C. Natarajan vs P. Kathirvel

V. Kanagaraj, J.—This petition has been filed praying to call for the records in C.C. No. 9600 of 2002 on the file of the Court of XIII

Metropolitan Magistrate, Egmore, Chennai, and quash the same.

On a perusal of the materials placed on record, it comes to be known that the petitioner is the Principal of the Presidency College, Chennai

while the respondent is the Lecturer in the Department of Economics of the same college and the respondent lodged a private complaint as against

the petitioner in C.C. No. 9600 of 2002 on the file of the Court of XIII Metropolitan Magistrate, Egmore, Chennai for the alleged offence

punishable u/s 500 IPC on allegation that even though he is the Senior in the Department of Economics of the College, when the Head of the

Department one Mrs. T. Suganya Bai went on leave, the accused/Principal with ulterior and sinister motives, orally directed one L. Venkatasamy

to be in-charge of the Department, who is junior to the complainant.

It is further alleged that when the complainant along with several other responsible teachers questioned the accused about the irregularity

committed by him, the accused abused the complainant in the presence of those teachers uttering that an FIR is pending against him and hence he

was not eligible to claim the position of the Head of the Department of Economics (in-charge) thus putting the complainant to shock and surprise

and to shame in the presence of several of his colleagues; that from that date onwards, the complainant is facing many suspicious situations in the

college campus and outside and hence he issued a lawyer''s notice dated 6.7.2002 to the accused calling upon him to tender unconditional apology

and to pay a sum of Rs. 1 lakh to him as damages for having made false, defamatory and derogatory allegations against him with no reply coming

from the accused; that the accused told several persons including Dr. J. Antony Pitchai, Reader in English and Mr. N. Madhavan, Lecturer

(Selection Grade) in the Political Science Department that ""mtiu c'';fSf;Fj; bjhpahjh? mth; mtuJ kidtpia tPl;oy; g{l;o itj;J rpj;utij bra;fpwhuhk;/ mth;

xU ey;y kdpjd; fpilahJ/@ and hence the complaint before the Court.

The trial Court having taken cognizance of the said complaint in C.C. No. 9600 of 2002 had issued summons to the accused. At this stage, the

accused in the said complaint has come forward to file the above criminal original petition on averments such as that the petitioner is presently

absorbed on the payrolls of Tamil Nadu Educational Service as Principal of the premier institution, viz., the Presidency College, Chennai and is

discharging his duties as public servant from the date of his employment and more particularly on 19.6.2002 when the alleged occurrence is said to

have taken place; that the respondent/complainant is working as selection grade Lecturer in the Department of Economics in Presidency College,

Chennai; that the respondent while preferring the private complaint for the allege offence punishable u/s.500 IPC had broadly alleged that he was

overlooked by the petitioner in the case of seniority in the departments; that the respondent also refused that the petitioner had permitted one Dr.

L. Venkatasamy in preference to the respondent in the matter of seniority; that the above factual situation prompted the respondent to question the

same before the petitioner on the date of occurrence, while the petitioner was discharging his official duty as Principal and the respondent, as a

matter of fact, admits as having done so accompanied by friends, office bearers and fellow teachers. The petitioner has further stated that a First

Information Report is pending against the respondent and that is why the respondent was overlooked in the preference of seniority, which

statement has been christened as ""defamation in the complaint preferred before the jurisdictional court""; that the respondent has caused legal notice

to the petitioner on 6.7.2002, for which, the petitioner gave a reply on 14.12.2002; that an enquiry petition regarding the complaint against the

respondent is filed before B-5 Thirumangalam Police Station, Chennai; that under these circumstances, the petitioner seeks to quash the

proceedings in C.C. No. 9600 of 2002 as extracted supra.

During arguments, the learned counsel for the petitioner would cite the following judgments and would read out the relevant portions of the

judgments relating to the question of sanction as prescribed u/s 197 of the Cr.P.C.:

1.DOWLATH vs. Mr. DEY, DISTRICT FOREST OFFICER, TIRUPATTUR 1953 MWN 174

2.MATAJOG DOBEY & ANOTHER vs. H.C. BHARI 1956 MWN Cr. 57

R. Balakrishna Pillai Vs. State of Kerala,

4.HAZARI LAL GUPTA vs. RAMESHWAR PRASAD AND OTHERS 1972 16 MLJ 401

5.SATISH MEHRA vs. DELHI ADMINISTRATION & ANOTHER 1996 (3) CRIMES 85

In the first judgment cited above, it has been held by a learned single Judge of this Court:

The real test for the applicability of S. 197 Cr.P.C. is not that the offence is capable of being committed only by a public servant and not by any

one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty.

In the second judgment cited above, the Honourable Apex Court has held:

Art. 14 of the Constitution does not render S. 197 Cr.P.C. ultra vires as the discrimination is based upon a rational classification.

To require sanction under S. 197(1) Cr.P.C., there must be a reasonable connection between the act and the discharge of official duty; the act

must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the

performance of his duty.

The test that it must be established that the act complained of was an official act appears unduly to narrow down the scope of the protection

afforded by S. 197 Cr.P.C.

The need for sanction is not to be considered s soon as the complaint is lodged and on the allegations therein contained. Whether sanction is

necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.

If in the exercise of the power or the performance of the official duty (a lawful search), improper or unlawful obstruction or resistance is

encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance.

Where complaints were filed against persons who conducted a search under a warrant, for offences under Ss. 323, 342 and 504, Penal Code,

held sanction under S. 197 Cr.P.C. was necessary for the prosecution.

In the third judgment cited above, it has been held that `sanction u/s 197 Cr.P.C. is required even when such public servant ceases to hold his

office on date of taking cognizance of offence.''

The fourth judgment cited by the learned counsel for the petitioner reported in 1972 MLJ 401 is regarding the powers of the High Court u/s

561-A (now equivalent to section 482 of the Cr.P.C.). It is held therein:

In exercising jurisdiction u/s 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there

is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is

`reliable or not''. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the

Criminal Procedure Code the High Court does not interfere with such investigation because it would then be impeding investigation and exercise of

jurisdiction of statutory authorities in accordance with the provisions of the Criminal Procedure Code.

In the last judgment cited by the learned counsel for the petitioner, the Honourable Apex Court, while considering Sections 227 and 228

Cr.P.C. regarding discharge has held:

When those two sections are put in juxtaposition with each other, the test to be adopted becomes discernible: is there sufficient ground for

proceeding against the accused? It is axiomtic that the standard of proof normally adhered to the final stage is not to be applied at the stage where

the scope of consideration is where (sic. whether) there is `sufficient ground for proceeding''.

The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to

proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials

produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be

produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the views that Sessions Judge would be within his

powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.

But when the Judge is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted

for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that

most of the Sessions Court sin India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an

exercise in futility or a sheer waste of time, it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself.

On the contrary, on the part of the respondent, the learned counsel would argue on the merit of the case and would be emphatic that the

remarks uttered by the petitioner in the presence of others, particularly co-Professors, were unwarranted and have lowered the dignity of the

respondent in the eyes of others particularly his colleagues and hence the complaint for the offence u/s 500 of the IPC is perfectly justified. Relying

on such factual position of the case, the learned counsel would ultimately pray to dismiss the above criminal original petition.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, it comes

to be known that the respondent herein who is a Professor for 28 long years in Economics, now serving in the Presidency College, Chennai seems

to have lodged a private complaint against the petitioner, who is the Principal of the same College for an offence punishable u/s 500 IPC on

allegations that the petitioner passed certain imputations against the respondent in the presence of co-Professors and others in the College campus

when it came to the question of posting the respondent as the in-charge Head of the Department of the Economics since the Head of Department

went on leave and the imputation uttered in Tamil being ""mtiu c'';fSf;Fj; bjhpahjh? mth; mtuJ kidtpia tPl;oy; g{l;o itj;J rpj;utij bra;fpwhuhk;/ mth; xU

ey;y kdpjd; fpilahJ/@

Further complaining that the petitioner/accused has been desperately spreading false rumours against the respondent/complainant and his family

members with ulterior and sinister motives resulting in feeling of shame and untold mental agony and hardship and that being the Principal of a

reputed educational institution, the members of the Staff and the students tend to believe the statements as true by which his status and reputation

have been lowered among the staff and students of the College and that such imputations have been made with intent to harm the reputation of the

respondent, knowing the same to be false and to harm the reputation of the respondent.

During arguments, the learned counsel appearing on behalf of the petitioner/accused would not only deny the petitioner having uttered such

imputations much less in the presence of the staff and students but would also plead that such a complaint could not be lodged without prior

sanction from the Government as prescribed u/s 197 Cr.P.C. since the petitioner is a person of the stature mentioned in the Section i.e. one who

cannot be removed from his office save by or with the sanction of the Government and would also submit the judgments of the Supreme Court

rendered every now and then in support of his legal claim.

In the above circumstances, it is relevant to point that whether it is on facts or regarding the question of law as one raised in the manner

aforementioned in favour of the petitioner regarding sanction u/s 197 Cr.P.C., these questions could be raised very well before the Magistrate in

whose Court, the subject matter is pending i.e. the XIII Metropolitan Magistrate, Egmore, Chennai, who is competent to entertain such preliminary

objections prior to conducting the trial if they are raised before him and therefore it may not be correct on the part of this Court to go into such

questions of facts and law and therefore a direction issued to the petitioner to raise such points before the Court below and the Magistrate to

consider the same would serve the ends of justice for the present so far as the facts and circumstances and the position of law encircling the whole

affair connected to the above criminal original petition is concerned and hence the following order:

In result,

(i)the petitioner shall raise such questions which are to be preliminarily decided such as one raised before this Court regarding sanction u/s 197

Cr.P.C. in the form of preliminary objections within fifteen days from the date on which the copy of this order is made ready.

(ii)The trial Court i.e. the court of XIII Metropolitan Magistrate, Egmore, Chennai shall entertain the application of the petitioner if so filed on the

part of the petitioner raising preliminary objections, if it is otherwise in order, and consider the same in the manner required by law and decide

those preliminary issues raised regarding the maintainability of the complaint filed by the respondent against the petitioner, prior to settling the other

issues on facts and circumstances and pass orders on merits and in accordance with law within three months from the date of receipt of the

preliminary objections from the petitioner with due opportunity for both parties to be heard.

(iii) Since in the meantime, the petitioner''s duties as the Principal of the College should not get affected, it has become incumbent on the part of this

Court to pass yet another order dispensing with the personal attendance of the petitioner before the Court of XIII Metropolitan Magistrate,

Egmore, Chennai, pending disposal of the case in C.C. No. 9600 of 2002 unless the lower Court is of the view that on such hearings his personal

attendance would be indispensable when the lower Court will be at liberty to summon the petitioner in accordance with the requirements of Section

205 Cr.P.C.

With the above directions, the above criminal original petition is disposed of.

Consequently, Crl.M.P. Nos. 169 and 170 of 2003 are closed.