IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.Nos.3839 and 24008 of 2005 and M.P.Nos.1511 and 1512 of 2005 Kosalaraman ...Petitioner in Crl.O.P.No.3839/05 Dr.S.Rajendran ...Petitioner in Crl.O.P.No.24008/05 -Vs- 1.Abimannan ...Respondent in both Crl.O.Ps.
2.Dr.S.Rajendran
Assistant Doctor,
Government Hospital,
Ariyalur, Perambalur District. …Respondent in Crl.O.P.No.3839/05
3.Kosalaraman …Respondent in Crl.O.P.No.24008/05
Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records relating to C.C.No.578 of 2004 on the file of the learned Judicial Magistrate, Ariyalur, Perambalur District and quash the same.
For Petitioner : Mr.V.Illanchezian
(Crl.O.P.No.3839/05)
For Petitioner : Mr.Samuelraja Pandian
(Crl.O.P.No.24008/05)
For Respondent 1 : Mr.S.Panneerselvam
(both Crl.O.Ps.) Legal Aid Counsel
For Respondent 2 : Mr.I.Arokiasamy
(Crl.O.P.No.3839/05)
For Respondent 3 : Mr.V.Illanchezian
(Crl.O.P.No.24008/05)
C O M M O N O R D E R
The petitioner in Crl.O.P.No.3839 of 2005 is the 1st accused and the petitioner in Crl.O.P.No.24008 of 2005 is the 2nd accused in C.C.No.578 of 2004 on the file of the learned Judicial Magistrate, Ariyalur, Perambalur District.
2.The 1st respondent in these petitions is the complainant in the said case. He informs that on the complaint of one Malar daughter of Murugaihan, with whom there was a civil suit pending, the 1st accused, the Sub-Inspector of Police along with two other police constables took him from his residence on 28.09.2004 at about 8.00 a.m., at about 9.00 a.m. one of the constables demanded a sum of Rs.5,000/- from him stating that if he paid the amount he would be released on his giving an acknowledgment that the matter of the complaint case would be settled before the civil Court. When the 1st respondent/complainant’s brother and mother came to the police station, they were chased out. At about 7.00 p.m., the 1st accused made the 1st respondent/complainant hold the window bars and with a wooden stick ridged with a metal ring, repeatedly beat him on the hip and thighs causing bleeding injuries. The 1st accused made him to hold out his hand, which again was beaten. On hearing his cries, his brother and mother again came and they again were chased out. The 1st accused made the 1st respondent/complainant run around the lock up area, jump up and down, sit and stand repeatedly and with a lathi beat him all over his body. The lathi forcefully also was thrust into the navel region. His brother who had noticed the entire incident approached an Advocate, through whom representations were made to various officials in the state.
3.A case was foisted upon him and when he was sent to Court, the 1st accused threatened that if he mentioned anything about the sufferings undergone by him at Court, he would shoot him dead. On being produced before the Court, the 1st respondent/complainant had informed that he had been beaten up. He was taken to the Government hospital by the police. As the duty Doctor was not in, he was taken to such Doctor’s private clinic. He showed his injuries and narrated what had happened to the Doctor. He subsequently was taken to the Ariyalur Government Hospital where the said Doctor came after 1= hours. The allegation against the Doctor is that towards saving the 1st accused from harm, he had issued a false certificate which did not disclose either the weapon used to attack him or the time when he suffered injury. The respondent/complainant was sent to the Ariyalur Sub Jail on 29.09.2004 at 5.30 p.m. and a Doctor by name Vijayalakshmi had examined him on 30.09.2004. He was released on bail on 01.10.2004. Being unable to bear the pain, he visited the Government hospital and took treatment on 02.10.2004. He received the wound certificate on 05.10.2004 and shocked by the discrepancies therein, immediately filed a petition before the Court and put up the same therewith. On directions of Court, he received treatment at Government hospital. On 05.10.2004, he caused to be taken, photographs of the injury around his navel. Alleging offences under Sections 294(b), 324, 342, 218, 217, 201, 506(ii) r/w 109 IPC against the 1st accused, and offence under Sections 109, 197, 201 and 218 IPC against the 2nd accused, a complaint has been filed before the learned Judicial Magistrate, Ariyalur. The lower Court was pleased to take the same on file, record the sworn statement of the 1st respondent/ complainant, take cognizance of the case and issue summons to the accused.
4.I have heard the learned counsel for the petitioners, the learned counsel for the respondents and also perused the materials available on record.
5.In so far as the 2nd accused/petitioner in Crl.O.P.No.24008 of 2005 is concerned, we find that he is the Assistant Civil Surgeon, Government Hospital, Ariyalur, Perambalur District. The complaint against him is that the wound certificate issued by him does not reflect the correct position. The wound certificate shows that on examining the 1st respondent/complainant on 29.09.2004, the following injuries were noted:
‘1.Complains of pain over the umbilicus
2.Complains of body pain’
The respondent/complainant was subsequently examined on 05.10.2004 and the injuries noted are as follows:
‘1.Two healed abrasion of semicircular in nature of 2.5 cm. and
2 cm. No inner heals.
2.Complains of pain over base of Rt. thumb.
3.Complains of pain over both buttocks tendernes.
4.Complains of bodyache.’
6.Besides noting that the failure to disclose the entire nature of injuries suffered by the 1st respondent/complainant in the wound certificate issued by the 2nd accused, merely be an act of mistake, there is no doubt that in issuing the wound certificate, the 2nd accused was acting or purporting to act in the discharge of his duty as the Assistant Civil Surgeon attached to the Government Hospital. While so, sanction for his prosecution was a must. The failure to receive such sanction before taking cognizance against the petitioner/2nd accused offends Section 197 Cr.P.C., which reads as follows:
“Prosecution of Judges and public servants.-
(1)When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction –
(a)in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b)in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.]
(2)No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3)The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.
[(3-A) Notwithstanding anything contained in sub-section(3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.]
(4)The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”
7.Thus, on the ground of proceedings initiated against the 2nd accused being bad for want of sanction, this Court would allow Crl.O.P.No.24008/05. Accordingly, the Crl.O.P.No.24008/05 shall stand allowed and the proceedings in C.C.No.578 of 2004 on the file of the learned Judicial Magistrate, Ariyalur, Perambalur District shall stand quashed in so far as the petitioner/2nd accused is concerned.
8.As against the petitioner in Crl.O.P.No.3839 of 2005, the allegations are of causing severe bodily injury to the 1st respondent/complainant besides extreme mental agony and harassment. The 1st respondent/complainant has spelt out the various wrongs committed by the petitioner/1st accused and reiterated the same in the sworn statement. The actions complained of are not those that can be claimed by the 1st accused to be done in the course of his duty. It is not a police man’s job to meet out physical and mental hardship to an accused. Section 197 of the Criminal Procedure Code is found inapplicable in the facts and circumstances of the case in so far as the petitioner/1st accused is concerned. For the above said reasons, the Crl.O.P.No.3839 of 2005 shall stand dismissed. Consequently, the connected miscellaneous petition is closed.
gm