*HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL REVISION CASE No.1472 of 2010 % 17.09.2010 #Tummala Lakshmana Rao …… Petitioner And: $Sri Sadhu Narayana and 7 others. …..Respondents !Counsel for the Petitioners : Sri Thummala Lakshmana Rao (in person) Counsel for the respondents: Nil < Gist: > Head Note: ?Cases referred: 1. AIR 1966 Supreme Court 523 2. AIR 1914 Lahore 433 3. AIR 1920 Bombay 99 4. AIR 1997 Supreme Court 2102 5. 2009 AIR SCQ 861=AIR 2009 SC 404 6. AIR 1972 Supreme Court 1607 7. 1991 (3) Supreme Court Cases 655 HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1472 of 2010 DATE17.09.2010 Between: Tummala Lakshmana Rao …… Petitioner And: Sri Sadhu Narayana and 7 others. …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1472 of 2010 ORDER : 1. The petitioner seeks to file this revision petition questioning order dated 16.04.2010 passed by the Chief Metropolitan Magistrate, Hyderabad in S.R.No.660 of 2010 refusing to take cognizance of the complaint for offences punishable under Sections 109, 120-B, 166, 167, 193, 196, 199, 200, 217, 218, 219, 415, 420, 500 and 506 IPC and dismissing the complaint under Section 203 Cr.P.C. The petitioner/complainant filed the complaint in the lower court against the respondents 1 to 7 alleging the above offences against them. 2. The petitioner/complainant retired from service as Principal District Judge in the Andhra Pradesh Judiciary. The 1st respondent is the Administrative Officer working in Special Court for Trial of Offences under the S.Cs., and S.Ts., (POA) Act, Anantapur. During the crucial time, he was working as Central Nazir in the District Court, Kadapa. During the same period, the petitioner was working as Principal District Judge, Kadapa District. The 2nd respondent was previously an Advocate practising in this Court and was also Standing Counsel for the High Court of Andhra Pradesh. He is presently Judge of the High Court of A.P. The 3rd respondent has been a Judge in the High Court of A.P. The 4th respondent was formerly the Chief Justice of the High Court of Andhra Pradesh. He is presently a Judge in the Supreme Court of India. The 5th respondent was Judge in the High Court of Andhra Pradesh during the relevant period. Now he is the Lokayukta of the State of Andhra Pradesh. The 6th respondent is presently working as 12th Additional Chief Metropolitan Magistrate at Hyderabad. Formerly during the relevant period mentioned in the complaint, he was the I Additional Judicial Magistrate of the First Class, Kadapa. The 7th respondent is successor in office to the 4th respondent as the Chief Justice of the High Court of Andhra Pradesh. He is now a Judge in the Supreme Court of India. 3. On 27.01.2003 one Judgment Debtor (JDr) in an Execution Petition (EP), by name S.M. Basha was produced in custody after his arrest before the IV Additional Junior civil Judge, Kadapa. While keeping the said JDr in custody of the court, the IV Additional Junior Civil Judge, Kadapa posted the matter to 30.01.2003 for further proceedings in E.P. On 30.01.2003, the JDr was not produced in court by the staff in Central Nazarat of the District Court, Kadapa. According to the petitioner, on 30.01.2003 at about 6.00 p.m, the 1st respondent presented a written report of court Attender by name Venkataswamy on guard duty to the effect that on that day at about 7.00 p.m when the JDr was being taken to answer calls of nature, the JDr escaped from his custody. The petitioner forwarded the said report of the Court Attender to the Police Station and Crime No.19 of 2003 was registered on that report. The petitioner as Unit Head placed the said Attender Venkataswamy under suspension pending departmental enquiry for his negligence. When the petitioner gave show- cause notice to Venkataswamy for launching proceedings for departmental enquiry, Venkataswamy submitted explanation/representation to the effect that the said JDr was not entrusted to his custody, that batta was also not given to him, that one Amin/Bailiff A.V. Ratnam kept warrant in his custody and released the JDr, that as the JDr could not be produced in the Executing Court on 30.01.2003 and as he could not be traced till 3.00 p.m, A.V. Ratnam along with all the Bailiffs came to him and obtained his signature by threat and force on the report which was forwarded to the police by the petitioner, that he was made a scapegoat; and requested the petitioner to revoke suspension order on him. By then, the 1st respondent was transferred from the post of Central Nazir of the District Court, Kadapa and in his place one B.V. Sampath was posted and had taken charge. On direction of the petitioner, B.V. Sampath, Central Nazir verified records and registers and submitted report dated 17.02.2003 to the petitioner. While so, P. Hasnaiah to whom custody of the JDr was said to have been entrusted on 27.01.2003 and Chandra who is other court guard on duty during that period submitted common representation dated 19.02.2003 to the petitioner stating that even though in their ‘C’ book maintained by the 1st respondent it was entered as if custody of the JDr was given to them as court guards, neither the JDr nor diet and watching batta was given to them. After considering the above material, the petitioner came to the conclusion that without entrusting custody of the JDr and also diet and watching batta to court guards, the 1st respondent and the Bailiff released the JDr from custody without order of the Executing Court, and finding the JDr not attending the court till evening of 30.01.2003, they hatched a plan by creating a story as if the JDr had escaped from custody of the court guard Venkataswamy. Thereupon, the petitioner forwarded the entire material to the investigating officer by official memo dated 26.02.2003. 4. The police originally filed charge sheet in Crime No.19 of 2003 against the JDr alone. On 07.04.2003, the investigating officer filed memo before the Magistrate seeking permission for further investigation in that crime and obtained permission for further investigation of the case. After further investigation, the police filed additional charge sheet against A.V. Ratnam, Bailiff and the 1st respondent for offences punishable under Sections 183, 193, 203, 211, 225-A and 406 IPC. After filing of additional charge sheet, the 6th respondent as Magistrate issued non-bailable warrants against the 1st respondent and other accused and they were remanded to judicial custody. The petitioner revoked suspension against Venkataswamy, Attender. The petitioner also transferred the criminal case to the court of Chief Judicial Magistrate, Kadapa. 5. In this background, allegations in the complaint and in sworn statement of the complainant have to be scrutinised. 6. According to the petitioner/complainant, the 1st respondent developed deep animosity against him and in order to cause incalculable harm and injury to the petitioner and to get the criminal proceedings against him quashed by cheating, had entered into criminal conspiracy starting with the 2nd respondent to achieve the said object and that the other respondents have joined the conspiracy and played their respective role at various stages of the conspiracy and committed the above said offences. The 1st respondent filed Criminal Petition No.2627 of 2003 in this court to quash proceedings in C.C.No.2 of 2003 on the file of Chief Judicial Magistrate, Kadapa. The 1st respondent engaged the 2nd respondent as his Advocate to file the said criminal petition. It is contended by the petitioner that the 2nd respondent as Advocate on record/Standing Counsel for High Court of A.P., and subordinate courts represented and defended the petitioner in his capacity as District Judge, Kadapa in Writ Petition No.17998 of 2004 which was disposed of on 24.11.2004. The said fact has absolutely no bearing on the 2nd respondent filing criminal petition on behalf of the 1st respondent, because the above writ proceedings are subsequent to filing of the criminal petition in the High Court of A.P. 7. It is contended by the petitioner that without making him as party to the criminal petition inspite of he being the first informant to the police, the respondents 1 and 2 alleged malaifides and bias against the petitioner in the criminal petition which was signed by the 2nd respondent as Advocate. It is further contended by the petitioner that in the criminal petition, the 2nd respondent on behalf of the 1st respondent made deliberate false statements of facts contrary to record and that the said criminal petition amounts to a declaration within the meaning of Sections 191 and 199 IPC and that therefore, the respondents 1 and 2 are liable for offence punishable under Section 193 IPC. 8. But, the complainant ignored Section 195 Cr.P.C. while accusing the respondents of offences punishable under Sections 193, 196, 199 and 200 IPC. Section 195(1)(b)(i) Cr.P.C. bars taking cognizance of the above offences except on complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. Section 195(1)(b)(i) reads as follows:- “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) -------------------------------------------------------- (b) (i) of any offence punishable under any of the following section 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, ---------------------------------- --------------------------------------------- except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.” Therefore, the petitioner/complainant cannot initiate proceedings in Criminal Court for taking cognizance of the above said offences against any of the respondents. 9. Further grievance of the petitioner is on passing of order dated 19-04-2006 by the third respondent in Criminal Petition No.2627 of 2003, which is a criminal petition filed by the first respondent through the second respondent as his Advocate. It is contended by the petitioner that the said order is with full of factual mistakes and distortions apart from vitiated by corrupt mind. The petitioner also brands proceedings conducted by the 5th respondent as Enquiring Judge against the petitioner in departmental enquiry and also report of the 5th respondent given after departmental enquiry to the High Court, are vitiated by corrupt mind and that the 5th respondent corruptly carried out the same factual errors and distortions contained in order in Criminal Petition No.2627 of 2003 into his enquiry report. On that basis, the petitioner filed the present complaint in the lower Court for offences punishable under Sections 217, 218 and 219 IPC. It is contended by the petitioner, placing reliance on Dr.S. DUTT v. STATE OF U.P.[1] of the Supreme Court that the word ‘corruptly’ is not used in the sense of ‘dishonestly’ or ‘fraudulently’ as defined in IPC and that it does not necessarily include an element of bribe taking and that it is used in a much larger sense as denoting conduct which is morally unsound or debased. I n FASIL AHMED v. EMPERIOR[2], it was observed by the Lahore High Court that the word ‘corruptly’ does not connote a motive necessarily connected with bribery or passing of money as an inducement to use fabricated evidence. I n RAMA NANA v. EMPERIOR[3], it was observed that corrupt motive connotes a desire to screen an offender from legal consequences of his act. 10. When queried as to how a Magistrate can take cognizance of offences punishable under Sections 217, 218, 219, 166 and 167 IPC without previous sanction of the appropriate Government under Section 197 Cr.P.C., the petitioner contended that committing crime is not part of duty of any public servant much less a Judge and that therefore no previous sanction under Section 197 Cr.P.C. is required in this case. The petitioner placed reliance on certain Supreme Court verdicts in this regard. In SHAMBOO NATH MISRA v. STATE OF U.P.[4], the Supreme Court held that fabrication of record and mis-appropriation of public fund is not part of his official duty and that therefore sanction for his prosecution for offences punishable under Sections 409, 420, 465, 468, 477-A and 109 IPC is not necessary. In CHOUDHURYDARY PARVEEN SULTANA v. STATE OF WEST BENGAL[5], the Supreme Court held that if the authority vested in a public servant is mis-used for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered dehors duties which a public servant is required to discharge or perform and that therefore inspite of prosecution for such excess or misuse of authority, no protection can be demanded by the public servant concerned. It was a case relating to prosecution for offences punishable under Sections 384 and 506 IPC. 11. This Court proposes to make distinction between two sets of offences contained in the Indian Penal Code. One set of offences are those which can be committed by any person including a public servant. The second set of offences are those which can be committed by a public servant alone and not by any other person who is not a public servant. In case, a public servant commits an offence covered by the first set, then a debate may arise whether such offence was committed by the public servant in discharge of his official duty or purporting to discharge his official duty, or whether such offence was committed by way of misuse or abuse of his official power as public servant. But, if the public servant is alleged to have committed an offence under the second set of offences, then the above debate may not arise at all. The offences under Sections 217, 218, 219, 166 and 167 IPC are capable of being committed by a public servant alone and not by any other person. In my opinion, such offences, which are capable of being committed by public servants alone and not by others, have to be kept on par with the offences punishable under the Prevention of Corruption Act. When a public servant, which term includes a Judge as per section 21 IPC, is accused of offences punishable under Sections 217, 218, 219, 166 and 167 IPC, then previous sanction of the appropriate Government under Section 197 Cr.P.C. is a mandatory condition precedent for taking cognizance of such offences. In the case on hand, the petitioner did not obtain such sanction from the appropriate Government before seeking the lower Court to take cognizance of the above offences against the respondents 1 to 7, who are all public servants and Judges. 12. In so far as the respondents 4 and 7 are concerned, they had no direct and individual roles to play as against the petitioner. When certain allegations were levelled against the petitioner, the 4th respondent in his official capacity as the then Chief Justice of the High Court of Andhra Pradesh, placed the matter before the Disciplinary Committee. It is the Disciplinary Committee of the High Court which started disciplinary proceedings against the petitioner and which appointed the 5th respondent as the Enquiring Judge against the petitioner and is stated to have accepted report given by the 5th respondent as Enquiring Judge. As successor in office of the 5th respondent, the 7th respondent is stated to have forwarded report of the Enquiring Judge and resolution of the Disciplinary Committee accepting the said report, to the Government of Andhra Pradesh for taking further steps in passing final order in disciplinary proceedings on the petitioner on the basis of the departmental enquiry and report of the enquiring Judge. The 7th respondent had absolutely no role much less individual and personal role vis-à-vis affairs relating to the petitioner. Any action initiated or taken by the High Court in pursuance of resolutions of the Disciplinary Committee of the High Court cannot make either the 4th respondent or the 7th respondent liable personally much less under criminal law. Resolutions of the Disciplinary Committee of the High Court are collective decisions of all members in the Disciplinary Committee and are not individual decisions of the then Chief Justices. 13. Further, the same bar under Section 195 Cr.P.C. is applicable in respect of the alleged offences under Sections 193, 196, 199 and 200 IPC in relation to charges framed in departmental enquiry against the petitioner and also in relation to proceedings before the enquiring Judge. The allegation against the 6th respondent is that he gave false evidence as D.W-1 before the enquiring Judge against the petitioner. It is contended by the petitioner that the 6th respondent as D.W-1 was examined by the enquiring Judge after asking the petitioner to go out of the enquiry place and in the absence of the petitioner. It is further contended by the petitioner that examination-in-chief of D.W-1 as well as cross-examination of D.W-1 was conducted by the same presenting officer. Typing in D.W- 1’s deposition that examination-in-chief was conducted by the presenting officer, appears to be odd. It may be mistake on the part of the Typist by copying and pasting of the previous deposition up to that level. At any rate, this Court cannot comment as to how such mistake had arisen. It may be open to the petitioner to question the departmental proceedings before the appropriate Forum, in case, he is found guilty of the charges in the departmental enquiry and in case, report of the enquiring Judge is furnished to him. 14. When this Court queried as to how there was conspiracy or criminal conspiracy among the respondents 1 to 7 to commit offences against the petitioner, the petitioner contended that the facts that factual misstatements and factual distortions contained in the petition filed by the 2nd respondent on behalf of the 1st respondent in Criminal Petition No.2627 of 2003 were repeated in order passed by the 3rd respondent therein, charges framed by the High Court at the instance of the 4th respondent and enquiry proceedings and report of the 5th respondent, evidence of the 6th respondent as D.W-1 in the departmental enquiry against the petitioner and also in acceptance of report of the enquiring Judge by the Disciplinary Committee under the leadership of the seventh respondent, undoubtedly go to show that there is criminal conspiracy of all the respondents 1 to 7 against the petitioner and that there is meeting of minds of all the respondents 1 to 7. In my opinion, criminal conspiracy among the respondents 1 to 7 cannot be inferred from the above contention put forward by the petitioner. Among the respondents 1 to 7, there are different levels of Ministerial Staff, Advocate, Subordinate Judicial Officer, Judges and Chief Justices of the High Court. Simply because certain alleged factual misstatements are repeated in further proceedings, one cannot jump to the conclusion that there was criminal conspiracy among them. Order dated 19-04-2006 in Criminal Petition No.2627 of 2003 is admittedly on record and till now it is not set aside. It is stated by the petitioner that he took the matter by way of Special Leave Petition to the Supreme Court and that it is pending in the Supreme Court. Till order in Criminal Petition No.2627 of 2003 is not set aside and is on record, naturally all further proceedings would quote the said order and would be based on the said order. From that fact, inference of criminal conspiracy cannot be made. Further, there is no material placed by the petitioner to show that there was any abetment by any of the respondents to any other respondents or circumstances to infer the same. In that view of the matter, Sections 109 and 120-B IPC could not be prima facie, made out by the petitioner. 15. It is contended that order in Criminal Petition No.2627 of 2003 passed by the 3rd respondent contained defamatory remarks made against the petitioner behind his back and that in subsequent official memos issued by the High Court to the petitioner and the enquiry proceedings before the 5th respondent repeated those defamatory remarks against the petitioner. It is further contended by the petitioner that application of any exceptions to Section 499 IPC would arise only if any of the respondents 1 to 7 in their defence plead such exceptions and that then it would be a matter for trial, as burden to prove the exceptions is on those respondents who take shelter under any of the said exceptions. No doubt, any consideration of exceptions to Section 499 IPC at this stage would be premature. It has to be seen whether there are any prima facie defamatory statements made by any of the respondents 1 to 7 against the petitioner. In order to constitute defamation, there must be imputation harming reputation of the petitioner. Simply because there are certain alleged wrong statement of facts or distortion of events in a judicial pronouncement and in certain official memos and departmental proceedings initiated on the basis of the said judicial pronouncement, such factual misstatements or distortions would not amount to defamation, as there are no imputations as such against the petitioner much less harming reputation of the petitioner. Harming future career of the petitioner cannot be synonymous to harming reputation of the petitioner. Therefore, this court finds that the petitioner has failed to make out offence of defamation punishable under Section 500 IPC as against any of the respondents 1 to 7. Adverse remarks if any passed against the petitioner and contained in order dated 19.04.2006 in Criminal Petition No.2627 of 2003, are subject-matter of the proceedings before the Apex Court as the said order is questioned in that court and which proceedings before that court are stated to be pending. 16. It is contended by the petitioner that order dated 19.04.2006 passed in Criminal Petition No.2627 of 2003 is the result of offence of cheating as defined in Section 415 Cr.P.C and punishable under Section 420 Cr.P.C committed by the respondents 1 to 3. When admittedly the said order is pending in appeal before the Supreme Court and when that order has not become final and when the matter is subjudice before the Supreme Court, it cannot be contended that the said order is the result of alleged cheating committed by the respondents 1 to 3. 17. In so far as offence punishable under Section 506 IPC is concerned, there is absolutely no allegation by the petitioner that any of the respondents 1 to 7 personally intimated the petitioner much less there was any criminal intimidation by any of them against the petitioner personally. There were absolutely no threats directly by any of the respondents 1 to 7 to the petitioner. In that view of the matter, the petitioner could not make out offence under Section 506 IPC prima facie in this case. 18. In Dabendra Nath Bhattacharyya v. State of W.B,[6] the Supreme Court considered scope of enquiry under Section 203 Cr.P.C and laid down as follows:- “( 7 ) IT has to be remembered that an order of dismissal of a complaint under Section 203, Criminal Procedure Code has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceedings further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full