IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.06.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.5945 of 2010 and M.P.No.1 of 2010 K.P.S.Jeyachandran …. Petitioner/Accused Versus State represented by Deputy Superintendent of Police, Erode Town Sub Division, Erode District. (Crime No.167 of 2003) … Respondent/Complainant Criminal Original Petition filed under section 482 of Criminal Procedure Code to call for records in C.C.No.568 of 2008 on the file of the learned Judicial Magistrate I, Erode, Erode District and to quash the same. For Petitioner : Mr.R.Shanmugasundaram Senior counsel for M/s.K.Annadurai For Respondent : Mr.A.Saravanan Govt.Advocate (Crl.Side) ******* O R D E R The petitioner, who is the sole accused in C.C.No.568 of 2008 on the file of the learned Judicial Magistrate I, Erode seeks to quash proceedings in such case. 2.The case in Crime No.167 of 2003 was registered on 28.04.2003 by the Sub-Inspector of Police, Erode North Police Station under Section 174 Cr.P.C. The body of a man aged about 35 years, bearing injuries was found floating in a well. The original investigation in the case was conducted by the Sub-Inspector of Police then attached to such police station. This petitioner upon transfer as Inspector of Police, Erode Town, took charge of the investigation on 29.09.2003, effected alteration of the FIR to reflect Section 302 IPC, recorded statements under Section 164 Cr.P.C. from 5 persons, prepared the toposketch and observation mahazar. https://hcservices.ecourts.gov.in/hcservices/ 3.The petitioner is said to have misconducted himself in the conduct of such investigation and the petitioner was arrayed as the 5th accused in Crime No.167 of 2003. The petitioner had filed a petition for discharge in Crl.M.P.No.415 of 2006 in PRC No.10 of 2005 before the learned Judicial Magistrate I, Erode, which was allowed. Thereagainst, the State preferred a criminal revision in Crl.R.C.No.731 of 2006 and this Court, under order dated 02.07.2008 inter alia has held as follows: "15.As per the above Section, with regard to the facts of this case, it is not possible to say 5th accused has committed the same offence or he abeted or attempted to commit such offence, or committed the offence in the course of the same transaction. Prima facie it appears that the 5th accused cannot be tried along with the other accused in this case. This court also feels that if the 5th accused is tried along with other accused, there is a possibility of prejudice being caused either to prosecution or the defence. 20.In view of the ratio laid down by the Honourable Supreme Court reported in 1978 Crl.L.J.642 and 1994 SCC (Crl.) 772, the committal Court has no power to discharge the accused. The learned Magistrate has no power either to add any one as accused or to delete any one of the accused. Absolutely there is no provision for the accused to file any discharge application before the committal court and for the court to deal with it. It is only either for Sessions Court to discharge the accused or for High Court to quash the proceedings on merits. 21.In the above said circumstances, it is to be held that application filed by respondent/5th accused before the committal court was not maintainable and as such the order of discharge passed by the learned Magistrate is illegal. Therefore, the order passed by the learned Magistrate is liable to be set aside. 22.Though there is an illegality in the order passed by the learned Magistrate by discharging the accused, now this Court having taken the matter and going through records and considering the case on merit and as already held above in paragraph-15, that as per Section 223 Cr.P.C., the 5th accused/respondent herein cannot be charged jointly along with the other accused, this Court exercising its inherent power under Section 482 Cr.P.C as it becomes necessary at this stage in the interest of justice directs the police to file a separate final report against the 5th accused as early as possible and proceed against him according to law." 4.The charge sheet against the petitioner reads as follows: "Charge u/s.218, 465 and 471 IPC https://hcservices.ecourts.gov.in/hcservices/ The accused K.P.S.Jayachandran is the former Inspector of Police of Erode North Police Station and investigating officer in Cr.No.167/2003 of Erode North P.S. That during the course of the investigation in this case from 26.09.03 to 19.06.04, A5 being a public servant entrusted with the work of investigation as Inspector of Police, Erode North Police Station, prepared the statements u/s.161 (3) Cr.P.C. of 1)Shajahan s/o.John Basha 2)Sirajuddin s/o.Abdul Ravuthar 3) V.Subramani s/o.Venkatachalam, 4)Sivaparakash s/o.Arumugam, 5)Karunakaran s/o.Arumugam 6)Nagarajan s/o.Appavu 7)Albert s/o.Antony 8) Subramani s/o.Sadhasivam 9)Sundararajan s/o.Sundaram in a manner which he knew to be incorrect with the intention that the those statements could save the real accused from legal punishment and also knowing that it will thereby to cause loss to Balachandran, Mani and Saravanan, thereby A5 appears to have committed an offence punishable under section 218 IPC. That during the course of the investigation in this case on 04.10.03, A5 being the Inspector of Police in charge of the investigation of this case prepared the observation Mahazar of the scene of occurrence and caused the signature of one A.Nagaraj to be forged in the said observation mahazar and there by A5 appears to have committed an offence punishable under section 465 IPC. That during the course of the investigation in the case A5 being the Inspector of Police in charge of the investigation of this case and knowing that the observation mahazar prepared by him is a forged document dishonestly used the said observation mahazar as a genuine document and sent it to the Hon'ble Judicial Magistrate No.I, Erode as part of the documents pertaining to the case in Erode North P.S. Cr.No.167/2003 and there by A5 appears to have committed an offence punishable under section 471 IPC. Hence the charge. DEPUTY SUPERINTENDENT OF POLICE, ERODE TOWN SUB DIVISION, ERODE." 5.Mr.R.Shanmugasundaram, learned Senior counsel appearing for the petitioner would submit that this petition to quash proceedings would have to be allowed on grounds of (a)non-compliance of mandatory provision of Section 195 Cr.P.C; (b)malafides; (c)on the consideration that in respect of the very same charges, the petitioner stood exonerated in the departmental proceedings. https://hcservices.ecourts.gov.in/hcservices/ 6.Section 195 Cr.P.C. reads as follows: "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 sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) Of any abetment of, attempt to commit, such offence, or (iii) Of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b)(i) of any offence punishable under any of the following sections 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, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of subsection (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: Provided that no such withdrawal shall be ordered if the trial in the court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term “court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from appeal able decrees or sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situate: Provided that- (a) Where appeals lie to more than one court, the Appellate Court of inferior jurisdiction shall be the court to which such https://hcservices.ecourts.gov.in/hcservices/ court shall be deemed subordinate; (b) Where appeals lie to a Civil and to Revenue Court, such court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." 7.Learned Senior counsel for the petitioner would submit that a reading of the charge sheet would show that in effect what the petitioner is accused of is an offence under Section 192 I.P.C. 8.Section 192 I.P.C. reads as follows: "Fabricating false evidence. - Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence"." 9.Learned Senior counsel would submit that as it is the prosecution case that the petitioner prepared false statements of witnesses, and a false observation mahazar forging the signature of a person thereon and sent the same to a Court to be used as genuine. What in actuality is being complained of is offence under Section 192 I.P.C. punishable under Section 193 I.P.C. Section 195 (b) (i) Cr.P.C. provides that in respect of offence under Section 193 IPC, the same be taken cognizance of only upon a complaint in writing of the Court in respect of whose proceedings such offence has been committed or of some other Court to which such Court is sub-ordinate. 10.Learned Senior counsel would state that with the intent of avoiding the procedure and mandatory provisions under Section 195 Cr.P.C., the respondent police have willfully informed of offences under Sections 218, 465 and 471 IPC and failed to register a charge under Section 193 I.P.C. While, it was doubtful that the other offences stood committed, there could be absolutely no doubt that the allegation against the petitioner as found in the charge sheet, if true, would constitute offence under Section 192 I.P.C. punishable under Section 193 I.P.C. 11.Learned Senior counsel drew the attention of this Court to the judgment of the Honourable Apex Court in Basir.Ul.Huq and others v. The State of West Bengal AIR 1953 SCC 293: https://hcservices.ecourts.gov.in/hcservices/ "9.Section 195 Criminal P.C., on which the question raised is grounded, provides inter alia, that no Court shall take cognizance of an offence punishable under ss.172 to 188, Penal Code, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under s.182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred from taking cognizance in respect of those offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made. It was, however, argued that if on the same facts an offence of which no cognizance can be taken under the provisions of s.195 is disclosed and the same facts disclose another offence as well which is outside the purview of the section and prosecution for that other offence is taken cognizance of without the requirements of s.195 having been fulfilled, then the provisions of that section would become nugatory and if such a course was permitted those provisions will stand defeated. It was further said that it is not permissible for the prosecution to ignore the provisions of this section by describing the offence as being punishable under some other section of the Penal Code. 14.Though, in our judgment, s.195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in s.195, Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of s.195 prosecution for such an offence cannot be https://hcservices.ecourts.gov.in/hcservices/ taken cognizance of by misdescribing it or by putting a wrong label on it." 12.Learned Senior counsel also touched upon the decision of the Honourable Apex Court in S.Dutt (Dr) v. State of U.P. AIR 1966 SC 523 which is on similar lines. 13.The other contention of the learned Senior counsel is that Section 195(b)(ii) also would find application in the facts of the case where the petitioner was charged under Section 471 IPC. Learned Senior counsel would submit that once an FIR was registered and investigation was in progress, the Court had over all judicial control over the investigation and as such the documents in respect of forgery which is said to have been committed would have to be read as committed in respect of a document produced or given in evidence in a proceeding in Court. The next ground of contention of the learned Senior counsel is on Rule 141 and 142 of the Police Standing Orders. 14.Rule 141 and 142 of the Police Standing Orders reads as follows: "PSO 141. Personal Investigation.- (1)The Superintendent shall, whenever practicable, personally investigate and superintend the investigation of the following crimes: (i) Dacoity (ii) Highway robbery (iii) Murder (iv) Culpable homicide (v) House-breaking and theft of a specially grave nature (vi) Thefts of a specially grave nature (vii) Any specially serious disturbance or riot (viii) Conspiracy cases (ix) Offences under Sections 400 and 401, Indian Penal Code. (x) Any case of a specially grave nature and (xi) Counterfeits currency notes (xii) Offences under sections 3 and 4 of the P.C.R. Act, 1955. (G.O. Ms.No.718, Judl. 22nd May, 1900 and 917, Judl. 7th June, 1912). (2)In cases of alleged extortion or bribery by a Police Officer, the Superintendent must use his discretion whether to hold a personal inquiry or not, but all really serious cases of this nature should be inquired into either by the Superintendent or his Assistant or Deputy. (3)Immediately on receipt of the first case diary in any of the above cases or after his personal investigation, whichever is earlier, he shall send report in Form No.11 to the Deputy Inspector-General and a copy of it to the Collector. https://hcservices.ecourts.gov.in/hcservices/ Note: (1) Some latitute is permitted as to compliance with this order. For instance, if the guilty persons are known and evidence is at once forthcoming, or if the case comes within its category merely for technical reasons, or, in respect of highway robbery and dacoity, the case is an isolated one, trivial of its kind, in which personal investigation is not likely to be useful or in cases of murder followed by suicide, personal investigation may often be a waste of an officer's time rather than beneficial. (2) All robberies of railway passengers should be regarded as "highway robberies". PSO 142. Divisional Officers – Personal Investigation (1)Divisional Police Officers shall whenever possible investigate cases of the following classes, visiting the scene of crime and superintending the enquiry: (i) Dacoity (ii) Highway robbery (iii) Murder (iv) Culpable homicide (v) All cases of death mentioned under sub-section (3) of section 174 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) (vi) Robbery of over Rs.200 and any case presenting important features (vii) House breaking and theft of specially grave nature (viii) Thefts of a specially grave nature (ix) Any disturbance, or riot or offray of a serious nature (x) Any important or specially grave cases (xi) Counterfeit currency notes (xii) Violence resulting in any grievous hut to Adi-Dravidars (xiii) Rape in which Adi-Dravidars are Victims (xiv) Serious mischief or arson involving properties of Adi- Dravidars (xv) Offences under sections 3 and 4 of the Protection of Civil Rights Act, 1955. They shall investigate important cases of lesser gravity which may occur near their halting places. (2)Immediately on receipt of the first case Diary in any of the above cases or after the personal investigation whichever is earlier, they shall send a report in Form No.13 to the Deputy Inspector-General of Police through the Superintendent and a copy of it to the Collector. NOTE: (1)Some latitute is permitted as to compliance with this order. For instance, if the guilty persons are known and evidence is at once forthcoming, or if the case comes within its category purely for technical reasons, or in respect of highway robbery and dacoity, the case is an isolated one trivial of its kind, in which personal investigation is not likely to be useful or in cases of murder followed by suicide personal investigation may often a waste of an officers time rather than beneficial. https://hcservices.ecourts.gov.in/hcservices/ (2)All cases of suspicious deaths of serious nature should be investigated by superior Police Officers (Divisional Officers or Superintendent of Police) at as early a stage as possible by visiting the scene of offence and sending grave crime reports as required in Police Standing Order Nos. 141 and 142." 15.Learned Senior Counsel submitted that in keeping with such rules, the investigation conducted by the petitioner had been supervised by the Superintendent of Police and the Deputy Superintendent of Police who had filed grave crime reports through the Director General of Police on 22.12.2003 and 23.12.2003. In such reports, no wrong doing or any fault was attributed to the petitioner. Learned Senior counsel further informs that in departmental proceedings conducted against the petitioner, the petitioner stood exonerated. Learned Senior counsel would submit that the malafide against the petitioner stood laid bare by the finding of the Director General of Police in his proceedings Rc.No.AP.I(1)/001091/2008 dated 24.10.2008. 16.In response, Mr.A.Saravanan, learned Government Advocate (Crl.Side) appearing for the respondent submitted that there was no dispute as regards the petitioner having been exonerated on identical charges in the departmental proceedings. Learned Government Advocate (Crl.Side) would refer to the decision of the Honourable Apex Court in Iqbal Singh Marwah and another v. Meenakshi Marwah and another 2005 SCC (Cri) 1101 to inform this Court that the requirement of compliance with Section 195(b)(ii) would arise in a case where the documents forged which is complained of was in custodia legis. Such is not the case here and as such, the provision would not apply in this case. Learned Government Advocate (Crl.Side) submitted that on completion of investigation, charge sheet stands filed and so, the petitioner would have to face trial. 17.I have considered the rival submissions. 18.This Court, given the undisputed position that the petitioner stands exonerated in the departmental proceedings would first touch upon the malice against the petitioner as the same is found unravelled in the proceedings of the Director General of Police, Tamilnadu in Rc.No.AP.I(1)/001091/2008 dated 24.10.2008. The same may be reproduced. "Short title: Public servant – Police Department – Petition of Thiru.K.P.S.Jayachandran, Inspector of Police, District Crime Branch, Villupuram District – Requesting to drop further action on PRs No.37/2005 and 38/2005 u/r 3(b) initiated against him in Erode District – Orders Issued. https://hcservices.ecourts.gov.in/hcservices/ Read: Petition dated 26.05.2008 of Thiru.K.P.S.Jayachandran, Inspector of Police, District Crime Branch, Villupuram District. 2.Letter No.37/Camp/IGP, Crime/2008, dated 30.08.2008 of the Inspector General of Police, Chennai – 32. ***** ORDER: The following charges are initiated against Thiru.K.P.S.Jayachandran, Inspector of Police, District Crime Branch, Villupuram District formerly of Erode District. (1)J2 PR.No.32834/05, u/r 3(a) TNPSS (D&A) rules of SP, Erode. (2)J2 PR.No.52/05, u/r 3(a) TNPSS (D&A) rules of SP, Erode. (3)J1/PR/37/Erode/2005 of the DIG, Coimbatore Range 28.04.05 u/r 3(b) & (4)J1/PR/38/Erode/2005 of the DIG, Coimbatore Range 28.04.2005 u/r 3(b) 2.Thiru.K.P.S.Jayachandran, Inspector of Police, District Crime Branch, Villupuram District in his representation dated 07.03.2005 to the Director General of Police, Tamilnadu alleged that four charge memos were served on him during May 2005, because he had sent a factual report on connivance by certain police officers in running a gambling house to the then Home Secretary on 07.03.2005. The Government had ordered an enquiry by CB CID and in his enquiry report, the ADGP, CB CID observed that: "Thiru.Balasubramanian, IPS, Superintendent of Police, Erode District had failed to exercise proper supervision and to guide his subordinates in their investigation". The Deputy Inspector General of Police, Coimbatore Range dropped two out of four charges against Tr.K.P.S. Jayachandran, Inspector of Police, but the enquiries under Rule charge 3(b) in two PRs were continued. 3.On the representation made by Inspector Jayachandran to me on 26.05.2008, I directed the Inspector General of Police, Crime Branch CID, Chennai to examine the contention of Inspector Jayachandran as to the fact that the charges had been framed wantonly. Accordingly, the Inspector General of Police, Crime Branch CID enquired into the contention of Inspector Jayachandran and found it correct. It also seems extremely strange that in a single month four separate charge memos were served on a single officer. There are clear instructions that wherever possible, a single charge memo should be served after clubbing all the charges. 4.In view of the report of the Inspector General of Police, Crime Branch CID, I order that the charges in PRs 37/2005 and 38/2005 TNPSS (D&A) Rules, 1955 initiated against https://hcservices.ecourts.gov.in/hcservices/ Thiru.K.P.S.Jayachandran, Inspector of Police be dropped forthwith. Sd/-K.P.Jain, Director General of Police." In the above background, this Court has absolutely no doubt that the filing of the charge sheet against the petitioner is nothing but the result of acts of malice. This Court is unable to accept the contention of the