IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.4002 of 2008 1.S.Rajanikanth 2.S.Sengodi ... Petitioners/Accused Vs. 1.State by Station House Officer B1, North Beach Police Station Chennai 2.Tmt.C.Thirumagal ... Respondents/Complainant 2nd Respondent impleaded as per the order of this Court dated 9.4.2011 in MP.No.1/11 in Crl.OP.No.4002/08. Petition filed under Section 482 Cr.P.C, to call for the entire records connected with Cr.No.80 of 2008, on the file of the respondent herein and quash the same. For Petitioner : Mr.R.C.Paul Kanagaraj For Respondents : Mr.I.Paul Nobel Devakumar Additional Public Prosecutor for R1 Mrs.C.Vijayalakshmi for R2 ----- O R D E R The petitioners, who figure as Accused Nos.1 and 2 in Crime No.80 of 2008 registered on the file of B1, North Beach Police Station, Chennai based on the complaint of Tmt.C.Thirumagal, the then VII Metropolitan Magistrate, George Town, Chennai (the second respondent herein), have filed this petition invoking the inherent powers of this Court under Section 482 Cr.P.C to call for the entire records of the said crime number and quash the same. 2. The brief facts leading to the filing of the criminal original petition are as follows: (i)Thiru.Narendira Modi, Chief Minister of Gujarat made a visit to Chennai on 14.01.2008. On 12.01.2008 at about 09.30 p.m Thoufeek and Vetriveerapandian were arrested under Section 151 https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C r/w. Section 7(1)(a) of Criminal Law Amendment Act along with others and were remanded to judicial custody on their production before the concerned Metropolitan Magistrate. Though the Gujarat Chief Minister, on completion of his visit to Chennai, safely returned back to Gujarat on 14.01.2008 itself, the above said persons could not present their bail application before 21.01.2008, since the courts had been closed for Pongal holidays between 12.01.2008 and 20.01.2008. On 21.01.2008, an application for bail was filed as Crl.M.P.No.146 of 2008 on the file of VII Metropolitan Magistrate, George Town, Chennai. The learned VII Metropolitan Magistrate, Chennai, without taking up the bail petitions for disposal reposted the bail petition to 24.01.2008. The representation made by their counsel for the disposal of the said petition immediately proved to be futile. Therefore, a petition was filed in this Court in Crl.O.P.No.1257 of 2008 under Section 482 Cr.P.C invoking the inherent powers of the High Court, for necessary direction for the early disposal of the bail petition. By an order dated 22.01.2008, this Court directed the learned VII Metropolitan Magistrate to advance the hearing of Crl.M.P.No.146 of 2008 to 23.01.2008 and dispose of the same on the same day. The learned VII Metropolitan Magistrate, after hearing dismissed the said bail petition, namely Crl.M.P.No.146 of 2008. Thereafter, the Sessions Court was moved under Section 439 by filing a bail petition in Crl.M.P.No.709 of 2008 on 24.01.2008. The learned Principal Sessions Judge, Chennai passed an order on 25.01.2008 in the said petition directing release of the above said persons on bail subject to certain conditions. The operative portion of the said order reads as follows:- "Considering the entire facts and circumstances of the case, this Court is inclined to grant bail to the petitioners subject to the following stringent conditions:- 1)The petitioners are ordered to be released on bail on their executing a bond for Rs.5000/- each with two sureties each for a likesum to the satisfaction of VII Metropolitan Magistrate, Chennai. 2)The petitioners shall not indulge in any unlawful activities causing harm to the public or creating any law and order problem. 3)The petitioners are directed to report before the said Magistrate daily twice at 10.30 a.m and 04.30 p.m until further orders." (ii) Along with the copy of the bail order, bail bond and other surety papers were produced before the learned VII Metropolitan Magistrate in the open Court at 10.30 a.m on 28.01.2008. The second petitioner Ms.S.Sengodi, who was one of the counsel on record for the petitioners in the bail application Crl.M.P.No.709 of 2008 on the file of the learned Principal Sessions Judge, Chennai presented those papers for acceptance. It seems there was some scuffle between the second petitioner and the learned VII Metropolitan Magistrate, pursuant to the insistence on the presence of the petitioners, namely the first petitioner herein. At about 04.30 p.m, the first petitioner Rajanikanth, who https://hcservices.ecourts.gov.in/hcservices/ had been engaged in the High Court in other matters, went to the Court of the VII Metropolitan Magistrate. Pursuant to some kind of exchange of words between the advocates including the first and second petitioners herein and the learned VII Metropolitan Magistrate, George Town, Chennai, the second respondent, who was the then VII Metropolitan Magistrate lodged a complaint with B1 North Beach Police Station on 30.01.2008 containing the following allegations against the petitioners herein:- "On 28.01.2008 at 04.30 p.m while I am on the dies conducting Judicial proceedings one Rajinikanth Advocate Madras High Court Bar Association along with one lady Chenkodi who is also an advocate practicing at Madras High Court along with 40 to 50 persons entered the court Hall and threatened me that he is going to file private complaint against me under section SC/ST Act and Pc.R.Act and used filthy and unparlimentary words as well as he called me as tho. ngho. eP vd;do bra;nt vd;W xUikapy; ngrp if ePl;o ehd; cd;d vd;d bra;fpnwd; ghh; vd;W kpul;odhh;/ They disturb the court work. The Advocate who were present has taken him away. Hence action should be taken against the above said two Advocates Rajinikanth and Chenkodi lady advocate. " Based on the said complaint, the first respondent registered a case in Cr.No.80 of 2008 against the petitioners herein for alleged offences punishable under Sections 294(b), 353, 506(ii) IPC and Section 4 of Women Harassment Act. 3. The said First Information Report is sought to be quashed on the following grounds: 1)The allegations found in the First Information Report, even if they are taken at their face value, do not prima facie constitute any offence or make out a case against the petitioners herein; 2)The allegations found in the complaint and other materials do not disclose the commission of a cognizable offence by the petitioners herein; 3)The allegations found in the First Information Report are so absurd and inherently improbable and on the basis of the said allegations no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the petitioners herein; 4)The criminal proceedings initiated against the petitioners is manifestly attended with mala fide and the proceedings has been instituted with an ulterior motive with a view to spite the petitioners due to private and personal grudge; 5)There was a delay of more than two days in lodging the complaint; 6)No averment showing any misdemeanor on the part of the second petitioner has been made and still she has been arraigned as an accused; and 7)The second respondent / defacto complainant having chosen to initiate proceedings under Section 345(1) https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C against the first respondent regarding the very same occurrence ought not to have chosen to file the complaint leading to the registration of the First Information Report and the criminal proceedings initiated by the registration of the First Information Report would offend the constitutional protection given against double jeopardy. 4. This petition was originally filed against the first respondent alone. Since the learned counsel for the defacto complainant who entered appearance in the connected Crl.O.P.No.4003 of 2008 raised an objection regarding the maintainability of the petition without making the defacto complainant a party respondent, the petitioners filed M.P.No.1 of 2011 and by an order of this Court dated 09.04.2011, the defacto complainant was impleaded as second respondent in this petition. After impleadment, the second respondent entered appearance through Ms.C.Vijayalakshmi. No counter statement or counter affidavit was filed on behalf of the first respondent and the second respondent (defacto complainant) alone filed a counter affidavit containing the following averments:- 1)Soon after the dismissal of the bail petition on 25.01.2010, Thiru.Rajanikanth, the first petitioner herein got wild and made a threat to file a private complaint against the second respondent under SC/ST Act; 2) The very act of the first petitioner in telling on the face of the judicial officer while sitting in a judicial proceedings in the open Court that a private complaint would be filed against her and a private affidavit would be filed amounts to contempt of Court; 3)The second respondent after witnessing the said contemptuous act on the part of the first petitioner herein without uttering anything simply got down from the dais and retired to her Chambers; 4)On 28.01.2011 at 11.00 a.m. the second petitioner Ms.Sengodi, lady advocate, produced the bail papers including the surety bond for acceptance and that juncture, the second respondent informed the said lady advocate that the first petitioner (Rajanikanth) should appear before the Court of the second respondent and that only on his appearance, the surety papers could be accepted; 5)Since at 03.00 p.m also the first petitioner was not present, the second respondent asked the second petitioner to direct the first petitioner to come to that Court; 6)Excepting referring to the first petitioner as "that advocate – me;j ml;tnfl;" no unparlimentrary word was used and not even the first petitioner was referred to in singular. But the second respondent retorted by stating that second respondent should not speak disrespectfully. Thereafter, the second respondent asked the second petitioner to wait till she would complete the other https://hcservices.ecourts.gov.in/hcservices/ works. When the surety papers presented by the second petitioner were taken up for verification, after verification of other surety papers, the second petitioner refused to respond. 7)Even after the other advocates advised her not to behave in such a manner in the Court, the first petitioner replied them that she need not beg like others for orders, pursuant to which the other advocates, more than 10 in number, surrounded her and asked about the propriety of such a behaviour on the part of the second petitioner. 8)After verification of the sureties, the second respondent requested her clerk Mohan to pacify the advocates and bestowed her concentration in other cases. At that juncture, the petitioners 1 and 2 accompanied by 40 to 50 persons entered the Court hall and uttered contemptuous and unparlimentary words against the second respondent, besides committing contempt by showing gestures. Even, the attempt made by other advocates to get the first petitioner away from the Court was unsuccessful. 9)As the situation became uncontrollable, the second respondent got down from the dais because of the disruption and obstruction caused to the Court proceedings by the petitioners. The said act of contempt was committed by the petitioners along with 40 to 50 persons, out of whom some were not even advocates. Under such circumstances alone, the second respondent preferred a police complaint, that too as per the advice given by the President and Secretary of the Judicial Officers' Association. In addition, since the occurrence took place in the Court while the second respondent was conducting judicial proceedings, the provision under Section 345 for contempt was invoked apart from the complaint. 10)The second respondent did have no personal enmity or grudge against the petitioners and on the other hand, the petitioners alone had such ill feeling against the second respondent, a judicial officer since she did not grant bail for the clients of the petitioners. The act of the petitioners collecting a mob of 40 – 50 persons and entering the Court hall without resorting to preferring of a complaint to the higher authorities, was a real threat to the judicial officer. Except uttering the words "me;j ml;tnfl;il tur;brhy;.@ not even a single word was spoken against the petitioners who are advocates and on the other hand, the petitioners had caused insult to the second respondent in the presence of the Court staff, other advocates and litigant public. Because of the insult, the second respondent was not able to carryout her usual duties in a peaceful manner. The same was the reason why she preferred a criminal complaint against the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 5. The arguments advanced by Mr.R.C.Paul Kanagaraj, representing the counsel for petitioners, by Mr.I.Paul Nobel Devakumar, learned Additional Public Prosecutor representing the first respondent and by Mr.R.Margabandhu representing the counsel on record for the second respondent were heard. The affidavit filed in support of the petition, counter affidavit of the second respondent and other documents produced on both sides in the form of typed-set of papers were perused and this Court paid its anxious considerations to the materials found therein and the submissions made on either side. 6. The present petition has been filed invoking the inherent powers of the High Court under Section 482 Cr.P.C for quashing the FIR in Crime No.80 of 2008 on the file of B1, North Beach Police Station, Chennai. The said case was registered based on the complaint of the second respondent dated 30.01.2008. A copy of the FIR is available at pages 25 to 27 of the typed-set of papers field by the petitioners along with the petition. The second respondent (de-facto complainant) is none other than the Judicial Officer, in whose presence and within the court in which she was presiding, the alleged offences were committed. The act of setting law in motion by preferring a complaint to the police, based on which the impugned FIR was registered, is challenged as abuse of process of law and as a preemptive measure taken by the Judicial Officer. The first information report is sought to be quashed also on the ground that since the de-facto complainant is a Judicial Officer, the police without application of mind and blind- foldedly registered a case for offences under Sections 294(b), 353 and 506(ii) IPC and Section 4 of Women Harassment Act, not only against the first petitioner but also against the second petitioner against whom there is no material for making out a prima facie case. So far as the first petitioner is concerned, the contentions of the petitioners is that the registering of the first information report amounts to an invasion of the constitutional protection against double jeopardy in addition to the same being malafide and abuse of process of law. In short, the first information report is sought to be quashed on the following grounds: i) Abuse of process of law, ii) Violation of constitutional protection against double jeopardy so far as the first petitioner is concerned; and iii) No material to make out even a prima facie case against the second petitioner. 7. Let us take up the above said grounds in the reverse order for the sake of convenience. The FIR registered against the second petitioner is sought to be quashed on the ground that the entire allegations found in the complaint and the papers produced along with the complaint to the police for the registration of the case do not make out even a prima facie case against the second petitioner and hence the FIR in Crime No.80/2008 should be quashed https://hcservices.ecourts.gov.in/hcservices/ so far as the 2nd petitioner is concerned. The entire allegations made in the complaint that are incorporated in the first information report do not contain any incriminating material against the second respondent Ms.S.Sengodi, who is also a practising advocate. Though the entire complaint allegations have been extracted in an earlier paragraph, for the sake of convenient reference, the same is again reproduced at the cost of repetition:- "On 28.01.2008 at 04.30 p.m while I am on the dies conducting Judicial proceedings one Rajinikanth Advocate Madras High Court Bar Association along with one lady Chenkodi who is also an advocate practicing at Madras High Court along with 40 to 50 persons entered the court Hall and threatened me that he is going to file private complaint against me under section SC/ST Act and Pc.R.Act and used filthy and unparlimentary words as well as he called me as tho. ngho. eP vd;do bra;nt vd;W xUikapy; ngrp if ePl;o ehd; cd;d vd;d bra;fpnwd; ghh; vd;W kpul;odhh;/ They disturb the court work. The Advocate who were present has taken him away. Hence action should be taken against the above said two Advocates Rajinikanth and Chenkodi lady advocate. " There is not even a single averment, excepting a general statement viz. "they disturb the court work", against the second petitioner Sengodi alleging any overt act attracting the penal provisions under sections 294(b), 353 and 506(ii) IPC and Section 4 of Women Harassment Act for which crime No.80/2008 on the file of B1 North Beach Police station was registered under the impugned FIR. A careful reading of the FIR will show that the second respondent made an allegation that the first petitioner, along with the second petitioner and accompanied by 40 to 50 persons, entered the court hall at 4.30 p.m on 28.01.2008 and the first petitioner threatened the second respondent by stating that he was going to file a private affidavit (complaint) against the second respondent for offences under the provisions of the SC/ST Act and Protection of Civil Rights Act. The further allegation is to the effect that he alone behaved in unruly manner by pointing his finger against the second respondent and by referring to her in the singular with unparliamentary addressing words like "tho. ngho. eP ". The entire allegation found in the first information report, as rightly pointed out by the learned counsel for the petitioners, do not make out even a prima facie case against the second petitioner Ms.S.Sengodi for any of the above said offences for which the case was registered. It is pertinent to note that section 147 IPC was not invoked so that the second petitioner may be held responsible for the alleged act of the first petitioner by virtue of section 149 IPC. When such is the nature of allegations against the second petitioner, this court has no hesitation to come to the conclusion that the criminal proceedings initiated against the second petitioner by registering the impugned FIR naming her as an acused is liable to be quashed. As rightly pointed out by the learned counsel for the petitioners, the Station House Officer, who registered the case, acted mechanically without even considering https://hcservices.ecourts.gov.in/hcservices/ whether there is prima facie material against the second petitioner to include her name in the array of accused persons and make her a named accused. Since the last sentence of the complaint is to the effect that action should be taken against the advocates Rajanikanth and Sengodi, the petitioners herein, the Station House Officer seems to have acted blind-foldedly in registering the case for the above said offences showing the second petitioner also as a named accused, ignoring the fact that sufficient averments had not been made against her. 8. The next ground of attack is on ground of violation of the protection against double jeopardy. 9. Article 20(2) of the Constitution of India guarantees the right against double jeopardy in the following terms:- "No person shall be prosecuted and punished for the same offence more than once." The same has been given effect to in Section 300 of the Criminal Procedure Code, 1973. The protection given in Section 300(1) is even wider than the protection found in Article 20(2) of the Constitution of India. For better appreciation, Section 300(1) is reproduced hereunder:- " A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof." Relying on the said provisions, the learned counsel for the petitioners has contended that the launching of the criminal proceedings by the registration of the FIR against the first petitioner is violative of the above said constitutional provision as well as the provision found in the Criminal Procedure Code, since the very same act, the first petitioner was proceeded with summarily by the de-facto complainant herself as the Presiding Officer of the court for an offence under Section 228 IPC relying on the powers conferred on the court under section 345 Cr.P.C. Admittedly, for the very same acts allegedly committed by the first petitioner and on the very same facts, suo motu criminal proceedings was initiated by the second respondent on 29.01.2011 in Crl.M.P.No.209/2008 for an offence under Section 228 IPC, invoking the powers conferred on the court under Section 345(1) Cr.P.C and the same ultimately resulted in conviction of the first petitioner herein and imposition of a fine of Rs.75/- by an order dated 08.02.2008. We are not concerned with the question whether the https://hcservices.ecourts.gov.in/hcservices/ conviction is sustainable or not. For providing a bar for a subsequent prosecution for the same offence or for any other offence on the same facts, the court which convicted should be a court competent to try the offence for which conviction was recorded. There is no dispute over the competency of the VII Metropolitan Magistrate, George Town, Chennai-1 to initiate proceedings under Section 345(1) Cr.P.C for the alleged acts of intentional insult or use of unparliamentary words against the Presiding Officer or any threat made against the Presiding Officer. When such is the case, we have to see whether the criminal proceedings initiated by the second respondent in Crl.M.P.No.209/2008 ended in conviction or acquittal. 9. In the criminal proceedings initiated by the second respondent as the VII Metropolitan Magistrate, George Town, Chennai an order was passed on 08.02.2008 convicting the first petitioner under Section 345(1) Cr.P.C and imposing a sentence of payment of a fine of Rs.75/- with a default sentence of imprisonment for five days. A copy of the said order has also been produced in Crl.O.P.No.4003/2008 which was heard along with this petition. A perusal of the said order and the impugned FIR will show that the second respondent, as the then VII Metropolitan Magistrate, George Town, Chennai convicted the first respondent for the acts allegedly committed by the first petitioner on 28.01.2008 at 4.30 p.m in the court hall of the second respondent and that on the very same facts the impugned FIR has been registered. A careful consideration of the first information report dated 30.01.2008, which is impugned in this petition, the show cause notice dated 29.01.2008 initiating proceedings under Section 345(1) Cr.P.C in Crl.M.P.No.209/2008 and the order dated 08.02.2008 in the above said petition convicting the first petitioner, as rightly contended on behalf of the petitioners, will go to show that the lodging of the complaint leading to the registration of the impugned FIR after having decided to take summary criminal proceedings under Section 345(1) Cr.P.C on the very same fact, is an indirect way of putting the first petitioner subject to double jeopardy. Of course it is true that on the date of filing of the complaint, namely on 30.01.2008, the summary criminal proceedings initiated in Crl.M.P.No.209/2008 was pending and it did not result in either acquittal or conviction. Therefore, on the date of registration of the impugned FIR in crime No.80/2008, there was no conviction or acquittal for the same offence or for a different offence on the very same facts. Hence strictly speaking, the bar against double jeopardy was not attracted on the date of registration of the FIR in Crime No.80/2008. However, the learned counsel for the petitioners has brought it to the notice of the court that though the bar against double jeopardy was not attracted on the date of registration of the FIR, further proceedings based on the FIR came to be hit by the protection against double jeopardy as soon as the order of conviction was passed by the second respondent on 08.02.2008. Therefore, the contention raised by the learned counsel for the petitioners that the criminal proceedings initiated against the first petitioner by the registration of the impugned FIR became infructuous on the conviction of the first petitioner on