K.P.S. Jeyachandran vs State

C.T. Selvam, J.—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.

The case in Crime No. 167 of 2003 was registered on 28.04.2003 by the Sub-Inspector of Police, Erode North Police Station u/s 174 Code

of Criminal Procedure 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 u/s 164

Code of Criminal Procedure from 5 persons, prepared the toposketch and observation mahazar.

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:

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.

In view of the ratio laid down by the Honourable Supreme Court reported in Sanjay Gandhi Vs. Union of India (UOI) and Others, , 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.

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.

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 Code of Criminal

Procedure, the 5th accused/Respondent herein cannot be charged jointly along with the other accused, this Court exercising its inherent power u/s

482 Code of Criminal Procedure 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.

The charge sheet against the Petitioner reads as follows:

Charge u/s 218, 465 and 471 IPC

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) Code of Criminal Procedure 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 u/s 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 u/s 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 u/s 471 IPC.

Hence the charge.

DEPUTY SUPERINTENDENT OF POLICE,

ERODE TOWN SUB DIVISION, ERODE.

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 Code of Criminal Procedure;

(b) malafides;

(c) on the consideration that in respect of the very same charges, the Petitioner stood exonerated in the departmental proceedings.

Section 195 Code of Criminal Procedure 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 - 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 - 196 (both

inclusive), 199, 200, 205 - 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 u/s 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 Sub-section (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 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.

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 u/s 192 I.P.C.

Section 192 I.P.C. reads as follows:

Fabricating false evidence. -Whoever causes any circumstance to exit 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

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 u/s 192 I.P.C. punishable u/s 193 I.P.C. Section 195(b)(i) Code of Criminal Procedure provides that in respect of

offence u/s 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.

Learned Senior counsel would state that with the intent of avoiding the procedure and mandatory provisions u/s 195 Code of Criminal

Procedure, the Respondent police have willfully informed of offences under Sections 218, 465 and 471 IPC and failed to register a charge u/s 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 u/s 192 I.P.C. punishable u/s 193 I.P.C.

Learned Senior counsel drew the attention of this Court to the judgment of the Honourable Apex Court in Basir. Ul. Huq and Ors. v. The

State of West Bengal AIR 1953 SCC 293:

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.

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, Code of Criminal Procedure

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 taken cognizance of by misdescribing it or by putting a wrong label on it.

Learned Senior counsel also touched upon the decision of the Honourable Apex Court in Dr. S. Dutt Vs. State of Uttar Pradesh, which is on

similar lines.

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 u/s 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.

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.

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.

(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.

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.

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 Anr. v. Meenakshi Marwah and Anr. 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.

I have considered the rival submissions.

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 P Rs No. 37/2005 and 38/2005 u/r 3(b) initiated against him in Erode District - Orders Issued.

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)

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 P Rs were continued.

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.

In view of the report of the Inspector General of Police, Crime Branch CID, I order that the charges in P Rs 37/2005 and 38/2005 TNPSS (D

and A) Rules, 1955 initiated against 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 learned Senior counsel on the applicability of Section 195(b)(ii) as it is of the opinion

that the principle of custodia legis cannot be extended to documents prepared in the course of investigation merely because the investigation is

conducted under judicial control. However, the contention that the Respondent has avoided making out a charge u/s 192 IPC punishable u/s 193

IPC only with a view to avoid the application of provision of 195(b)(i) Code of Criminal Procedure cannot, in the facts and circumstances of the

present case, and in the light of exoneration of the Petitioner in departmental proceedings and the malice against the Petitioner recorded by none

else than the highest police official in the State, but be accepted.

For the aforesaid reasons, the Criminal Original Petition shall stand allowed. The proceedings in C.C. No. 568 of 2008 on the file of the

learned Judicial Magistrate I, Erode shall stand quashed. Consequently, the connected miscellaneous petition is closed.