IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/02/2003
CORAM
THE HONOURABLE MR.JUSTICE A.PACKIARAJ
CRL.R.C.No.509 of 2000
Ramalingam .. Petitioner.
-Vs-
State represented by Station
House Officer, Grand Bazaar
Police Station, Pondicherry. .. Respondent.
For Petitioner: Mr.P.V.S.Giridhar
For Respondent: Mr.A.P.Suryaprakasam
Additional PP (Pondy)
Prayer: Revision against the judgment of the Principal Sessions Judge,
Pondicherry in Crl.Appeal N.10 of 1998 dated 30.11.1999, confirming the
judgment of Chief Judicial Magistrate, Pondicherry in STR No.578 /93 dated
17.2.98 convicting the petitioner under
:O R D E R
On being aggrieved by the conviction and sentence imposed by the
learned Principal Sessions Judge, Pondicherry, dated 30.11.1999, confirming
the judgment passed by the learned Chief Judicial Magistrate, Pondicherry in
STR.No.578/93 dated 17.2.98, sentencing the petitioner herein to undergo
imprisonment till rising of the Court and to pay a fine of Rs.5,000/-, in
default to undergo simple imprisonment, for an offence under Section 182 IPC,
the present revision has been preferred.
2. The brief facts of the prosecution case is that Ramalingam, the
respondent herein lodged a First Information Report with the Inspector of
Police PCR Cell on 15.12.1993 at about 5.00 p.m stating that one Sekar and
Radhakrishnan abused him by using his caste name which attracted the
provisions of the Protection of Civil Rights Act. The matter was investigated
and found to be false. On coming to know that the complaint given by the said
Ramalingam is false, the Inspector of Police, PCR Wing filed a petition before
the Chief Judicial Magistrate, Pondicherry and sought for permission to
register a case for an offence under Section 182 IPC, against the said
Ramalingam. But the learned Magistrate dismissing the said application said
that no such permission is needed. But however he has observed to the effect
that he shall after obtaining permission from the Superintendent of Police
make a complaint before the police officer having jurisdiction to investigate
the offence committed within the limits of such police station. Accordingly,
the Inspector sought permission from the Superintendent of Police, who
apparently is said to have given permission and on the basis of which he filed
a complaint before the Inspector of Police, Grand Bazaar police Station,
Pondicherry, who investigated the matter and has filed the present charge
sheet, which reads as follows:
On 15-2-93 at about 17.00 hrs, the accused Ramalingam gave a First
Information Report to the Inspector of Police, PCR Cell, Pondicherry
complaining that one Sekar and Radhakrishnan abused him on the grounds of
untouchability and requested the Police of Civil Rights Act knowing that it
was false complaint intending thereby that the Inspector of Police, PCR Cell,
Pondicherry would use his lawful power to the annoyance of the said Sekar and
Radhakrishnan, thereby the accused Ramalingam appear to have committed an
offence punishable under Section 18 2 IPC.
Hence the charge.
Sd/-(A.KANDANATHAN)
Sub-Inspector of Police
Grand Bazar Police Station
Pondicherry.
The accused contested the trial and as he was found guilty, was
punished as mentioned above.
3. The learned counsel appearing for the petitioner in this revision
questions the maintainability of the very prosecution case itself, in view of
Section 195 Cr.P.C. He also took me through the relevant portions of the
Section, which reads as follows:
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 Section 172 to 188 (both
inclusive) of the Indian Penal Code, or …..
195(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:
4. Therefore, it is incumbent on the part of the Inspector of Police
PCR who found that the complaint given to him by the accused to be as follows
ought to have filed a complaint before the concerned Magistrate and the
Magistrate ought to have taken cognizance under Section 190 Cr.P.C
5. But curiously in this case what he has done is that he has filed
an application before the Magistrate asking permission to register a crime
against the accused for an offence under Section 182 IPC, which also was
negatived. Thereafter he had approached the Superintendent of Police, who has
given him permission to do so and in stead of he giving a complaint to the
Court, had filed the First Information Report to the Inspector of Police,
Grand Bazaar Police Station who registered it as Crime No.408 of 1993 on
01.06.1993 at about 06.30 p.m and investigated the matter and filed the charge
sheet. According to the learned counsel the said procedure has no sanction of
law and the Magistrate taking cognizance on a police report is illegal.
6. Per contra, the learned Additional Public Prosecutor argued that
it is on the observation given by the learned Magistrate to the Inspector of
Police, PCR Cell sought permission to register a case against the accused for
an offence under Section 182 IPC that he shall get the consent of the
Superintendent of Police and filed a complaint with the Inspector of Police,
PCR had done so and therefore, the prosecution is maintainable.
7. I am afraid that I am at a loss to understand as to how the
argument of learned Additional Public Prosecutor is acceptable. Since the
observation of the learned Magistrate cannot supercede or run contra to the
specific provisions of Cr.P.C. Section 195 Cr.P.C clearly mandates that the
concerned Public servant to whom a police complaint has been lodged can either
himself lay a complaint before the Court or his superior officer can file a
complaint before the Court. He cannot be asked to give a complaint before any
police officer to investigate the matter and file the charge sheet.
8. In support of this, the learned counsel for the petitioner would
place before me a decision of the Apex Court reported in Daulat Ram Vs. State
of Punjab (1962 (2) Crl.L.J. 286), wherein the facts are more are less
identical to that of the present one. In the said case a complaint was given
to the Tahsildar, who found the complaint to be false and the Tahsildar in
stead of filing a complaint to the Court had filed a complaint against the
appellant to the police officer and he in turn had filed a charge sheet.
9. The Apex Court in the said situation has held as follows:
It was therefore incumbent, if the prosecution was to be launched,
that the complaint in writing should be made by the Tahsildar as the public
servant concerned in this case. On the other hand what we find is that a
complaint by the Tahsildar was not filed at all, but a charge sheet was put in
by the Station House Officer. The learned counsel for the State Government
tries to support the action by submitting that S.195 had been complied with
inasmuch as when the allegations had been disproved, the letter of the
Superintendent of Police was forwarded to the Tahsildar and he asked for a “a
calender”(sic). This paper was filed along with the charge sheet and it is
stated that this satisfies the requirements of S.195. In our opinion, this is
not a due compliance with the provisions of that section. What the section
contemplates is that the complaint must be in writing by the public servant
concerned and there is no such compliance in the present case. The cognizance
of the case was therefore wrongly assumed by the court without the complaint
in writing of the public servant namely the Tahsildar in this case. The trial
was thus without jurisdiction ab initio and the conviction cannot be
maintained.
10. Therefore, in terms of Section 195 Cr.P.C, it is that Public
servant or his superior officer who should give a complaint before the Court
to take cognizance. Therefore, a police officer of a different police station
before whom the PCR Inspector has given a report, filing a charge sheet is
illegal and consequently, the entire proceedings are illegal and the
conviction and sentence has to be necessarily set aside.
In the result, the revision is allowed. Fine amount, if any,
paid shall be directed to be refunded to the petitioner.
Csh
Index:Yes
Internet:Yes
To
1.The Principal Sessions Judge, Pondicherry.
2.The Chief Judicial Magistrate, Pondicherry.
3.The Public Prosecutor, Pondicherry.
4.The Station House Officer,
Grand Bazaar Police Station, Pondicherry.