P.U. Sarala v. Gopi and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** ## **Crl.MC.No. 1141 of 2014** **CC NO.4352/2013 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, CHALAKKUDY** **CRIME NO. 660/2013 OF VELLIKULANGARA POLICE STATION, THRISSUR** ## **PETITIONER/ACCUSED NO.3:** **P.U.SARALA, W/O. M.G.BALAKRISHNAN, MULLAKKAPARAMBIL HOUSE, THALORE P.O., PIN: 680 306. BY ADV. SMT.T.V.NEEMA** ## **RESPONDENT/DE FACTO COMPLAINANT & STATE:** **1 GOPI, S/O.VELIAMMA, KUNNAMPILLY HOUSE, MANAMPETTA, VARAKKARA - 680 325. 2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (VELLIKKULANGARA POLICE STATION, CHALAKKUDY)** **BY ADVS.SMT.R.RAJITHA SRI.SANTHOSH P.PODUVAL** **SRI. M. S. BREEZ - SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 1141 of 2014 2 ## **“CR”** ## **ORDER** The petitioner, a retired Sub Registrar, is before this Court seeking to quash the criminal proceedings pending against her in C.C.No.4352 of 2013 on the file of the Judicial First Class Magistrate Court, Chalakkudy. In the aforesaid case, she was called upon to answer a charge for the offence punishable under Sections 166 and 167 of the IPC. 2. The facts indispensable for adjudicating the issue involved in this petition depict that an item of property having an extent of 27 cents was owned by the grandfather of the petitioner. The property devolved on his mother and after her death, on the de facto complainant. According to him, on 29.05.2013, he approached the petitioner, who was then working as the Sub Registrar at the Kodaly Sub Registrar’s Office, and sought for registering a settlement deed in favour of his son. For trivial reasons, the registration was refused. According to the de facto complainant, the petitioner had disobeyed the law by which, he was to carry out the registration and thus, caused injury to him. On these allegations, a complaint was lodged, consequent to which, Crime No.660 of 2013 was registered at the Vellikulangara Police Station under Sections 166 and 167 of Crl.MC.No. 1141 of 2014 3 the IPC. After investigation, final report was laid before the jurisdictional court. 3. The learned counsel appearing for the petitioner would contend that the allegations in the final report, even if it is admitted as true in its entirety, will not make out an offence against the petitioner. It is submitted that the petitioner was, during the relevant time, working as a Sub Registrar and the allegations are intricately connected with discharge of her official duty. All that the petitioner did when the document was presented for registration was to direct the de facto complainant to produce the Patta No.B5 36413/1957, the reference to which, was made mention of in the previous documents. According to the learned counsel, the petitioner was bound to ascertain as to whether the de facto complainant had acquired any right whatsoever over the property. She was mandated to do so in terms of the Act and Rules and also the Circular issued by the Inspector General (Registration). It is further submitted by the learned counsel that the petitioner had not disobeyed any legal direction concerning the way she should have conducted herself as a public servant. Neither the offence under Section 166 of the IPC nor Section 167 of the IPC was made out, submits the learned counsel. Crl.MC.No. 1141 of 2014 4 4. Per contra, the learned counsel appearing for the 1[st] respondent would contend that the petitioner had clearly abused her position as a public servant and had failed to adopt the procedure stipulated in the Act and Rules. It is submitted that gross injury was caused to the de facto complainant by the callous act of disobedience committed by the petitioner. 5. Heard the Senior learned Public Prosecutor as well. 6. I have perused the final report, the note issued by the petitioner to the de facto complainant and the Circular issued by the Inspector General (Registration), on 13.9.2012, and have anxiously considered the submissions made across the bar. 7. From the final report, it appears that the specific allegation against the petitioner herein is that she had acted against the Rules and guidelines and had refused to register the settlement deed. Annexure-4 produced by the petitioner would show that the Inspector General (Registration) had issued a Circular on 13.09.2012 detailing the procedure to be followed and the safeguards to be adopted prior to registering deeds. The petitioner was duty bound to follow the procedure. Annexure-3 would reveal that the petitioner had issued a note to the de facto complainant Crl.MC.No. 1141 of 2014 5 demanding that he should produce certain records to go forward with the registration. Now the question is whether, in the facts and circumstances, the offence under Sections 166 and 167 of the IPC would be made out. ## 8. Section 166 of the IPC reads as follows: “Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.” 9. The essential ingredients of the offence under Sections 166 of the IPC are: - a) That the accused is or was the public servant, at the time of commission of offence; - b) That he knowingly disobeyed any direction of law; and - c) That he knew or intended that by so disobeying, he will cause injury to any person. 10. Disobedience by a person who was or is a public servant along with intention to cause injury is essential to attract the offence under Section 167 of the IPC. Mere breach of departmental rules will not bring a public servant within the purview of this section, but Crl.MC.No. 1141 of 2014 6 there must be materials to show that the accused had willfully departed from the direction of law with intent to cause injury to any person. 11. Now, turning to Section 167 of the IPC, the said provision reads as follows: “Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” ## 12. Insofar as the offence under Section 167 of the IPC is ## concerned, the essential ingredients are the following: - “a) The accused must be a public servant; - b) He must be charged with the preparation or translation of any document qua such public servant; - c) He has framed or translated the document incorrectly knowing and believing that it is incorrect; and - d) He must intend thereby to cause or knowing it to be likely that in the process some injury will be caused to any person. “ Crl.MC.No. 1141 of 2014 7 13. For Section 167 of the IPC to apply, the public servant should have the charge of the preparation or translation of a document in his capacity as a public servant and he must frame or translate it incorrectly and knowing or believing that he was incorrectly doing so and with intent or knowledge that it was likely to cause injury to any person. 14. On perusing the final report and the materials contained thereunder, I have no doubt in my mind that the ingredients of Section 166 or 167 of the IPC are not made out in the instant case. All that the petitioner herein had done was request the de facto complainant to produce the original of the patta obtained by his predecessors in terms of the Circular issued by the higher authorities. 15. There is yet another matter. An offence under Section 166 or 167 of the IPC contemplates an act or omission done or purported to be done in exercise of official duty by a public servant. Therefore, for a prosecution of a public servant under this Section, if he is not removable from his office except for with the sanction of the Government, requires sanction under Section 197 of the Cr.P.C. No such santion has been obtained in the instant case. Crl.MC.No. 1141 of 2014 8 16. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where, in the opinion of the court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case also, quash the proceeding even though it may be at a preliminary stage. (See **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chadrojirao Angre and Ors.** [AIR 1988 SC 709]; **CBI Vs. K. M. Sharan** [2008 (2) SCC (Cri) 430]. 17. Having considered the entire facts and in the light of the above precedent, I am of the view that the continuance of the prosecution proceedings against the petitioner would result in abuse of process. This is an eminently fit case justifying the termination of the criminal proceedings by invoking the powers under Section 482 Crl.MC.No. 1141 of 2014 9 of the Code. In the result, this petition is allowed. Annexure-I final report and all further proceedings pursuant thereto against the petitioner now pending as C.C. No.4352 of 2013 on the file of the Judicial First Class Magistrate Court, Chalakkudy are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V JUDGE** IAP //TRUE COPY// P.A. TO JUDGE Crl.MC.No. 1141 of 2014 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I A TRUE COPY OF FINAL REPORT IN CC 4352/2013 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKKUDY ANNEXURE 2 A TRUE COPY OF SETTLEMENT DEED DOCUMENT NO.60/2013 OF KODALY SRO. ANNEXURE 3 TRUE COPY OF THE COMMUNICATION DATED 29/5/2013. ANNEXURE 4 TRUE COPY OF THE CIRCULAR NO.16535/2012. RESPONDENTS' EXHIBITS:** NIL