Madras High Court
R.Gunavharman vs K.Babu on 22 June, 2022
Crl.O.P.No.12057 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 22.06.2022
CORAM
THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.12057 of 2020
and Crl.M.P.No.4856 of 2020
R.Gunavharman
S/o.M.G.Ramasamy,
Inspector of Police (L & O),
G-1 Vepery Police Station,
Chennai – 600 003. ... Petitioner
Vs
K.Babu ... Respondent
PRAYER: Criminal Original Petitions filed under Section 482 of Cr.P.C,
praying to call for the records pertaining to the proceedings in C.C.No.1491 of
2020 pending on the file of the learned II Metropolitan Magistrate, Egmore,
Chennai and quash the same.
For Petitioner : Mr.N.Senthilkumar
For Respondent : Mr.N.Anandaraj
https://www.mhc.tn.gov.in/judis
Page 1 of 12
Crl.O.P.No.12057 of 2020
ORDER
The petition has been filed to quash the proceedings in C.C.No.1491
of 2020 pending on the file of the learned II Metropolitan Magistrate, Egmore,
Chennai, thereby taken cognizance for the offences under Sections 166, 323,
336, 352, 427, 500 & 506(2) of IPC, as against the petitioner.
2. The respondent lodged private complaint alleging that he is a
practising advocate in Chennai and on 12.09.2019, he received an information
that one Milaisa was taken by the police personnel of G1, Vepary Police
Station, Chennai. The relatives were not able to know that what purpose and
what ground he was taken to the police station. They were also not informed
about the ground on which he was taken to the police station. Therefore, the
respondent along with his colleague in discharge of their professional duty
went to G1 Vepery Police station and requested the police personnel to tell
about the allegations as against the said Milaisa. However, the police personnel
did not disclose anything about the case and any information with regard to
registration of FIR, if any, as against the said person.
3. When the respondent and his colleague about to met the higher
officials, the petitioner scolded him with filthy language and abused him. They
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
have also made sarcastic and insulting remarks against the respondent herein.
The petitioner also caught hold the shirt of the respondent and hit on his
backside of his neck and his right hand and drag him to exit of the police
station. Therefore, the respondent lodged complaint before the commissioner of
police, Chennai, Home Secretary of the State of Tamil Nadu and Director
General of Police, Tamil Nadu. However, no action was taken on his complaint
as such the respondent filed private complaint under Section 19(1)(a) r/w 200
of Cr.P.C., for the offences punishable under Sections 166, 323, 336, 352, 427,
500 & 506(2) of IPC against the petitioner herein. On receipt of the complaint,
the learned Magistrate conducted enquiry and examined the respondent and his
supporting witnesses. Thereafter the trial Court had taken cognizance and
issued summons to the petitioner.
4. The learned counsel appearing for the petitioner would submit that
the learned Magistrate ought not to have taken cognizance of the complainant
for which sanction under Section 197(1)(b) of Cr.P.C., from the competent
authority is mandatory. It has been legislated to protect responsible public
servant against the institution of vexatious criminal proceeding for the offences
alleged to have been committed while acting or purporting to act as public
servant. In the absence of sanction under Section 197 Cr.P.C., taking
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
cognizance of the complaint is bad in law. In support of his contention, he
relied upon the judgment dated 18.06.2020 passed by the Hon'ble Supreme
Court of India in the case of D.Devaraja Vs. Owais Sabeer Hussain in
Crl.A.No.458 of 2020.
5. Per contra, the learned counsel appearing for the respondent would
submit that the respondent being an Advocate and in order to discharge his duty
he went to the petitioner's police station as contemplated under Section 41(d) of
Cr.P.C. The person who was taken to police station arrested without any
reasons and without even informing his relatives about the grounds of arrest.
Therefore, the respondent went to the petitioner's police station and questioned
about the grounds of arrest and detention of the person viz., Milaisa. The
respondent was abused by the petitioner and also assaulted by the petitioner.
Therefore, the respondent lodged complaint before the higher officials and no
action was taken by them. Therefore the respondent was constrained to file a
private complaint and the trial Court after considering the sworn statement of
the respondent and other supported documents rightly had taken cognizance
and issued summons to the petitioner. The grounds raised by the petitioner are
mixed question of facts and it has to be considered only during the trial before
the trial Court.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
6. Heard Mr.N.Senthilkumar, learned counsel appearing for the
petitioner and Mr.M.Anandaraj, learned counsel appearing for the respondent.
7. According to the respondent, the petitioner while he was working
as Inspector of Police of G1 Vepery Police station, Vepery, Chennai, the
respondent went to the police station and enquired about Milaisa's detention.
He was abused by the petitioner and pushed him out of the police station. The
petitioner also threatened him with dire consequences by showing his pistol
towards the respondent.
8. On perusal of the records revealed that the petitioner registered a
case in Crime No.384 of 2019 for the offences under Section 72 of Chennai
City Police Act 1888, Section 420 of IPC and Section 66(d) of the Information
Technology Act, 2000, against the accused persons on the allegations that they
involved in Cricket gambling through computer with regard to the Cricket
match played in abroad and got unlawful gain at shop No.F-9, 2/36, Oshiyam
Arctais Complex, Hunters Road, Choolaimedu, Chennai. In this regard, the
petitioner arrested one Jai Milansha, Rahul D Jain, Dinesh Kumar, Dinesh
V.Kumar. In the said crime one Ronck Chordia had lost several lakhs and
cheated by the accused persons. They were arrested on 12.09.2019 and
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
recovered cash and other equipment from the accused persons. Thereafter, they
were remanded to judicial custody and taken for interrogation under the police
custody.
9. Therefore, the person mentioned in the present complaint viz.,
Milaisa is not an accused in Crime No.384 of 2019. The petitioner arrested and
remanded to judicial custody only three persons at stated supra. The said person
viz., Milaisa seems to be a father of one of the accused. Therefore, the
respondent herein went to the petitioner's police station and as usual shown his
rough attitude before the petitioner herein. Therefore, there was a wordy
altercation between them.
10. The learned counsel appearing for the respondent cited the
judgment of the Hon'ble Suprem Court of India in the case of Devinder Singh
& ors Vs. State of Punjab through CBI in Criminal Appeal No.190 of 2003
dated 25.04.2016 which held that in case there is an act of beating a person
suspected of a crime confining him or sending him away in an injured
condition, it cannot be said that police at the time were engaged in investigation
and the acts were done or intended to be done under the provisions of law. Act
of bearing and confining a person illegally is outside the purview of the duties.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
In the case on hand, no such occurrence took place even according to the
respondent, since no person was beaten or illegally detained by the petitioner.
Therefore, the judgment cited by the learned counsel appearing for the
respondent is not applicable to the case on hand.
11. Admittedly, while the petitioner was discharging his duty, the
respondent interfered with the investigation. When the petitioner arrested three
accused person in pursuant to the FIR registered in Crime No.384 of 2019 for
the offences under Section 72 of Chennai City Police Act 1888, Section 420 of
IPC and Section 66(d) of the Information Technology Act, 2000, the
respondent interfered with the investigation done by the petitioner herein.
12. In this regard, as cited by the learned counsel appearing for the
petitioner in Crl.A.458 of 2020 in the case of D.Devaraja Vs. Owais Sabeer
Hussain, the Hon'ble Supreme Court of India held that the law relating to the
requirement of santion to entertain and/or take cognizance of an offence,
allegedly committed by a police official under Section 197 of Cr.P.C., is well
settled by the Hon'ble Supreme Court of India. The relaveant portion of the
order is extracted hereunder :-
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
''68. Sanction of the Government, to proseucte a
police officer, for any act related to the dischare 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 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.''
Further held that the Act has its limitation. 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.
13. Further the law laid down under Section 197 of Cr.P.C., makes it
absolutely clear that sanction is required not only for the acts done in discharge
of official duty, it is also required for an act purported to be done in discharge
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
of official duty and/or act done under colour of or in excess of such duty or
authority. It is well settled that an application under Section 482 of Cr.P.C., is
maintainable to quash proceedings which are ex facie bad for want of sanction,
frivolous or in abuse of process of Court. If on the face of the complaint, the act
alleged appears to have a reasonable relationship with official duty, where the
criminal proceedings is apparently prompted by mala fides and instituted with
ulterior motive, power under Section 482 of Cr.P.C., would have to be
exercised to quash the proceedings to prevent abuse of process of Court.
14. In the case on hand, admittedly before taking cognizance, no
sanction was obtained to prosecute the petitioner herein, since the alleged
occurrence taken place, when the petitioner was discharging his official duty.
Therefore, the sanction is required to prosecute the petitioner under Section 197
of Cr.P.C. Therefore, the learned Magistrate ought not to have taken
cognizance on the complaint lodged against the petitioner, in the absence of
sanction required under Section 197 of Cr.P.C. Sanction of the Government to
prosecute a police officer is imperative to protect him from facing harassive,
retaliatory, revengeful and frivolous proceeding. Therefore, the impugned
complaint cannot be sustained as against the petitioner and it is liable to be
quashed.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
15. Accordingly, this Criminal Original Petition stands allowed and
the proceedings in C.C.No.1491 of 2020 pending on the file of the learned II
Metropolitan Magistrate, Egmore, Chennai, is hereby quashed. Consequently,
connected miscellaneous petition is closed.
22.06.2022
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
rts
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
To
1. The II Metropolitan Magistrate,
Egmore, Chennai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12057 of 2020
G.K.ILANTHIRAIYAN, J.
rts
Crl.O.P.No.12057 of 2020
and Crl.M.P.No.4856 of 2020
22.06.2022
https://www.mhc.tn.gov.in/judis
