S. SUBBIAH Vs. STATE

JUDGEMENT

(1.) The petitioner/1st accused was incriminated for the charges under Sections 342, 302, 202 read with 34 IPC alleging that between 15.12.1991 to 17.12.1991, accused Nos. 1 to 3 with common intention wrongfully confined the deceased Prakasam at P. 4, Basin Bridge Police Station and inflicted 67 injuries on him, thereby, caused his death. A special report along with the death report was sent by the respondent on 18.12.1991 and on the basis of which, a case was registered. In that connection, the Collector of Chennai, ordered to conduct enquiry under Police Standing Order 145 (for short, "PSO 145"). By virtue of the enquiry, the then Additional District Magistrate and Personal Assistant (Urban Land Tax) to the Collector has examined the relevant persons and recorded their versions and submitted his report on 07.03.1992. The Collector accepted the findings of the Enquiry Officer and has sent a report with recommendation of the Collector to the Government. Thereafter, the Government passed a Government Order in G.O.Ms. No. 326 Public (Law and Order) Department, dated 02.04.1993 according sanction to prosecute the accused, besides to initiate departmental action. On 20.01.2007, a private complaint was preferred by the respondent before the Chief Judicial Magistrate, Egmore and after the complaint was enquired into by the learned Chief Metropolitan Magistrate, Chennai, and it was taken on file and committed to the Sessions Court for framing of charges. The petitioner/accused No. 1 has filed a petition seeking to discharge from the criminal case. The said petition was dismissed by order dated 02.02.2010 made in Crl. M.P. No. 132 of 2009 in S.C. No. 251 of 2009 on the file of the Additional District and Sessions Judge, Fast Track Court No. V, Chennai. Aggrieved against the same, the present Criminal Revision Case is filed. The second accused has filed Crl. R.C. No. 167 of 2010, but, the same has been withdrawn today. Mr. A. Kalaiselvan, learned counsel for the petitioner would submit that the case of the 1st accused is that he was the Sub-Inspector of Police at the time of the occurrence. He has been wrongly implicated in the case for the alleged torture and murder of one Prakasam, who was arrayed as an accused in a case and who has been arrested and kept in custody. He would further submit that the petitioner is in no way connected with the offence. He would further add that the alleged occurrence is said to have taken place on 17.12.1991 and FIR was lodged in Cr. No. 445 of 1991 on 18.12.1991. The RDO enquiry emanated for the death of person, as he was supposed to have died during custody. The RDO enquiry commenced on 18.12.1991. The RDO has filed his report on 07.03.1992. Thereafter, on 02.04.1993, the Government directed the authorities to take necessary action pursuant to the RDO report, but, thereafter, no steps were taken and only in the year 2007, a private complaint was given. He would further add that for the occurrence that has taken place in 1991, a private complaint was given only in the year 2007, thus, there has been an inordinate delay of 16 years in giving the private complaint. Since the private complaint has not been lodged in accordance with the mandatory procedure prescribed under PSO 145, the delay is not attributable to the accused and therefore, the petitioner is entitled for discharge and hence, he has filed a petition before the Trial Court seeking to discharge, but, unfortunately, the said petition has not been considered in a proper perspective and was ultimately dismissed. The second ground which has been raised by the petitioner is that the PSO 145 has no legal force, because, it is the RDO, who has conducted the enquiry. Any further action alleged to have been taken is per se illegal. Therefore, the private complaint becomes ineffective and it is not in accordance with law. He would further contend that in the alternative, if this Court comes to the conclusion that PSO 145 has legal force, still the procedure as contemplated under PSO 145 has not been followed and it is only the RDO, who has enquired the matter. As per PSO 145, it is only in the Moffusil area, the RDO can enquire into the matter, whereas, in the city only, under the direction of Chief Metropolitan Magistrate, any Magistrate has to enquire, therefore, there is a preliminary mistake in conducting enquiry. Under these circumstances, the RDO enquiry itself is wrong and therefore, the private complaint cannot be proceeded further. Lastly, he would contend that even though the Government Order in G.O.Ms. No. 326 was passed on 02.04.1993, according sanction to prosecute the accused, for the inordinate delay, there was no proper explanation, therefore also, the petitioner has to be discharged for the alleged offences. He would further contend that the 1st accused has already retired from service and that challenging the order of punishment passed in P.R. No. 34 of 1993, dated 09.02.2000, as per which, he has been imposed with punishment of reduction in time scale of pay by three stages for three years with cumulative effect, the 1st accused has filed O.A. No. 2117 of 2000 before the Tamil Nadu Administrative Tribunal, Chennai and the Administrative Tribunal has set aside the said punishment, but, the 1st accused has now been unnecessarily harassed. The petitioner/1st accused is now aged 70 years old. There is no point in getting on with the trial and therefore, the order passed by the Trial Court is wrong.

(2.) Mr. V. Arul, the Government Advocate appearing for the respondent would submit that the scope of revision under Section 397 Cr.P.C. in respect of discharge is very limited. First of all, the petitioner has not challenged the Government Order in G.O.Ms. No. 326 according sanction to prosecute the accused way back in the year 1993. Till date, the Government Order has not been challenged at all. Secondly, as far as the proceeding under PSO 145, is concerned, this Court and Supreme Court has clearly held that PSO 145 has legal force. Secondly, once the petitioner has participated in the RDO enquiry, he has waived his right. Further, only after the report of RDO, it is only the Chief Metropolitan Magistrate, who has taken cognizance of the matter and enquired into the matter and thereafter, committed the matter to Sessions Court and therefore, the argument that there is violation under PSO 145 does not arise. He would rely on the judgment of the Hon'ble Apex Court reported in , Sajjan Kumar Vs. Central Bureau of Investigation, 2010 9 SCC 368 to substantiate his contention that mere delay even inordinate delay cannot be a reason to discharge the accused. He would further submit that no doubt in this case there was a delay, which is evident from the fact that the enquiry report was given in the year 1992, but, the private complaint was lodged only in the year 2007. But, this cannot be gone into at this point of time, because, he has not challenged the Government Order. The Trial Court has taken into consideration the evidence as available as to whether a prima facie case has been made out or not. It is the prima facie case that the deceased sustained 67 injuries. The evidence of wife/L.W. 1, is clear that on 15.12.1991, the police officials has taken him to the police station. On the same day, when she rushed to the police station she found him alive at 9.00 p.m. The next day, i.e., on 16.12.1991, when she attempted to visit him, she was not permitted to see him by the police officials even in the morning as well as in the evening. On 18.12.1991, she was informed by a person that her husband was serious. She rushed to the Police Station, where she was informed that her husband was admitted in the General Hospital. When she went to the hospital she found the dead body of her husband and only to circumvent all these things, they created an impression as if that on 17.12.1991 at about 9.45 p.m., when the petitioner herein, who was the Sub-Inspector of Police, along with other police officials, attempted to arrest the deceased at the Basin Bridge, he on seeing the Police Party attempted to run away, fell down and sustained injuries, as a result of which, he died. But, these are all things, the genuineness of which can be gone into only at the time of trial. The evidence available can be looked into and that was done and rightly the Trial Court has dismissed the petition seeking to discharge, which cannot be gone in detail at this point of time in a case under revision. Above all these things, the learned Government Advocate would contend that as rightly pointed out the scope of revision under Section 397 Cr.P.C. in respect of discharge is very limited, hence, the contention of the petitioner that he is a retired person and he is aged 70 years, these things cannot be taken into consideration. He would further add that since, accused No. 2 had already withdrawn the revision and the accused No. 3 had already died, there is no impediment for the Trial Court to get on with the trial of the case of the petitioner.

(3.) Heard both sides. By consent, this Criminal Revision Case itself is taken up for final disposal.