Raju Puzhangara v. State of Kerala and S. Sujatha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.Rev.Pet.No. 2797 of 2008() -----------------------------CMP.4778/2007 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER: PETITIONER/COMPLAINANT ----------------------------------------------------- RAJU PUZHANGARA, S/O. SANKARANARAYANA MENON, PERUNNA P.O., CHANGANASSERY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.BLAZE K.JOSE ## RESPONDENTS: RESPONDENTS ------------------------------------ 1. STATE OF KERALA REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. S.SUJATHA, JOINT CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM. BY ADV. SRI. P.G. THAMBI, DIRECTOR GENERAL OF PROSECUTION SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V. RAMKUMAR , J. ========================== Crl.R.P. No. 2797 of 2008 ========================== Dated this the 21[st] day of August, 2008. ## **ORDER** The revision petitioner, who was the complainant in a private complaint filed by him as C.M.P. No. 4778 of 2008 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram, challenges the order dated 10.01.2008 passed by the Chief Judicial Magistrate rejecting the complaint for the alleged noncompliance of Section 195(1)(b)(i) Cr.P.C and for the alleged lack of prosecution sanction under Section 197(1)(b) Cr.P.C. 2. The private complaint filed by the revision petitioner was an off-shoot of Crime No. 188 of 2004 of Kumarakom Police Station relating to the alleged gang rape of a minor girl hailing from Kiliroor who died of Septiciemia on 13.11.2004. The investigation of the said case was subsequently entrusted by the State Government with the C.B.I which re-registered the case as RC2(S)/2005/CBI/SCB/CHE. Finally, the C.B.I filed a charge sheet against 9 persons for offences punishable under Sections 366(A), 376(2)(g), 506(i), 109, 420 and 212 r/w Section 120 B CRL.R.P. NO. 2797/2008 :2: IPC. One of the documents produced by the C.B.I along with the charge sheet was Certificate No. 37 dated 07.01.2005 issued by one Sujatha, the Joint Chemical Examiner in the Chemical Examiner's Laboratory, Thiruvananthapuram. As per the said certificate, the blood of the deceased victim contained 5.25 mg of copper per 100 ml of blood which was far in excess of normal percentage of copper ions in blood which is 15 – 120 micrograms per 100 ml. This led to a pointed investigation resulting in the C.B.I concluding that the said certificate was not the result of analysis undertaken in the Chemical Examiner's Laboratory, but was the product of analysis conducted in the Government Analysts' Laboratory, Thiruvananthapuram after it was unofficially consigned by the said Sujatha to the Government Analysts' Laboratory. 3. The revision petitioner filed the present private complaint before the Court of the Chief Judicial Magistrate, Thiruvananthapuram on 14.11.2007 against the said Sujatha and others alleging offences punishable under Sections 197 and 465 IPC. The private complaint proceeded to allege that Sujatha, the CRL.R.P. NO. 2797/2008 :3: Joint Chemical Examiner in the Chemical Examiner's Laboratory, Thiruvananthapuram, noticing that the Atom Absorption Spectrophotometer installed in the Chemical Examiner's Laboratory was not functioning, had got the blood sample of the deceased rape victim analysed in the Atom Absorption Spectrophotometer installed in the Government Analysts Laboratory, Thiruvananthapuram through one Rajesh and issued the aforementioned certificate dated 07.01.2005 as though the blood sample was tested in the Chemical Examiner's Laboratory, Thiruvananthapuram under her personal supervision. This, according to the petitioner/complainant was not an act committed by her in the purported discharge of her official duties as Joint Chemical Examiner and that she had thereby committed an offence punishable under Section 197 IPC namely issuing and signing a false certificate and an offence punishable under Section 465 IPC in making a false document and thereby committing the offence of forgery. 4. The learned Chief Judicial Magistrate, after perusing the complaint, came to the conclusion that cognizance of an offence CRL.R.P. NO. 2797/2008 :4: punishable under Section 197 IPC at the instance of a private person other than the court was barred under Section 195(i)(b) (i) Cr.P.C. The learned Magistrate also came to the conclusion that cognizance of the offence under Section 465 IPC at the instance of a person other than the court was also barred under Section 195(i)(b)(ii) Cr.P.C. The learned Magistrate also took the view that the acts alleged against the accused were intrinsically connected with the discharge of the public duty of the accused and that the allegation at best could only amount to irregularity, lack of diligence and expertise in coming to the erroneous conclusion and therefore the court could not take cognizance of the offence without a prosecution sanction under Section 197 Cr.P.C. The learned Magistrate, accordingly, as per the impugned order dated 10.01.2008 rejected the complaint. Hence this revision. 5. I heard the learned counsel appearing for the revision petitioner/complainant as well as Shri. P.G. Thambi, the learned Director General of Prosecution. CRL.R.P. NO. 2797/2008 :5: 6. I am afraid that the view taken by the learned Chief Judicial Magistrate cannot be supported. First of all, an offence punishable under Section 197 IPC does not figure under Section 195(i)(b)(i) Cr.P.C in order to attract the embargo thereunder. Hence, the Magistrate was not quite right in holding that the cognizance could not be taken with regard to the offence under punishable Section 197 Cr.P.C in a private complaint by a person other than the court or such officer of the court as the court may authorise or by a superior court. Likewise, the view taken that the offence punishable under Section 465 IPC could not be taken cognizance of in view of the bar under Section 195(i)(b)(ii) Cr.P.C, also cannot be supported. After the decision of the Constitution Bench in _**Iqbal Singh Marwah & another v. Meenakshi Marwah**_ (2005(4) SCC 370), in order to attract the embargo under Section 195(i)(b)(ii) Cr.P.C., the offence of forgery should have been committed in support of documents produced or given in evidence after their production before the court. It is nobody's case that the certificate which has been produced in court was tampered with after its production so as to CRL.R.P. NO. 2797/2008 :6: attract the embargo under Section 195(i)(b)(i) Cr.P.C. 7. The decision regarding the want of sanction under Section 197 Cr.P.C taken by the learned Magistrate also cannot be supported. On going by the averments in the complaint, the 1[st] accused Sujatha who was the Joint Chemical Examiner in the Chemical Examiner's Laboratory was unauthorisedly entrusting the blood sample with the Government Analysts Laboratory and getting a certificate which was thereafter dishonestly issued as if the blood sample was analysed in the Chemical Examiner's Laboratory under her personal supervision. By no stretch of imagination could it be said that the above allegation made in the complaint, if true, could induce the court to came to the conclusion that the Joint Chemical Examiner was acting or purporting to act in discharge of her official duty. Of course, the allegations in the private complainant are only in the realm of allegations and at this stage of proceedings, the Magistrate was not entitled to traverse beyond the allegations in the complaint to consider whether the 1[st] accused was acting in discharge of her official duties or not. No doubt, the question may again crop up CRL.R.P. NO. 2797/2008 :7: for consideration during the trial of the stage as to the manner in which the said certificate of analysis came to be issued by the 1[st] accused. But as matters now stand, the learned Magistrate could not have travelled beyond the averments in the complaint to hold that the act of the 1[st] accused could be said to be one in discharge of her official duties as the Joint Chemical Examiner. Hence, the question of prosecution sanction under Section 197 on the allegation in the complaint did not arise. If so, the learned Magistrate was in error in rejecting the complaint at the threshold. The impugned order is accordingly set aside and the Chief Judicial Magistrate shall proceed to deal with the complaint in accordance with law. This Crl.R.P. is disposed of as above. Dated this the 21[st] day of August, 2008. ## **V. RAMKUMAR, JUDGE.** rv CRL.R.P. NO. 2797/2008 :8: