Thomas John v. State of Kerala and Balachandran Panicker

Crl.M.C.No.849/2020 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA,_ _1944_ ## _CRL.MC NO. 849 OF 2020_ _AGAINST THE ORDER/JUDGMENTCC 1810/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA_ ## _PETITIONER/ACCUSED:_ _THOMAS JOHN, AGED 57 YEARS, ASST.SECURITY COMMISSIONER, R.P.F., SPECIAL WING, CHURCH GATE, MUMBAI - 20, NOW WORKING AS DIVISIONAL SECURITY COMMISSIONER, R.P.F., ALIPURDICAR, WEST BENGAL._ _BY ADVS. N.K.SUBRAMANIAN SUVIN R MENON_ ## _RESPONDENTS/COMPLAINANTS:_ _1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31._ _2 BALACHANDRA PANICKER, S/O. N. U. BALARAMAN, NALUTHENGUKAL HOUSE, PATHIRAPPALLY P. O., ALAPUZHA, KERALA - 688 521._ _BY ADV.SRI.V.N.KIRAN LAL_ Crl.M.C.No.849/2020 2 _SMT.SEENA C – PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.849/2020 3 ## **O R D E R** The petitioner is the accused in C.C.No.1810 of 2018 on the file of the Judicial First Class Magistrate Court-I, Alappuzha. The aforesaid Calendar Case was taken on file based on Annexure-A1 private complaint submitted by the 2[nd] respondent for the offences punishable under Sections 499, 500 and 501 of the Indian Penal Code. The allegations in the Annexure-A1 complaint are as follows: The complainant/2[nd] respondent was working in Railway Protection Force for several years until he retired from the office of the Crime Wing on 31.10.2014. It was claimed that he had unblemished service in his credit. On 17.10.2014, the 1[st] accused, who is the Assistant Security Commissioner of the Railway Protection Force, Special Wing, Church Gate, Mumbai, visited the residence of the 2[nd] respondent at Alappuzha allegedly based on a complaint containing allegations that the 2[nd] respondent accumulated wealth disproportionate to his income and also recorded statements of the neighbours of the Crl.M.C.No.849/2020 4 2[nd] respondent. Petitioner/1[st] accused also contended that he had come over to the place on the orders of the 2[nd] accused to investigate about the allegation against the complainant. It is further stated in the complaint that under the guise of conducting an inquiry, the 1[st] accused recorded statements of the neighbours of the 2[nd] respondent. According to the 2[nd] respondent, later, he understood that no such complaint was ever received and according to him, the inquiry allegedly conducted by the 1[st] accused and the statement of the neighbours recorded as part of the same were defamatory in nature and the complaint was submitted alleging the aforesaid offence. Cognizance was taken by the learned Magistrate as C.C.No.1810 of 2018 and said proceedings are under challenge in this Crl.M.C. 2. Heard Sri.Suvin R. Menon, learned counsel for the 1[st] petitioner/2[nd] accused. 3. The specific contention put forward by the learned counsel for the petitioner is that, even going by the contents of Crl.M.C.No.849/2020 5 the complaint, the petitioner had conducted an inquiry about the allegation that the de facto complainant had amassed wealth beyond his means and disproportionate to his known income. It is further pointed out that the only reason the 2[nd] respondent claims that the inquiry was not genuine is that, according to him, no complaint was submitted. It is pointed out that the petitioner being the Assistant Security Commissioner of the Railway Protection Force, was obliged to conduct an inquiry even without any written complaints being received, and they can act upon even secret information. Therefore, it is pointed out that merely because a complaint was not submitted, it cannot be concluded that the inquiry conducted by the petitioner was bogus. 4. It is further contended that, since the enquiry conducted is part of his official duties, he is entitled to get protection as contemplated under the 8[th] exception of Section 499 of IPC and also under Section 20(3) of the Railway Protection Force Act, 1957. Apart from the same, it was also Crl.M.C.No.849/2020 6 contended that even going by the contents of the complaint, absolutely nothing was mentioned as to the statement allegedly made by the petitioner to the neighbours, which would lower the dignity of the 2nd respondent, and attracts the offence under Section 499 of IPC. 5. After going through the materials placed on record, I find some force in the contention put forward by the learned counsel for the petitioner. As rightly pointed out by the learned counsel, apart from the fact that the petitioner had recorded the statements of two neighbours of the 2[nd] respondent as part of the inquiry, absolutely nothing is mentioned as to how the investigation by itself would result in any loss of reputation of the complainant herein. Further, the complainant was arrayed as the accused person by showing the official status, and the allegation against the petitioner is that he conducted an inquiry. It is evident that the inquiry was part of his official duties, and therefore, the statutory protection as contemplated under Section 20(3) of the Railway Crl.M.C.No.849/2020 7 ## Protection Force Act, 1957 is available to him. The aforesaid provision reads as follows: “(3) Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provisions of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding.” 6. As per the said provision, before commencing any proceedings in respect of anything done or intended to be done under the powers, by any member of the force, as part of the duty, a notice in writing of such proceedings has to be given to his superior officer at least one month before commencing of such proceedings, and such notice has to be submitted within three months from the commission and such proceedings have Crl.M.C.No.849/2020 8 to be initiated within three months after the act of complaint is committed. In this case, no notice as contemplated under Section 20(3) of the Railway Protection Force Act, 1957 has been issued and the complaint was also submitted beyond the period of three months as stipulated therein. In such circumstances, since the notice as contemplated under Section 20(3) of the Act was a mandatory requirement for initiating proceedings, the lack of the same would vitiate the proceedings. Thus, the prosecution initiated based on Annexure-1, violating the mandatory provisions contained in Section 20(3) of the Act, cannot be continued, as the same is an abuse of the process of the court. In such circumstances, the only irresistible conclusion possible is that the aforesaid proceedings are liable to be quashed. The view taken by me is fortified by the observations made by this Court in **Sivadasan v. State [2005(2) KLT 225].** Since I have found that the proceedings are initiated without compliance with Section 20(3) of the Railway Protection Force Act, 1957, I am not going Crl.M.C.No.849/2020 9 into the other contentions raised by the petitioner regarding the sustainability of the prosecution. In the result, this Crl.M.C. is allowed. Annexure-A1 complaint submitted by the 2[nd] respondent, which is now pending as C.C.No.1810 of 2018 on the file of the Judicial First Class Magistrate Court-I, Alappuzha and all further proceedings against the petitioner are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/19.12.22 Crl.M.C.No.849/2020 10 ## _APPENDIX OF CRL.MC 849/2020_ _PETITIONER ANNEXURES_ _ANNEXURE A1_ _THE CERTIFIED COPY OF THE COMPLAINT C.C.NO.1810 OF 2018 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, ALAPPUZHA._