Madras High Court
A.G.Ponmanickavel vs / on 26 September, 2025
Crl.O.P.(MD) Nos.4583 & 2263 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 11.08.2025
Pronounced on 26.09.2025
CORAM
THE HONOURABLE DR.JUSTICE R.N.MANJULA
Crl.O.P.(MD) Nos.4583 and 2263 of 2025
and Crl.M.P.(MD) No.3279 of 2025
Crl.OP.(MD) No.4583/2025
A.G.Ponmanickavel
S/o. A.K.Ganapathi Thevar,
No.19, 19, Kamaraja Salai,
Kottivakkam,
Chennai – 600 041. ... Petitioner
/vs/
1. State through the
Central Bureau of Investigation,
Represented by the Superintendent of Police, (SC-II) Delhi,
Plot No.5-B, 6th Floor,
CGO Complex, Lodhi Road,
New Delhi – 110 003.
FIR No.RC0502024S0013. ... 1st respondent / complainant
2. Mr.Kader Batcha,
S/o. R.Ibrahim,
No.17, Q-Block, G-3 New Police Quarters,
EVR Salai, Kilpauk,
Chennai – 600 010. ... 2nd Respondent / Defacto complainant
Criminal Original Petition is filed under Section 528 of BNSS, to call
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for the records of the impugned FIR in Crime No.RC0502024S0013 dated
08.08.2024 on the file of the 1 st respondent and quash the same as illegal in
respect of petitioner concerned.
For Petitioner : Mr.C.Arul Vadivel @ Sekar
Senior Counsel
for Mr.M.Pozhilan
for M/s.Arulvadivel Associates
For Respondents : Mr.K.Srinivasan
Senior Counsel
assisted by Mr.D.Mohideen Basha
Special Public Prosecutor for R1
Mr.L.Infant Dinesh for R2
Crl.OP.(MD) No.4583/2025
A.G.Ponmanickavel
S/o. A.K.Ganapathi Thevar,
No.19, 19, Kamaraja Salai,
Kottivakkam,
Chennai – 600 041. ... Petitioner
/vs/
State through the
Central Bureau of Investigation,
Represented by the Superintendent of Police, (SC-II) Delhi,
Plot No.5-B, 6th Floor,
CGO Complex, Lodhi Road,
New Delhi – 110 003.
FIR No.RC0502024S0013. ... Respondent
Criminal Original Petition is filed under Section 528 of BNSS, to call
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for the records of the impugned unnumbered docket order dated 17.12.2024
passed by the Hon'ble Additional Chief Judicial Magistrate, Madurai in
connection with FIR in RC0502024S0013 and set aside the same as illegal
and direct the learned Additional Chief Judicial Magistrate, Madurai to
provide copies of the preliminary enquiry report filed by the respondent, in
connection with FIR in RC0502024S0013 dated 08.08.2024.
For Petitioner : Mr.C.Arul Vadivel @ Sekar
Senior Counsel
for Mr.M.Pozhilan
for M/s.Arulvadivel Associates
For Respondent : Mr.K.Srinivasan
Senior Counsel
assisted by Mr.D.Mohideen Basha
Special Public Prosecutor
COMMON ORDER
Crl.O.P.No.2263 of 2025: This Original Petition has been filed to
call for the records of the impugned unnumbered docket order dated
17.12.2024 passed by the Hon'ble Additional Chief Judicial Magistrate,
Madurai which rejected the petitioner’s prayer to furnish a copy of the
preliminary report filed by the respondent, in connection with FIR in
RC0502024S0013 dated 08.08.2024.
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Crl.O.P.(MD) Nos.4583 & 2263 of 2025
Crl.O.P.No.4583 of 2025: This Original Petition, has been filed to
call for the records of the impugned FIR in Crime No.RC0502024S0013
dated 08.08.2024 on the file of the 1st respondent and quash the same as
illegal.
PART-I
Short background of the facts leading to these Petitions: -
1. The parties are referred as their rank in Crl.O.P. 2263 of 2025 for
the sake of convenient discussion. The petitioner Mr.A.G. Ponmanickavel is
a former Inspector General of Police who served in Idol Wing – CID in the
State of Tamil Nadu and retired from service on 30.11.2018. He was
appointed as a Special Officer to head the Idol Wing – CID, Chennai to deal
with the cases of theft of idols and antiques in all stages for a period of one
year subsequent to his superannuation on 30.11.2018 vide the order of this
court passed in the two Public Interest Litigations in W.P.Nos.20392 &
20963 of 2018 to quash the order passed by the Government of Tamil Nadu
in G.O.Ms.No.885, Home (Supreme Court) Department dated 01.08.2018.
Through the said Government order the investigation of the cases relating to
theft of idols and artefacts of various temples which were then investigated
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by a Special Team headed by the Joint Commissioner of Hindu Religious
and Charitable Endowments Department, Mayiladuthurai, Nagapattinam
District were ordered to be transferred to CBI.
2. Earlier, a common order came to be passed in Crl.O.P.Nos.8690 &
12060 of 2017 on 21.07.2017. Both the Criminal Original Petitions have
been filed by persons who are public voices. The petitioner in Crl.O.P.No.
8960/2017 had alleged that the ancient idols in ancient temples in Thanjavur
District worth several crores of rupees were moved and stocked unofficially
against the H.R. & C.E. norms and the trustees along with the Executive
Officers of H.R. & C.E. Department created records as though the idols are
intact, when factually six idols out of which, five belonging to various
temples were missing. Instead of keeping the idols in the ICON centre, they
were kept in an unauthorised tunnel and also in a scrap room belonging to
the Public Works Department. Despite numerous complaints have been
given, no action was taken. As the sixth respondent therein is not the
appropriate authority to investigate the offence of theft, directions have been
sought.
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3. The other petition in Crl.O.P.12060 of 2017 has been filed for
seeking a relief to transfer the investigation of case in Cr.No.1 of 2017 on
the file of the Idol Theft Wing – CID, Chennai to Crime Branch – CID,
Chennai, for further investigation. The allegations made by the petitioner in
Crl.O.P.No.12060/2017, is that the second respondent of this petitions
namely Mr.Kader Batcha, the then Deputy Superintendent of Police,
Subburaj, Inspector of Police and another police personnel, who formed part
of the Idol Wing, came into possession of 6 idols during the course of their
investigation of a case from one Arokiyaraj and sold the two of the idols
namely Sivagami Amman Panchaloka Idol and one Siva and Parvathy
Panchaloka Idol on a pedestal to Dinadayalan, to a notorious smuggler for
Rs.15 Lakhs which in turn, were allegedly sold for Rs.6 Crores. Despite FIR
has been lodged against the accused, they have been promoted and no
further action, either by way of arrest or by departmental proceedings, were
initiated. By alleging that the investigation by the subordinate officer of the
same wing cannot be handled effectively, the transfer of investigation is
requested.
4. During the course of hearing of those proceedings in Crl.O.P.Nos.
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8690 and 12060 of 2017, appearance of the Inspector General of Idol Wing
was ordered. This petitioner Mr.A.G. Ponmanickavel was the then Inspector
General of Idol Wing and he made his appearance and appraised the
difficulties faced by the Idol Wing and the modus operandi of the culprits
for smuggling the idols out of India. The Court was also given to understand
that the idols were broken into parts before they were smuggled out of the
country. It was also informed to the Court that the Idol Wing did not have
proper infrastructure including personnel who have the required knowledge
and expertise. During the pendency of those proceedings before the court,
the petitioner was transferred from Idol Wing to some other branch. While
the petitioner was functioning in the Idol Wing, he had efficiently traced and
recovered several idols worth several crores. As the petitioner and his team
have done a tremendous job, the Court thought it fit that the same team
under the head of the petitioner should be allowed to continue in order to
complete the work assigned to them.
5. By taking serious note of the constitutional mandate of the
obligation of the State to protect every monument or place or object of
artistic and holistic interest as enshrined under Article 49 of the Constitution
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of India, this court had given slew of directions in the common order came
to be passed in Crl.O.P.Nos.8690 & 12060 of 2017 dated 21.07.2017.
Article 49 of the Constitution of India
“Protection of monuments and places and objects of national
importance – It shall be the obligation of the State to protect every
monument or place of object of artistic or historic interests,
declared by or under law made by Parliament to be of national
importance, from spoliation, disfigurement, destruction, removal,
disposal or export, as the case may be.”
6. A few among the several directions issued by the Court were
inclusive of orders to allow the petitioner and his team to continue in the
same Wing and provide all the infrastructure required for the petitioner for
the effective functioning of the unit. Directions have also been given to
initiate disciplinary proceedings against the second respondent and other
officials involved in Cr.No.1 of 2017 on the file of the Idol Wing, Chennai.
The Idols kept in the tunnel at Anakarai in the Public Works Department
Guest House, were ordered to be removed to the nearest ICON Centre and a
list of idols kept in each of the ICON Centres were ordered to be taken and
filed before the Court.
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7. The above order has been challenged before the Supreme court and
it got confirmed. The order passed Crl.O.P.Nos.8690 & 12060 of 2017
dated 21.07.2017 is a clarion call to the State to take all steps to protect the
monuments and places and objects and to take action against those who act
against the above object by being in occupation of responsible positions in
the State.
8. But the Government of Tamil Nadu has issued a Government Order
in G.O.Ms.No.885, Home (SC) Department, dated 01.08.2018 to transfer the
pending idol theft cases to CBI, and that was challenged in the subsequent
Public Interest Writ Petitions in W.P.Nos.20392, 20963/2018. Considering
the expertise of the petitioner in handling idol theft cases and his integrity,
the Hon’ble Division Bench of this Court thought it fit that his services
should be utilized by the State in the larger public interest and in the interest
of justice and consequently orders have been passed to appoint him as
Special officer for the team and thus his services have been extended in the
same.
9. In the above Public Interest Litigations filed in W.P.Nos.20392,
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20963/2018 , it is alleged that the transferring of the investigation to CBI by
the Government of Tamil Nadu vide G.O.Ms.No.885, Home (SC)
Department, dated 01.08.2018, is an attempt to achieve what cannot be
achieved in view of the order of the Supreme Court which confirmed the
order of this Court dated 21.07.2017 made in Crl.O.P.No.8690 & 12060 of
2017. It is also pointed out that when a similar case involving Idol theft was
referred to CBI, the CBI Court, Delhi has imposed a fine of Rs.10,000/-
against the Director of CBI for lethargic investigation of the case for nearly
37 years. As the larger interest cannot be served by merely transferring the
investigation of cases which have already been handled efficiently by the
State Wing in pursuant to the orders of this Court and when the Idol wing
had been performing commendable job by seizing and recovering nearly
1125 Idols under the Head of this petitioner, the Court has thought it fit not
to transfer the on-going investigation of such cases to CBI.
10. It is worthwhile to note that some third parties have also sought
themselves to be impleaded as parties to those writ proceedings by alleging
that this petitioner (who had also been arrayed as sixth respondent in those
writ proceedings) has been harassing, threatening and intimidating the
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individuals and hence it cannot be a fair investigation. Those third parties
have expressed mixed opinion about the way in which the investigation was
conducted by the petitioner. A few of such persons who sought themselves
to be impleaded as parties told that the petitioner was doing a highly
commendable job in nabbing the culprits. And some among them alleged
that he was threatening and harassing some individuals. It is observed by the
Hon'ble Division Bench that the writ petitions have not been filed to
challenge the act if any of the Investigation Head while discharging his
duties and hence it is held that the parties making allegations cannot be
impleaded as parties to those writ petitions.
11. During the course of hearing, this petitioner had also filed an
affidavit on 27.11.2018 by denying the allegations and he also submitted
that based on frivolous and anonymous petitions, an enquiry is being
conducted. The learned Additional Advocate General submitted that the
deficiency noted on the functions of Mr.A.G.Ponmanickavel, was that he did
not submit reports to the Additional Director General of Police and there
were no other lapse against him.
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12. As the deliberations on an alleged enquiry created apprehensions
in the minds of the Special team, the court directed to produce the materials
if any obtained by the department during the course of the alleged enquiry.
No materials were produced before the court. After giving opportunity of
hearing to all those parties and making a thorough analysis, the Hon'ble
Division Bench found that the impugned Government Order is irrational and
arbitrary due to the following reasons:
“(a) The Idol Wing of the State has been in vogue since 1983. The
officials of the Wing had travelled extensively throughout India and to
foreign countries without any difficulty and have secured the idols.
(b) The provisions of various enactments, to name a few, the Criminal
Procedure Code, the Indian Penal Code, the Antiques and Art Treasures
Act, 1972, the Customs Act and the Extradition Act, applicable
throughout India are exhaustive enough to cover any contingencies and
facilitate any Investigation Agency of the State to conduct unfettered
investigation throughout the territory of India.
(c) The primary scene of occurrence of theft is within the State where the
temples are located, thereby vesting the right to State agency to primarily
investigate the offence.
(d) The Idol Wing of the State has so far secured 10 idols from foreign
soil. Pertinent is the fact that the team headed by Mr. A.G. Pon
Manickavel, I.P.S. has been instrumental in securing 8 of the said idols.
Even recently, idols were recovered from America and Australia.
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(e) This Court has already reposed its confidence and trust in Mr. A.G.
Pon Manickavel and appointed him as the officer in charge of the 3 High
Court Appointed Team, which was affirmed by the Hon'ble Supreme
Court by judgment made in SLP(Civil) Nos. 6139 to 6140 of 2017 dated
01.09.2017. Pertinent to mention here that the confidence and trust has
not diminished even at the atomic level.
(f) Neither the concurrence of this Court nor that of the CBI was obtained
before the notification of the Government Order, which has not only
resulted in transgression of the judicial order but also led to the refusal of
the CBI to take up the case.
(g) The CBI has submitted a report stating that they are facing shortage
of manpower and can only to guide and co-operate with the existing
Special Investigating team, i.e., the team appointed by this Court and
headed by Mr. A.G. Pon Manickavel, LP.S. at all stages, if required.
(h) The entire process followed in the issuance of the Government order
is illegal. The decision seems to have been taken by four officials and not
by the Government, within a day, for reasons which would not require an
investigation by the CBI or any central agency. Strangely and illegally,
the genesis of the so-called policy decision has flown from the Office of
the then Commissioner of HR & CE Department namely Mrs. Jaya, who
seems to be unjustifiably unhappy because of the action taken by the team
appointed by this Court and who was pulled up by this Court for non-
cooperation.
(i) The entire exercise of taking the decision and issuing the impugned
Government order has fallen into place within a single day. On
31.07.2018, a letter was addressed by the Commissioner of the HR & CE
Department. The language and tenor of the letter would reflect that she
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was unhappy with the fact that action was taken against some officials of
her Department; that documents were sought from her Department.
Alleging damage to the reputation of the Department and instilling fear
that the investigation may not be fair and impartial, she wanted the
Director General of Police to take some action. The pinnacle of her
grievance was the arrest of the Additional Commissioner, namely, Mrs.
Kavitha. The letter according to this Court is ill founded and more as a
result of an ego clash. Reading between the lines, the Commissioner did
not want any action to be taken against the erred officials of her
Department. On the same day, i.e on 31.07.2018, with the endorsement of
the Director General of Police, the letter was forwarded to the Additional
Director General of Police, EOW through Additional Director General of
Police (L&O). Referring to the letter of the Commissioner and the
endorsement of the Director General of Police and referring in the
subject as team headed by the Tr. A.G. Pon Manickavel as Special Team
appointed by this Court, a letter was addressed to the Director General
of Police inter alia stating about the apprehensions of the HR & CE
Department, reports in newspapers regarding the opinion of this Court,
non-cooperation by the HR & CE Department and the Government to the
investigation, involvement of central agencies in case the idols are traced
to foreign countries and to win the confidence of this Court and public at
large, he has recommended for the transfer of the investigation from the
team appointed by this Court to CBI, and by also referring to the team
headed by Mr. A.G. Pon Manickavel as the Special Team appointed by
this Court, concurred with the views of the Additional Director General
of Police, EOW and requested for early orders of the Government,
subject to any orders that may be necessary to be obtained from this
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Court. Though the letter is dated 31.07.2018, it was signed on
01.08.2018 by the Director General of Police and forwarded to the
Additional Chief Secretary to the Government of Tamil Nadu. On
01.08.2018, a letter has been addressed by the Additional Chief Secretary
to the learned Additional Advocate General in the same lines, agreeing
with the proposal and also placing a request to the learned Additional
Advocate General to appraise the same to this Court, when the cases are
taken up for hearing. On the same day a letter dated 01.08.2018 was
addressed by the learned Additional Advocate General stating that the
information has been passed on to this Court, which had asked all the
materials placed before this Court in the next hearing date. Thereafter,
without furnishing the details to this court the impugned. G.O No. 885
came to be passed on the same day i.e 01.08.2018, wherein all the cases
investigated by the Special Team and all future cases were ordered to be
transferred to CBI under Section 6 of the Delhi Special Police
Establishment Act, 1946. This Court never gave permission to the
Government to pass the Government order or in other words, without the
concurrence of this Court, which constituted the special team, which is
also referred as so in all the above communications, the impugned
Government Order ought not to have been passed. This Court is of the
view that the action of the officials involved warrants initiation of suo
motu contempt action, but is refraining to resort to such action at present.
Also, the reports in the media and presumptions cannot be the grounds
for transferring the case to CBI. Also, recording that the officials and the
Government are not co-operating, instead of requesting all the concerned
to co-operate, a recommendation is made to the Government itself to
transfer the case to CBI.
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(j) One of the reasons given in the Government order is that the decision
is taken to win the confidence of this Court. This Court only appointed
Mr. A.G. Pon Manickavel and constituted the Special Team. This Court
never expressed anything at any stage against the officer. While so, it is
not for the four officers to take a decision to transfer the case, without the
concurrence of this Court. It is pertinent to mention here that not a single
allegation is made against the officer in the letters addressed by the
Additional Director General of Police, Director General of Police or the
Additional Chief Secretary on 01.08.2018. This Court also under the
circumstances referred above, is constrained to read the words Public at
large referred in the above letters as only vested parties. On the one hand
the different wings of the Government cannot refuse to co-operate and on
the other hand citing the same as a reason, the investigation cannot be
transferred.
(k) Though it has been contended that no attention was paid by the said
Police Officer for more than a year in spite of reminders for sending
clarifications/comments regarding cases in which a foreign national was
extradited, a perusal of the letters dated 31.07.2018 and 01.08.2018 does
not even mention about the above facts. Further, it has been brought to
the knowledge of this Court that the person extradited is an accused in
many cases and is the master mind behind the idol thefts and smuggling
of the same to foreign countries.
(l) The primary aim of investigation is to render justice. Such an
investigation is possible only when an authority heading the investigation
is not only knowledgeable but also independent, fair, impartial and
honest. It is only when the state agency is either incapable of
investigation or when the investigation is influenced or tainted or biased
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or to ensure that justice has to be done, the question of transfer of
investigation to CBI would arise. In the present cases, unable to exert any
influence on the officer or his team, the files have been directed to be
transferred to CBI, demeaning also the character of CBI. Mere
apprehension cannot be a ground for transfer.
(m) It is only after the Notification is issued under Section 5 of the Delhi
Special Police Establishment Act, 1946, the consent of the State is
required. Here, without even any discussion with the State and in
violation of the orders of this Court, the impugned Government order has
been issued and thereafter, the State is running behind the Central
Government and the CBI for appropriate notifications. Even if the
Government order is treated as consent under Section 6, it becomes
redundant in the absence of the notification of the Central Government
and refusal by the CBI.
(n) The cases are now being monitored by this Court, which is appraised
of the developments and the action taken by the team. The action by Mr.
A.G. Pon Manickavel, I.P.S or his team cannot be termed as tainted or
biased. It is also pertinent to mention here that whenever Final Reports
are filed before the Magistrate, powers under Section 178(3) Cr.P.C. can
also be exercised to order re-investigation. But, such an event has not
occurred so far at the instance of the Magistrate, which reflects the
thorough investigation carried out by the present team. The transfer of
the cases to CBI is to be undertaken in rare and exceptional cases. This
Court is of the view that this is not the appropriate case and stage for the
Government to effect such transfer.
(o) The State cannot resort to colourable exercise of power under the
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guise of policy decision, which is well within the scope of judicial review
of this Court.
Therefore, concurring with the contentions of the counsels assailing the
impugned order and terming the consideration for such a decision as
unreasonable, mala fide, irrational, arbitrary and transgression of the
judicial orders, this Court is constrained to quash the impugned G.O. Ms.
No. 885 dated 01.08.2018 and accordingly it is quashed.”
13. By taking note of the fact that no allegations has been made before
the Division Bench of this Court and the Hon'ble Apex Court against the
petitioner at any point of time, the court made it clear that no enquiry can be
conducted based on anonymous petitions. The Hon'ble Division Bench
further observed that such enquiry would not only demoralise the
investigating team but it would also lead to the opening of the Pandora box
for all who intend to disrupt the investigation. So, the Court concluded that
there no material existed to impeach the character of
Mr.A.G.Ponmanickavel and if any material crops up subsequent to this
order, it can only be termed as created for the purpose of dislodging his
credibility on personal motives. The relevant paragraphs of the judgment as
under:
“34. After the arguments were heard, an affidavit was filed by Mr.
A.G. Pon Manickavel, I.P.S on 27.11.2018 alleging that based on
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frivolous and anonymous petitions, an enquiry is being conducted to
demoralise his team investigating the idol theft cases, in which many
VIP.s have been accused. Even earlier, during the earliest of hearings,
when it was mentioned before this Court about such conduct of the
Police Department, the learned Additional Advocate General fairly
submitted that the only blemish on the part of the officer is that he has
not submitted the reports to the Additional Director General of Police
and that apart there are no allegations against him. Since, the
deliberations on an alleged enquiry continued to create apprehensions
in the mind of the investigating team, on 25.10.2018, this Court orally
directed that without placing the materials before this Court and
without the concurrence of this Court, no action must be taken. As an
affidavit was filed on 27.11.2018, again a direction in similar lines was
issued by us on 27.11.2018 to place any materials if available before
this Court. However, till date no such materials have been placed
before us. Nothing is also referred to in the letters dated 01.08.2018 of
the Additional Director General of Police, EOW and the Director
General of Police. No allegations were ever made before this Court or
the Apex Court at any point of time. Also, it is pertinent to mention that
no enquiry can be conducted based on anonymous petitions. Such
enquiries would not only demoralise the investigating team but would
also lead to opening of the Pandora box, whenever someone wants to
disrupt investigation. Therefore, this Court is of the view that there
exists no material documents impeaching the character and career of
Mr. A.G. Pon Manickavel. It is needless to say that if any materials
crop up subsequent to our order, it can only be termed as created for
the purpose of dislodging his credibility on personal motives.”
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14. Consequent to the above analysis, the Hon’ble division bench had
made it clear that no action should be taken against the team on such kind of
allegations without getting concurrence from the team. By taking note of
the fact that Mr.A.G.Ponmanickavel was attaining superannuation on the
forenoon of 30.11.2018 and also considering his impeccable and impartial
character and the performance merit of the Officer from the statistics of the
department on the number of cases registered and number of idols recovered
during the tenure of Mr.A.G.Ponmanickavel, the Court thought it fit to allow
him to continue for one more year to complete the investigation of cases
registered so far. While passing the order, the Court did not omit to mention
the comparative statistics of the performance of an Idol Wing during the
period of 28 years since its creation from the year 1983 where G.O.Ms.No.
2098 dated 07.10.1983. That apart the petitioner is seen to have earned
several laurels in some other cases also from this Court as well as the
Hon'ble Supreme Court. As the performance appraisal report of
Mr.A.G.Ponmanickavel revealed that he was an officer who is to take up
investigation without any fear, favor, partiality or bias, while disposing the
petition, the Court thought it fit to utilize his services for one more year to
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support the duties of the State to protect the monuments and places and
objects of natural importance.
15. By drawing reference from the earlier judgment of the Hon'ble
Supreme Court n Bharathi Tamang Vs. Union of India and others
reported in 2013 (15) SCC 578, the Division Bench has concluded and
passed orders appointing Mr.A.G.Ponmanickavel as the Special Officer to
head Idol Wing – CID, Chennai to deal with the cases of theft of idols and
antiques in all stages, for a period of one year and who shall assume charge
on his superannuation on 30.11.2018. The State was directed to give
suitable facilities to the Special Team and the Special Officer to achieve the
object of completing those investigation in record time. And the impugned
Government Order in G.O. Ms. No. 885 dated 01.08.2018 was quashed.
16. It is also worthwhile to mention that the court had also taken note
that the post in Idol Wing – CID has been upgraded to Additional Director
General of Police level and some other officer has been posted in the place
of this petitioner. The Court has further observed that the State did not
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incline to continue the investigation of idol theft cases and transferred them
to CBI, in spite of a pending stay order of the Court and that an
inappropriate action has been taken by posting some other Officer in order
to nullify the Court's inclination and observation in favour of
A.G.Ponmanickavel who had rendered a remarkable service in the said
Wing. In pursuant to such an observation, the Court affirmed the
appointment of the petitioner as a Special Officer to head the Idol Wing in
order to preserve the idols as well as the recovery of stolen idols.
17. It is pertinent to reiterate that in the above order of the Hon'ble
Division Bench of this Court, it is made clear that no action or enquiry
against the Special Officer or any member of his team shall be initiated
except with the concurrence of this Court. If any materials are found to rely
upon for necessary action, the same shall be placed before this Court for
further directions. In this regard, it is appropriate to extract paragraph No.45
of the above order of the Hon'ble Division Bench in W.P.Nos.20392 &
20963 of 2018:
“ 45. (7) No action or enquiry against the Special officer or any
member of his team shall be initiated except with the concurrence of
this Court. If any materials are there to rely upon for necessary action,
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the same be placed before this court for further directions.”
PART-II
Turn of events through which the Special officer is now shown as an
accused by the first respondent
18. Subsequent to the orders passed by the Hon’ble division bench, the
second respondent Mr.Kadar Batcha had filed Crl.O.P. No.18583/2019. He
had been serving as an Inspector of Police and subsequently arrayed as an
additional accused in Cr.No.114 of 2005. In the Original Petition filed by
him, he sought direction against the Director General of Police for
registering a case against the petitioner A.G.Ponmanickavel, on the basis of
the representations given by him on 20.04.2019 and 15.06.2019. On hearing
the above petition, the Hon’ble Single Judge of this Court has passed the
following order in the above Crl.O.P. 18583/2019:
“ 64. Accordingly, Director of Central Bureau of Investigation, is
directed to take cognizance of the representations of the petitioner
dated 20/04/2019 and 15/06/2019 and make a preliminary enquiry by
appointing an Investigating Officer not below the rank of Deputy
Inspector General of Police. Hence, the investigation of Crime No. 1
of 2017 from the file of Idol wing is transferred to Central Bureau of
Investigation [CBI] for re-investigation.
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65. In case, any concoction of fact and falsification of evidence in
their investigation by any of the Police Officials in Crime No. 114 of
2005 is made out, the Central Bureau of Investigation [CBI] is
permitted to proceed against them, independently and file report
before the Court which is trying the cases in Crime No. 114 of 2005
for the offence of fabricating false evidence with intent to procure
conviction.”
19. Though the second respondent who was the petitioner in Crl.O.P.
No.18583/2019 had sought relief in respect of his complaints made by him
against Mr.A.G.Ponmanickavel, orders passed in the above proceedings is
inclusive of transferring case file in Cr.No.1 of 2017, from the Idol Wing to
CBI for reinvestigation. Though the order makes reference about the earlier
order of the Hon'ble Division Bench of this Court in W.P. Nos.20392/2018
and 20963/2018, CBI has been invited to take up the investigation of the
case against the second respondent in Cr.No.1 of 2017 for certain reasons
recorded.
20. Initially the first respondent has conducted a preliminary enquiry
and filed a preliminary report before the learned Additional Chief Judicial
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Magistrate, Madurai. The petitioner's request to grant a copy of the
preliminary enquiry was rejected by the learned Additional Chief Judicial
Magistrate, Madurai, by citing the reason that the investigation is pending.
Challenging the same the petitioner had filed Crl.O.P.No.2263/2025.
However, FIR has been filed against the petitioner by the first respondent in
Crime No.RC0502024S0013 on 08.08.2024. The petitioner has also filed
the Crl.O.P.No.4583 of 2025 to quash the FIR.
21. On 13.03.2025, this Court has passed an order in Crl.O.P.No.
4583/2025 to stay the further investigation. The second respondent
challenged the said order by preferring S.L.P. (Crl.) No.4419 / 2025 and the
same was allowed by the Hon’ble Supreme court with the following
observation:
“ 3. Considering the facts and circumstances of the case and the
submissions advanced and,in particular, the fact that we are not
satisfied with the impugned order staying the investigation, we are
inclined to accept the submission of Mr.Nagamuthu, learned Senior
Counsel and accordingly allow this appeal and set aside the impugned
order.
4.We further request the High Court that upon an application filed by
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the respondent(s) for early listing and disposal of pending petition filed
under Section 482 Cr.P.C., the High Court would consider such request
on its own merits.”
22. However, before the disposal of Crl.O.P.(MD)No.4583/2025, the
charge sheet has also been filed against the petitioner.
PART III
Discussion
Necessity to continue the hearing of the Original petition filed for
quashing the FIR, after the charge sheet has been filed.
23. The learned Senior Counsel for the petitioner submitted that these
petitions are fit for hearing in view of the extraneous circumstances
involved in the case. Reliance was placed on the judgment of the Hon'ble
Supreme Court in Shaileshbhai Ranchhodbhai Patel & another Vs. State
of Gujarat in 2024 LiveLaw (SC) 635 in furtherance of his submission that
the power of this Court to quash the FIR under Section 482 Cr.P.C (now 528
BNSS) can be exercised even after the charge sheet is filed, provided a
satisfaction is reached, inter alia, that either the FIR and the charge sheet
read together, even accepted as true and correct without rebuttal, does not
disclose commission of any offence and continuation of proceedings arising
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out of such an FIR would be in fact an abuse of process of law. However, it
depends upon the peculiar circumstances of each case. Similar such
observation has also been made by the Hon'ble Supreme Court in the case of
Mamta Shailesh Chandra Vs. State of Uttarakhand and others reported in
2024 Live Law (SC) 86.
24. It is also relevant to refer the judgment of the Hon'ble Supreme
Court held in S.P.Velumani Vs. Arappor Iyakkam and others reported in
2022 LiveLaw (SC) 507. The said appeal has been filed challenging the
order of the High Court dated 08.11.2021 made in a writ petition in W.P.
No.3485/2018. The appellant of that case namely S.P.Velumani, was the Ex-
Cabinet Minister in the State of Tamil Nadu. During the pendency of the
writ petition a petition has been filed in W.M.P.No.24569/2021 by the
petitioner S.P.Velumani seeking a copy of a preliminary enquiry report on
18.12.2019 and associated documents submitted by the Investigation
Officer. The High Court vide impugned order dated 08.11.2021 dismissed
the petitioner's petition with the following observation:
“ 6. It may do well to decline the request made by the fourth
respondent in W.P.No.34845 of 2918 to make over a copy of the
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preliminary report to the fourth respondent immediately. The law has
to be allowed to take its own course. Upon completion of the
investigation, a report will no doubt be filed and such report should be
filed within the next ten weeks, be it in the form of a charge-sheet or a
a final report. In course of the material being made over to the fourth
respondent under Section 207 of the Code of Criminal Procedure,
1973, if the preliminary report forms the basis for any of the charges
sought to be framed, a copy of such preliminary report forms the basis
for any of the fourth respondent and it will also be open to the relevant
criminal court to consider whether the petitioner may also obtain a
copy thereof.
7. It is made clear that the observations in course of the orders should
not count against the fourth respondent if, ultimately any charge-sheet
were to be filed against him or any charges framed. In view of the fact
that the investigation has almost come to an end and since the charge-
sheet or final report is to be filed within the next ten weeks, no useful
purpose would be served in keeping these petitions alive.”
25. When the order of the High Court was challenged before the
Supreme Court, the Hon'ble Supreme Court has observed that the High
Court has committed a patent error in not taking the matter to its logical
conclusion. The circumstances involved in the above case has been
appreciated by the Supreme Court in order to make a distinction between the
normal circumstances and the extraneous circumstances which would entitle
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the accused to have the copies of the documents. It is further observed that
when the case is easily distinguishable on facts and when initiation of FIR
has stemmed out from the writ proceedings before the High Court and when
the State has opted to re-examine the issue in contradiction to their own
affidavit and submitted a preliminary report earlier before the High Court
stating that the commission of cognizable offence has not been made out, it
is not proper on the part of the High Court to read Section 207 Cr.P.C.
(Section 230 BNSS) as a provision etched in stone to cause serious violation
of the rights of the appellant / accused as well to the principles of natural
justice. In the absence of any pleading made that the preliminary report has
got any specific privilege which bars disclosure of material, there cannot be
any good reason for the High Court to keep the preliminary report as a
confidential document in a sealed cover. On the contrary, the prosecution by
the State has to be carried out in a manner consistent with the right to fair
trial as enshrined under Article 21 of the Constitution of India.
26. The Hon’ble Supreme court went further and observed that when
that case was also easily distinguishable in view of the elaborate
background and the FIR had stemmed out from an order passed in a writ
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proceedings, it is not proper on the part of the High Court to read Section
207 Cr.P.C. (Section 230 BNSS) to cause serious violation of the rights of
the appellant / accused as well to the principles of natural justice. For a
better clarity, paragraphs 24 to 29 of S.P.Velumani case have been extracted
as under:
“ 24. Learned counsel for the State has contended that the
accused would be entitled to access the report only after the
Magistrate takes cognizance in terms of Section 207 of the Cr.P.C.
He has relied on In Re: Criminal Trial Guidelines Regarding
Inadequacies and Deficiencies Vs. State of Andhra Pradesh & others
(2021) 10 SCC 598 to contend that the accused is entitled to seek
documents only in terms of Section 207 of the Cr.P.C. and any
production of the documents beyond the ambit of aforesaid section,
is untenable in law.
25. On the other hand, the learned counsel for the appellant
has distinguished the present case on the fact that the subsequent
FIR was filed due to direct judicial interference.
26. We may note that the contention of the State may be
appropriate under normal circumstances wherein the accused is
entitled to all the documents relied upon by the prosecution after the
Magistrate takes cognizance in terms of Section 207 of CrPC.
However, this case is easily distinguishable on its facts. Initiation of
the FIR in the present case stems from the writ proceedings before
the High Court, wherein the State has opted to re-examine the issue
in contradiction of their own affidavit and the preliminary report
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submitted earlier before the High Court stating that commission of
cognizable offence had not been made out. It is in this background
we hold that the mandate of Section 207 of CrPC cannot be read as
a provision etched in stone to cause serious violation of the rights of
the appellant/accused as well as to the principles of natural justice.
27. Viewed from a different angle, it must be emphasized that
prosecution by the State ought to be carried out in a manner
consistent with the right to fair trial, as enshrined under Article 21
of the Constitution.
28. When the State has not pleaded any specific privilege
which bars disclosure of material utilized in the earlier preliminary
investigation, there is no good reason for the High Court to have
permitted the report to have remained shrouded in a sealed cover.
29. In view of the aforesaid discussion, and taking into
consideration the peculiar facts of the instant case, particularly the
fact that the High Court had ordered an enquiry and obtained a
report without furnishing a copy thereof to the appellant and
unceremoniously closed the writ petition, we deem it appropriate to
issue the following directions:
a. The High Court is directed to supply a copy of the
report submitted by Ms. R. Ponni, Superintendent of Police along
with the other documents to the appellant herein.
b. Writ Petition No. 34845 of 2018 and Crl.O.P. No. 23428
of 2018 are restored on the file of the High Court of Madras.
c. The High Court is directed to dispose of the cases on
their own merit, uninfluenced by any observation made herein.
d. Although the prayer for quashing of the FIR was not
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orally pressed before this Court, however, the appellant is granted
liberty to seek appropriate remedy before the High Court.”
27. In the special context elaborated in the previous paragraphs, it is
made clear that the case against the petitioner has not been registered in a
routine manner and there were previous orders passed by this court with
regard to the cases involving idol thefts in the State, especially by
appointing the petitioner as the Special Officer to head the special team who
is handling the task. During the earlier proceedings, this petitioner had also
filed an affidavit narrating the difficulties faced by his team in effectively
handling the investigation of the cases of the Idol Wing. In fact, the earlier
order passed by the Hon’ble Division bench was inclusive of a direction in
respect of the case registered against the second respondent Kadar Batcha.
The petitioner who had been the special officer heading the team had been
made as an accused. A person who was considered as a hero has been
reversed to a villain now. And that too on a complaint given by the second
respondent who has already been shown as an accused in one of the cases
registered against him, in pursuant to the order obtained by him in a
proceedings initiated against him.
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28. In view of the above exceptional circumstances involved in this
case, it is seen to be perfectly ticking with the first principle of natural
justice for justifying the necessity to furnish a copy of the preliminary report
to the petitioner. In fact, when the proceedings filed by the petitioner
challenging the orders refusing the copy of the preliminary report and to
quash the FIR were pending, charge sheet has also been filed.
29. Apart from the contents of the charge sheet, a pertinent point that
needs to be taken for consideration is the statutory bar under sec.195 Cr.P.C
(now Sec.215 BNSS) to take cognizance of a complaint for producing false
evidence during the proceedings before a court on a police complaint. In
view of the exceptional reasons stated, I deem it fit in the interest of justice
to exercise powers under Section 482 Cr.P.C and to examine the charge
sheet also along with the materials produced, even though the petitioner had
filed the petition to quash the FIR.
30. The learned Senior Counsel for the first respondent insisted that
the petitioner should have amended the relief for quashing the charge sheet
but he did not do so. Such hyper technicalities of amending the relief
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cannot be allowed to cause obstruction to the course of justice in a case
involving special circumstances right from its inception and specifically
when liberty was given to the petitioner by the Supreme Court to make a
mention for an early disposal of these pending Criminal Original Petitions
filed by the petitioner. In view of the special reasons and circumstances
narrated above, I feel the petition filed by the petitioner seeking to quash the
FIR cannot be simply disposed by saying that the charge sheet has been
filed.
Implication of sec. 195 Cr.P.C r/w sec.340 Cr.P.C with regard to the
offence under sec.193 I.P.C.
31. Before proceeding to the implications of the special provisions
under sec.195Cr.P.C r/w340 Cr.P.C, it needs to be made clear that the order
dated 22.07.2019 made in Crl.OP.No.18573 of 2019 has not directed to
transfer the investigation in Cr.No.114 of 2005 to the first respondent for the
purpose of re-investigation. In the above order, direction has been given to
conduct a enquiry by appointing an officer not below the rank of DIG on the
representation of the second respondent on 20.04.2019 and 15.06.2019 on
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the allegation of fabrication of false evidence. The above order makes it
clear that while ordering investigation, the court has not made any
observation that the second respondent has produced any primafacie
material to show that any other distinct offence other than the offence of
fabrication of false evidence, in any independent transaction. All that the
court has ordered is that in the event of finding any materials for making out
charge for fabrication of false evidence, the first respondent has to file a
report to the Court which is trying a case in Cr.No.114 of 2005
independently and to proceed against them for the offence of fabricating
false evidence.
32. Fabrication of false evidence is punishable under Section 193
I.P.C. (Sec. 229 BNS) for which no Court shall take cognizance except on a
compliant given in writing of that Court or by such Officer authorized by
that court or some other Court to which that Court is subordinate. As the
learned Single Judge of this Court who passed the order in Crl.O.P.No.
18583/2019 is aware of the procedure contemplated under Section 340
Cr.P.C. (Sec. 379 BNSS) for the cases mentioned under Section 195 Cr.P.C.
(Sec. 215 BNSS) which is inclusive of the offence under Section 193 I.P.C.
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(Sec. 229 BNS) for fabricating false evidence. It is settled proposition of
law that the court trying the offence can not take cognizance on such report
by considering it as a police complaint, in view of the bar under sec. 195
Cr.P.C.
33. Sec. 192 IPC. (Sec. 228 BNS) reads as under:
“192. Fabricating false evidence.—Whoever causes any circumstance
to exist or 1 [makes any false entry in any book or record, or
electronic record or makes any document or electronic record
containing a false statement,] intending that such circumstance, false
entry or false statement may appear in evidence in a judicial
proceeding, or in a proceeding taken by law before a public servant as
such, or before an arbitrator, and that such circumstance, false entry
or false statement, so appearing in evidence, may cause any person
who in such proceeding is to form an opinion upon the evidence, to
entertain an erroneous opinion touching any point material to the
result of such proceeding is said “to fabricate false evidence”.
34. For the offence of fabricating false evidence, the charge will be
made under Section 193 IPC which is covered under the special procedure
contemplated under Section 195 r/w. 340 Cr.P.C. If any report of that nature
filed to the court where such materials are alleged to have been produced,
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the said court at the conclusion of the trial, would appraise the report so
filed in order to form an opinion whether it is expedient in the interest of
justice that an enquiry should be made into any of the offences referred
under Section 195 (1)(b) Cr.P.C. (which is inclusive of Section 193 I.P.C.).
35. The Court before which the fabricated evidence or material is
produced with an intent to make it as an evidence or with a knowledge that
it might appear as an evidence during its proceedings, has to form an
opinion at the first instance and then (a) conduct a preliminary enquiry and
record a finding, (b) make a complaint thereof in writing (c) sent it to
Magistrate at the first class having jurisdiction (d) to take sufficient security
for the appearance of the accused before the said Magistrate or if the
offences are non-cognizable, then send the accused in custody to the
jurisdictional Magistrate or bind over to appear and give evidence before the
Magistrate.
36. Even for any extraneous circumstances, if any other Court other
than the Court before which the false evidence is produced, takes any action
for the said offence, it can be only by the first appellate Court to the court
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which conducted the trial or received false evidence. That situation can
arise only when the Court before which the false evidence is produced had
neither made a complaint in respect of that offences nor rejected an
application for making such a complaint.
37. Both Section 195 and 340 Cr.P.C. would make it categorically
clear that any Court that has the jurisdiction to exercise action for producing
false evidence, would be the Court which had received it or the immediate
superior Court to which the former Court is subordinate within the meaning
of Section 195(4) Cr.P.C. The whole of Section 195 Cr.P.C. and 340 Cr.P.C.
has been extracted hereunder:
Section 195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence.—(1) No Court shall take
cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both
inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the
complaint in writing of the public servant concerned or of some other
public servant to whom he is administratively subordinate; (b) (i) of
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any offence punishable under any of the following sections of the
Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such
offence is alleged to have been committed in, or in relation to, any
proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under
section 471, section 475 or section 476, of the said Code, when such
offence is alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or
the abetment of, any offence specified in sub-clause (i) or sub-clause
(ii), 1 [except on the complaint in writing of that Court or by such
officer of the Court as that Court may authorise in writing in this
behalf, or of some other Court to which that Court is subordinate.]
(2) Where a complaint has been made by a public servant under
clause (a) of sub-section (1) any authority to which he is
administratively subordinate may order the withdrawal of the
complaint and send a copy of such order to the Court; and upon its
receipt by the Court, no further proceedings shall be taken on the
complaint: Provided that no such withdrawal shall be ordered if the
trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term “Court” means a Civil,
Revenue or Criminal Court, and includes a tribunal constituted by or
under a Central, Provincial or State Act if declared by that Act to be a
Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be
deemed to be subordinate to the Court to which appeals ordinarily lie
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from the appealable decrees or sentences of such former Court, or in
the case of a Civil Court from whose decrees no appeal ordinarily
lies, to the Principal Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court is situate: Provided
that—
(a) where appeals lie to more than one Court, the Appellate Court of
inferior jurisdiction shall be the Court 1. Subs. by Act 2 of 2006, s. 3,
for certain words (w.e.f. 16-4-2006). 99 to which such Court shall be
deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such
Court shall be deemed to be subordinate to the Civil or Revenue
Court according to the nature of the case or proceeding in connection
with which the offence is alleged to have been committed.
Section 340: Procedure in cases mentioned in section 195.—(1)
When, upon an application made to it in this behalf or otherwise, any
Court is of opinion that it is expedient in the interests of Justice that
an inquiry should be made into any offence referred to in clause (b) of
sub-section (1) of section 195, which appears to have been committed
in or in relation to a proceeding in that Court or, as the case may be,
in respect of a document produced or given in evidence 152 in a
proceeding in that Court, such Court may, after such preliminary
inquiry, if any, as it thinks necessary,—
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first-class having jurisdiction;
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(d) take sufficient security for the appearance of the accused before
such Magistrate, or if the alleged offence is non-bailable and the
Court thinks it necessary so to do, send the accused in custody to
such Magistrate; and
(e) bind over any person to appear and give evidence before such
Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of
an offence may, in any case where that Court has neither made a
complaint under sub-section (1) in respect of that offence nor rejected
an application for the making of such complaint, be exercised by the
Court to which such former Court is subordinate within the meaning
of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,— (a) where
the Court making the complaint is a High Court, by such officer of
the Court as the Court may appoint; 1 [(b) in any other case, by the
presiding officer of the Court or by such officer of the Court as the
Court may authorise in writing in this behalf.]
(4) In this section, “Court” has the same meaning as in section 195.”
38. As per the above provision, for the offences mentioned under
Section 195(1)(a) Cr.P.C, even when a complaint has been filed by a public
servant in accordance with Clause (a) of sub Section (1), the authority who
is superior to him in the administrative rank, can order for withdrawal of the
same by sending a copy of such order to the Court where the complaint has
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been filed and the Court on receipt of such request of withdrawal, shall not
continue to proceed further on the complaint. However, such withdrawal
cannot be made, if the Court at the first instance had concluded the trial. To
put it short, the complaints so made to any Court under Section 195(1)
Cr.P.C., by any public servant, can be withdrawn by a superior authority
before the trial is concluded.
39. The offences mentioned under Section 195(1)(a) Cr.P.C are the
offences punishable under Section 172 to 188 IPC (Section 204 to 224
BNS) which falls under Chapter X of IPC under the head of “CONTEMPTS
OF LAWFUL AUTHORITY OF PUBLIC SERVANT”. A combined reading
of penal provisions under Section 172 to 188 IPC along with Section 195
(1) and 195(2) Cr.P.C. would show that the legislative intent of these
provisions is to infuse the conduct of respecting the lawful authorities of
public servants and to take any violations serious. These violations can also
make out criminal offences under Section 172 to 188 IPC. However, no
third-party interference can be made in dealing with these kind of violations
or offences, since it is an affair between the public official and the
individual.
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40. Though with all seriousness, these violations have been listed as
offences, a leverage has also been given to withdraw such complaints in
order to smoothen the public functions by resolving such issues within the
department. It should be for the purpose of maintaining the cordiality
between two different public officials. Hence discretion is given to
withdraw the complaints already made for such violations through any
official of any authority.
41. Now coming to the offences falling under Section 195(1)(b)(i)
Cr.P.C. it can be seen from the above provision that it lists out those
offences falling under Section 193 to 196, 199, 200, 205 to 211 and 228 IPC
(Section 227 to 231, 234, 235, 240 to 246 and 265 BNS), when any such
offence is said to have been committed in relation to any proceeding in any
Court. Though these offences also fall under the same Chapter 'X' under the
same head, these are all the acts committed in relation to any proceedings of
any Court. Section 195(1)(b)(ii) would also include the offences punishable
under Sections 463, 471, 475 and 476 IPC (Sections 334, 337, 340 and
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341BNS), when such an offence or offences are alleged to have been
committed in respect of a document produced or given in evidence in a
proceeding in any Court.
42. Section 195(1)(b)(iii) would be inclusive of any criminal
conspiracy to commit or attempt to commit or abetment of any offences
specified under sub-clause (i) or (ii). So Section 195 (1) (b)(i) & (ii) would
make it clear that these offences may be committed anywhere under any
circumstances but the Court cannot take cognizance of these offences, if
they have been committed in or in relation to any proceedings in any Court
except on the compliant in writing of that Court or by such an officer of the
Court which that Court may authorize in writing or of some other Court to
which the former Court is subordinate.
43. It is clarified that the superior Court referred under the above
provision is the Court within the meaning of Section 195(4) Cr.P.C. So, the
legislative intent is made clear that the actions are needed to be taken only
on the complaint made by the Court in which the above offences referred
under Section 195(b)(i) & (ii) Cr.P.C have been committed, if the Court is of
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the opinion to initiate action in accordance with the Section 340 Cr.P.C. So,
the provisions are very much explicit that the Courts cannot take cognizance
of any other complaints or reports with regard to the commission of offences
mentioned under Section 195(1)(b)(i) & (ii) except on a complaint arising
from or within the authority of the Court in which the offences are said to
have been committed, or from the immediate superior Court within the
meaning of Section 195(4) Cr.P.C.
44. The purpose and object of these provisions has been explained by
the Full Bench of the Hon'ble Supreme Court in Patel Laljibhai Somabhai
Vs. State of Gujarat reported in (1971) 2 SCC 376. In the said case, the
Supreme Court has observed that the intention of the legislature in creating
the bar against the cognizance of private complaints with regard to the
offences punishable under Section 195 (1)(b) & (c) is to save the accused
from any vexatious or baseless prosecution inspired by feelings of
vindictiveness on the part of the private complainants to harass their
opponents. This will also avoid confusion which might arise on account of
conflict between the findings of the Court in which the fabricated
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documents are produced or false evidence is led and the conclusions of the
criminal Courts dealing with private complaints. Only for this reason the
legislature had entrusted the discretion to the Court before whom the
offences are said to have been committed. The above view of the Supreme
court is seen under para No.10 of the above judgment and the same is
extracted as under:
“ 10. The purpose and object of the Legislature in creating the
bar against cognizance of private complaints in regard to the
offences mentioned in Section 195(1)(b) and (c) is both to save the
accused person from vexatious or baseless prosecutions inspired by
feelings of vindictiveness on the part of the private complainants to
harass their opponents and also to avoid confusion which is likely to
arise on account of conflicts between findings of the courts in which
forged documents are produced or false evidence is led and the
conclusions of the criminal courts dealing with the private complaint.
It is for this reason as suggested earlier, that the Legislature has
entrusted the court, whose proceedings had been the target of the
offence of perjury to consider the expediency in the larger public
interest, of a criminal trial of the guilty party.”
45. Much clarity has been added by the Hon'ble Division Bench of the
Supreme Court in Sachida Nand Singh Vs. State of Bihar reported in
(1998) 2 SCC 493 that one of the essential ingredients to invoke an action
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for the offences under Section 195(1)(b)(ii) Cr.P.C. is those offences which
ought to have been committed at a time when the document was in the
custody of the Court. If the offences are said to have been committed during
any time prior to that, a private complaint can be filed. The relevant
paragraph of the above judgment is worthwhile for reference:
“ 11. The scope of the preliminary enquiry envisaged in Section
340(1) of the Code is to ascertain whether any offence affecting
administration of justice has been committed in respect of a document
produced in court or given in evidence in a proceeding in that Court. In
other words, the offence should have been committed during the time
when the document was in custodia legis.
12. It would be a strained thinking that any offence involving
forgery of a document if committed far outside the precincts of the
Court and long before its production in the Court, could also be treated
as one affecting administration of justice merely because that document
later reached the court records.
13. The three-Judge Bench of this Court in Patel Laljibhai
Somabhai case [(1971) 2 SCC 376 : 1971 SCC (Cri) 548 : AIR 1971 SC
1935] has interpreted the corresponding section in the old Code,
[Section 195(1)(c)] in almost the same manner as indicated above. It is
advantageous in this context to extract clause (c) of Section 195(1) of
the old Code:
“195. (1)(c) No Court shall take cognizance.—
of any offence described in Section 463 or punishable under Section
471, Section 475 or Section 476 of the same Code, when such offence is
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alleged to have been committed by a party to any proceeding in any
Court in respect of a document produced or given in evidence in such
proceeding, except on the complaint in writing of such Court, or of
some other Court to which such Court is subordinate.”
(emphasis supplied)
The issue involved in Patel Laljibhai Somabhai case [(1971) 2 SCC 376
: 1971 SCC (Cri) 548 : AIR 1971 SC 1935] related to the applicability
of that sub-section to a case where forged document was produced in a
suit by a party thereto, and subsequently a prosecution was launched
against him for offences under Sections 467 and 471 of IPC through a
private complaint. The ratio of the decision therein is the following:
(SCC Headnote)
“The offences about which the court alone is clothed with the right to
complain may, therefore, be appropriately considered to be only those
offences committed by a party to a proceeding in that court, the
commission of which has a reasonably close nexus with the proceedings
in that court so that it can without embarking upon a completely
independent and fresh inquiry, satisfactorily consider by reference
principally to its records the expediency of prosecuting the delinquent
party. It, therefore, appears to be more appropriate to adopt the strict
construction of confirming the prohibition contained in Section 195(1)
(c) only to those cases in which the offences specified therein were
committed by a party to the proceeding in the character as such party.”
46. In the very same judgment, the Hon'ble Supreme Court has also
made reference to 41st Law Commission Report in paragraph No.15.39 of
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the Law Commission Report, which states that the purpose of Section 195
(1)(c) Cr.P.C. of the old Code is to bar private prosecutions where the course
of justice is sought to be perverted leaving to the Court itself to uphold its
dignity and prestige. Since the old code has restricted the application of
Section 195, by a party to proceedings in any Court in view of the Law
Commission recommendation, the coverage has been later extended to the
witnesses also and thus they have been given with protection against the
vexatious prosecution in the name of commission of offence of giving false
evidence. Hence in the new code, in Section 195. the words “by a party to
any proceedings in any Court” found in Section 195(1)(c) of the old code
has been removed by introducing Section 195 (1)(b)(ii). However, in the
above case it has been concluded that the bar under Section 195(1)(b)(ii)
Cr.P.C is not applicable to a case where forgery of document was committed
before its production in the Court.
47. The subsequent Constitution Bench of the Supreme Court also
approved and affirmed the principle set out in Sachida Nand Singh's case
(cited supra) in its later judgment held in Iqbal Singh Marwah v.
Meenakshi Marwah, (2005) 4 SCC 370). The Constitution Bench of the
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Hon'ble Supreme Court in Iqbal Sing's case (cited supra) has held that
Section 195 Cr.P.C. is a sort of an exception in a general provision and it
creates an embargo on the power of the Court to take cognizance of certain
type of offences as enumerated therein. It is further held that in view of the
language used under Section 340 Cr.P.C. the Court is not bound to make a
complaint regarding commission of offence referred to Section 195 (1)(b)
Cr.P.C. One important reminder given by the Constitution Bench of the
Hon'ble Supreme Court is that Section 340(1) Cr.P.C contemplates holding
of preliminary enquiry and hence normally a direction for filing a
complaint is not made during the pendency of the proceedings before the
Court and that is done at the stage when the proceedings are concluded
and final judgment is rendered. Para 23 and 24 of the above judgment are
relevant in respect of the above observation:
“ 23. In view of the language used in Section 340 CrPC the court is
not bound to make a complaint regarding commission of an offence
referred to in Section 195(1)(b), as the section is conditioned by the
words “court is of opinion that it is expedient in the interests of
justice”. This shows that such a course will be adopted only if the
interest of justice requires and not in every case. Before filing of the
complaint, the court may hold a preliminary enquiry and record a
finding to the effect that it is expedient in the interests of justice that
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enquiry should be made into any of the offences referred to in Section
195(1)(b). This expediency will normally be judged by the court by
weighing not the magnitude of injury suffered by the person affected by
such forgery or forged document, but having regard to the effect or
impact, such commission of offence has upon administration of justice.
It is possible that such forged document or forgery may cause a very
serious or substantial injury to a person in the sense that it may
deprive him of a very valuable property or status or the like, but such
document may be just a piece of evidence produced or given in
evidence in court, where voluminous evidence may have been adduced
and the effect of such piece of evidence on the broad concept of
administration of justice may be minimal. In such circumstances, the
court may not consider it expedient in the interest of justice to make a
complaint. The broad view of clause (b)(ii), as canvassed by learned
counsel for the appellants, would render the victim of such forgery or
forged document remediless. Any interpretation which leads to a
situation where a victim of a crime is rendered remediless, has to be
discarded.
24. There is another consideration which has to be kept in
mind. Sub-section (1) of Section 340 CrPC contemplates holding of a
preliminary enquiry. Normally, a direction for filing of a complaint is
not made during the pendency of the proceeding before the court and
this is done at the stage when the proceeding is concluded and the final
judgment is rendered.”
48. When the arguments were placed before the Hon'ble Supreme
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Court that courts are normally reluctant to direct filing a criminal complaint
for the type of the offence enumerated under Section 195(b)(ii) (Sec. 215(b)
(ii) BNSS), it is held that a wider interpretation has to be given in order to
protect the victim of forged documents produced before the Court by
making a little adjustment to the literal construction in order to make a
provision workable. The Constitutional Bench of the Hon'ble Supreme
Court in the above case referred to the principle regarding penal provisions
stated in Craies on Statue Law (1971 Edn., Chapter 21), wherein it is stated
that the penal statutes must never be construed so as to narrow the words of
the statute to the exclusion of the cases which those words in their ordinary
acceptance would comprehend. However, the Constitutional Bench of the
Hon'ble Supreme Court has held that the exercise of interpretation given to
Section 195(b)(ii) is not about a penal provision but about a procedural law
namely Criminal Procedure Code. So, it is concluded that the view of the
Hon'ble Division Bench of the Court in Sachida Nand Singh's case (cited
supra) is correct and hence Section 195(1)(b)(ii) Cr.P.C would be attracted
only when the offences enumerated in the said provision have been
committed with respect to a document after it has been produced or given as
evidence in a proceeding in any Court i.e. during the time when the
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document was in custodia legis.
49. Later in the Full Bench of the Hon'ble Supreme Court in Bandekar
Bros. (P) Ltd. v. Prasad Vassudev Keni, reported in (2020) 20 SCC 1, the
Hon'ble Supreme Court has once again confirmed the strict compliance of
procedure contemplated under Section 340 Cr.P.C. for the cases mentioned
under Section 195 Cr.P.C.
50. One significant point that has been made clear in Bandekar's case
(cited supra) is that if a court before which the offence mentioned under
Section 195(1)(b) (Section 215(1)(b) BNSS) has been committed but, on
application by a person, the Court declines to make any complaint by
following Section 340 Cr.P.C., he can appeal to the Court to which the
former Court is subordinate within the meaning of Section 195(4) (Section
215(4) BNSS) Cr.P.C. Such order made by the appellate Court under Sec.
341 Cr.P.C.(Sec.380 BNSS) shall be final and it shall not be subjected to
revision.
51. From the above discussions, the following principles can be safely
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laid down:
(i) Firstly, any person aggrieved of producing any false evidence or
fabricating any document during judicial proceedings before a Court can
make an application seeking the Court to make a complaint under Section
340 Cr.P.C., but it can be only after the proceedings are concluded.
(ii) If the Court declines to form an opinion to give a complaint in
writing and rejects the application of the applicant, the one and only course
open to him is to file an appeal under Section 341 Cr.P.C. before the
appellate Court within the meaning of Section 195(4) Cr.P.C.
(iii) The Court which is meant under Section 195 Cr.P.C. is the Court
to which the former Court is subordinate. In other words, it is immediate
superior court of the court where the offences enumerated under Section
195 (1)(b) are said to have been committed.
(iv) When such an appeal is made under Section 341 Cr.P.C. the order
made by the appellate Court under Section 341 (2) shall be final.
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(v) Against the order made by the immediate appellate Court under
Section 341(2), no revision would lie before any Courts, which would
otherwise have the revisional jurisdiction.
52. The principles crystallized from the above discussion involving
references to various judgments and essential provisions would make it
clear that a person aggrieved on the allegation that a false evidence has been
produced before the Court, cannot seek any remedy before the Sessions
Court or the High Court by seeking direction even against the Court which
is supposed to make a complaint under Section 340(1) Cr.P.C. Even for any
extraneous reasons, if a person seeks directions before the superior courts,
the superior courts can only remand such applications back to the Courts
where the alleged materials are produced for considering the application,
after concluding the proceedings and by following the procedure under
Section 340 Cr.P.C.
53. Actually, the first respondent remained dispassionate and not
willing to take up the investigation of idol theft cases and all along
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expressed its intention to assist the existing team. In the extraneous
circumstances which obligated the first respondent to conduct an enquiry on
the representation given by the second respondent, the first respondent
could have been fair and reasonable to provide a copy of the preliminary
report to the petitioner in order to make him to know the contents of the
same. Refusal to provide a copy of the preliminary report would have been
acceptable, had it been considered as a secret or privileged document for
any specific reasons. At no point of time the first respondent claimed that
the preliminary report was a confidential document containing any
privileged information or substance.
54. The order of the learned Single Judge in Crl.O.P.No.18583/2019
neither transfers the investigation of the pending case connecting to Cr.No.
114 of 2005 to the file of CBI nor it has given liberty to CBI to file an FIR
against the petitioner without seeking prior approval or by diluting the
mandates made in the earlier orders of the Division Bench made in W.P.No.
20392 and 20963 of 2018.
55. When there is a specific order of a Division Bench that any further
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action of this nature can be initiated against the petitioner only after
obtaining the permission of the Court. It would have been ideal if the first
respondent had filed the preliminary report to this Court for getting further
orders. Even when such a course is adopted, granting of permission could
not have been an easy possibility in view of bar under sec.195 and 340
Cr.P.C.
56. In the reply argument of the learned Senior Counsel for the first
respondent, it is submitted that after having submitted the preliminary report
to the learned Additional Chief Judicial Magistrate, Madurai, the CBI was
awaiting permission and permission was not accorded and hence CBI had
proceeded to register the case in accordance with the directions of the
Supreme Court given in Lalita Kumari Vs Govt.Of U.P.& Ors reported in
AIR 2014 SUPREME COURT 187.
57. The context of the judgement passed in Lalita Kumari should be
viewed comprehensively and it cannot be allowed to apply selectively to the
actions of the first respondent. In the said case, the Hon'ble Supreme Court
has held that any preliminary report should be filed within a period of seven
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days. In the instant case, the preliminary report has been filed nearly after
two years and hence the argument that actions have been taken in
accordance with the directions given in Lalita Kumari cannot be accepted.
Even for the sake of argument, if the first respondent had applied the
directions given in Lalita Kumari, it could have been exercised only when
the preliminary report is filed before the High Court.
58. In this regard, the relevant part of the order made in W.P.Nos.20392
and 20963 of 2018 needs to be extracted again due to its relevance.
“45. (7) No action or enquiry against the Special officer
or any member of his team shall be initiated except with the
concurrence of this Court. If any materials are there to rely
upon for necessary action, the same be placed before this court
for further directions.”
59. On perusal of the contents of the FIR in Column No.12, the first
information contains the following typed matter:
“The complainant Sh. Kader Batcha approached the Hon'ble
Madras High Court by way of filing Crl. O.P. No. 18583 of 2019
for issuance of directions to register a case against accused
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A.G. Pon Manickavel, then IGP/Head of Idol Wing-CID,
Chennai on the basis of his two representations dated
20/04/2019 and 15/06/2019 Copy of his representations are
enclosed.
The Hon'ble Madras High Court vide its order dated 22.07.2022
passed in Crl. O.P. No. 18583 of 2019, directed CBI to conduct
Preliminary Enquiry on the basis of the representations dated
20/04/2019 and 15/06/2019 of the petitioner/complainant Kader
Batcha and to proceed further independently in case, any
criminality emerges. Order dated 22.07.2022 of Hon'ble Madras
High Court is enclosed.
In compliance of order of Hon'ble High Court, CBI conducted
a Preliminary Enquiry on the basis of allegations leveled in the
aforementioned two representations of the complainant. It
primefacie revealed that Sh. A.G. Ponn Manickavel committed
offences mentioned in the FIR including falsely implicating
complainant Kader Batcha in criminal case and his illegal
arrest, framing incorrect document by creating
false statements etc.
As such, a Regular Case U/s 1208 r/w section 166, 166A, 167,
182, 193, 195A, 196, 199, 203, 211, 218 & 506 of the IPC
has been registered. The investigation of the case is entrusted to
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Sh. Prashant Srivastava, Addl. SP, CBI, Special Crime-II, New
Delhi.”
60. The above content does not disclose anything about the offence
committed. The preliminary report did not form part of the FIR in order to
enable the petitioner to know how he was charged for the offences
mentioned in the FIR. While passing the order dated 22.07.2019 in
Crl.O.P.No.18583/2019, this Court has stated about the action required on
the allegations of fabricating false evidence. But the CBI has registered the
case against the petitioner under several provisions apart from the penal
provision for fabricating false evidence. The petitioner was completely at
dark without getting the basic material on which he has been charged for
several other offences. The allegation of “fabrication of false evidence”
alone was the explicit reference in the order dated 22.07.2019 in Crl.O.P.No.
18583/2019. There is no explanation given on the side of the first
respondent as to why he did not choose to attach the preliminary report
when he decided to register a FIR against the petitioner.
61. Furnishing information about the charges for which the case has
been registered against an accused is not just an empty formality, but
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compliance of principle of natural justice. I only can be the actual
information through which the accused could know how he was brought
into the case and whether there is any imminence to arrest him. The accused
has the right to initiate proceedings to quash the FIR, which he cannot
effectively exercise in the absence of the base information. Hence the
entitlement of the accused to get a copy of the preliminary report, cannot be
viewed lightly. This is more so in types of cases which are enquired under
special circumstances.
62. So, in all fairness the petitioner ought to have been given with a
copy of the preliminary report in order to enable him to make his
submissions effectively for the relief sought by him. The learned Additional
Chief Judicial Magistrate, Madurai did not appreciate the entitlement of the
petitioner to receive a copy of the preliminary report in the above
background of the facts and law, but had chosen to reject it on a casual four
lines docket order which is not correct.
63. The learned Senior Counsel for the petitioner submitted that when
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a case itself is based on the preliminary enquiry conducted by the
respondent, the preliminary report ought to have been annexed as a part of
the FIR. Reliance was made to the judgment of this Court in Sivapriya Vs.
Inspector of Police held in Crl.O.P.No.9103 & 9656 of 2018 dated
24.01.2022 wherein the Court has observed as under:
“ 8. Normally, when prima facie allegations available in FIR to
proceed with further investigation, the Court will not interfere in the
FIR. But at the same time, if the FIR is bereft of details and
involvement of petitioner with the alleged offences ruled out. Merely
because, the petitioner had discharged her official duty, she cannot be
roped in a criminal offence. The allegations in the FIR itself indicate
that except performing the duty to register the document presented by
somebody claiming to be the Power of Attorney agent as Sockalingam
and no other allegation has been made to the effect that she is actually
participated in impersonation etc.
64. As the petitioner challenged the order of refusal to furnish a copy of
the preliminary report by filing Crl.O.P.No.2263/2025 and later filed an
another Crl.O.P.No.4583/2025 to quash the FIR, the first respondent could
have waited to get a decision on his petition filed to quash the FIR. The
Hon'ble Supreme Court while revoking the order staying the investigation,
has given liberty to the parties to mention for earlier hearing of these
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petitions. But, charge sheet has been filed, before these petitions could be
heard. Since the registration of the FIR itself is not legal in view of the
various reasons assigned above, the charge sheet filed stemming out of an
illegal FIR cannot be considered to be legal.
65. However, the learned Senior Counsel for the first respondent
submitted that the FIR has been registered against the petitioner not only for
the offences falling within the ambit of Section 195 Cr.P.C but for the
offences under Sections 120B, 166, 166A, 167, 182, 193, 196, 199, 203,
211, 218, 506, 195A IPC (Sections 61(2), 198, 199, 201, 217, 229, 233,236,
240, 248, 256, 351, 232 BNS) and at the completion of the investigation,
charge sheet has been filed against the accused for the offences under
Section 167, 193, 195A, 196, 211, 218, 506 IPC. It is claimed when other
offences also committed along with the offences enlisted under sec.195
Cr.P.C, FIR on a police complaint can be registered and investigation can
also be made.
66. The learned counsel for the second respondent also made the very
same submissions made by the first respondent. He further submitted that he
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had been victimized at the hands of the petitioner and he had been falsely
implicated in the cases in Cri.No. 114/2005. It is further submitted that in
the other case against him in Crime No. 1/2017, the first respondent CBI
has filed a negative final report before the Additional Chief Judicial
Magistrate and the same is pending for consideration. It is learnt that the
Idol wing has also raised objection to the negative report filed in Crime No.
1/2017 and the same is pending for decision.
67. Before proceeding to the discussion on each of the charges, I feel
it is essential to extract the essence of the penal provision for which the FIR
has been registered and later charge sheet has been filed.
Sec.167 (Sec.201 BNS): Public Servant framing an incorrect document
with an intent to cause injury.
Sec.193 (Sec.229 BNS) : Punishment for fabricating false evidence for
the purpose of using it in any stage of the judicial proceedings.
Sec. 195A (Sec. 232 BNS): Threatening or inducing a person to give
false evidence
Sec. 196 (Sec 233 BNS) : Using evidence known to be false.
Sec. 211 (Sec. 248 BNS): False charge of offence made with an intent
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to injure.
Sec. 218 (Sec. 256 BNS) : Public Servant framing incorrect record or
writing with an intent to save person from punishment or property from
forfeiture.
Sec.506 (i) (Sec. 351(1) BNS): Punishment for criminal intimidation
68. Among the above provisions, the offences under Sections 193,
195A, 196 and 211 IPC cannot be taken cognizance on a police report in
view of the bar under sec.195 Cr.P.C. The other charges found in the final
report is for the offences under Sections 167, 218 & 506 (i) IPC. Even in
respect of other distinct offences, the position of law is settled that if those
offences form an integral part of the offences as enumerated under Section
195 Cr.P.C, then those distinct offences would also be covered under the
ambit of Section 195 Cr.P.C. In case the other offences are distinct and
separate from those contained in sec.195, they will not be affected by the bar
under sec.195 Cr.P.C. The above legal position has been referred by the
supreme court in the case of State of U.P. V. Suresh Chandra Srivastava &
Ors AIR 1984 SC 1108 as under:
“6. In these circumstances, therefore, it is not
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necessary for us to go into the broader question as to
whether if offences under Sections 467, 471 and 120-B IPC
are committed, the complaint could proceed or not. The law
is now well settled that where an accused commits some
offences which are separate and distinct from those
contained in section 195, section 195 will affect only the
offences mentioned therein unless such offences form an
integral part so as to amount to offences committed as a
part of the same transaction, in which case the other
offences also would fall within the ambit of sec. 195 of the
Code.”
69. In State of Punjab v. Raj Singh, (1998) 2 SCC 391, it is held that
the bar in Section 195 operates at the stage of judicial cognizance and it
does not per se stop the police from investigating. Reference to the relevant
paragraph of the above judgement and the extraction of the same as under
can be helpful.
“ 2. We are unable to sustain the impugned order of the
High Court quashing the F.I.R. lodged against the respondents
alleging commission of offences under Sections
467 and 468 I.P.C. by Chem in course of the proceeding of a civil
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suit, on the ground that Section 195 (1) (b) (ii) Cr.P.C. prohibited
entertainment of an investigation into the same by the police.
From a plain reading of Section 195 Cr.P.C. it is manifest that it
comes into operation at the stage when the Court intends to take
cognizance of an offence under Section 190(1) Cr. P.C.; and it has
nothing to do with the statutory power of the police to investigate
into an F.I.R. which discloses a cognizable offence, in accordance
with Chapter XII of the Code even if the offence is alleged to have
been committed in, or in relation to, any proceeding in Court. In
other words, the statutory power of the Police to investigate
under the Code is not in any way controlled or circumscribed
by Section 195 Cr.P.C. It is of course true that upon the charge-
sheet (challan), if any, filed on completion of the investigation
into such an offence the Court would not be competent to take
cognizance thereof in view of the embargo of Section 195(1) (b)
Cr. P. C. , but nothing therein deters the Court from filing a
complaint for the offence on the basis of the F.I.R. (filed by the
aggrieved private party) and the materials collected during
investigation, provided it forms the requisite opinion and follows
the procedure laid down in section 340 Cr. P.C. The judgment of
this Court in Gopal Krishna Menon and Anr. Vs. D. Raja
Reddy [AIR 1983 SC 1053], on which the High Court relied, has
no manner of application to the facts of the instant case for there
cognizance was taken on a private complaint even though the
offence of forgery was committed in respect of a money receipt
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produced in the Civil Court and hence it was held that the Court
could not take cognizance on such a complaint in view of Section
195 Cr. P. C. For the foregoing reasons, we allow this appeal and
set aside the impugned order.”
70. In the above case, the Supreme Court has held that in view of the
embargo under sec.195 Cr.P.C, the court cannot take cognizance of the
charge sheet filed by the police at the completion of the investigation of
those offences mentioned under sec.195 Cr.P.C. However, the police is at
liberty to take up the investigation but the court cannot take cognizance.
And the court can only use its discretion to give a complaint under sec.340
Cr.P.C. If the investigation reveals that other distinct offences are not
integral to the commission of the offences listed under sec.195, the bar
under sec.195 cannot operate as against those distinct offences and they can
be proceeded against the accused separately.
71. In the recent judgement of the Supreme Court in Devendra
Kumar v. State (NCT of Delhi), 2025 SCC OnLine SC 1753, it is held that
the direction issued to the police by the Chief Metropolitan Magistrate to
investigate under Section 156(3) Cr.P.C, on a complaint under Section
195(1)(a) Cr.P.C is not correct. It is held that when a public servant (the
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Administrative Civil Judge) files a written complaint for obstruction of a
public servant (Section 186 IPC), the Magistrate should directly take
cognizance and issue process under Section 204 Cr.P.C, and not order police
investigation. If other distinct offences (Sec. 341 IPC) are so interlinked
with the offence under Sec.186 and they form the same transaction, the bar
of Section 195 applies to the other offence also. If truly distinct offences are
disclosed, only then they can be prosecuted separately.
72. After making a thorough discussion on the subject, the Hon’ble
Supreme court has given the following conclusions in Devendra Kumar and
they are given as under:
59. We may summarize our final conclusion as under:
(i) Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking
cognizance of any offence punishable under Sections 172 to 188
respectively of the I.P.C., unless there is a written complaint by
the public servant concerned or his administrative superior, for
voluntarily obstructing the public servant from discharge of his
public functions. Without a complaint from the said persons, the
court would lack competence to take cognizance in certain types
of offences enumerated therein.
(ii) If in truth and substance, an offence falls in the
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category of Section 195(1)(a)(i), it is not open to the court to
undertake the exercise of splitting them up and proceeding
further against the accused for the other distinct offences
disclosed in the same set of facts. However, it also cannot be
laid down as a straitjacket formula that the Court, under all
circumstances, cannot undertake the exercise of splitting up. It
would depend upon the facts of each case, the nature of
allegations and the materials on record.
(iii) Severance of distinct offences is not permissible when
it would effectively circumvent the protection afforded by
Section 195(1)(a)(i) of the Cr.P.C., which requires a complaint
by a public servant for certain offences against public justice.
This means that if the core of the offence falls under the purview
of Section 195(1)(a)(i), it cannot be prosecuted by simply filing
a general complaint for a different, but related, offence. The
focus should be on whether the facts, in substance, constitute an
offence requiring a public servant’s complaint.
(iv) In the aforesaid context, the courts must apply twin
tests. First, the courts must ascertain having regard to the
nature of the allegations made in the complaint/FIR and other
materials on record whether the other distinct offences not
covered by Section 195(1)(a)(i) have been invoked only with a
view to evade the mandatory bar of Section 195 of the I.P.C. and
secondly, whether the facts primarily and essentially disclose an
offence for which a complaint of the court or a public servant is
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required.
(v) Where an accused is alleged to have committed some
offences which are separate and distinct from those contained in
Section 195, Section 195 will affect only the offences mentioned
therein. However, the courts should ascertain whether such
offences form an integral part and are so intrinsically
connected so as to amount to offences committed as a part of
the same transaction, in which case the other offences also
would fall within the ambit of Section 195 of the Cr.P.C. This
would all depend on the facts of each case.
(vi) Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C.
respectively do not control or circumscribe the power of the
police to investigate, under the Criminal Procedure Code. Once
investigation is completed then the embargo in Section 195
would come into play and the Court would not be competent to
take cognizance. However, that Court could then file a
complaint for the offence on the basis of the FIR and the
material collected during investigation, provided the procedure
laid down in Section 340 of the Cr.P.C. is followed.
60. In view of the aforesaid, we dispose of this petition
leaving it open to the petitioner to raise the contention as
regards the bar of Section 195 of the Cr.P.C. before the trial
court if at all, at the end of the investigation, charge sheet is
filed for the offences enumerated above in the FIR.
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73. By applying the above principles, it can be seen from the
materials now available whether the other offences included in the charge
sheet are distinct offences or whether they have been included just to evade
from the clutches of sec.195 Cr.P.C. The other offences found in the charge
sheet other than the offences listed under sec.195 Cr.P.C are sec.167, 218
and 506 (i).
Whether the Petitioner is entitled to any relief?
74. On perusal of the representation of the second respondent dated
24.02.2019 and 16.06.2019, it is seen that the allegations have been made
against the petitioner that he had given false information to the learned
Additional Chief Judicial Magistrate, Kumbakonam and he also tried to
influence him. He has further raised allegation with regard to the additional
report filed against him in Cr.No.114 of 2005; his arrest in the subsequent
case in Cr.No.1/ 2017 and the alleged conversation between family members
of the second respondent and the petitioner subsequent to his arrest.
75. The second respondent has further stated in his representation
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dated 20.04.2019 that he has given a complaint to the learned Additional
Chief Judicial Magistrate under Section 195 Cr.P.C. seeking to initiate
action against the petitioner and that the Judicial Magistrate I, who held
Additional Charge for ACJM, Kumbakkonam and he had rejected his
petition without application of mind. He further stated that he has filed a
writ petition before the special bench and it has not been taken on file.
76. If the second respondent has got any grievance against the order
passed by the ACJM, Kumbakkonam in rejecting his application under
Section 195 Cr.P.C, he ought to have filed an appeal under Section 341
Cr.P.C. In fact, all other allegations made by him in his representation
revolves around the allegation that the second respondent procured false
evidence by threatening some of the witnesses. The second respondent
without exhausting the statutory remedy under sec. 341, has filed the
Criminal Original Petition by seeking directions.
77. In the charge sheet filed against the petitioner, it is stated that the
preliminary report revealed certain cognizable offence and after waiting for
the approval for the court on the preliminary report and having not obtained
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the same, the first respondent proceeded to file the FIR. The first respondent
was waiting to get the approval from the Additional Chief Judicial
Magistrate instead of seeking such a permission from this Court, which has
issued a clear direction as to the prior permission. Except the penal
provision under sec.167, 218 and 506 IPC all other provisions under which
the charges fall under the list of offences barred under sec.195 Cr.P.C.
78. Even the other charges for said offences cannot take a different
route for prosecution if they are integral part of the offences prohibited
under sec. 195 Cr.P.C. Only if the other offences are shown as distinct
offences and have been committed in any independent transactions, the
police report can be filed independently for seeking independent action. In
the instant case, the whole of the contents of the charge sheet refer only
about the manner in which the investigation is carried out, omissions,
decisions taken and the process adopted by the petitioner during the course
of executing his functions as the Investigation Head. Added to that the first
respondent has also presumed intentions on the part of the petitioner for
choosing to adopt a particular mode of action, appoint particular type of
persons or apply certain provision of law while execute his duties as the
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Investigating Head.
79. None of the narrations about the charges in the charge sheet
appears to stand on any other separate transaction in order to claim that
independent action for offences under sec.167, 218 and 506 IPC can be
based on a police report. In view of the above settled position of law, these
offences which are integral and inseparable from the other offences
categorized under sec.195 Cr.P.C, they can not take deviation from the
procedure contemplated under sec. 340 Cr.P.C. In other words, no private
individual or any investigative agency should be allowed to hijack the
discretion and autonomy vested in the court where the alleged false
evidence are produced.
80. Before proceeding to make an elaborate provision centric
discussion, it is essential to state about the overall nature of report submitted
by the first respondent. The charge sheet as such appears like a defence
version statement on the prosecution materials placed before the court in
Cr.No.114 of 2005 and other related cases without having the necessity for
the accused to stand the test of trial for the charges made against them.
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Even the possibility of committing clerical errors while narrating the
number or dates in the documents either prepared by the petitioner or his
sub-ordinates have been assertively stated as intentional for the purpose of
booking the named police officials including the second respondent in the
cases of idol theft.
81. In order to throw more light, a little more elaboration in the form
of short discussion on the materials with regard to those penal offences not
listed under 195 Cr.P.C is essential. As other offences mentioned in the
charge sheet namely 193, 195-A, 196 and 211. I.P.C are listed offences
under sec.195 Cr.P.C, I feel it is sufficient to restrict the elaborate
discussions only with regard to offences under sec.167, 218 and 506 I.P.C.
167 I.P.C – Public servant framing incorrect document with intent to
cause injury
82. As against the charge under sec.167 I.P.C it is stated that :
(i) the statement of the witnesses by names Dr. Aparna and Mansingh
are framed statements made for the purpose of causing injury to the second
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respondent by implicating him in the case in Crime.No.144/2205.
(ii) and the petitioner had forced his subordinate Mr.Palani Selvam,
IO of Crime No. 01/2017 ( case registered against the second respondent )
to frame incorrect statement for the reply to the bail condition relaxation
application filed by the second respondent Kadar Batcha that Kadar Batcha
is an absconding accused in Crime.No.114/2005.
83. So far as the witnesses Dr.Aparna and Mansingh are concerned
they are the daughter and staff of one of the approver turned prime accused
Deenadayalan involved in Crime.No.114/2005. In fact, the confession
statement of Deenadayalan has been instrumental in bringing the second
respondent as the accused in Crime.No.114/2005. It is stated that the
petitioner had obtained the confession statement from Deenadayalan under
duress and his confession statement along with the statements Dr.Aparna,
daughter of Deenadayalan and Mansingh, staff of Deenadayalan have been
the basis for implicating the second respondent and the statements of
Dr.Aparna and Mansingh are fabricated one.
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84. Deenadayalan had filed an application to the court to grant
permission to treat him as an approver and that he would reveal the truth
known to him and he would co-operate for investigation. Permission to treat
him as an approver has been granted by the court and hence there is no
necessity for the petitioner to show any interest to save Deenadayalan. After
the petitioner obtained permission from the court to unearth more truths
about the involvement of persons involved in the idol theft case in Cr.No.
1114/2005, there are some turn of events. Two of the prime accused by
names Balaji and Deenadayalan have been treated as approver and their
confession statements have been used for the further investigation.
85. It is to be noted that Deenadayalan is no more now. But statements
have been now obtained from his daughter and staff that the petitioner had
forcibly obtained the confession from Deenadayalan by putting him under
threat. And some contradictions between the confession statements of
Deenadayalan and Balaji have also been highlighted as materials to show
that the first petitioner’s actions as the Investigation Head of idol wing are
motivational and he had taken revenge against all police officers who
refused to give statements by submitting to the pressure of the petitioner,
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against some of the police officers. It is stated that Kadar Batcha was forced
by the petitioner to give statements against some high-level police officers
and that is the reason why he has been implicated in this case and the
statements of witnesses in this regard are the framed statements of the
petitioner.
86. If according to this charge sheet, the statements of the above-
named witnesses are framed one, then in another investigation by some
other agency can come and say that the statements of the witnesses
Dr.Aparna and Mansingh have been obtained by force or framed by the first
respondent during the investigation carried out by him in this case. And
especially when the prime person Deenadaylan who alone had the personal
knowledge about the confession given by him is no more now. As there is
no risk for Deenadalayan as he had died and the benefit of getting the
permission for being the approver has been exhausted and it served the
purpose, the statements can be now given by any one related to
Deenadayalan that he was forced to give confessional statement. The
contradiction if any between the confessional statement of Deenadayalan
and the additional report filed by the petitioner against the second
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respondent in terms of numbers or dates can be just clerical and intentions
cannot be imputed against the petitioner on the basis of the same. And the
clerical errors or discrepancies so found in the records are the matters to be
clarified by the concerned during trial, especially during the cross
examination a while answering the questions of the defence counsel. It is
dangerous to attribute motive to the Investigative head on the weak material
if any, especially when the trial of the main case is pending in the court.
Even on the face of it, the materials claimed to be in supportive of the
commission the alleged offence under sec.167 by the petitioner is nothing
but a complete inadequacy.
87. With regard to the reply filed by a police officer by name Mr.
Palani Selvam before the High Court during a proceedings on the
application filed by the second respondent for seeking condition relaxation
of his bail, this petitioner has charged stating that he compelled Palani
Selvam to frame a false statement. If Palani Selvam has been instructed by
his superior to prepare any reply to the court proceedings, it is his duty to
prepare it on the basis of the records handled by him. If he gets any doubt
from the records, he should have got clarification or guidance from his
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superior. Failure to show that on record and filing a wrong statement if any
to the court would risk only the author of it.
88. Interestingly, the petitioner alone has been charged under sec.167
I.P.C on the basis no evidence, while Palani Selvam, the author of the
document has been left at the discretion of the court where he filed the reply,
for taking any action for not furnishing incorrect details if any. Again, there
is a difference between incorrect statements filed due to oversight,
discrepancies in the statement due to clerical errors like commission and
omission and framing an intentional false document for the purpose of
injuring someone. The second respondent has already been an accused and
he has filed the application for relaxation of the condition on the bail order
and in which Palaniselvam filed his reply. Hence it can not be a statement
framed for the purpose of injuring Kadar Batcha. As these facts of the
material supporting the charge under sec.167 Cr.P.C is plain and available
even when they were not uncontroverted if put to test, the charge under sec.
167 I.P. C can not be held to have been made out.
89. Sec 218 I.P.C : Public Servant framing incorrect record or
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writing with an intent to save person from punishment or property from
forfeiture:
Even for the charge under Sec. 218 IPC also it is alleged in the charge sheet
that the petitioner has framed incorrect record or writing with an intention to
save Deenadayalan from punishment. It is alleged that the petitioner has
tutored and fabricated the confession statement of Deenadayalan. The best
person who has to speak about the confession the very same person who has
made it. If every confession statement is believed to be the craft of the
investigation officer no case can move forward. It might have been possible
for an investigation officer how far a confession can help both the
prosecution and the accused in the event of an accused is allowed to be an
approver.
90. As stated already Deenadayalan is no more now. The confession
statement given by Deenadayalan and Balaji contain very serious revelation
including the involvement of certain police officials. Insufficiency of the
materials in proceeding against the person who has been charged is different
from framing or producing false evidence. It is averred in the charge sheet
that, Dr.Aparna, daughter of Deenadayalan was threatened and compelled
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that she should convince her father to give confessional statement. Such
vague statements cannot be sufficient to make out a serious offence under
sec. 218 I.P.C. In fact, the averment in the charge sheet only makes it clear
that the confession of Deenaldayalan is not the craft work of the petitioner,
but it has been given only by Deenadayalan only on account of the
permission given by the court to treat his as approver.
91. Despite the second respondent has stated that the evidence against
him are false and created, for the reasons best known to him, he did not take
any steps so far to quash the additional report filed against him in Cr.No.114
of 2005. The second respondent has given the representations after two or
three years from the time of filing the additional charge sheet and the FIR in
Cr.No.1 of 2017. There are no materials to make out an offence under
Section 218 IPC except the repetitive allegations which have already been
dealt.
92. 506 I.P.C – Punishment for Criminal Intimidation:
So far as the offence under Section 506 IPC is concerned it is stated that the
petitioner had criminally intimidated the wife of Kader Batcha. The above
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threat is said to have been made by the petitioner after the second
respondent was arrested. It is alleged that the wife of Kadar Basha met the
petitioner at his office after the arrest of her husband and at that time the
petitioner threatened her. It is further alleged that during that time a wordy
exchange occurred between herself and the petitioner. No complaint has
been made by the wife of Kadar Batcha immediately after the alleged
occurrence. It is not the case that the petitioner had gone to the house of
Kadar Batch and threatened her or sent someone to her place to intimidate
her. The alleged threat caused to the wife of the second respondent has not
been stated by him in his bail application or any other subsequent
proceedings filed by him in the court. The said threat as alleged in the
charge sheet is caused during the wordy exchange between petitioner and
the wife of the second respondent and hence it cannot be intentional. No
material is available to make out an offence under sec.506 I.P.C also.
93. So, the offence under Section 167, 218 and 506 (1) IPC appear to
have been added in the charge sheet just in order to give an appearance that
the penal provisions of the FIR and the charge sheet are beyond the purview
of Section 195 and 340 Cr.P.C. But the reality is otherwise.
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94. The primary allegation against the petitioner is that he had
obtained false confession statement from one of the prime accused
Deenadayalan by allowing him to become an approver. In similar pattern the
other accused by name Balaji has also been pressurized to given statement.
and they were the prime materials by which some of the police officers and
other accused were implicated subsequently in this case. The Investigation
Officer himself cannot treat an accused as an approver without the order of
the Court. The police confession is not admissible in evidence except for a
limited extent of the statement leading to recovery. If the confession given
by the accused is false and on that basis any accused is pinned up in the
case, then the evidence relied by the prosecution can, at the best, be called
as 'weak evidence' and not 'false evidence'.
95. The information about the genuineness of the confession given by
the approver turned accused Deenadayalan is something within his
knowledge. Without getting any substance of that nature of falsehood from
the very mouth of Deenadayalan, some imaginary statement about the
reliability of the statement of that accused cannot be made. It is up to the
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Investigation Officer to get any clue from such statement and proceed or
drop further investigation in his best judgment. Even if he makes any wrong
judgment on the facts collected by him and file a report to the court, then the
ball lies in the court and thereafter it is for the court to appreciate the
acceptability of the same by applying its mind before taking cognizance of
the same. For the mere production of the statements collected, which the
first respondent believes to be false even before those materials are testified
in the trial, an Investigating Officer cannot be charged on several counts of
offences, especially on the allegation of fabricating or producing false
evidence or false charging.
96. After the application filed by the second respondent for seeking
action before the trial court under sec.340 Cr.P,C and having it rejected, he
is not entitled to seek for registration of a police case on the very same
allegation. The second respondent had not chosen to file any appeal under
sec.341 CrP.C.
97. With regard to certain proceedings of the courts on which the
superior courts do not even have revisional power in view of sec.341(2),
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directions to register a case can not be given unless any distinct offence is
seen to have been committed in a different transaction without being an
integral part of the transactions connecting to the listed offences under sec.
195 Cr.P.C.
98. In any criminal case filed by a responsible Investigation Officer,
if the Court presumes on the representation made by one of the accused that
all the materials are false and that the Investigation Officer has to be
prosecuted for bringing false evidence, no police officer will dare to
investigate any criminal case by discharging his duty as an Investigation
Officer. Because any accused can play game with the Investigation Officer
by dragging him to criminal charges. It can also go to the extent of
initiating disciplinary proceedings against the Officer.
99. While recording this view, this court is not oblivious of the misuse
of power by certain wicked police officer against an innocent person. But
the aggrieved in such cases would file proceedings before the court seeking
to discharge or quash the criminal proceedings by showing lack of materials.
If a public officer causes violation of human right of any person, he has also
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got a remedy by way of raising a rights violation complaint.
100. In case the individual is forced to under go trial on false charges,
he can avail the right to fair trial along with the benefit of presumption of
innocence. At the conclusion of the trial, if it is established before the court
that the charges are false or malicious, he is entitled to maintain a case for
defamation and recovery of damages.
101. He has also got the right to file an application before the trial
court itself after the conclusion of the trial, by praying to take action against
the person who have produced false evidence by invoking the procedure
contemplated under sec.195 r/w 340 Cr.P.C. Only in view of this check and
balance mechanism, no action is taken on the allegation of false evidence
before the conclusion of the trial and the decision to initiate action is left
with the discretion of the court before which the false evidence is said to
have been produced.
102. If the court has not been given with any discretionary power to
form its own opinion in order to prefer a complaint under sec.195 Cr.P.C.,
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every one will try to stall the proceedings by making such complaints and
undo the investigation already made and render the materials collected
inactive.
103. Any person aggrieved of a false case foisted against him, can
exercise his right to get discharged, if the materials, on the face of it,
appears to be false or insufficient to hold him for the charges made against
him. Apart from the provisions permitting the accused to file a petition for
discharge before the trial Court, the accused is also entitled to file petitions
under Section 482 Cr.P.C. to quash the FIR or charge sheet. Strangely, the
second respondent has not exercised any of such right, even though he has
stated during the bail proceedings that the only material available against
him is the confession of a co-accused. He has been only chasing the
petitioner who had done the further investigation in Cr.No.114 of 2005.
104. As the said team investigating the idol theft cases under the head
of the petitioner was allowed to continue despite the State attempted to
transfer all those cases to CBI, the Hon'ble Division Bench was conscious of
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the fact that the petitioner as the Head of the Special team would be left in
troubled waters. Before appointing him as Special officer, the Hon'ble
Division Bench invited the State to produce any materials which might have
a bearing on the conduct or the untrustworthiness of the petitioner. During
that time, the State had given a clean certificate for the petitioner, as there
was no material available to impeach the credibility of the petitioner.
105. So, it has been made clear in the order of the Hon’ble Division
Bench that any material that might crop up subsequent to the order of the
Hon'ble Division Bench dated 30.11.2018, can only be considered as
“Created for the purpose of dislodging the credibility of Mr.A.G.Pon
Manickavel on personal motives”. Under such circumstances and especially
when the second respondent had not chosen to file any proceedings to quash
the additional report or the other case in FIR in Cr.No.1 of 2017, the first
respondent could have pedaled slow and stopped to get the permission from
this Court by placing the materials against the petitioner, as per the direction
already given in this regard by the Hon'ble Division Bench in its order dated
30.11.2018 made in W.P.Nos.20392 & 20963/2018.
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106. It is apparent on record, it is not just the FIR registered against
the petitioner, but also the charge sheet filed lacks legality and acceptability.
In the oft quoted judgment of the Hon'ble Supreme Court in the State of
Haryana and others Vs. Bhajan Lal and others reported 1992 Supp. (1)
SCC 335, the grounds for quashing the FIR have been enlisted as under:
" (a) 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 entirety do not prima facie constitute any offence or
make out a case against the accused;
(b) where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose a
cognizable offence, justifying an investigation by police officers under
Section 156(1) of the Code except u&der an order of a Magistrate
within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations 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;
(d) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as con templated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient ground
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for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of
the aggrieved party;
(g) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance.
107. In R.P.Kapur v. State of Punjab [AIR 1960 SC 86], the Hon'ble
Supreme Court has held that inherent jurisdiction of the High Court can be
successfully invoked in appropriate cases to prevent the abuse of process of
any court or otherwise to secure the ends of justice. It is further held if the
criminal proceeding is in respect of an offence alleged to have been
committed by an accused person and it manifestly appears that there is a
legal bar against the institution or the continuance of the said proceeding,
the high court would be justified in quashing the proceedings on that
ground.
108. On the face of it, the impugned FIR registered by the first
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respondent against the petitioner lacks in material particulars, as it does not
contain any particular of the offence committed by the petitioner. It is the
FIR which fails the test of legality and acceptability on the face of it and so
as the charge sheet.
109. The second respondent who had got an order of transferring the
other FIR registered against him in Cr.No.1 of 2017 to the file of the first
respondent and on which the first respondent has assigned new FIR number
and the negative charge sheet has been filed by closing the same.
110. In fact, the other case in Cr.No.1 of 2007 has been registered
against the second respondent only by following the preliminary
investigation done and report submitted by a Deputy Superintendent of
Police of Economic Offences Wing. Only basing on that, Cr.No.1 of 2017
has been registered against the second respondent. The second respondent
had not alleged that the said DSP had given a false report to the petitioner.
But he has blamed only the petitioner and the first respondent also did not
consider the above fact in its report. The petitioner had convinced himself
with the preliminary report submitted by the DSP and then only registered
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the case in Cr.No.1 of 2017 against the second respondent. Again, it is
within his authority and exercising authority by a public officer, cannot be
called as commission of an offence in the absence of any criminal intention.
No calculated attempt can be allowed to destabilize the progress made by
the special team in the cases involving idol theft handled by them.
111. Both the FIR and the charge sheet on the face of it do not disclose
any materials to sustain the charges made against the petitioner. Even if the
allegations in the charge sheet are uncontroverted, the guilt of the accused
cannot be proved. The FIR itself is non-est and redundant, as it has been
registered not only in excess of the authority of the first respondent without
seeking permission from this court in pursuant to the earlier directions given
by the Hon’ble Division in W.Ps. 20392 and 20363/2018. And further the
court also cannot act upon by taking cognizance of the charge sheet in view
of the bar under sec.195 Cr.P.C.
112. The first respondent has not produced any materials to show that
the petitioner has committed any other independent offence not falling under
sec.195 Cr.P.C in a different transaction. The penal provisions other than
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some the of offences listed under sec.195 Cr.P.C has been added in the FIR
and the charge sheet just to give an appearance as though some distinct
offence has been committed by the petitioner. In the above circumstances of
the case and the reasons stated above, it is imperative for this court to
exercise its power under sec.482 Cr.P.C and quash the charge sheet or any
other proceedings that arose out of the charge sheet filed by the first
respondent against the petitioner. This is with a view to prevent
miscarriage of justice and to ensure complete justice by granting appropriate
reliefs.
113. There may be an argument that even though the final report filed
cannot be treated as a complaint of the court as described under sec.340
Cr.P.C., the report can be still be considered as material for the court to form
an opinion at the end of the trial for initiating action for fabricating false
evidence before the court. But that can be applicable only if the charge sheet
contains any actionable material which might come to the help of the court
to form an opinion. In the present report all those actions taken by the
petitioner on the basis of the information obtained by him have been
criticized as intentional. Giving validity for such a report may cause
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prejudice in the mind of the court on the case of the prosecution even before
the trial is concluded. If such baseless reports are allowed to be given
undue importance than what it would deserve, then in every case involving
police officials, an opposite syndicate will start act against the investigating
team and try to sabotage the material gathered and filed in the court by the
investigating team. Such an unhealthy trend will certainly affect the interest
of justice. However, there may be exceptional circumstances which may fall
outside the above general view. Hence the courts will have to evaluate the
materials on a case to case basis only.
114. Had it been a report on a distinct offence which does not form
part or integral to the transactions involving the offences listed under sec.
195 Cr.P.C., it is understandable to keep it alive for the later appreciation of
the trial court. As stated already the report is like a defence statement basing
on the presumption that all those statements and materials available against
the police officers including the second respondent are obtained under
duress and by blaming the decisions taken by the petitioner during the
course of discharging his duties as the Head of the special team. Hence the
final report needs to be quashed in order to ensure that there shall not be any
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prejudice in the mind of the court till the main case is disposed and allow
the court to form its own uninfluenced opinion basing on the appreciation of
evidence available during the trial.
115. In the result,
Criminal Original Petition in Crl.O.P.(MD) No.4583 of 2025 is
allowed and the charge sheet Cr.No.RC0502024S0013 dated 08.08.2024
and any other proceedings that might have arisen out of
Cr.No.RC0502024S0013 dated 08.08.2024 are quashed.
Crl.O.P.(MD) No. 2263 of 2023 is closed as it had served its purpose
and also in view of the larger relief granted to the petitioner now.
Consequently, connected miscellaneous petition is closed.
26.09.2025
Index: Yes
Speaking order
Netural Citation Case : Yes
bkn
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To:
1. The Superintendent of Police, (SC-II) Delhi,
Central Bureau of Investigation,
Plot No.5-B, 6th Floor,
CGO Complex, Lodhi Road,
New Delhi – 110 003.
2. The Public Prosecutor,
Madras High Court.
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Dr.R.N.MANJULA ,J.
bkn/CM
Pre-delivery order made in
Crl.O.P.(MD) Nos.4583 & 2263 of 2025
26.09.2025
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