{"id":53335,"date":"2004-01-21T00:00:00","date_gmt":"2004-01-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-k-g-selvarajan-vs-state-on-21-january-2004"},"modified":"2014-11-30T07:37:19","modified_gmt":"2014-11-30T02:07:19","slug":"m-k-g-selvarajan-vs-state-on-21-january-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-k-g-selvarajan-vs-state-on-21-january-2004","title":{"rendered":"M.K.G. Selvarajan vs State on 21 January, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
M.K.G. Selvarajan vs State on 21 January, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 21\/01\/2004\n\nCORAM\n\nThe Honourable Mr. Justice V. KANAGARAJ\n\nCrl.O.P. No.20810 of 2003\nand\nCrl.M.P. No.5935 of 2003\n\n\nM.K.G. Selvarajan                                      ... Petitioner\n\n-Vs-\n\nState, rep. by the Deputy\nSuperintendent of Police,\nCrime Branch, C.I.D., Metro,\nChennai - 600 002.                                      ... Respondent\n\n\n        Petition filed under Section 482 of the  Code  of  Criminal  Procedure\npraying for the relief as stated therein.\n\nFor Petitioner :  Mr.  N.R.  Elango\n\nFor Respondent :  Mr.  A.N.  Thambidurai,\n                Govt.  Advocate (Crl.  Side)\n\n:O R D E R\n<\/pre>\n
                The above Criminal Original Petition has been filed praying to
\ncall for  the  records  in  C.C.    No.9 of 2001 on the file of the Court of I
\nAdditional Sessions Judge, City Civil Court, Chennai, and quash the same.\n<\/p>\n
                2.  Tracing the history of the case, it comes to be known that
\nthe petitioner was working as a Senior Bailiff in the City Civil Court  during
\nthe year 1994; that on a complaint filed by the Registrar, Small Causes Court,
\na case was  registered  by  the respondent-police in C.B.  C.I.D.  Metro Crime
\nNo.7 of 1997 and a charge sheet was filed  for  an  offence  punishable  under
\nSections  466,  471  read  with  466,  147,  451,  42 7 read with 120-B I.P.C.
\nagainst eleven accused, including the petitioner; that the petitioner is  said
\nto  have  committed offences punishable under sections 147, 451, 380, 466, 471
\nread with 466 I.P.C.; that in the very same crime number, another final report
\nwas filed citing the petitioner and  another  as  accused  alleging  that  the
\npetitioner  had  committed  an  offence  punishable  under  Section  7  of the
\nPrevention of Corruption Act on the ground that the  accused  evicted  one  S.
\nShanmugasundaram  illegally  from door No.17\/1, Thakkudin Khan Bahadur Street,
\nTriplicane, and also obtained signatures of two persons  by  name  Ramesh  and
\nKumar  as  witnesses  for  delivery  of  possession through one Babu; that the
\nrespondent,  before  filing  the  charge  sheet,  obtained  the  sanction  for
\nprosecuting  the  petitioner  from  the  Appointing  Authority  under  section
\n19(1)(c) of the Prevention  of  Corruption  Act,  1988  and  no  sanction  was
\nobtained  under  Section  197  Cr.P.C.; that taking cognizance of the offences
\nunder the Indian Penal Code against the petitioner is not  valid  in  law  and
\nhence he would seek for the relief extracted supra.\n<\/p>\n
                3.   The  complaint against the accused is that on 24.12.1993,
\nthe  petitioner  as  the  Senior  Bailiff,  while  executing  the  Warrant  of
\npossession  at  No.17\/2,  Thakkudin  Khan  Bahadur  Street, Triplicane, in his
\nofficial  capacity  as  public  servant,  with  an  intention  to  get  bribe,
\nrepresented  to  A.2  Hussain, with whom the possession has to be handed over,
\nthat he could not execute the warrants immediately; that thereafter, the  said
\nHussain  took  the  petitioner  inside  the  house and gave him Rs.10,000\/= as
\ngratification to evict one Shanmugasundaram from  the  said  house;  that  the
\npetitioner  ordered  forcible  eviction  of the said Shanmugasundaram from the
\nhouse bearing door No.17\/2 and hence, committed an  offence  punishable  under
\nSection 7 of the Prevention of Corruption Act, 1988.\n<\/p>\n
                4.   The case of the petitioner is that based on the complaint
\nof the Registrar, Small Causes Court, Chennai, a case was  registered  by  the
\nrespondent  for offences punishable under Sections 120-B, 147, 341, 4 47, 448,
\n427, 380, 161, 193, 196 and 199 IPC and a final  report  has  been  filed  for
\noffences punishable  under  Sections  466,  471 r\/w.  466, 1 47, 451, 427 r\/w.
\n120-B IPC against 11  accused,  including  the  petitioner.    The  petitioner
\nfurther  submits  that in the very same Crime number, another final report has
\nbeen filed citing the petitioner  and  another  as  accused  for  the  offence
\ncommitted under Section 7 of the Prevention of Corruption Act.  The contention
\nof  the  petitioner  is  that both the two charge sheets have been laid in the
\ncase registered in one and the same Crime No.7\/97, the first one by the  Crime
\nBranch  CID,  Metro Wing taking up the investigation and the second one by the
\nHigh Court Vigilance Inspector of Police attached to the High Court Vigilance.\n<\/p>\n
        5.  During arguments, the learned counsel appearing for the petitioner
\nwould also cite the following judgments reported in\n<\/p>\n
        (i) 2000 SCC (Cri) 1202 (Surendra  Pandey  v.    State  of  Bihar  and
\nothers)\n<\/p>\n
        (ii) 2000  SCC  (Cri) 872 (Gauri Shankar Prasad v.  State of Bihar and
\nanother)\n<\/p>\n
        (iii) The Bombay Law Reporter 660 (Natwarlal Sakarlal  Mody  v.    The
\nState of Bombay)\n<\/p>\n
        (iv) AIR 1999 SC 2405 (State of Kerala v.  V.Padmanabhan Nair)<\/a>\n<\/p>\n
        (v) 1998  SCC  (Cri)  1(Suresh  Kumar Bhikamchand Jain v.  Pandey Ajay
\nBhushan and others<\/a>)\n<\/p>\n
        (vi) 2000(4) Crimes 152 (SC) (Abdul Wahab Ansari v.   State  of  Bihar
\nand Anr.)<\/a><\/p>\n
        6.   In  the first judgment cited above it is held ‘the act complained
\nof is intrinsically connected with the discharge of the  official  duty.    In
\nthis view  of  the  finding,  it  must  be  held  that Section 197 CrPC.  gets
\nattracted, even if the alleged act was in  excess  of  the  discharge  of  the
\nofficial duty.’<\/p>\n
        7.   In the second judgment cited above it is held that ‘The object of
\nthe section is to save officials from vexatious  proceedings  against  Judges,
\nMagistrates  and  public  servants  but  it is no part of the policy to set an
\nofficial above the common law.  If he commits an offence  not  connected  with
\nhis official duty he has no privilege.’<\/p>\n
        8.  In the third judgment cited above it has been held that ‘ Separate
\ntrial is the rule and joint trial is an exception.’<\/p>\n
        9.   In  the  fourth  judgment cited above it is held that ‘An accused
\nfacing prosecution for offences under the Prevention of Corruption Act  cannot
\nclaim  any  immunity  on  the ground of want of sanction, if he ceased to be a
\npublic servant on the  date  when  the  court  took  cognizance  of  the  said
\noffences.’<\/p>\n
        10.  In the 5th judgment cited above it is held:\n<\/p>\n
“The legislative mandate engrafted in sub-section (1) of Section 197 debarring
\na  court  from taking cognizance of an offence except with a previous sanction
\nof the Government concerned in a case where the acts complained of are alleged
\nto have been committed by a public servant in discharge of his  official  duty
\nor  purporting  to  be  in  the discharge of his official duty and such public
\nservant is not removable from his office save by or with the sanction  of  the
\nGovernment touches  the jurisdiction of the court itself.  It is a prohibition
\nimposed by the statute from taking cognizance,  the  accused  after  appearing
\nbefore  the  court  on process being issued, by an application indicating that
\nSection 197(1) is attracted merely assists the  court  to  rectify  its  error
\nwhere jurisdiction  has  been  exercised which it does not possess.  In such a
\ncase there should not be any  bar  for  the  accused  producing  the  relevant
\ndocuments  and materials which will be ipso facto admissible, for adjudication
\nof the question as to whether in fact Section 197 has any application  in  the
\ncase in  hand.  The question of sanction can be considered at any stage of the
\nproceedings.”\n<\/p>\n
        11.  In the last judgment cited above it is held:\n<\/p>\n
“On a plain reading of the provisions of Section 197 makes  it  crystal  clear
\nthat the Court is prohibited from taking cognizance of the offence except with
\nthe previous  sanction  of  the  competent authority.  There is no requirement
\nthat an accused should wait for taking such plea till the charges are framed.”
\nOn such arguments the learned counsel for the petitioner would pray  to  grant
\nthe relief extracted supra.\n<\/p>\n
        12.   On  the other hand the learned Government Advocate would clarify
\nthat though two different charge sheets one for the IPC offences and the other
\nfor the commission of offence in one and the same crime under  the  Prevention
\nof  Corruption Act, 1988 have been laid by the prosecution, still, it is up to
\nthe trial Court to frame the charges according to the warranting provision  of
\nlaw  and  therefore,  it  is  up  to  the trial Court to frame the charges and
\ntherefore, question of quashing of the charge sheet does  not  arise  at  all.
\nRegarding the  sanction  to be obtained under Section 197 Cr.P.C.  the learned
\nGovernment Advocate would apprise this Court that it is not at  all  necessary
\nin  the  case  of the petitioner and therefore, the sanction was not obtained.
\nOn such arguments the learned Government Advocate would pray  to  dismiss  the
\nabove Criminal Original Petition.\n<\/p>\n
        13.   In  consideration  of  the  facts  pleaded, having regard to the
\nmaterials placed on record and upon hearing the learned counsel for both, this
\nCourt is able to know that mainly on  two  grounds  the  petitioner  has  come
\nforward  to file the above Criminal Original Petition firstly that dual charge
\nsheets have been filed in one and the same crime number for one and  the  same
\noffence,  which cannot be sustained in law since two trials cannot be held nor
\ntwice any accused could be punished for one and the same offence.  The case in
\nhand particularly connecting the petitioner is nothing but one registered  for
\nthe commission of a very serious offence of forging the official documents and
\nmaking  the forged document appears genuine etc., besides obtaining a bribe of
\nRs.10,000\/- for not executing  the  process  of  the  Court  and  to  evict  a
\ndifferent  person  in  order  to  save  the  person  who  is to be evicted, by
\nmanipulation of records wantonly and deliberately by the  petitioner  who  was
\nworking as the Senior Bailiff in the City Civil Court, Chennai during the year
\n1994,  who has been charged for the offence punishable under Sections 466, 471
\nr\/w 466, 147, 451, 427 r\/w 120B  IPC.    among  11  accused  besides  becoming
\npunishable  by  another charge under Section 7 of the Prevention of Corruption
\nAct, 1988 and in fact the competent authority, the Principal  Sessions  Judge,
\nCity  Civil  Court,  Madras  has  accorded  sanction  for the petitioner to be
\nprosecuted under Section 19(1)(c) of the  Prevention  of  Corruption  Act  and
\ntherefore,  the  second  contention  of  the  petitioner  is that the sanction
\naccorded by the competent authority is only pertaining to the case  registered
\nagainst  the  petitioner  under  the  penal  provisions  of  the Prevention of
\nCorruption Act, 1988 and the same cannot be  taken  for  granted  serving  the
\npurpose  for  prosecuting  the  petitioner  under the other IPC Sections noted
\nabove and it is incumbent on the part of the prosecution  to  obtain  sanction
\nunder Section  197  Cr.P.C.  so far as prosecution of the petitioner under the
\nI.P.C.  Sections are concerned since he  is  a  Government  servant  protected
\nunder the said provisions of law.\n<\/p>\n
        14.   No  doubt,  Section 197 is designed for affording protection for
\nPublic Servants but not all the public servants and not in every act  indulged
\nin by  a  public  servant.   Limitations are there in this regard, firstly the
\nSection is applicable only to a Judge or a Magistrate or a public servant  not
\nremovable  from  his  office  save  by  or with the sanction of the Government
\nagainst the commission of offence while acting or purporting  to  act  in  the
\ndischarge of his official duty.\n<\/p>\n
        15.   First  of  all  plainly  it could be decided that the petitioner
\nbeing the Senior Bailiff is neither a Judge nor a Magistrate nor even a public
\nservant nor removable from his office except by or with the  sanction  of  the
\nGovernment,  he  is a Government Servant who could be removed by the competent
\nauthority.\n<\/p>\n
        16.  At this juncture a little argument  needs  necessary;  that  even
\ndecades back this question of sanction came up, before the Supreme Court based
\non  a  maxim  to the effect that every act done by the Government authority is
\ndeemed to be the act of Government, since he derives the power only  from  the
\nGovernment and  in  his  personal  capacity.   However, the Supreme Court gave
\nclarification and altered the maxim and clarified that in olden days  all  the
\nGovernment  powers  were  heaped together with one or some hands, particularly
\nduring monarchical regime every power had to be derived from  the  Government.
\nBut  now  on  account  of  Legislation  of  laws,  it  cannot be said that the
\ncompetent authority either for appointing  or  for  removal  of  a  Government
\nservant  has  to  derive the power from the Government, but from the enactment
\nand therefore, the maxim could not be applied to cases of such nature as it is
\none in hand.\n<\/p>\n
        17.  The upper forums of law have gone further assessing the merit  of
\nthe cases  falling  under  the protective coverage of Section 197 Cr.P.C.  and
\nultimately settled that the Section is applicable only to  the  commission  of
\nlawful acts committed by the Government servants of that category in discharge
\nof  his lawful duties and therefore, all acts purported to have been done by a
\nGovernment servant cannot be said to be in discharge of his lawful duties  and
\nwherever  acts  with  malicious  intention  have been indulged in particularly
\nwherever malice forms part of the act,  or  such  acts  done  by  a  Judge  or
\nMagistrate  or a Government servant of that category who cannot be removed but
\nby the Government are not  protected  under  Section  197  and  therefore,  no
\nsanction under  this  particular provision of law need be necessary.  In short
\nit is only the lawful acts in discharge of the official  functions  which  are
\nprotected under Section 197 for the prosecution of which sanction is necessary
\nand  not  for  those  acts  purported by the Judge or Magistrate or the public
\nservant in which malice is attached for the prosecution of which  sanction  is
\nnot at all necessary.\n<\/p>\n
        18.   These propositions have been long back held and followed in very
\nmany decisions by the upper forums of law in general  and  by  the  Honourable
\nApex Court  in  particular.    While such being the position of law as per the
\nfirst proposition held regarding  the  status  of  those  who  have  not  been
\nmentioned  in  Section  197  Cr.P.C.,  as perk which it is only the Judges the
\nMagistrates and those public servants who could not be  removed  from  out  of
\nservice,  save by the Government are only entitled to claim the benefit of the
\nsection and not every public servant such as the petitioner who could  not  be
\nsaid  to  be  removed  only  by  the  Government and therefore, sanction under
\nSection 197 is not at all necessary for in the  case  registered  against  the
\npetitioner  since  the Section is not at all meant for such category of public
\nservants like the petitioner who could very easily be removed by the competent
\nauthority who accorded sanction for the prosecution  of  the  case  registered
\nunder  the  provision  of  the  Prevention  of  Corruption  Act that is by the
\nPrincipal Sessions Judge, City Civil Court, Chennai and therefore, needless to
\nmention that the petitioner cannot claim the benefit of  Section  197  Cr.P.C.
\nsince he does not fall within the ambit of the Section.\n<\/p>\n
        19.  Secondly, the act perpetrated by the petitioner even though meant
\nfor discharge of the official duty which has not been done in the legal manner
\nin due  discharge  of  his official duty i.e.  the execution of the process of
\nlaw but deviated from the official and lawful discharge of duties,  since  the
\npetitioner  started  indulging  in  acts  malicious  in  nature, such of those
\ncriminal acts indulged in by the petitioner are not attracted by  Section  197
\nof Cr.P.C.   and in short it could be said that the petitioner is not entitled
\nto seek protection under  Section  197  Cr.P.C.    which  is  meant  only  for
\nprotecting  those  offences  which arise in the course of the discharge of the
\nlawful duties and responsibilities in a lawful manner by  such  of  Government
\nservants covered  under  Section 197 of Cr.P.C.  who could not be removed from
\nout of service save by the Government and  therefore,  the  sanction  that  is
\nsought to be required to have been obtained by the prosecution for prosecuting
\nthe petitioner under the IPC Sections is not at all a requisite in the case in
\nhand since the sanction for the prosecution of a Government servant in general
\nis only required under the provisions of the Prevention of Corruption Act 1988
\nand  since  this  has been complied with, the prosecution of the petitioner in
\nthe manner that it has been dealt with is perfectly right and it is up to  the
\ntrial Court to decide the case on trial.\n<\/p>\n
        20.  Regarding the dual charges alleged to have been placed before the
\ncourt  it  is  not  that the trial Court is going to act upon the said charges
\nsince based on the available materials placed on record  the  lower  Court  is
\nbound  to  frame  the charges based on which alone the trial will commence and
\ntherefore, the filing of the charge by the police is not going to  affect  the
\ncase  in  any  manner  and  therefore,  this  Court does not find any valid or
\ntangible reason to cause its interference into the  ongoing  trial  procedures
\nundertaken by the trial Court and hence the following order:\n<\/p>\n
        In result,\n<\/p>\n
        (i) the above Criminal Original Petition does not merit acceptance for
\nthe  forgoing  reasons  assigned  and  becomes only liable to dismissed and is
\ndismissed accordingly;\n<\/p>\n
        (ii)  consequently,  Crl.M.P.Nos.5932  and  5935  of  2003  are   also
\ndismissed.\n<\/p>\n
gr.\n<\/p>\n
CRL.O.P.No.20810 OF 2003.\n<\/p>\n
V.KANAGARAJ, J.\n<\/p>\n
        Immediately  after  pronouncement  of  the  above  order,  the learned
\ncounsel for the petitioner has a request to be made with the Court  pertaining
\nto  certain  anomalies that may occur if the charge-sheets laid are allowed to
\nremain in the same condition.\n<\/p>\n
                2.  Besides certain vital questions raised have  already  been
\nconsidered and determined by this Court, it is also thought fit to add that in
\nany  event,  any  other such irregularity or error apparent on the face of the
\ncharge-sheet or other vital aspect of the  case  the  petitioner  will  be  at
\nliberty  to raise those points before the Court of trial either at the time of
\nframing of the charges and preliminary questioning or at the appropriate  time
\nduring the course of trial and the trial Court shall entertain such objections
\nand  with  due  opportunity for the other side being heard, shall decide those
\nissues on merits and in accordance with law.\n<\/p>\n
21.1.2004.\n<\/p>\n
Rao<\/p>\n
gr.\n<\/p>\n
V.KANAGARAJ,J<\/p>\n
To\n<\/p>\n
1.  The Deputy Superintendent of Police, Crime Branch,  C.I.D.,  Metro,Chennai\n<\/p>\n
– 600 002.\n<\/p>\n
2.  The I Additional Sessions Judge, City Civil Court,  Chennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.K.G. Selvarajan vs State on 21 January, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 21\/01\/2004 CORAM The Honourable Mr. Justice V. KANAGARAJ Crl.O.P. No.20810 of 2003 and Crl.M.P. No.5935 of 2003 M.K.G. Selvarajan … Petitioner -Vs- State, rep. by the Deputy Superintendent of Police, Crime Branch, C.I.D., Metro, Chennai […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-53335","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.K.G. 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