Madras High Court
S.Marimuthu vs Elavarasu on 29 September, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.09.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.O.P.No.25488 of 2016
and
Crl.M.P.No.12368 of 2016
S.Marimuthu
Sub-Inspector of Police,
Maruvathur Police Station,
Perambalur District. .. Petitioner/Accused
Vs.
Elavarasu .. Respondent/Complainant
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., to
call for the records and to quash the compliant in C.C.No.46 of 2016
pending on the file of the Judicial Magistrate, Perambalur.
For Petitioner .. Mr.S.Karthikeyan
For Respondent .. Mr.R.Veeramani
ORDER
Heard Mr.S.Karthikeyan, learned counsel for the petitioner and
Mr.R.Veeramani, learned counsel for the respondent.
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2.The present petition has been filed taking advantage of Section 482
of Cr.P.C., seeking interference with further proceedings in C.C.No.46 of
2016 now pending on the file of the Judicial Magistrate Court, Perambalur.
3.The petitioner who is the accused in the said calendar case is said to
have been at that particular point of time in the year 2016, a Sub-Inspector
of Police, Maruvathur Police Station, Perambalur District. The
respondent/defacto complainant is presumably, still an advocate practising
at Perambalur. An incident occurred necessitating the defacto complainant
to go over to the police station at Maruvathur. A summons had been issued
to one Sekar who had been asked to come over for some enquiry. The
respondent was the advocate of the said Sekar. He went over along with the
said Sekar and also another advocate, Kalaiselvan and also with the father
of Sekar. They had gone over to Kunnam Police Station on 06.01.2015 at
around 7.15 p.m. At that time, the present petitioner was the Sub-Inspector
in that Police Station.
4.Naturally, exchange of words took place between the advocate and
the police. The advocate wanted to know the gist of the complaint which
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necessitated issuing notice to the said Sekar and then this was replied
according to the complaint by the petitioner herein, that he need not to give
a copy of the complaint. The exchange of words which started of in that
tone further escalated.
5.It is also stated in the complaint that there was also a previous
occasion, when there was a sight altercation between the petitioner and the
de-facto complainant owing to a separate incident and the defacto
complainant therefore stated that the petitioner herein had an axe to grind
against the defacto complainant.
6.Nothing further would have transpired had the words uttered were
words which could be uttered at any place and at any point of time.
7.But was has been reduced in the complaint as words spoken are
words which should not have been uttered by any police officer during his
official duty, wearing his uniform in the police station. The said words in
Tamil as stated in the complaint are reduced below:-
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“mjw;F khhpKj;J vd;gth; tHf;fwp"h;
,stuRitg; ghh;j;J vdf;F cj;jput[ nghl
eP ahUlh btspna nghlh ehna njtoah
gany vd tHf;fwp"h; ,stuRit
mtkhpahijahd thh;j;ijfis gadgLj;jp
jpl;o”
8.These words are not words which a public servant can utter in the
course of his public duty. If he wants to utter such words, then it cannot be
construed as discharge of public duty. Whether he had uttered the words or
whether he had not uttered the words are subject matter of trial. The
petitioner herein cannot claim to hide behind any screen to protect himself.
Those words are offensive and would naturally infuriate any person. After
uttering such word claiming protection as a public servant, in my opinion
cannot be a countenance. There cannot be a claim that a public servant can
have every liberty to utter any abusive word to anybody who comes on
official purpose to the office of the public servant. This has led to lodging a
private complaint which had been taken cognizance by the learned Judicial
Magistrate as C.C.No.46 of 2016.
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9.The learned counsel for the petitioner pointed out the order of the
Magistrate while taking cognizance.
10.The order dated 24.06.2016 was as follows:
“On perusal of records and Sworn affidavit, and
other witnesses, the prime facie case is made out against
the Accused. Hence the complaint is taken on file in
C.C.No.46 of 2016 for offence under Section 294(b), 341,
506(i) IPC. Issue fresh summons to Accused on process.”
11.The learned counsel for the petitioner criticized the said order
stating that there is absolutely no application of mind and there is no
subjective satisfaction and that the ingredients required for a Magistrate to
take cognizance are not satisfied on a reading of the above order.
12.In this connection, learned counsel for the petitioner had relied on
(2015) 12 SCC 420, Mehmood Ul Rehman V. Khazir Mohammed Tunda
and others, more particularly to paragraph 20, which is as follows,
“20. The extensive reference to the case law would
clearly show that cognizance of an offence on complaint is
taken for the purpose of issuing process to the accused.
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Since it is a process of taking judicial notice of certain
facts which constitute an offence, there has to be
application of mind as to whether the allegations in the
complaint, when considered along with the statements
recorded or the inquiry conducted thereon, would
constitute violation of law so as to call a person to appear
before the criminal court. It is not a mechanical process
or matter of course. As held by this Court in Pepsi Foods
Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5
SCC 749 : 1998 SCC (Cri) 1400] to set in motion the
process of criminal law against a person is a serious
matter.”
13.In this connection, the learned counsel for the respondent for good
measure had relied on (2012) 5 SCC 424, Bhushan Kumar and Another V.
State (NCT of Delhi) and another, wherein, the Hon'ble Supreme Court had
held as follows:
“13. Section 204 of the Code does not
mandate the Magistrate to explicitly state the
reasons for issuance of summons. It clearly states
that if in the opinion of a Magistrate taking
cognizance of an offence, there is sufficient ground
for proceeding, then the summons may be issued.
This section mandates the Magistrate to form an
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opinion as to whether there exists a sufficient
ground for summons to be issued but it is nowhere
mentioned in the section that the explicit narration
of the same is mandatory, meaning thereby that it is
not a prerequisite for deciding the validity of the
summons issued.
19. This being the settled legal position, the
order passed by the Magistrate could not be faulted
with only on the ground that the summoning order
was not a reasoned order.
20. It is inherent in Section 251 of the Code
that when an accused appears before the trial court
pursuant to summons issued under Section 204 of
the Code in a summons trial case, it is the bounden
duty of the trial court to carefully go through the
allegations made in the charge-sheet or complaint
and consider the evidence to come to a conclusion
whether or not, commission of any offence is
disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the
accusation to the accused and ask him whether he
pleads guilty otherwise, he is bound to discharge
the accused as per Section 239 of the Code.
21. The conclusion of the High Court that the
petition filed under Section 482 of the Code is not
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maintainable cannot be accepted in view of various
decisions of this Court. (Vide Pepsi Foods
Ltd. v. Judicial Magistrate [(1998) 5 SCC 749 :
1998 SCC (Cri) 1400] , Dhariwal Tobacco
Products Ltd. v. State of Maharashtra [(2009) 2
SCC 370 : (2009) 1 SCC (Cri) 806] and M.A.A.
Annamalai v. State of Karnataka [(2010) 8 SCC 524
: (2010) 3 SCC (Cri) 950] .) 22. In the light of
the above discussion, we conclude that the petition
filed before the High Court under Section 482 of the
Code was maintainable. However, on merits, the
impugned order dated 30-7-2010 [ Cri. MC No.
3376 of 2010, order dated 30-7-2010 (Del)] passed
by the High Court of Delhi is confirmed,
consequently, the appeals fail and the same are
dismissed. In view of the dismissal of the appeals,
MM/South East 02, Patiala House, New Delhi is
free to proceed further in accordance with law,
uninfluenced by any observation made in these
appeals.”
14.Both the learned counsels, had referred to (1998) 5 SCC 749,
Pepsi Foods Ltd. V. Judicial Magistrate.
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15.Yet another ground seeking to quash the said calendar case is that
no sanction had been sought or obtained as required under Section 197 of
Cr.P.C., and therefore protection from prosecution is sought on the ground
that the petitioner herein is a public servant, functioning as Sub-Inspector of
Police. Reliance in this regard is placed on an unreported judgment of a
learned Single Judge in Crl.O.P (MD) No.4756 of 2015 dated 24.09.2018 in
P.Kalai Kathiravan V. Ramaiah.
16.The facts in that case are certainly distinguishable. A private
complaint was given by the defacto complainant against six persons, and
allegation was that the investigating officer, had intentionally left out the
real accused persons by taking money and had falsely impleaded a relation
of the defacto complainant as an accused person. That complaint was lodged
post investigation. During the course of investigation, if an officer
determines that there a certain person is to be included as an accused, he has
every liberty to include him as accused. He also has every liberty to drop a
named person in the FIR from being arrayed accused. He has to give
reasons in the final report. Filing of a final report is discharge of official
duty. Laying a complaint on that ground is with respect to discharge of
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official duty. When such a complaint is laid then sanction is required, since
an official duty had been called into question. The nature of allegations
stated in the final report, the names of the accused who had been added in
the final report, the names of the accused who had been left out in the final
report form part of investigation conducted in the course of official duty by
an investigating officer or police official. Such a report are always filed in
discharge of official duty. If a private complaint is to be lodged questioning
such a final report, then sanction under Section 197 Cr.P.C is certainly
required. That was the reasoning given by the learned Single Judge and I
have no quarrel about the same.
17.But I wonder whether uttering words / bad words / filthy words /
words attacking the purity of the mother of the defacto complainant can be
termed as discharge of official duty by a police officer wearing his uniform.
This is certainly not discharge of duty. It amounts to exceeding official duty.
Therefore, even though it had been laid down by the learned Single Judge
that sanction is required when a complaint is lodged questioning the acts of
the public servant, that observation is with respect to the facts of that
particular case alone.
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18.In the instant case, I hold that uttering words, particularly
questioning the purity of the mother of the defacto complainant cannot be
termed as discharge of public duty. Therefore, I find no fault in proceeding
with the complaint. Sanction under Section 197 Cr.P.C., is required only to
protect a public servant with respect to acts done or committed in discharge
of public duty and not otherwise.
19.The learned counsel for the petitioner also relied on 2020 SCC
OnLine SC 517, D.Devaraja V. Owais Sabeer Hussain, wherein, the
Hon'ble Supreme Court had held as follows related to sanction:
“66. Sanction of the Government, to prosecute
a police officer, for any act related to the discharge of
an official duty, is imperative to protect the police
officer from facing harassive, retaliatory, revengeful
and frivolous proceedings. The requirement of
sanction from the Government, to prosecute would
give an upright police officer the confidence to
discharge his official duties efficiently, without fear of
vindictive retaliation by initiation of criminal action,
from which he would be protected under Section 197
of the Code of Criminal Procedure, read with Section
170 of the Karnataka Police Act. At the same time, if
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the policeman has committed a wrong, which
constitutes a criminal offence and renders him liable
for prosecution, he can be prosecuted with sanction
from the appropriate Government.
67. Every offence committed by a police officer
does not attract Section 197 of the Code of Criminal
Procedure read with Section 170 of the Karnataka
Police Act. The protection given under Section 197 of
the Criminal Procedure Code read with Section 170
of the Karnataka Police Act has its limitations. The
protection is available only when the alleged act done
by the public servant is reasonably connected with the
discharge of his official duty and official duty is not
merely a cloak for the objectionable act. An offence
committed entirely outside the scope of the duty of the
police officer, would certainly not require sanction.
To cite an example, a policeman assaulting a
domestic help or indulging in domestic violence would
certainly not be entitled to protection. However, if an
act is connected to the discharge of official duty of
investigation of a recorded criminal case, the act is
certainly under colour of duty, no matter how illegal
the act may be.
68. If in doing an official duty a policeman has
acted in excess of duty, but there is a reasonable
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connection between the act and the performance of
the official duty, the fact that the act alleged is in
excess of duty will not be ground enough to deprive
the policeman of the protection of the government
sanction for initiation of criminal action against him.
69. The language and tenor of Section 197 of
the Code of Criminal Procedure and Section 170 of
the Karnataka Police Act makes it absolutely clear
that sanction is required not only for acts done in
discharge of official duty, it is also required for an act
purported to be done in discharge of official duty
and/or act done under colour of or in excess of such
duty or authority.
70. To decide whether sanction is necessary,
the test is whether the act is totally unconnected with
official duty or whether there is a reasonable
connection with the official duty. In the case of an act
of a policeman or any other public servant
unconnected with the official duty there can be no
question of sanction. However, if the act alleged
against a policeman is reasonably connected with
discharge of his official duty, it does not matter if the
policeman has exceeded the scope of his powers
and/or acted beyond the four corners of law.
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71. If the act alleged in a complaint purported
to be filed against the policeman is reasonably
connected to discharge of some official duty,
cognizance thereof cannot be taken unless requisite
sanction of the appropriate Government is obtained
under Section 197 of the Code of Criminal Procedure
and/or Section 170 of the Karnataka Police Act.”
20.In the very same judgement, the Hon'ble Supreme Court had
carved out an exception when sanction would not be required. The Hon'ble
Supreme Court in paragraph 67 referred supra had stated an example,
namely, where a police officer assualts a domestic help or indulges in
domestic violence. It had been stated that then he would not be entitled for
any protection.
21.A parallel can be drawn to the instant case, where the police
official under the protection of his uniform had exceeded his powers by
imputing words touching the purity of the mother of the respondent herein.
Naturally that act cannot be termed to be discharge of public duty.
Therefore, I would also respectfully follow the dictum laid down by the
Hon'ble Supreme Court, wherein an exception had been given and I would
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rely on the peculiar facts of this particular case and state that not obtaining
sanction under Section 197 Cr.P.C would not come in the way of taking
cognizance of the complaint.
22.Now let me address the issue of taking cognizance. It is often
stated that when the Judicial Magistrate, takes cognizance of a final report
filed under Section 173 Cr.P.C there should be application of mind. The
Judicial Magistrate should examine the opinion given by the investigating
officer, should examine whether the offence alleged is made out
necessitating issuance of summons to the accused and thereafter, should
record the reasons why he had held that the offence had been made out had
taken a decision to issue summons to the accused.
23.Procedure under Section 200 of Cr.P.C had been quite clearly
given in the provision itself. Issuance of summons is under Section 204
Cr.P.C. On receipt of complaint, the complainant and the witnesses are first
examined. Their statements are recorded. The documents which are
produced are perused by the Magistrate. Thereafter, if the Magistrate finds
that even after examining the statement of the complainant and the
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witnesses or on perusal of the records, no offence has been made out for
issuance of process, the Magistrate can very well dismiss the complaint.
24.On the other hand, if the Magistrate forms an opinion that
issuance of process is required to proceed with the case, then if it is
summons case, he can issue summons for attendance of the accused and if it
is a sessions case, he may issue warrant and the accused may brought before
him or before any other Magistrate having jurisdiction. In either case, the
Magistrate should take care to verify whether the complaint has disclosed
the list of witnesses and the list of documents on which the defacto
complainant relies. It must also be stated that Section 204 Cr.P.C also
provides that an opinion must be formed by a Magistrate, whether summons
has to be issued to the accused or not.
25.Provision under Section 204 Cr.P.C had directly come for
interpretation in 2012 5 SCC 424, Bhushan Kumar referred supra which is
relied on by the learned counsel for the respondent. The Hon'ble Supreme
Court had held that an order is not required at the stage of issuance of
summons under Section 204 Cr.P.C. There is no compulsion on the
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Magistrate to give reasons, but when the accused appears on receipt of
summons, then there is compulsion on the Magistrate to explain to the
accused as to the nature of charges, as to the nature of the complaint and
seek answers from the accused whether he accepts the same or objects to the
same. If he objects, then further proceedings are initiated.
26.The expression of the word 'summons' had also explained in the
said judgments. Th judgment reported in (2012) 5 SCC 424, Bhushan
Kumar and Another V. State (NCT of Delhi) and another and also the
judgment relied on by the learned counsel for the petitioner reported in
(2015) 12 SCC 420, Mehmood Ul Rehman V. Khazir Mohammed Tunda
and others, base their findings in the judgment reported in (1998) 5 SCC
749, Pepsi Foods Ltd. V. Judicial Magistrate which is still now followed
by all Courts laying the foundational guidelines with respect to taking
cognizance, particularly also with respect to a private complaint given under
Section 200 Cr.P.C.
27.In the instant case, on the basis of the statements recorded by the
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complainant and the witness, the Magistrate had formed an opinion that
process will have to be issued. He proceeded further to issue process.
28.The learned counsel for the petitioner stated that a departmental
enquiry had been conducted as against the petitioner and during the course
of enquiry a finding was given favourable to the petitioner. It can only be
stated that during the course of trial this fact can be pointed out before the
Judicial Magistrate who may take it in its true spirit, but that cannot be a
ground to quash the proceedings.
29.It is also to be mentioned that even in the judgment relied on by
the learned counsel for the petitioner in (2015) 12 SCC 420, Mehmood Ul
Rehman V. Khazir Mohammed Tunda and others, the Hon'ble Supreme
Court had given a finding that the cognizance taken by the Magistrate
suffered for want of application of mind, but finally, the Hon'ble Supreme
Court had only directed that the Magistrate may take up the matter for fresh
consideration and may take further action if it is taken in accordance with
law. The complaint was not at all quashed.
30.Here in the instant case, the matter has proceeded on a complaint
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entertained by the Magistrate under Section 200 Cr.P.C and finally under
Section 204 Cr.P.C., the Magistrate had thought it was a fit case to issue
summons.
31.It is obligatory on the part of the petitioner herein to answer
summons. Let him face trial. Let the statement of the witnesses been tested
during the course of trial and let that proceeding move forward.
32.In view of the above facts, I am not inclined to quash the
proceedings. To repeat, the petitioner herein under the garb of wearing the
uniform of a Sub-Inspector of Police, inside the police station has no right
to utter words which touch upon the purity of any person's mother. That is
just not discharge of any public duty. It has to be condemned and I refuse to
quash the calendar case. The present Criminal Original Petition is
dismissed. Consequently, the connected miscellaneous petition is closed.
29.09.2021
Index:Yes/No
Internet:Yes/No
smv
C.V.KARTHIKEYAN,J
smv
https://www.mhc.tn.gov.in/judis/
To
1.The Judicial Magistrate Court, Perambalur.
2.The Public Prosecutor, Madras High Court.
Crl.O.P.No.25488 of 2016
29.09.2021
https://www.mhc.tn.gov.in/judis/
