V. Rajaram Vs. State represented by the Inspector of Police CBI/SCB
[Criminal Appeal Nos. 1765-1766 2019 arising out of SLP (Crl.) Nos. 3433-34 of 2019]
R. BANUMATHI, J.
2.†† These appeals arise out of the judgment and order dated21.03.2019 and 25.03.2019 passed by the High Court of Madras at Madurai Benchin Crl.A. (MD) No.274 of 2011 in and by which the High Court set aside theorder of acquittal passed by the Principal Sessions Judge, Madurai in SessionsCase No.3 of 2009 and convicted the appellant-accused No.17 under Sections 217IPC and 221 IPC and sentenced him to undergo rigorous imprisonment for one yearand four years respectively.
3. Brief facts which led to filing of these appeals are asunder:- On 09.05.2007, the newspaper Dinakaran carried public opinion resultsregarding the political heir of the then Chief Minister M. Karunanidhi whichsuggested that Mr. M.K. Stalin had greater public approval as the politicalsuccessor of M. Karunanidhi than his elder brother M.K. Alagiri. Protests werestaged against the newspaper by the supporters of M.K. Alagiri before theDinakaran 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 andstarted causing damage to the glass panes of the office and they also startedbreaking the glass doors with wooden logs.
PW-30-Selvaraj-the then Additional Superintendentof Police and the appellant along with police personnel came to the spot. Underthe command, the police present there including the appellant used forceagainst the agitators and chased them away. Again, they said Saravanan camewith a group of people with soda bottles and started pelting the same at theoffice of Dinakaran Newspaper. The appellant and other police personnel usedforce and chased them away. At 11:45 a.m., the supporters gathered before theoffice of Dinakaran Newspaper.
A group of persons (accused Nos.1 to 16) led byV.P. Pandi, S/o Ponnusamy @ Attack Pandi, came to the office of the DinakaranDaily in a white colour Tata Sumo car armed with dandas (sticks) andiron rods.They trespassed into the office and set fire to two wheelers parked insidethe compound, near the security office. Thereafter, they vandalised theDinakaran premises and proceeded to set on fire the reception area. The privatesecurity guards on duty were no match to resist the mischief and criminal actsof 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 inthe said incident. On getting information, M. Balasubramanian, Fire StationOfficer (PW-50) along with a team of fire service personnel and fire engineswent 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 01:00p.m. under Sections 147, 148, 449, 436, 302, 307, 332 and 120B IPC, underSections 4 and 5 of the Explosive Substances Act and under Section 4 of theTamil 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) hadtaken up the initial investigation and sent the bodies of deceased persons forpost-mortem. Dr. G. Natarajan (PW-63) who conducted the autopsy opined that thecause of death of all the deceased is suffocation associated with headinjuries.
PW-70 prepared the observation mahazar (Ex.-P181) and Rough sketch (Ex.-P219).PW-70-Investigating Officer seized the material objects broken glass pieces andburnt two wheelers and other material objects from the scene of occurrence andproceeded with the investigation. Investigation of the case was transferred tothe CBI as per notification No.SC/2816-2/2007 dated 10.05.2007 under Section 6of Delhi Special Police Establishment Act, 1946 issued by the Government ofTamil Nadu and also notification No.228/25/2007 AVD II under Section 5 of DelhiSpecial Police Establishment Act. In pursuance of these notifications, on18.05.2007, Cr.No.226 of 2007 of Othakadai Police Station was transferred toCBI and re-registered as R.C.6/S/2007/CBI/SCB/Chennai by CBI and taken up for investigation.Oncompletion of investigation, charge sheet was filed on 06.08.2007 againstseventeen accused persons.
A1 to A16 were charge-sheeted for the offencespunishable under Sections 147, 148, 449, 302 read with Section 149 IPC, 436read with Section 149 IPC and under Sections 4 and 5 of the ExplosiveSubstances Act and under Section 4 of the Tamil Nadu Property (Prevention of Damageand Loss) Act. The appellant-accused No.17 who was the then jurisdictionalDeputy Superintendent of Police was charge- sheeted for the offences punishableunder 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 Sections4 and 5 of the Explosive Substances Act and under Section 4 of the Tamil NaduProperty (Prevention of Damage and Loss) Act. The appellant-accused No.17 wascharged for the offences punishable under sections 217 IPC and 221 IPC.
6. On being questioned, the appellant denied the charges and pleadednot guilty. Upon consideration of evidence, the trial court acquitted theappellant by holding that the evidence adduced against the appellant is notsufficient to prove the charges under Sections 217 IPC and 221 IPC. The trialcourt noted the submission of the counsel for the appellant that on the date ofoccurrence, appellant was not the superior officer present at the place of occurrenceand that PW-30-Additional Superintendent of Police was the superior officer andthe bandobust was arranged under the head of PW-30. The trial court heldthat the prosecution has not proved that the appellant-accused No.17intentionally disobeyed the directions of law and intentionally allowed theaccused to escape from the place of occurrence. Insofar as the sanction for prosecution,the trial court held that the Principal Secretary who issued the sanctionorder, was not examined and that the examination of Balakrishnan, DeputySecretary (PW-67) is not sufficient to prove the satisfaction of the PrincipalSecretary who signed the sanction order-Ex.-P212.
7. In the appeal preferred by CBI, the High Court reversed the acquittaland convicted 9 out of 16 main accused under Sections 147, 148, 449, 302 readwith Section 149 IPC, 436 read with Section 149 IPC, under Sections 4 and 5 ofthe Explosive Substances Act and under Section 4 of the Tamil Nadu Property (Preventionof Damage and Loss) Act. The High Court also reversed the acquittal of theappellant-accused No.17 and convicted him under Sections 217 IPC and 221 IPCand 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 evidenceof T.S. Anbu, Superintendent of Police (PW-29) that the police pickets, whichwere posted for protecting the Dinakaran office, were headed by Selvaraj(PW-30) and assisted by the appellant-accused-Rajaram, Deputy† uperintendent ofPolice.
The High Court held that from the photographs and video footage, it wasnoticed that the appellant was seen going along with accused No.1 and that theappellant 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 AdditionalSuperintendent of Police Selvaraj (PW-30) cannot absolve the appellant fromcriminal liability. Observing that the trial court erred in ignoring theevidence of PW-77-Goutham Roy, senior Scientific Officer, Central ForensicScience Laborato and in discarding the photographs and videographs, the HighCourt allowed the appeal preferred by CBI and reversed the acquittal of theappellant 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 appellant was questioned on sentence in Crl. A. (MD) No.274 of 2011i.e. criminal appeal preferred by the CBI. The sentence of imprisonment wasimposed on the appellant in Crl.A. (MD) No.274 of 2011.
8. Mr. V. Giri, learned Senior counsel for the appellantcontended that the High Court has failed to consider that since the Senior PoliceOfficers viz. Superintendent of Police (PW-29) and Additional Superintendent ofPolice (PW-30) were regulating the police bandobust and givingdirections, the appellant cannot be held liable for not preventing the crimecommitted by the accused. It was further contended that the High Court hascommitted error in relying upon the Compact Discs without there being anycertification as required under Section 65-B of the Indian Evidence Act toprove the same. Learned Senior counsel further submitted that PW-27-Annal- Photographerof Nakkeeran Bi-weekly Magazine who is said to have taken video and thephotographs and PW-28-Oliraja-Newsreporter of said Nakkeeran Bi-weeklymagazine, have turned hostile and have not supported the case of prosecutionand this has not been kept in view by the High Court. The learned Seniorcounsel contended that the High Court erred in reversing the order of acquittalof the appellant and the High Court did not keep in view the well settledprinciple that generally, order of acquittal shall not be interfered withunless there is erroneous appreciation of evidence and the judgment of thetrial court is perverse.
9. Per contra, Ms. Sonia Mathur, learned Senior counselappearingon behalf of the respondent-CBI has supported the judgment of the High Courtand submitted that at the relevant point of time when the offence wascommitted, the appellant was Incharge of the bandobust duty from 09:30a.m. at the Dinakaran Newspaper Building and the appellant deliberately did nottake 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- CBIhas submitted that the appellant who was In-charge of the bandobust couldhave easily prevented the attack and the arson and arrested the accused "AttackPandi" and other accused when they went about committing the offence. LearnedSenior counsel further submitted that M.O.45-CD and photographs and six CompactDiscs (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 provesthat the photographs and videos in the CDís are not tampered with and while so,the trial court erred in discarding the opinion given by the Expert.
It wassubmitted that the High Court rightly relied upon M.O.45-CD and other materialobjects-Compact Discs and the evidence of Expert-PW-77 and the High Courtrightly held that there was no tampering of the Compact Discs and the videoCDís in establishing the role of the accused person and the failure of theappellant in his lawful duty. Placing reliance upon Sidhartha Vashisht aliasManu Sharma v. State (NCT of Delhi)(2010) 6 SCC 1 , learned Seniorcounsel submitted that in an appeal against acquittal, the High Court has the powerto review the entire evidence and come to its own conclusion and reverse theorder of acquittal and the paramount consideration is to prevent themiscarriage of justice. It was submitted that the High Court has rightlyreversed the acquittal and convicted the appellant and the learned Seniorcounsel prayed for dismissal of the appeal.
10. We have carefully considered the above contentions and perusedthe impugned judgment, evidence and other materials on record. The pointfalling for consideration is whether the judgment of the trial court qua theappellant was perverse and whether there were substantial grounds for the HighCourt to reverse the order of acquittal of the appellant recorded by the trialcourt and convict the appellant for the offences punishable under Sections 217IPC and 221 IPC.
11. Appellant was the then jurisdictional Deputy Superintendentof Police. The appellant was arrayed as accused No.17 and was charged for theoffences punishable under Sections 217 IPC and 221 IPC alleging that theappellant who was on bandobust duty, did not take effective steps toprevent the crime and to apprehend the criminals on the spot and thus, allegedto have acted in aid of the accused.The allegation against the appellant (whowas the Deputy Superintendent of Police, Oomachikulam Sub-Division at the relevantpoint of time) is that despite being present at the time of incident inDinakaran office and despite having a team of thirty-nine police personnel withtwo rifles, fifty live rounds and other arms and accessories, apart fromaccessories like helmet, shields, lathis, etc. posted for bandobust dutyat Dinakaran newspaper premises, he did not take effective steps to prevent thecrime. Further allegation against the appellant is that he deliberatelyrefrained from issuing orders to thirty-nine police personnel present at thespot to prevent the incident and no step was taken to apprehend the miscreants,rather the appellant intentionally omitted to apprehend the miscreants despitethe fact that they committed various cognizable offences in his presence andalleged to have intentionally aided them in escaping from the place ofoccurrence.
12. PW-2-A. Muthupandiyan, News Editor of Dinakaran Newspaper inMadurai has stated that on 09.05.2007, Dinakaran Newspaper has published anopinion poll regarding the political heir of M. Karunanidhi as to "Who is thepolitical heir of Karunanidhi?", which created furore. PW-2 has stated that inthe morning of 09.05.2007, a huge group of people came to Dinakaran Newspaper officeand attacked and damaged the office building and that he started evacuating thewomen staff to safety and also tried to protect the computers and otherimportant items inside the office.
PW-2 has also stated that Dinakaran officewas set fire and that he called the fire service immediately and also complainedto the Othakkadai Police Station and asked the police to give protection to theiremployees and the office. PW-2 has stated that he has also informed about thisattack 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 forgiving protection, he obtained the mobile number of the appellant standingoutside 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 knowwhat they had talked and later, PW-3 has spoken to another DSP, KalifullahKhan.
13. PW-3-R.M.R. Ramesh who has been working as Chief OperatingOfficer of Dinakaran Newspaper, Head office at Chennai has stated that PW-2-Muthupandiyanhad called him at 09:00 a.m. on 09.05.2007 and informed him about the attack onDinakaran 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 appellanttold him that their police group was on their way and the action would be takenimmediately. PW-3 further stated that since he was informed that more peoplestarted entering their office, he again called the appellant and requested himto take action at once. PW-3 further stated that the appellant informed him thathe has not yet received any order from his superiors and that PW-3 obtained thenumber of another DSP, Kalifullah Khan and he spoke to the said DSP who toldPW-3 that he would supply more police personnel to bolster up security sincemore people were inside. PW-3 further stated that by that time it was 11:00a.m. and he was informed by PW-2 that the entire reception was in flames andthat he asked PW-2 to ensure protection of the employees and the machines. PW-3also stated that by 01:00 p.m., PW-2 called him and told him that the entireoffice building was engulfed in flames and that two employees have lost theirlives by the billowing smoke cloud and that he informed the Chairman, Dinakaranand 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 whichare said to have been taken by PW-27-Annal who has been then working as thePhotographer of Nakkeeran Bi-weekly Magazine. M.Os. 49 to 54-Compact Discs aresaid to have been handed over to CBI by PW-2-Muthupandiyan, News Editor of DinakaranOffice. The Investigating Officer has stated that six Compact Discs-M.Os. 49 to54 were handed over to him by PW-2; but PW-2 denied handing over of M.Os. 49 to54. 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 strongin resolution". In his evidence, PW-77 has stated that none of the photographsare tampered and all the photographs and videographs are original because ofits strong resolution.
15. PW-28-Olirajan has been working as the Madurai Newsreporter ofNakkeeran Bi-weekly Magazine and PW-27-Annal has been working as thePhotographer of Nakkeeran Bi-weekly Magazine. Case of the prosecution is thatPWs 27 and 28 have covered the incident that happened in Dinakaran office on 09.05.2007and they have reported the news to their Magazine and sent the photos to theirChennai Head Office. PWs 27 and 28 have denied going to the spot and coveringthe incident. PW-27 has stated that on 09.05.2007, he was suffering fromstomach pain and that he went to the Dinakaran office only at 02:00 p.m. andsaw some demonstration and protest going on. PW-27 has thus, only stated aboutthe demonstration that were going on in Dinakaran office at 02:00 pm and thathe took the photos of it and sent the same to the Head Office. Likewise, PW-28who was then working as the News-reporter in Nakkeeran Bi-weekly Magazine hasstated that at the time of occurrence, he did not go to the place of occurrenceand he did not collect any news. But PWs 27 and 28 have thus, turned hostileand have not supported the case of prosecution.
16. PW-75-Nakkeeran Gopal is the Editor and Publisher of NakkeeranBi-weekly Magazine. In his evidence, PW-75 has stated that PWs 27 and 28 arethe persons collecting news for the Biweekly Magazine in Madurai and they usedto send the news and photos to their Head Office. PW-75 has stated that at thetime of CBI enquiry, as per the request of Investigating Officer (CBI), he has handedover M.O.45-CD to the Investigating Officer. PW-75 has also stated that inM.O.45-CD, thirty-one photographs were recorded. PW-26-Kamaraj, Joint Editor inNakkeeran Magazine at Chennai had also stated about PWs 27 and 28 having been engagedby their Magazine in Madurai and that they used to collect news and photos andsend it to their Head Office. PWs 26 and 75 have stated about the receipt ofnews and photographs of the occurrence that took place in Dinakaran office andthe photographs and news published in their Magazine; but PWs 26 and 75 have admittedthat they have not taken the photographs and they do not know personally aboutthe news or the photographs taken.
17. Mr. V. Giri, learned Senior counsel for the appellant hasraised objection regarding M.O.45-CD and six Compact Discs (M.Os.49 to54) †and that the same are not admissible. Learned Seniorcounsel contended that M.O.45 and M.Os.49 to 54 are not primary evidence andthe same should have been proved in accordance with Section 65-B of the IndianEvidence 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 ofsecondary evidence, shall not be admitted in evidence unless the requirementsunder Section 65-B of the Evidence Act are satisfied. Learned Senior counselhas also drawn our attention to Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 and submitted that in Shafhi Mohammad, afterreferring to Anwar case, two Judges Bench has distinguished the decisionand in para (29) of the judgment, it was observed that the requirement of acertificate under Section 65-B(4) of the Evidence Act is not always mandatory.Learned Senior counsel further submitted that the decision in ShafhiMohammad however, has been referred to a larger Bench on 26.07.2019 in C.A Nos.20825-20826of 2017.
18. Learned Senior counsel for the respondent-CBI has submitted thatthe evidence of PW-77, Senior Scientific Officer of CFSL establishes thetruthfulness of the videographs and the photographs and that in his evidence,PW-77 made it clear that the photographs, M.O.45-CD and the CompactDiscs-M.Os.49 to 54 were original and that they were not tampered with. Placingreliance upon Sonu alias Amar v. State of Haryana (2017) 8 SCC 570, learnedSenior counsel submitted that under Section 65-B of the Indian Evidence Act, atthe time of admitting the material objects, the accused did not take anyobjection before the trial court with regard to the requirement of Section65-B(4) certification. It was submitted that any objection regarding theadmission of documents/material objects should be taken at the stage of trialand at the time of marking of documents as an exhibit and not later.
19. Placing reliance upon Shafhi Mohammad case , learnedSenior counsel submitted that a piece of evidence/material objects† should notbe kept out of Courtís consideration on the ground that certificate underSection 65-B(4) is unavailable because, the ultimate objective of a criminalprosecution 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 CompactDiscs were rightly taken into consideration by the High Court to prove thecriminal acts of the accused and the act of the appellant in not actingdiligently.
20. For reversing the order of acquittal of the appellant, theHigh 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 evidencewere relied upon by the prosecution. As pointed out earlier, PW-2, News Editorof Dinakaran office has denied handing over of six Compact Discs-M.Os. 49 to 54to the Investigating Officer.The Investigating Officer in his evidence has statedthat PW-2 has handed over six Compact Discs-M.Os. 49 to 54.
The High Courtreferred to the report of PW-77, Senior Scientific Officer of CFSL and heldthat the evidence of PW-77 shows that the photos and the videos have not beendoctored. Referring toM.O.45-CD and other material objects-Compact Discs, theHigh Court observed that the trial court erred in brushing aside the video footageand the photos contained in the Compact Discs on a presumptuous ground that thesame could have been doctored and that the said approach of the trial court isperverse. On such findings, the High Court reversed the acquittal of all theaccused and also the acquittal of the appellant-accused No.17. Since the appealsagainst other accused convicted under Section 302 IPC are admitted and pendingbefore the Supreme Court, we do not propose to go into the merits of thecontentions regarding M.O.45- CD, photographs and other Compact Discs-M.Os.49to 54.Lest, it might affect the interest of the parties in other criminalappeals which are pending before in the Supreme Court. We therefore, consciouslyrefrain from expressing our views on the contentions regarding M.O.45-CD andother Compact Discs (MOs.49 to 54) and the photographs and other electronicevidence relied upon by the prosecution and the news published in NakkeeranBi-weekly Magazine.
21. The appellant has been convicted for the offences punishableunder Sections 217 IPC and 221 IPC. At the relevant time, the appellant was theDeputy Superintendent of Police of the jurisdictional Division. The allegationagainst the appellant is that he disobeyed the laws with intention to save theaccused from legal punishment and also intentionally allowed the accused toescape from the place of occurrence and therefore, he is charged for the offencespunishable under Sections 217 IPC and 221 IPC. In the light of the oralevidence adduced, it is to be seen whether the prosecution has proved thecharges against the appellant under Sections 217 IPC and 221 IPC and whetherthe High Court was right in reversing the order of acquittal of the appellant.
22. Section 217 IPC deals with disobedience on the part ofpublic servants in respect of official duty. To prove the charges under Section217 IPC, the following ingredients must be proved:-
(i) there must be an intentional disobedience of law by a publicservant; and
(ii) such disobedience must be with intention to save, or knowledgethat he will thereby (a) save a person from legal punishment; or (b) save anyproperty from forfeiture or charge to which it is liable by law. Section 221 IPC deals with omission to apprehend the offendersor suffering the escape of the offenders. To prove the charges underSection 221IPC, 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 personfor the same;
†(iv) that he omitted to apprehend; that he did so intentioally.
23. In the light of the oral evidence adduced by theprosecution, it is to be seen whether the High Court was right in holding thatthe appellant could have easily prevented the incident and the arson andarrested the accused "Attack Pandi" and his group when they went aboutcommitting the cognizable offences.
24. Ex.-P82 is the bandobust duty list as ordered byPW-29-T.S. Anbu, Superintendent of Police. As per Ex.-P82, police officials werepresent in the place of occurrence for bandobust and PW-30- Selvaraj-AdditionalSuperintendent of Police, a superior officer of the appellant, is mentioned atserial No.1. PW-1-Sub-Inspector of Police has stated that on the date ofoccurrence, bandobust was under the leadership of PW-30-Selvaraj,Additional Superintendent of Police who came to the place of occurrence withstriking force and they chased the agitators along with the appellant. PW-1 hasalso stated that police personnel were divided into seven groups and weredirected to be on bandobust duty on seven points.
SI-PW-1 has statedthat about ten persons of Madurai Armed Reserve Police Force came in a singlevehicle and that the appellant had asked that the vehicle to be parked awaysafely and asked the police force that they should be scattered sparselywithout standing together at one place. In his chief examination, PW-1 has alsostated that all of them along with the appellant and other police personnel hadused force on the agitators and they chased away the agitators. PW-1 alsostated that the appellant was informing about the development in the place ofoccurrence 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 statedas under:-
"The security was organized on that day under the charge of Mr.Selvaraj, the Additional Superintendent. The DSP was standing near his vehicleto relay the developments happening there to the S.P. through wirelesscommunication. To state that our vehicles were parked at a distance so as not to createtraffic jam is correct. To state that on that day the police security services werewell executed is correct". As per Ex.-P82 and from the evidence of PW-1, it is seen thatthus the appellant was not the senior most officer present at the scene of occurrenceto issue directions; PW-30-Additional Superintendent of Police was the higher officer present there who was to issue directionsand the appellant was to act under the direction and guidance of PW-30-AdditionalSuperintendent of Police.
25. PW-2-Muthupandiyan has been working as News Editor of DinakaranNewspaper in Madurai. In his examination-in-chief, PW-2 has deposed that he hasinformed 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 andstop the attacks. In his chief-examination, PW-2 has stated as under:-"Even when asking the police for giving protection, they did nottake any action standing witness to the incident. Therefore, I had gathered themobile phone number of the DSP Mr. Rajaram standing out and asked our COO totalk 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 talkedto another DSP Mr. Kalifullah Khan too". In his cross-examination on behalf of the appellant, PW-2 has statedthat he requested the appellant Rajaram to take action. PW-2 was treatedhostile 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 takeaction, the appellant-Rajaram told him that "he could not take any actionand there is no such necessity to do so."
26. PW-3-R.M.R. Ramesh, Chief Operating Officer of Dinakaran hasdeposed that PW-2-Muthupandiyan told him that more and more people are enteringinside the office and that PW-2 gave him the telephone number of the appellantwho was standing outside the office and that he (PW-3) immediately called theappellant over phone and the appellant told him that the police were on theirway and that action would be taken immediately. PW-3-Chief Operating Officer ofDinakaran office has further stated that since more people started entering theoffice, 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 requestedhim to provide the telephone number of his immediate higher authority. He gaveme the telephone number of DSP Mr. Kalifulla Khan. I called up DSP Mr.Kalifulla Khan and he told methat he would supply more police personnel to bolster upsecurity 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 immediatelyresponded to them by stating that action would be taken at once and that he hasnot received any order from his superiors. The evidence of PWs 2 and 3 showsthat the appellant was taking action and there was no lack of diligence on hispart.
27. PW-29-T.S. Anbu, then Superintendent of Police (Rural) of MaduraiDistrict has stated about the issuance of order (Ex.-P82) for providingsecurity to Dinakaran office. In his evidence, PW-29 has stated that he hasdeputed a total of 41 persons comprising of PW-30-Selvaraj, AdditionalSuperintendent of Police, the appellant- DSP, Inspectors, Sub-Inspectors andthe 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 givingsecurity and protection was S.P. Selvaraj. If any such officer wants to leave thatplace assigned to him, he has to get my permission. Mr.Selvaraj who wasassigned to this duty did not get any such permission from me. If he did notget 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 wasthe higher officer placed as In-charge of the security.
28. In his evidence, PW-30-Selvaraj, Additional Superintendentof Police has stated that about 35 police personnel along with the appellant wereengaged in bandobust duty and at about 11:18 a.m. since there was nofurther law and order problem, he went to the High Court and at about 11:40a.m., he noticed the smoke coming out from Dinakaran office and immediately, herushed to the place of occurrence. PW-30 further stated that he enquired theappellant about the measures taken to put off the fire and that the appellant informedthat fire brigade had already been informed. As pointed out earlier, in hiscross-examination, as per the evidence of PW-29- Superintendent of Police andEx.-P82, the higher official dispatched for giving security and protection wasPW-30 AdditionalSuperintendent of Police.
When there was agitation nearDinakaran office, it is not known as to why PW-30 left for the High Court. Havingbeen deputed to be on duty near Dinakaran office, if PW-30 wanted to leave theplace of duty assigned to him, he ought to have taken the permission from hissuperior officer. Nothing has come on record that PW-30 has taken any suchpermission 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 himto 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 Dinakaranoffice was posted under the control of PW-30 and the appellant was acting underthe direction of PW-30. The trial court has rightly pointed out thatPW-30-Additional Superintendent of Police is shown at serial No.1 in Ex.-P82and 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 policepersonnel have used force and chased away the agitators. The High Court foundthat though the appellant was present at the place of occurrence, the accusedcommitted 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 policeon bandobust including the appellant have chased the agitators. From theevidence of PW-1-Sub-Inspector of Police, it is seen that the appellant and theother police officers have taken action and also used force in chasing away theagitators. Further from the evidence of PW-2-News Editor of Dinakaran officeand PW-3-Chief Operating Officer of Dinakaran office, it is seen that theappellant immediately responded to them by stating that he has not received anyorder from his superiors and that action would be taken immediately.The evidenceof PWs 2 and 3 shows that there was no lack of diligenceon the part of theappellant.
30. The evidence of PW-29 and Ex.-P82 clearly show that PW-30-AdditionalSuperintendent of Police was the officer In-charge of the security bandobust.The appellant, who was the Deputy Superintendent of Police at the relevant timewas under the supervision and control of PW-30. In his evidence, PW-30 has not statedanything about the appellant having disobeyed his orders. In order to attractthe ingredients of Section 217 IPC, there should have been disobedience of thedirection of law with intention to save the accused. The prosecution has notadduced any evidence to show that the appellant-accused has disobeyed the directionof law or the direction of the superior officer-PW-30 or acted with the intentionof saving the accused.
31. While it may be true that at the time of incident near Dinakaranoffice i.e. on 09.05.2007 between 11-12:00 a.m., the situation became worse, atthe same time, it has come on record that the police were taking action tochase the agitators. In the light of such evidence, it cannot be said thatthere was inaction or negligence on the part of the appellant. In a tensesituation where there is law and order problem, normally a superior gives out instructionson how to handle a situation and the subordinates are expected to carry themout. If each subordinate police officer start taking actions on his own withoutorder 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 showthat the appellant disobeyed the orders of PW-30 who was the officer placedIn-charge of the bandobust nor there was any lack of diligence andinaction on the part of the appellant to sustain the conviction of theappellant under Sections 217 IPC and 221 IPC.
32. As pointed out earlier, one of the essential ingredients to makeout the offence under Section 217 IPC is that the public servant should havedisobeyed any directions of law with the intention to save any person fromlegal punishment. In the present case, there is no evidence to show that theappellant has disobeyed the directions of any law. On the contrary, there isclear evidence to show that the appellant, PW-1-Sub-Inspector of Police andother police personnel have used mild force against the miscreants and thus,chased them away to prevent any further untoward incident. Absolutely, there isno evidence to show that the appellant did not obey the command of PW-30 orPW-29-Superintendent of Police who were present on the spot for issuingdirections and commands. There is no evidence to prove that the appellant omittedto do any act to sustain the conviction under Section 217 IPC.
33. Insofar as the conviction under Section 221 IPC isconcerned, one of the essential ingredients of Section 221 IPC is theintentional omission to apprehend a person or intentionally aiding such person toescape. PW-29-Superintendent of Police and PW-30-Additional Superintendent ofPolice who were present on the spot issued directions and accordingly, theappellant acted. After the occurrence was over, PW-29 directed the appellant tosearch for the accused. Accordingly, the appellant went in search of theaccused and arrested accused No.1 (V.P. Pandi @ Attack Pandi) on 15.05.2007; accusedNo.2 (M. Thiruchelvam) on 16.05.2007 and accused Nos.3and 4 (Prabhu @Arockiyaprabu and M. Saravanamuthu) on 10.05.2007. There is no evidence to showthat the appellant intentionally omitted to apprehend the accused on the spot to sustainthe conviction under Section 221 IPC.
34. Upon appreciation of evidence and considering the ingredientsof Sections 217 IPC and 221 IPC, the trial court acquitted the appellant. Whenthe trial court has recorded the finding that the ingredients of Sections 217IPC and 221 IPC are not made out which is a plausible view, the High Courtcould not have substituted its views with the conclusion of the trial court. Sofar as the appellant is concerned, the prosecution has not proved his guilt andthe 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 thetrial court and the impugned judgment qua the appellant is not sustainable andthe appellant is acquitted.
35. Mr. B. Balaji, learned counsel appearing on behalf of the appellanthas submitted that because of the criminal case, the appellant has not beenpaid the pension and other retiral benefits and prayed for appropriatedirections. Since the conviction of the appellant is set aside and he isacquitted of the charges, the appellant is at liberty to work out his remedy inaccordance with law. The concerned authorities shall take note of the acquittalof the appellant.
36. The appellant was charged for the offences punishable under Sections217 IPC and 221 IPC alleging that he disobeyed the laws with intention to savethe accused and that he was not diligent in apprehending the accused. Uponconsideration of oral evidence adduced by the prosecution, we have held thatthe charges against the appellant under Sections 217 IPC and 221 IPC are notproved and the conviction of the appellant has been set aside and the appellantis 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 anddistinct from the charge for which the other accused were tried. Hence, theinstant appeal was heard separately. The other accused who have been convictedunder Section 302 IPC and other offences have preferred appeals and thoseappeals are pending before the Supreme Court. The appeals preferred by theother accused shall be considered on their own merits and the findings in theseappeals shall not have a bearing one way or the other in those appeals.
37. In the result, the impugned judgment and order dated 21.03.2019and 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 217IPC and 221 IPC are set aside and these appeals are allowed and the appellantis acquitted of the aforesaid charges.