYtyf jhHthu¤Âš
mtiu gh®¤j nghJ V‹ rh® vd¡F Ãu¢rid¡F nkš Ãu¢rid
bfhL¡»Ö®fŸ v‹W nf£ljhfΫ, mj‰F ÂU.Kuë AGM - - - - - - gš
brhšyD«D mtÁa« Ïšiy vd T¿ ntfkhf br‹W é£ljhfΫ-------
11. Therefore, neither in the complaint preferred nor the FIR
registered, nor the charge framed states in whose presence/view the alleged
act has taken place. On a perusal of the records, it is seen that the informant
has not mentioned any of the member of the public who said to have
witnessed the alleged occurrence said to have taken place on 06.11.2017.
12. But the learned Additional Public Prosecutor submitted that
after completion of the investigation one Ashokkumar was shown as one of
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Crl.O.P No.14230 of 2019
the eye-witnesses. Admittedly, the said Ashok kumar is a co-worker and he is
not a member of the public. Furthermore, as per the statement recorded under
Section 164(5) of Cr.P.C. given before the Judicial Magistrate, the said
Ashok Kumar has deposed that for the past one year, there was dispute
between the officers and the second respondent/informant with regard to
availing of leave in the office and except that he has not deposed about the
alleged abused made by the petitioner.
13. Summing of all these facts, the learned counsel submits that
the alleged occurrence was not witnessed by any of the public. Since the
main ingredients of the provision that the insult should have been made
before public has not been made out and therefore, offence under Section
3(1)(r)(s) is not attracted as submitted by the petitioner.
14. In support of his contentions, the learned counsel relied on the
preposition laid down in Gorige Pentaiah vs, State of Andhra Pradesh and
Others. The relevant paragraph of this judgment is as under:
''6. According to the basic ingredients of Section 3(1)(x)
of the Act, the complainant ought to have alleged that the
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Crl.O.P No.14230 of 2019
appellant -accused was not a member of the Scheduled Caste
or a Scheduled Tribe and he (Respondent) 3) was intentionally
insulted or intimidated by the accused with intent to humiliate
in a place within public view. In the entire complaint, nowhere
it is mentioned that the appellant-accused was not a member
of the Scheduled Caste or a Scheduled Tribe and he
intentionally insulted or intimidated with intent to humiliate
Respondent 3 in a place within public view. When the basic
ingredients of the offence are missing in the complaint, then
permitting such a complaint to continue and to compel the
appellant to face the rigmarole of the criminal trial would be
totally unjustified leading to abuse of process of law.''
15. Furthermore, the alleged witness also belongs to informant
community and no other individual witnesses are shown by the prosecution
to prove the said incident. It is an admitted fact that the petitioner is the
AGM, working in Air India Limited. Chennai and he is a public servant as
defined under Section 21 IPC and if the petitioner is alleged to have
committed the offence in discharge of official duty by misusing his position,
then obtaining sanction is necessary to prosecute him under the provisions of
The SC/ST Act.
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Crl.O.P No.14230 of 2019
16. The learned counsel then submitted that abuse means, to
misuse the position. The charges levelled against the petitioner is that on
06.11.2017 in the office corridor, he abused the second respondent with
intention to humiliate him by mentioning his caste name. It reveals that
alleged occurrence took place during office hours while he was discharging
his official duty. Moreover the entire allegations against this petitioner is that
he abused his official position and harassed the second respondent/informant.
Therefore, obtaining prior approval for proceedings against the petitioner is
necessary for the reason that the alleged occurrence is said to be happened in
the office corridor, during office hours. That apart, he was public servant.
Assuming that the alleged occurrence is true, thus, prior sanction is necessary
under Section 197 Cr.P.C.
17. In support of his contention, the learned counsel relied on the
Judgment in N.K.Ganguly vs. Central Bureau of Investigation, New Delhi
2016 (2) SCC 143.The relevant paragraph is extracted here under:-
''Criminal Procedure Code, 1973 ---S.197 Prosecution of
public Servants --- Previous sanction from appropriate
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Government---Essentials of --- Nexus with discharge of public
duty ---Examination and Determination of ----Prosecution for
offences under S.120-B IPC r/w Ss.13(1)(d) and (2), Prevention of
Corruption Act, 1988--- Cognizance taken and summons issued to
accused public servants --- Allegations in police report showing
that alleged offences committed in discharge of official duty i.e.,
the necessary nexus--- Absence of previous sanction ----
Proceedings quashed.''
18. The learned counsel also submits that with an ulterior motive to
wreck vengeance against the petitioner, a false case has been given. The
informant wanted to avail unauthorized leave and the same resulted in
disciplinary proceeding against the informant. The facts reveal that a
misunderstanding arouse between the petitioner and the second
respondent/informant due to frequent unauthorized/unplanned leave/absent
availed by the second respondent, thereby causing disruption in the office.
Furthermore, the second respondent/informant was in the habit of frequently
reporting sick over telephone and making himself unavailable for duty
without any prior sanction from the department. Taking note of the habit of
the second respondent, the department issued disciplinary proceedings
against him by serving him a charge sheet, dated 14.11.2017, by framing five
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Crl.O.P No.14230 of 2019
charges. The learned counsel for the petitioner submits that in order to wreck
vengeance immediately, the second respondent/informant gave a complaint
before the police on 10.11.2017 stating that he was abused in the office
corridor on 06.11.2017 by this petitioner.
19. The learned counsel for the petitioner also produced the
materials with regard to disciplinary proceedings initiated against the second
respondent/informant, a charge No.5 states that it was alleged that the second
respondent in the habit of levelling baseless and frivolous allegations against
the superiors and other employees. Taking note of the above habit of the
second respondent, the department initiated disciplinary proceedings. The
second respondent/informant was subsequently removed from service. It is
also observed that nearly about 120 letters/emails was sent to senior
officials/outside authorities alleging caste-based discrimination and personal
bias by supervisors, peers, subordinates, and lot of administrative machinery
of the company is wasted in the process.
19 (a) Emphasized ratio laid down Judgment in Union of India vs.
State of Maharashtra & Ors (2020) 4 SCC 761, reviewed the directions
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issued by this Court and held that if there is a false and unsubstantiated FIR,
the proceedings under Section 482 of the Code can be invoked . The Court
held as under:-
''52. There is no presumption that the members of the
Scheduled Castes and Scheduled Tribes may misuse the
provisions of law as a class and it is not resorted to by the
memers of the upper castes or the memers of the elite class.
For lodging a false report, it cannot be said that the caste of a
person is the cause. It is due to the human failing and not due
to the caste factor. Caste is not attributable to such an act. On
the other hand, members of the Scheduled Castes and
Scheduled Tribes due to backwardness hardly muster the
courage to lodge even a first information report, much less, a
ralse one. In case it is found to be false/unsubstantiated, it may
be due to the faulty investigation or for other various reasons
including human failings irrespective of caste factor. There
may be certain cases which may be false that can be a ground
for interference by the Court, but the law cannot be changed
due to such misuse. In such a situation, it can be taken care of
in proceeding under Section 482 CrPC.''
20. The learned counsel also pointed out that there was a delay in
lodging FIR, and the same is an unexplained delay, as per complaint alleged
occurrence said to have taken on 06.11.2017 but the complaint was given
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only on 10.11.2017 but FIR was registered on 20.11.2017.
20 (a) . To support of his contentions, the learned counsel relied on
the decision in Kishan Singh (dead) through Lrs vs. Gurpal Singh and
others in (2010) 8 SCC 775. The Hon'ble Supreme Court has held as follows
''Prompt and early reporting of the occurrence by the
informant with all its vivid details gives an assurance regarding
truth of its version. In case there is some delay in filing the FIR, the
complainant must give explanation for the same. Undoubtedly,
delay in lodging the Fir does not make the complainant's case
improbable when such delay is properly explained. However,
deliberate delay in lodging the complaint is always fatal.''
21. Interference by the High Court in exercise of its jurisdiction
under Section 482 CrPC can be made only where a clear case for such
interference is made out. The Ratio laid down in M.N.Ojha and Ors vs.Alok
Kumar Srivastav and Another (2009) 9 SCC 682 is extracted hereunder
''Interference by the High Court in exercise of its
jurisdiction under Section 482 CrPC can only be where a clear
case for such interference is made out. Frequent and uncalled
for interference even at the preliminary stage by the High
Court may result in causing obstruction in progress of the
inquiry in a criminal case which may not be in the public
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interest. But at the same time, the High Court cannot refuse to
exercise its jurisdiction if the interest of justice so required
where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
fair and minded and informed observer can ever reach a just
and proper conclusion as to the existence of sufficient grounds
for proceeding. In such cases refusal to exercise the
jurisdiction may equally result in injustice more particularly in
cases where the complainant sets the criminal law in motion
with a view to exert pressure and harass the persons arrayed
as accused in the complaint.''
22. The learned Additional Public Prosecutor would submit that 17
witnesses were examined and charge sheet was filed as there was a prima
facie material found against the petitioner. Hence, the proceedings need not
be quashed.
23. By way of reply, the learned counsel for the petitioner submits
that the provisions of the Act should not be abused or used as a weapon to
threaten against other community people by giving false compliant, relying on
the ratio laid down in State of Haryanan vs. Bhajanlal case 1992 SCC (Cri)
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Crl.O.P No.14230 of 2019
426. The Hon;ble Supreme Court has explained the scope of exercise of
power under Section 482 of the Code and the categories of cases where the
High Court may exercise its power. The relevant observation is as under.
''(i) where the allegations made in the first information
report or the complaint, even if they are taken at their face value
and accepted in their entirely do not prima facie constitue any
offence or make out a case against the accused.
(ii) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation bt police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegation made in the
FIR or complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a case
against the accused.
(iv) Where the allegations in the FIR do not constitution
a cognizable offence but constitution onlya non-cognizable offence,
no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under Section 155(2) of the Code,
(v) Where the allegations made in the FIR or co,plaint
are so absurd and inherently on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any
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of the provisions of the Code or the Act concerned (under which a
criminal proceeding is instituted) to the instituting and continuance
of the proceedings and/or where there is a specific provision in the
Code or the Act concerned, providing efficacious redress for the
grievances of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended
with mala fides and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal
grudge.
24. It is permissible to look into the materials to assess what the
co complainant has alleged and whether any offence is made out, even if the
allegations are accepted in toto. There is lacunae on the side of the
prosecution with regard to obtain sanction before initiated the proceedings
against the petitioner, as he was a public servant of Air India Limited and
the enormous delay in lodging FIR also fatal.
25. In R.P.Kapur vs State of Punjab, the Hon'ble Supreme Court
has enumerated categories of cases where the inherent power can and should
be exercised to quash the proceedings. The Hon'ble Supreme Court stated
''where it manifestly appears that there is a legal bar
against the institution or continuance e.g. Want of sanction
(R.P.Kabir vs state of Punjab).''
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26. On careful scrutiny of entire materials on record, this Court
concludes that the complaint of the informant (R2) against this petitioner that
he abused him with intention to humiliate by mentioning his caste name in
the office corridor is false and mala fide one, The petitioner also able to
establish that the defacto complainant/second respondent is in habit of giving
such false complaint against the higher officials pertinent to mention that
more than 120 letters/emails were sent to senior officials/outside authorities
alleged caste-based discrimination against the officials of Air India Limited.
Apart from that he is the person of habitually absente and he used to take
leave without prior intimation to the authorities which leads to initiate the
disciplinary proceedings against him. Immediately, he lodged a FIR against
this petitioner by invoking the provisions of SC/ST Act. It is a clear case of
abuse of process of law. Hence, this case in hand, fit in with category (7) of
State of Haryana vs. Bhajanlal 1992 SCC (Cri) 426, accordingly, this Court
is inclined to quash complaint in S.C.No.133 of 2018 exercised power under
Section 482 of Cr.P.C, to prevent the abuse of process of law and secure the
ends of justice.
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27. Accordingly, this Criminal Original Petition is allowed and the
charge sheet in S.C.No.133 of 2018 lying on the file of the Principal District
and Sessions Judge, Chengalpattu, is hereby quashed. Consequently,
connected miscellaneous petition is closed.
03.12.2021
drl
Speaking Order/ Non Speaking Order
Index: Yes/ No
Internet: Yes/ No
Issue copy on 21.04.2022
To
1. The Assistant Commissioner of Police,
Meenambakkam Range,
Chennai – 600 027.
2. The Public Prosecutor
High Court of Madras.
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Crl.O.P No.14230 of 2019
T.V.THAMILSELVI, J.
drl
Crl.O.P.No.14230 of
and
Crl.M.P.No.6900 of 2019
03.12.20
https://www.mhc.tn.gov.in/judis
