V. RAJARAM versus STATE REPRESENTED BY THE INSPECTOR OF POLICE CBI/SCB
[2019] 14 S.C.R. 977, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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     V. RAJARAM
v.
STATE REPRESENTED BY THE
INSPECTOR OF POLICE CBI/SCB
(Criminal Appeal Nos.1765-1766 of 2019)
  NOVEMBER 26, 2019
     [R. BANUMATHI AND A.S. BOPANNA, JJ.]
Penal Code, 1860: ss.217 and 221 – Prosecution case was
that a group of persons (Accused no.1 to 16) armed with dandas
(sticks) and iron rods trespassed into the newspaper office and
vandalized it and set it on fire – Three employees of the newspaper
office got stuck in the engulfing fire and lost their life –  A1 to A16
were charged under IPC, Explosive Substances Act and Tamil Nadu
Property (Prevention of Damage and Loss) Act – Appellant-accused
No.17 who was the then jurisdictional Deputy Superintendent of
Police was charged for offence under ss.217 and 221 – Case against
the appellant was that he did not take action to prevent the crime
and intentionally disobeyed the directions of law and allowed the
accused to escape from the place of occurrence – Trial court
acquitted the appellant on the ground that on the date of occurrence,
appellant was not the superior officer present at the place of
occurrence and that PW-30-Additional Superintendent of Police was
the superior officer and the bandobust was arranged under the
head of PW-30 – State’s appeal against acquittal – High Court
reversed the acquittal of 9 out of 16 main accused – High Court
also reversed the acquittal of appellant and convicted him under
charged offences – On appeal, held: The evidence on record clearly
showed
that the bandobust at the Newspaper office was posted under
the control of PW-30 and the appellant was acting under the direction
of PW-30 – Evidence on record further made it clear that the
appellant and other police personnel used force to chase away the
agitators – Evidence of PW-2-News Editor and PW-3-Chief
Operating Officer of Newspaper office was to the effect that
appellant immediately responded to them that action would be taken
at once and that he had not received any order from his superiors
which showed that there was no lack of diligence on his part – In
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his evidence, PW-30 did not state anything about the appellant
having disobeyed his orders – s.217 is attracted when there is
disobedience of the direction of law with intention to save the
accused – In a tense situation where there is law and order problem,
normally a superior gives out instructions on how to handle a
situation and the subordinates are expected to carry them out –
Responsibility for the actions lies with the superior –  In the instant
case, there was nothing to show that the appellant disobeyed the
orders of PW-30 who was the officer placed In-charge of the
bandobust nor there was any lack of diligence and inaction on the
part of the appellant to sustain his conviction – On the contrary,
there is clear evidence to show that the appellant and other police
personnel used mild force against the miscreants and thus, chased
them away to prevent any further untoward incident – As regards
conviction under s.221, one of the essential ingredients is the
intentional omission to apprehend a person or intentionally aiding
such person to escape – PW-29-Superintendent of Police and PW-
30 who were present on the spot issued directions and accordingly,
the appellant acted – After the occurrence was over, PW-29 directed
the appellant to search for the accused – Accordingly, the appellant
went in search of the accused and arrested accused No.1 to 4 on
various dates – There is no evidence that  appellant
intentionally
omitted to apprehend the accused on the spot – The view of  trial
court that ingredients of ss.217 and 221 were not made out was
plausible one – High Court ought not to have substituted its views
with the conclusion of the trial court – Conviction of the appellant
not sustainable.
Allowing the appeals, the Court
HELD: 1.  Ex.-P82 is the bandobust duty list as ordered by
PW-29-Superintendent of Police. As per Ex.-P82, police officials
were present at the place of occurrence for bandobust and PW-
30-Additional Superintendent of Police, a superior officer of the
appellant, is mentioned at serial No.1. PW-1-Sub-Inspector of
Police stated that on the date of occurrence, bandobust was under
the leadership of PW-30 who came to the place of occurrence
with striking force and they chased the agitators along with the
appellant. SI-PW-1 stated that about ten persons of Madurai
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Armed Reserve Police Force came in a single vehicle and that
the appellant had asked that the vehicle to be parked away safely
and asked the police force that they should be scattered sparsely
without standing together at one place. In his chief examination,
PW-1 has also stated that all of them along with the appellant and
other police personnel had used force on the agitators and they
chased away the agitators. PW-1 also stated that the appellant
was informing about the development in the place of occurrence
then and there through wireless to PW-29, Superintendent of
Police. As per Ex.-P82 and from the evidence of PW-1, it is seen
that thus the appellant was not the senior most officer present at
the scene of occurrence to issue directions; PW-30 was the higher
officer present there who was to issue directions and the appellant
was to act under the direction and guidance of PW-30.
[Para 24] [992-B-F, H;  993-A]
2. PW-2 was working as News Editor of Dinakaran
Newspaper in Madurai. In his examination-in-chief, he deposed
that he informed about the attack to PW-3, Chief Operating Officer
(COO) of Dinakaran in Chennai and PW-3 requested the police
to give security and stop the attacks.  PW-3 deposed that PW-2
told him that more and more people were entering inside the
office and that PW-2 gave him the telephone number of the
appellant who was standing outside the office and that he (PW-3)
immediately called the appellant over phone and the appellant
told
him that the police were on their way and that action would
be taken immediately.  The evidence of PWs 2 and 3 showed that
the appellant immediately responded to them by stating that action
would be taken at once and that he has not received any order
from his superiors. The evidence of PWs 2 and 3 shows that the
appellant was taking action and there was no lack of diligence on
his part. [Paras 25, 26] [993-B, F-G; 994-B]
3. The evidence of PW-29 and Ex.-P82 clearly show that
PW-30 was the officer In-charge of the security bandobust. The
appellant, who was the Deputy Superintendent of Police at the
relevant time was under the supervision and control of PW-30.
In his evidence, PW-30 has not stated anything about the
appellant having disobeyed his orders. In order to attract the
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ingredients of Section 217 IPC, there should have been
disobedience of the direction of law with intention to save the
accused. In a tense situation where there is law and order problem,
normally a superior gives out instructions on how to handle a
situation and the subordinates are expected to carry them out. If
each subordinate police officer start taking actions on his own
without order from the superior officer, it would lead to chaos
and confusion. Responsibility for the actions lies with the superior:
in the present case, PW-30-Additional Superintendent of Police.
There is nothing on record to show that the appellant disobeyed
the orders of PW-30 who was the officer placed In-charge of the
bandobust nor there was any lack of diligence and inaction on the
part of the appellant to sustain the conviction of the appellant
under Sections 217 IPC and 221 IPC. [Paras 30, 31] [995-G-H;
996-A-D]
4. Insofar as the conviction under Section 221 IPC is
concerned, one of the essential ingredients of Section 221 IPC is
the intentional omission to apprehend a person or intentionally
aiding such person to escape. PW-29-Superintendent of Police
and PW-30-Additional Superintendent of Police who were present
on the spot issued directions and accordingly, the appellant acted.
After the occurrence was over, PW-29 directed the appellant to
search for the accused. Accordingly, the appellant went in search
of the accused and arrested
accused No.1 on 15.05.2007; accused
No.2 on 16.05.2007 and accused Nos.3 and 4 on 10.05.2007.
There is no evidence to show that the appellant intentionally
omitted to apprehend the accused on the spot to sustain the
conviction under Section 221 IPC.[Para 33] [996-G-H; 997-A-B]
5.  When the trial court has recorded the finding that the
ingredients of Sections 217 IPC and 221 IPC are not made out
which is a plausible view, the High Court could not have
substituted its views with the conclusion of the trial court. So far
as the appellant is concerned, the prosecution has not proved
his guilt and the conviction of the appellant cannot be sustained.
The High Court was not right in reversing the order of acquittal
passed by the trial court.  [Para 34] [997-C-D]
Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103; Anvar P.V.
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v. P.K. Basheer and Others (2014) 10 SCC 473 : [2014]
11 SCR 399 ; Shafhi Mohammad v. State of Himachal
Pradesh (2018) 2 SCC 801 ; Sonu alias Amar v. State
of Haryana (2017) 8 SCC 570 : [2017] 8 SCR 151 –
referred to.
Case Law Reference
[2010] 4 SCR 103
referred to
Para 9
[2014] 11 SCR 399
referred to
Para 17
(2018) 2 SCC 801
referred to
Para 17
[2017] 8 SCR 151
referred to
Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.1765-1766 of 2019
From the Judgment and Orders dated 21.03.2019 & 25.03.2019
of the  Madurai Bench of Madras High Court  in Crl.A. (MD) No. 274
of 2011
 B. Balaji (for V. Giri, Sr. Adv.), S. Arun Prakash, M. Mani Kandan,
R. Sudhakaran, M. A. Arunesh, Ankur Prakash, Advs. for the Appellant.
Ms. Sonia Mathur, Sr. Adv., Rajesh K. Singh, Mukul Singh,
Ms. Sadapurna Mukherjee, Sushil Kumar Dubey, Ms. Divya Nair, Anuj
Aggarwal, Puneet Pathak, Arvind Kumar Sharma, Advs. for the
Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. Leave granted.
2. These appeals arise out of the judgment and order dated
21.03.2019 and 25.03.2019 passed by the High Court of Madras at
Madurai Bench in Crl.A. (MD) No.274 of 2011 in and by which the
High Court set aside the order of acquittal passed by the Principal Sessions
Judge, Madurai in Sessions Case No.3 of 2009 and convicted the
appellant-accused No.17 under Sections 217 IPC and 221 IPC and
sentenced him to undergo rigorous imprisonment for one year and four
years
respectively.
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3. Brief facts which led to filing of these appeals are as under:-
On 09.05.2007, the newspaper Dinakaran carried public opinion
results regarding the political heir of the then Chief Minister M.
Karunanidhi which suggested that Mr. M.K. Stalin had greater public
approval as the political successor of M. Karunanidhi than his elder
brother M.K. Alagiri. Protests were staged against the newspaper by
the supporters of M.K. Alagiri before the Dinakaran office. Around
10:00 a.m., about fifty persons led by Saravanan,  Ex-Secy, Volunteer
Wing of DMK came to the office of Dinakaran Newspaper in vehicles
and started causing damage to the glass panes of the office and they
also started breaking the glass doors with wooden logs. PW-30-Selvaraj-
the then Additional Superintendent of Police and the appellant along with
police personnel came to the spot. Under the command, the police present
there including the appellant used force against the agitators and chased
them away. Again, the said Saravanan came with a group of people with
soda bottles and started pelting the same at the office of Dinakaran
Newspaper. The appellant and other police personnel used force and
chased them away. At 11:45 a.m., the supporters gathered before the
office of Dinakaran Newspaper. A group of persons (accused Nos.1 to
16) led by V.P. Pandi, S/o Ponnusamy @ Attack Pandi, came to the
office of the Dinakaran Daily in a white colour Tata Sumo car armed
with dandas (sticks) and iron rods. They trespassed into the office and
set fire to two wheelers parked inside the compound, near the security
office. Thereafter, they vandalised the Dinakaran premises and
proceeded to set on fire the reception area. The private security guards
on duty were no match to resist the mischief and criminal acts of the
miscreants. Three employees of Dinakaran Newspaper-Vinoth Kumar
(Deceased No.1), Gopinath (Deceased No.2) and Muthuramalingam,
security guard, (Deceased No.3) got stuck in the engulfing fire and have
lost their lives in the said incident. On getting information, M.
Balasubramanian, Fire Station Officer (PW-50) along with a team of
fire service personnel and fire engines went to Dinakaran office at 12
noon and took efforts to douse the fire.
4. On the basis of complaint made by SI-Aladiyan (PW-1), on
09.05.2007, FIR was registered in Othakadai Police Station in Cr. No.226
of 2007 at 01:00 p.m. under Sections 147, 148, 449, 436, 302, 307, 332
and 120B IPC, under Sections 4 and 5 of the Explosive Substances Act
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and under Section 4 of the Tamil Nadu Property (Prevention of Damage
and Loss) Act against accused No.1-V.P. Pandi @ Attack Pandi and
others. Lakshmanan, Inspector of Police (PW-70) had taken up the initial
investigation and sent the bodies of deceased persons for post-mortem.
Dr. G. Natarajan (PW-63) who conducted the autopsy opined that the
cause of death of all the deceased is suffocation associated with head
injuries. PW-70 prepared the observation mahazar (Ex.-P181) and Rough
sketch (Ex.-P219). PW-70-Investigating Officer seized the material
objects-broken glass pieces and burnt two wheelers and other material
objects from the scene of occurrence and proceeded with the
investigation.  Investigation of the case was transferred to the CBI as
per notification No.SC/2816-2/2007 dated 10.05.2007 under Section 6
of Delhi Special Police Establishment Act, 1946 issued by the
Government of Tamil Nadu and also notification No.228/25/2007 AVD
II under Section 5 of Delhi Special Police Establishment Act. In pursuance
of these notifications, on 18.05.2007, Cr.No.226 of 2007 of Othakadai
Police Station was transferred to CBI and re-registered as R.C.6/S/
2007/CBI/SCB/Chennai by CBI and taken up for investigation. On
completion of investigation, charge sheet was filed on 06.08.2007 against
seventeen accused persons. A1 to A16 were charge-sheeted for the
offences punishable under Sections 147, 148, 449, 302 read with Section
149 IPC, 436 read with Section 149 IPC
and under Sections 4 and 5 of
the Explosive Substances Act and under Section 4 of the Tamil Nadu
Property (Prevention of Damage and Loss) Act. The appellant-accused
No.17 who was the then jurisdictional Deputy Superintendent of Police
was charge-sheeted for the offences punishable under Sections 217 IPC
and 221 IPC.
5. Accused Nos.1 to 16 were charged under Sections 147, 148,
449, 302 read with Section 149 IPC, 436 read with Section 149 IPC and
under Sections 4 and 5 of the Explosive Substances Act and under Section
4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act.
The appellant-accused No.17 was charged for the offences punishable
under Sections 217 IPC and 221 IPC.
6. On being questioned, the appellant denied the charges and
pleaded not guilty. Upon consideration of evidence, the trial court acquitted
the appellant by holding that the evidence adduced against the appellant
is not sufficient to prove the charges under Sections 217 IPC and 221
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IPC. The trial court noted the submission of the counsel for the appellant
that on the date of occurrence, appellant was not the superior officer
present at the place of occurrence and that PW-30-Additional
Superintendent of Police was the superior officer and the bandobust
was arranged under the head of PW-30. The trial court held that the
prosecution has not proved that the appellant-accused No.17 intentionally
disobeyed the directions of law and intentionally allowed the accused to
escape from the place of occurrence. Insofar as the sanction for
prosecution, the trial court held that the Principal Secretary who issued
the sanction order, was not examined and that the examination of
Balakrishnan, Deputy Secretary (PW-67) is not sufficient to prove the
satisfaction of the Principal Secretary who signed the sanction order-
Ex.-P212.
7. In the appeal preferred by CBI, the High Court reversed the
acquittal and convicted 9 out of 16 main accused under Sections 147,
148, 449, 302 read with Section 149 IPC, 436 read with Section 149
IPC, under Sections 4 and 5 of the Explosive Substances Act and under
Section 4 of the Tamil Nadu Property (Prevention of Damage and Loss)
Act. The High Court also reversed the acquittal of the appellant-accused
No.17 and convicted him under Sections 217 IPC and 221 IPC and
sentenced him to undergo rigorous imprisonment for one year and four
years respectively. The High Court held that it has
been clearly established
through the evidence of T.S. Anbu, Superintendent of Police (PW-29)
that the police pickets, which were posted for protecting the Dinakaran
office, were headed by Selvaraj (PW-30) and assisted by the appellant-
accused-Rajaram, Deputy Superintendent of Police. The High Court
held that from the photographs and video footage, it was noticed that the
appellant was seen going along with accused No.1 and that the appellant
did not take any action to prevent the crime and to apprehend the criminals.
The High Court further held that failure of the CBI to prosecute Additional
Superintendent of Police Selvaraj (PW-30) cannot absolve the appellant
from criminal liability. Observing that the trial court erred in ignoring the
evidence of PW-77-Goutham Roy, Senior Scientific Officer, Central
Forensic Science Laboratory and in discarding the photographs and
videographs, the High Court allowed the appeal preferred by CBI and
reversed the acquittal of the appellant and convicted and sentenced him
to undergo imprisonment as aforesaid. The revision preferred by one
Poongodi, mother of Vinoth Kumar (Deceased No.1) was closed. The
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appellant was questioned on sentence in Crl. A. (MD) No.274 of 2011
i.e. criminal appeal preferred by the CBI. The sentence of imprisonment
was imposed on the appellant in Crl.A. (MD) No.274 of 2011.
8. Mr. V. Giri, learned Senior counsel for the appellant contended
that the High Court has failed to consider that since the Senior Police
Officers viz. Superintendent of Police (PW-29) and Additional
Superintendent of Police (PW-30) were regulating the police bandobust
and giving directions, the appellant cannot be held liable for not preventing
the crime committed by the accused. It was further contended that the
High Court has committed error in relying upon the Compact Discs without
there being any certification as required under Section 65-B of the Indian
Evidence Act to prove the same. Learned Senior counsel further
submitted that PW-27-Annal-Photographer of Nakkeeran Bi-weekly
Magazine who is said to have taken video and the photographs and PW-
28-Oliraja-News-reporter of said Nakkeeran Bi-weekly magazine, have
turned hostile and have not supported the case of prosecution and this
has not been kept in view by the High Court. The learned Senior counsel
contended that the High Court erred in reversing the order of acquittal
of the appellant and the High Court did not keep in view the well settled
principle that generally, order of acquittal shall not be interfered with
unless there is erroneous appreciation of evidence and the judgment of
the trial court
is perverse.
9. Per contra, Ms. Sonia Mathur, learned Senior counsel appearing
on behalf of the respondent-CBI has supported the judgment of the High
Court and submitted that at the relevant point of time when the offence
was committed, the appellant was In-charge of the bandobust duty
from 09:30 a.m. at the Dinakaran Newspaper Building and the appellant
deliberately did not take any action in preventing the mischief and the
criminal acts of the accused.  Drawing our attention to the ingredients of
Sections 217 IPC and 221 IPC, the learned Senior counsel for the
respondent-CBI has submitted that the appellant who was In-charge of
the bandobust could have easily prevented the attack and the arson and
arrested the accused “Attack Pandi” and other accused when they went
about committing the offence. Learned Senior counsel further submitted
that M.O.45-CD and photographs and six Compact Discs (M.Os.49 to
54) were sent to Central Forensic Science Laboratory (CFSL), New
Delhi and the evidence of PW-77-Senior Scientific Officer of CFSL
proves that the photographs and videos in the CD’s are not tampered
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with and while so, the trial court erred in discarding the opinion given by
the Expert. It was submitted that the High Court rightly relied upon
M.O.45-CD and other material objects-Compact Discs and the evidence
of Expert-PW-77 and the High Court rightly held that there was no
tampering of the Compact Discs and the video CD’s in establishing the
role of the accused person and the failure of the appellant in his lawful
duty. Placing reliance upon Sidhartha Vashisht alias Manu Sharma v.
State (NCT of Delhi)(2010) 6 SCC 1, learned Senior counsel submitted
that in an appeal against acquittal, the High Court has the power to
review the entire evidence and come to its own conclusion and reverse
the order of acquittal and the paramount consideration is to prevent the
miscarriage of justice. It was submitted that the High Court has rightly
reversed the acquittal and convicted the appellant and the learned Senior
counsel prayed for dismissal of the appeal.
10. We have carefully considered the above contentions and
perused the impugned judgment, evidence and other materials on record.
The point falling for consideration is whether the judgment of the trial
court qua the appellant was perverse and whether there were substantial
grounds for the High Court to reverse the order of acquittal of the
appellant recorded by the trial court and convict the appellant for the
offences punishable under Sections 217 IPC and 221 IPC.
11.
Appellant was the then jurisdictional Deputy Superintendent
of Police. The appellant was arrayed as accused No.17 and was charged
for the offences punishable under Sections 217 IPC and 221 IPC alleging
that the appellant who was on bandobust duty, did not take effective
steps to prevent the crime and to apprehend the criminals on the spot
and thus, alleged to have acted in aid of the accused. The allegation
against the appellant (who was the Deputy Superintendent of Police,
Oomachikulam Sub-Division at the relevant point of time) is that despite
being present at the time of incident in Dinakaran office and despite
having a team of thirty-nine police personnel with two rifles, fifty live
rounds and other arms and accessories, apart from accessories like
helmet, shields, lathis, etc. posted for bandobust duty at Dinakaran
newspaper premises, he did not take effective steps to prevent the crime.
Further allegation against the appellant is that he deliberately refrained
from issuing orders to thirty-nine police personnel present at the spot to
prevent the incident and no step was taken to apprehend the miscreants,
rather the appellant intentionally omitted to apprehend the miscreants
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despite the fact that they committed various cognizable offences in his
presence and alleged to have intentionally aided them in escaping from
the place of occurrence.
12. PW-2-A. Muthupandiyan, News Editor of Dinakaran
Newspaper in Madurai has stated that on 09.05.2007, Dinakaran
Newspaper has published an opinion poll regarding the political heir of
M. Karunanidhi as to “Who is the political heir of Karunanidhi?”, which
created furore. PW-2 has stated that in the morning of 09.05.2007, a
huge group of people came to Dinakaran Newspaper office and attacked
and damaged the office building and that he started evacuating the women
staff to safety and also tried to protect the computers and other important
items inside the office. PW-2 has also stated that Dinakaran office was
set fire and that he called the fire service immediately and also complained
to the Othakkadai Police Station and asked the police to give protection
to their employees and the office. PW-2 has stated that he has also
informed about this attack to PW-3-R.M.R. Ramesh, Chief Operating
Officer of Dinakaran in Chennai. PW-2 has further stated that since the
police did not take any action for giving protection, he obtained the mobile
number of the appellant standing outside and asked PW-3 to talk to the
appellant. PW-2 further stated that PW-3-Chief Operating Officer has
spoken to the appellant and that he does not know what they had talked
and later, PW-3 has spoken to another DSP,
Kalifullah Khan.
13. PW-3-R.M.R. Ramesh who has been working as Chief
Operating Officer of Dinakaran Newspaper, Head office at Chennai
has stated that PW-2-Muthupandiyan had called him at 09:00 a.m. on
09.05.2007 and informed him about the attack on Dinakaran Newspaper
office. PW-3 has also stated that on being informed by PW-2, he spoke
to the appellant who was standing outside the office and the appellant
told him that their police group was on their way and the action would be
taken immediately. PW-3 further stated that since he was informed that
more people started entering their office, he again called the appellant
and requested him to take action at once. PW-3 further stated that the
appellant informed him that he has not yet received any order from his
superiors and that PW-3 obtained the number of another DSP, Kalifullah
Khan and he spoke to the said DSP who told PW-3 that he would supply
more police personnel to bolster up security since more people were
inside.  PW-3 further stated that by that time it was 11:00 a.m. and he
was informed by PW-2 that the entire reception was in flames and that
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he asked    PW-2 to ensure protection of the employees and the machines.
PW-3 also stated that by 01:00 p.m., PW-2 called him and told him that
the entire office building was engulfed in flames and that two employees
have lost their lives by the billowing smoke cloud and that he informed
the Chairman, Dinakaran and immediately, they went to Madurai by
flight.
Submissions regarding M.O.45-CD, photographs and the
Compact Discs (M.Os. 49 to 54)
14. CBI collected M.O.45-CD containing thirty-one photographs
which are said to have been taken by PW-27-Annal who has been then
working as the Photographer of Nakkeeran Bi-weekly Magazine.  M.Os.
49 to 54-Compact Discs are said to have been handed over to CBI by
PW-2-Muthupandiyan, News Editor of Dinakaran Office. The
Investigating Officer has stated that six Compact Discs-M.Os. 49 to 54
were handed over to him by PW-2; but PW-2 denied handing over of
M.Os. 49 to 54.  As seen from the evidence of PW-77, Senior Scientific
Officer of CFSL, Compact Discs-M.Os.49 to 54 and M.O.45 were sent
to the Laboratory. In his report, PW-77 gave his opinion that “original
photographs and videographs look strong in resolution”. In his evidence,
PW-77 has stated that none of the photographs are tampered and all the
photographs and videographs are original because of its strong resolution.
15. PW-28-Olirajan has been working as the Madurai News-
reporter of Nakkeeran Bi-weekly Magazine and
PW-27-Annal has been
working as the Photographer of Nakkeeran Bi-weekly Magazine. Case
of the prosecution is that PWs 27 and 28 have covered the incident that
happened in Dinakaran office on 09.05.2007 and they have reported the
news to their Magazine and sent the photos to their Chennai Head Office.
PWs 27 and 28 have denied going to the spot and covering the incident.
PW-27 has stated that on 09.05.2007, he was suffering from stomach
pain and that he went to the Dinakaran office only at 02:00 p.m. and
saw some demonstration and protest going on. PW-27 has thus, only
stated about the demonstration that were going on in Dinakaran office
at 02:00 pm and that he took the photos of it and sent the same to the
Head Office. Likewise, PW-28 who was then working as the News-
reporter in Nakkeeran Bi-weekly Magazine has stated that at the time
of occurrence, he did not go to the place of occurrence and he did not
collect any news. But PWs 27 and 28 have thus, turned hostile and have
not supported the case of prosecution.
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16. PW-75-Nakkeeran Gopal is the Editor and Publisher of
Nakkeeran Bi-weekly Magazine. In his evidence, PW-75 has stated
that PWs 27 and 28 are the persons collecting news for the Bi-weekly
Magazine in Madurai and they used to send the news and photos to their
Head Office. PW-75 has stated that at the time of CBI enquiry, as per
the request of Investigating Officer (CBI), he has handed over M.O.45-
CD to the Investigating Officer. PW-75 has also stated that in M.O.45-
CD, thirty-one photographs were recorded. PW-26-Kamaraj, Joint Editor
in Nakkeeran Magazine at Chennai had also stated about PWs 27 and
28 having been engaged by their Magazine in Madurai and that they
used to collect news and photos and send it to their Head Office. PWs
26 and 75 have stated about the receipt of news and photographs of the
occurrence that took place in Dinakaran office and the photographs and
news published in their Magazine; but PWs 26 and 75 have admitted
that they have not taken the photographs and they do not know personally
about the news or the photographs taken.
17. Mr. V. Giri, learned Senior counsel for the appellant has raised
objection regarding M.O.45-CD and six Compact Discs (M.Os.49 to
54) and that the same are not admissible. Learned Senior counsel
contended that M.O.45 and M.Os.49 to 54 are not primary evidence
and the same should have been proved in accordance with Section 65-B
of the Indian Evidence Act. Reliance was placed upon Anvar P.V. v.
P.K. Basheer
and Others (2014) 10 SCC 473 to contend that electronic
evidence, by way of secondary evidence, shall not be admitted in evidence
unless the requirements under Section 65-B of the Evidence Act are
satisfied. Learned Senior counsel has also drawn our attention to Shafhi
Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 and
submitted that in Shafhi Mohammad, after referring to Anwar case,
two Judges Bench has distinguished the decision and in para (29) of the
judgment, it was observed that the requirement of a certificate under
Section 65-B(4) of the Evidence Act is not always mandatory. Learned
Senior counsel further submitted that the decision in Shafhi Mohammad
however, has been referred to a larger Bench on 26.07.2019 in C.A
Nos.20825-20826 of 2017.
18. Learned Senior counsel for the respondent-CBI has submitted
that the evidence of PW-77, Senior Scientific Officer of CFSL establishes
the truthfulness of the videographs and the photographs and that in his
evidence, PW-77 made it clear that the photographs, M.O.45-CD and
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the Compact Discs-M.Os.49 to 54 were original and that they were not
tampered with. Placing reliance upon Sonu alias Amar v. State of
Haryana (2017) 8 SCC 570, learned Senior counsel submitted that
under Section 65-B of the Indian Evidence Act, at the time of admitting
the material objects, the accused did not take any objection before the
trial court with regard to the requirement of Section 65-B(4) certification.
It was submitted that any objection regarding the admission of documents/
material objects should be taken at the stage of trial and at the time of
marking of documents as an exhibit and not later.
19. Placing reliance upon Shafhi Mohammad case, learned Senior
counsel submitted that a piece of evidence/material objects should not
be kept out of Court’s consideration on the ground that certificate under
Section 65-B(4) is unavailable because, the ultimate objective of a criminal
prosecution is to arrive at the truth. Learned Senior counsel therefore,
submitted that though the certification under Section 65-B(4) is not
available, by considering the evidence of  PW-77-Senior Scientific Officer
of CFSL, the Compact Discs were rightly taken into consideration by
the High Court to prove the criminal acts of the accused and the act of
the appellant in not acting diligently.
20. For reversing the order of acquittal of the appellant, the High
Court referred to M.O.45-CD, photographs and M.Os.49 to 54. M.O.45-
CD,
photographs and the news published in Nakkeeran Magazine and
other evidence were relied upon by the prosecution. As pointed out earlier,
PW-2, News Editor of Dinakaran office has denied handing over of six
Compact Discs-M.Os. 49 to 54 to the Investigating Officer. The
Investigating Officer in his evidence has stated that PW-2 has handed
over six Compact Discs-M.Os. 49 to 54. The High Court referred to the
report of PW-77, Senior Scientific Officer of CFSL and held that the
evidence of PW-77 shows that the photos and the videos have not been
doctored. Referring to M.O.45-CD and other material objects-Compact
Discs, the High Court observed that the trial court erred in brushing
aside the video footage and the photos contained in the Compact Discs
on a presumptuous ground that the same could have been doctored and
that the said approach of the trial court is perverse. On such findings,
the High Court reversed the acquittal of all the accused and also the
acquittal of the appellant-accused No.17. Since the appeals against other
accused convicted under Section 302 IPC are admitted and pending
before the Supreme Court, we do not propose to go into the merits of the
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contentions regarding M.O.45-CD, photographs and other Compact
Discs-M.Os.49 to 54.  Lest, it might affect the interest of the parties in
other criminal appeals which are pending before in the Supreme Court.
We therefore, consciously refrain from expressing our views on the
contentions regarding M.O.45-CD and other Compact Discs (MOs.49
to 54) and the photographs and other electronic evidence relied upon by
the prosecution and the news published in Nakkeeran Bi-weekly
Magazine.
21. The appellant has been convicted for the offences punishable
under Sections 217 IPC and 221 IPC. At the relevant time, the appellant
was the Deputy Superintendent of Police of the jurisdictional Division.
The allegation against the appellant is that he disobeyed the laws with
intention to save the accused from legal punishment and also intentionally
allowed the accused to escape from the place of occurrence and
therefore, he is charged for the offences punishable under Sections 217
IPC and 221 IPC. In the light of the oral evidence adduced, it is to be
seen whether the prosecution has proved the charges against the appellant
under Sections 217 IPC and 221 IPC and whether the High Court was
right in reversing the order of acquittal of the appellant.
22. Section 217 IPC deals with disobedience on the part of public
servants in respect of official duty. To prove the charges under Section
217 IPC, the following ingredients must be proved:-
(i) there must be an intentional
disobedience of law by a public
servant; and
(ii) such disobedience must be with intention to save, or
knowledge that he will thereby (a) save a person from legal punishment;
or (b) save any property from forfeiture or charge to which it is liable by
law.
Section 221 IPC deals with omission to apprehend the offenders
or suffering the escape of the offenders. To prove the charges under
Section 221 IPC, the prosecution must prove:-
(i) that the accused is a public servant;
(ii) that the person in question had been charged with an offence;
or that such person was liable to be apprehended for an offence;
(iii) that the accused was legally bound to apprehend such person
for the same;
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(iv) that he omitted to apprehend; that he did so intentionally.
23. In the light of the oral evidence adduced by the prosecution, it
is to be seen whether the High Court was right in holding that the appellant
could have easily prevented the incident and the arson and arrested the
accused “Attack Pandi” and his group when they went about committing
the cognizable offences.
24. Ex.-P82 is the bandobust duty list as ordered by PW-29-T.S.
Anbu, Superintendent of Police. As per Ex.-P82, police officials were
present in the place of occurrence for bandobust and PW-30-Selvaraj-
Additional Superintendent of Police, a superior officer of the appellant,
is mentioned at serial No.1. PW-1-Sub-Inspector of Police has stated
that on the date of occurrence, bandobust was under the leadership of
PW-30-Selvaraj, Additional Superintendent of Police who came to the
place of occurrence with striking force and they chased the agitators
along with the appellant.  PW-1 has also stated that police personnel
were divided into seven groups and were directed to be on bandobust
duty on seven points. SI-PW-1 has stated that about ten persons of
Madurai Armed Reserve Police Force came in a single vehicle and that
the appellant had asked that the vehicle to be parked away safely and
asked the police force that they should be scattered sparsely without
standing together at one place. In his chief examination, PW-1 has also
stated that all of them
along with the appellant and other police personnel
had used force on the agitators and they chased away the agitators.
PW-1 also stated that the appellant was informing about the development
in the place of occurrence then and there through wireless to PW-29,
Superintendent of Police. In his cross-examination on behalf of the
appellant, PW-1-SI-Aladiyan has stated as under:-
“The security was organized on that day under the charge of
Mr. Selvaraj, the Additional Superintendent……The DSP was
standing near his vehicle to relay the developments happening
there to the S.P. through wireless communication…..To state
that our vehicles were parked at a distance so as not to create
traffic jam is correct. To state that on that day the police
security services were well executed is correct”.
As per Ex.-P82 and from the evidence of PW-1, it is seen that
thus the appellant was not the senior most officer present at the scene
of occurrence to issue directions; PW-30-Additional Superintendent of
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Police was the higher officer present there who was to issue directions
and the appellant was to act under the direction and guidance of   PW-
30-Additional Superintendent of Police.
25. PW-2-Muthupandiyan has been working as News Editor of
Dinakaran Newspaper in Madurai. In his examination-in-chief, PW-2
has deposed that he has informed about the attack to PW-3-R.M.R.
Ramesh, Chief Operating Officer (COO) of Dinakaran in Chennai and
PW-3 has requested the police to give security and stop the attacks. In
his chief-examination, PW-2 has stated as under:-
“Even when asking the police for giving protection, they did
not take any action standing witness to the incident. Therefore,
I had gathered the mobile phone number of the DSP Mr.
Rajaram standing out and asked our COO to talk to him.
DSP Mr. Rajaram is the 17th accused in this case. Our COO
has talked to the DSP Mr. Rajaram on his phone. I do not
know what they had talked. Later, COO has talked to another
DSP Mr. Kalifullah Khan too”.
In his cross-examination on behalf of the appellant, PW-2 has
stated that he requested the appellant Rajaram to take action.
PW-2 was treated hostile by the prosecution. In his cross-
examination from the prosecution side, PW-2 denied having told
the police that when he asked the appellant to take action, the
appellant-Rajaram told him that “he could not take any action
and there is no such necessity to do so……”.
26. PW-3-R.M.R. Ramesh, Chief Operating Officer of Dinakaran
has deposed that PW-2-Muthupandiyan told him that more and more
people are entering inside the office and that PW-2 gave him the telephone
number of the appellant who was standing outside the office and that he
(PW-3) immediately called the appellant over phone and the appellant
told him that the police were on their way and that action would be taken
immediately. PW-3-Chief Operating Officer of Dinakaran office has
further stated that since more people started entering the office, he called
the appellant again and requested him to take action at once. According
to PW-3, the appellant replied as under:-
“……he has not received any order yet from his superiors. I
requested him to provide the telephone number of his immediate
higher authority. He gave me the telephone number of DSP
  V. RAJARAM v. STATE REPRESENTED BY THE
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Mr. Kalifulla Khan. I called up DSP Mr. Kalifulla Khan and
he told me that he would supply more police personnel to
bolster up security since more people were inside. By that
time, it was 11.00 a.m.…...”.
From the evidence of PWs 2 and 3, it is seen that the appellant
immediately responded to them by stating that action would be taken at
once and that he has not received any order from his superiors. The
evidence of PWs 2 and 3 shows that the appellant was taking action and
there was no lack of diligence on his part.
27. PW-29-T.S. Anbu, then Superintendent of Police (Rural) of
Madurai District has stated about the issuance of order (Ex.-P82) for
providing security to Dinakaran office. In his evidence, PW-29 has stated
that he has deputed a total of 41 persons comprising of   PW-30-Selvaraj,
Additional Superintendent of Police, the appellant-DSP, Inspectors, Sub-
Inspectors and the Police Constables. In his cross-examination on behalf
of the appellant, PW-29 has stated as under:-
“As per P.W. Ex.82, the higher official dispatched for giving
security and protection was S.P. Selvaraj. If any such officer
wants to leave that place assigned to him, he has to get my
permission. Mr. Selvaraj who was assigned to this duty did
not get any such permission from me. If he did not get my
permission that will mean that he was doing his duty assigned
to him. The higher authority of that security group is
responsible for that
group…..”.
From the evidence of PW-29 and Ex.-P82, it is clear that PW-30
was the higher officer placed as In-charge of the security.
28. In his evidence, PW-30-Selvaraj, Additional Superintendent
of Police has stated that about 35 police personnel along with the appellant
were engaged in bandobust duty and at about 11:18 a.m. since there
was no further law and order problem, he went to the High Court and at
about 11:40 a.m., he noticed the smoke coming out from Dinakaran office
and immediately, he rushed to the place of occurrence. PW-30 further
stated that he enquired the appellant about the measures taken to put off
the fire and that the appellant informed that fire brigade had already
been informed. As pointed out earlier, in his cross-examination, as per
the evidence of PW-29-Superintendent of Police and Ex.-P82, the higher
official dispatched for giving security and protection was PW-30-Additional
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Superintendent of Police. When there was agitation near Dinakaran
office, it is not known as to why PW-30 left for the High Court. Having
been deputed to be on duty near Dinakaran office, if PW-30 wanted to
leave the place of duty assigned to him, he ought to have taken the
permission from his superior officer. Nothing has come on record that
PW-30 has taken any such permission from PW-29 for going to the
High Court. In cross-examination, PW-29-Superintendent of Police has
stated that PW-30 did not get permission from him to leave the place
and go to the High Court.
29. As held by the trial court, Ex.-P82 and the evidence of PW-
29-Superintendent of Police would show that the bandobust at the
Dinakaran office was posted under the control of PW-30 and the appellant
was acting under the direction of PW-30.  The trial court has rightly
pointed out that PW-30-Additional Superintendent of Police is shown at
serial No.1 in Ex.-P82 and what kind of action to be taken is to be
decided by the superior officer. From the evidence, it is brought on record
that the appellant and other police personnel have used force and chased
away the agitators. The High Court found that though the appellant was
present at the place of occurrence, the accused committed the offence
in his presence and he has not apprehended the accused.  As discussed
earlier, from the evidence it has come on record that the police on
bandobust including the appellant have chased the agitators. From
the
evidence of PW-1-Sub-Inspector of Police, it is seen that the appellant
and the other police officers have taken action and also used force in
chasing away the agitators. Further from the evidence of PW-2-News
Editor of Dinakaran office and PW-3-Chief Operating Officer of
Dinakaran office, it is seen that the appellant immediately responded to
them by stating that he has not received any order from his superiors
and that action would be taken immediately. The evidence of PWs 2 and
3 shows that there was no lack of diligence on the part of the appellant.
30. The evidence of PW-29 and Ex.-P82 clearly show that PW-
30-Additional Superintendent of Police was the officer In-charge of the
security bandobust.The appellant, who was the Deputy Superintendent
of Police at the relevant time was under the supervision and control of
PW-30. In his evidence, PW-30 has not stated anything about the appellant
having disobeyed his orders. In order to attract the ingredients of Section
217 IPC, there should have been disobedience of the direction of law
with intention to save the accused. The prosecution has not adduced
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any evidence to show that the appellant-accused has disobeyed the
direction of law or the direction of the superior officer-PW-30 or acted
with the intention of saving the accused.
31. While it may be true that at the time of incident near Dinakaran
office i.e. on 09.05.2007 between 11-12:00 a.m., the situation became
worse, at the same time, it has come on record that the police were
taking action to chase the agitators. In the light of such evidence, it
cannot be said that there was inaction or negligence on the part of the
appellant. In a tense situation where there is law and order problem,
normally a superior gives out instructions on how to handle a situation
and the subordinates are expected to carry them out. If each subordinate
police officer start taking actions on his own without order from the
superior officer, it would lead to chaos and confusion. Responsibility for
the actions lies with the superior: in the present case, PW-30-Additional
Superintendent of Police. There is nothing on record to show that the
appellant disobeyed the orders of PW-30 who was the officer placed In-
charge of the bandobust nor there was any lack of diligence and inaction
on the part of the appellant to sustain the conviction of the appellant
under Sections 217 IPC and 221 IPC.
32. As pointed out earlier, one of the essential ingredients to make
out the offence under Section 217 IPC is that the public servant should
have
disobeyed any directions of law with the intention to save any
person from legal punishment. In the present case, there is no evidence
to show that the appellant has disobeyed the directions of any law. On
the contrary, there is clear evidence to show that the appellant, PW-1-
Sub-Inspector of Police and other police personnel have used mild force
against the miscreants and thus, chased them away to prevent any further
untoward incident. Absolutely, there is no evidence to show that the
appellant did not obey the command of PW-30 or PW-29-Superintendent
of Police who were present on the spot for issuing directions and
commands. There is no evidence to prove that the appellant omitted to
do any act to sustain the conviction under Section 217 IPC.
33. Insofar as the conviction under Section 221 IPC is concerned,
one of the essential ingredients of Section 221 IPC is the intentional
omission to apprehend a person or intentionally aiding such person to
escape. PW-29-Superintendent of Police and PW-30-Additional
Superintendent of Police who were present on the spot issued directions
and accordingly, the appellant acted. After the occurrence was over,
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PW-29 directed the appellant to search for the accused. Accordingly,
the appellant went in search of the accused and arrested accused No.1
(V.P. Pandi @ Attack Pandi) on 15.05.2007; accused No.2 (M.
Thiruchelvam) on 16.05.2007 and accused Nos.3 and 4 (Prabhu @
Arockiyaprabu and M. Saravanamuthu) on 10.05.2007. There is no
evidence to show that the appellant intentionally omitted to apprehend
the accused on the spot to sustain the conviction under Section 221 IPC.
34. Upon appreciation of evidence and considering the ingredients
of Sections 217 IPC and 221 IPC, the trial court acquitted the appellant.
When the trial court has recorded the finding that the ingredients of
Sections 217 IPC and 221 IPC are not made out which is a plausible
view, the High Court could not have substituted its views with the
conclusion of the trial court. So far as the appellant is concerned, the
prosecution has not proved his guilt and the conviction of the appellant
cannot be sustained. In our considered view, the High Court was not
right in reversing the order of acquittal passed by the trial court and the
impugned judgment qua the appellant is not sustainable and the appellant
is acquitted.
35. Mr. B. Balaji, learned counsel appearing on behalf of the
appellant has submitted that because of the criminal case, the appellant
has not been paid the pension and other retiral benefits and prayed for
appropriate directions. Since the conviction of the appellant is set aside
and he
is acquitted of the charges, the appellant is at liberty to work out
his remedy in accordance with law.  The concerned authorities shall
take note of the acquittal of the appellant.
36. The appellant was charged for the offences punishable under
Sections 217 IPC and 221 IPC alleging that he disobeyed the laws with
intention to save the accused and that he was not diligent in apprehending
the accused.  Upon consideration of oral evidence adduced by the
prosecution, we have held that the charges against the appellant under
Sections 217 IPC and 221 IPC are not proved and the conviction of the
appellant has been set aside and the appellant is acquitted.  The appellant
is not in any way involved in the main occurrence.  The very charge
against the appellant for which he was tried is different and distinct from
the charge for which the other accused were tried. Hence, the instant
appeal was heard separately. The other accused who have been convicted
under Section 302 IPC and other offences have preferred appeals and
those appeals are pending before the Supreme Court.  The appeals
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preferred by the other accused shall be considered on their own merits
and the findings in these appeals shall not have a bearing one way or the
other in those appeals.
37. In the result, the impugned judgment and order dated 21.03.2019
and 25.03.2019 passed by the High Court of Madras at Madurai Bench
in Crl.A. (MD) No.274 of 2011 convicting the appellant-accused No.17
under Sections 217 IPC and 221 IPC are set aside and these appeals
are allowed and the appellant is acquitted of the aforesaid charges.
Devika Gujral
                                Appeals allowed.