T.P. Nandakumar v. Nandakumar Nair and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **Crl.MC.No.4115 OF 2017** **AGAINST THE ORDER DATED 27-07-2013 IN CRL.M.P. NO.3870/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II,TRIVANDRUM** ## **PETITIONER/ACCUSED:** **T.P.NANDAKUMAR, CHIEF EDITOR, CRIME MAGAZINE, PUTHIYARA ROAD, CALICUT-4** **BY ADVS.SRI.MANU TOM SRI.BALU TOM SRI.K.R.JITHIN** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 NANDAKUMAR NAIR, ADDITIONAL SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME BRANCH, TRIVANDRUM-695001.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I. R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI C.B.I.** **R2 BY PUBLIC PROSECUTOR SRI. BINEESH E.C.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.06.2017, THE COURT ON 14.07.2020, PASSED THE FOLLOWING:** Crl.M.C.No.4115/2017 -:2:- “CR” Dated this the 14[th] day of July, 2020 ## O R D E R The petitioner, who is the sole accused in C.C.No.1980/2013 before the Judicial First Class Magistrate-II,Thiruvananthapuram challenges the order of the court issuing process to him for commission of offences punishable under Sections 116, 109 of 182 and 195A of the Indian penal code, 1860 (for short, 'the IPC), invoking Section 482 of the Code of Criminal Procedure,1973 (for short, 'the CrPC'). 2. He is the chief editor of the crime Magazine published from Kozhikode District. Annexure-A complaint, on the basis of which the impugned order was issued, was instituted against him by the Additional Superintendent of Police, Central Bureau of Investigation, Special Crime Branch, Thiruvananthapuram, who is the first respondent herein. The learned Magistrate, after making it clear in the impugned order that it was a complaint filed by a public servant acting in discharge of his official duties, dispensed with Crl.M.C.No.4115/2017 -:3:- his examination under Section 200 of the CrPC. 3. The challenge in this proceeding is that the order dispensing with the examination of the first respondent invoking proviso(a) to Section 200 of the CrPC, is illegal and has been passed without application of mind. It is contended that the first respondent was not acting in discharge of his official duties while filing Annexure-A complaint and since there was no tangible reason for the learned Magistrate to exempt the first respondent from examination, he acted in violation of mandatory requirement of law. It is also contended that the complaint filed ought to be reckoned as having been filed in his private and personal capacity, especially when he has not pleaded in the complaint that institution of the proceeding was in discharge of his official duties. It is alternatively contended that in any view of the matter, issue of process without the learned Magistrate conducting an enquiry under Section 202 of the CrPC was quite illegal inasmuch as the petitioner was residing outside the jurisdictional limit of the court. Crl.M.C.No.4115/2017 -:4:- 4. I heard the learned counsel for the petitioner and the learned standing counsel for the CBI. 5. The primary question that needs to be addressed is whether the first respondent, who is admittedly a public servant, acted in discharge of his official duties while filing Annexure-A complaint. In order to address this question, narration of minimum facts on which the complaint was laid is necessary. 6. The first respondent took over investigation of subject matter of crime in S.C. No.989/2011 on the file of Special Judge CBI, upon the court ordering further investigation of the case on the motion of the petitioner herein under Section 173(8) of the CrPC. The accusation against the sole accused, Smt.Latha Nair in S.C.No.989/2011 is that she committed offence punishable under Section 306 IPC and was responsible for Sri.Narayanan Namboothiri and members of his family committing suicide. The petitioner contended before the Sessions Court that investigation was faulty and improper, as a Crl.M.C.No.4115/2017 -:5:- few known political leaders involved in the crime were not brought to book and he had evidence with him to show that one of the deceased daughters of Sri.Narayanan Namboothiri was sexually abused by the politicians. 7. The first respondent, who undertook further investigation, is said to have recorded the statements of the petitioner twice and also questioned the persons in the exhaustive lists of witnesses furnished by him. According to the first respondent, there is no legal and cogent evidence to connect any of the politicians, whose names were mentioned to him, with the alleged sexual abuse of the deceased girl. It is stated in Annexure-A complaint that when this position was apprised to the sessions court, the learned Judge ordered a pointed investigation as to the complicity of certain political leaders in the alleged incident. The first respondent, after getting permission from the court is stated to have visited the accused, Latha Nair in the Women's jail and recorded her statement on 22.05.2012. The alleged revelation made by her to Crl.M.C.No.4115/2017 ## -:6:- first respondent and recorded by him at jail is what, according to the first respondent, led him to institute Annexure-A complaint against the petitioner. 8. It is stated that Smt. Latha Nair disclosed to the first respondent that the petitioner wanted her to write on a piece of paper the names of a few political leaders incriminating them as persons who sexually assaulted the deceased daughter of Sri.Namboothiri. The petitioner is said to have even assured her with a reward for a sum of Rs.50,00,000/- to RS.1,00,00,000/- in case she acted according to his direction. She also stated that she was even subjected to threat by the petitioner. However, she rejected his demand since she was not interested in falsely implicating the innocent persons. 9. According to the first respondent, the alleged act of the petitioner was an attempt to derail the investigation and process of justice. It is alleged that petitioner furnished false and misleading information to the first respondent and Crl.M.C.No.4115/2017 -:7:- further abetted Smt. Latha Nair also to furnish false statement and evidence with a view to using the lawful power of the public servant to the annoyance of others. On these allegations, Annexure-A complaint was filed for prosecuting the petitioner for offences punishable under Sections 116, 182 and 195A IPC. 10. The learned Magistrate was, however, pleased to issue process only regarding offences punishable under Sections 116, 109 of 182 and 195A IPC. The learned standing counsel for the CBI supported the impugned order contending that the institution of complaint by the first respondent before the court below was in discharge of his official duties and the order dispensing with the examination of the public servant was absolutely justified. 11. I have my own doubt as to whether statement made by Smt.Latha Nair to the first respondent could be said to be an act of giving evidence, attracting commission of offence under Section 195A IPC. So also, offence under Section 116 IPC also cannot be said to be made out since Crl.M.C.No.4115/2017 -:8:- though abetment was made, offence abetted was not committed. At the most, the averments in the complaint could make out an offence either under Section 182 IPC or abetment thereof. 12. Even though Section 200 of the CrPC provides for examination of the complainant as a mandatory requirement of law, such an examination is not imperative when the complaint filed is at the instance of a public servant acting or purporting to act in discharge of his official duties. This position of law is clear from proviso(a) to Section 200. It has also to be noted that immunity from examination cannot be extended to every complainant as a matter of course only because he is a public servant. A complaining person who pursues his private interest or cause may sometimes happen to be a public servant, yet in such cases, his examination under Section 200 is mandatory and no exemption from examination could be claimed or granted. In other words, the test for exempting a public servant from examination is to find out whether the institution of the complaint was part of or in discharge of Crl.M.C.No.4115/2017 -:9:- his official duty. Unless the law empowers or obligates him to prosecute an accused, it is no part of his official function to institute the complaint and in such situation, the proviso (a) to Section 200 cannot apply. The fundamental test therefore is, whether or not the public servant is enjoined by law to prefer the complaint in his official capacity. This position of law appears to be clear from Rajan Ancharakkandy v. National Industries Corporation Ltd. and Another [2007 (4) KHC 569], K. Krishna Warrier v. T.R. Velunny [1960 KHC 152], Mahindra Nath Das v. Public Prosecutor on 13 July 1979 [1979 (CriLJ) 1465], Ramashray Singh v. Dr. Anand Mohan [1977 CriLJ 1024] and Shyama Prasanna Das Gupta v. The State [1976 CriLJ 1517] cited before me by the learned counsel for the petitioner. 13. It is indisputable that the statements of the petitioner and the accused/Latha Nair were recorded by the first respondent in the capacity of the officer investigating the subject matter of crime in S.C.No.989/2011. He was, no doubt, a public servant also within the meaning of Section Crl.M.C.No.4115/2017 -:10:- 21 of the IPC at the time of institution of the complaint. The contention of the petitioner is that the first respondent had no legal authority to prosecute the former for the offences alleged against him, since the latter was not enjoined by any provision of law obligating him to file a complaint in the official capacity. In other words, the contention is that his official function did not take in the duty of preferring the complaint though he may have been an officer empowered to investigate the crime in S.C.No.989/2011. I find my way difficult to accept this to be a sound argument having regard to the peculiar nature and character of the offences in question. 14. A reference to Section 195 (1) (a) (i) (ii) and (iii) is also relevant in this context since the section takes within its fold the offence under Section 182 IPC alleged against the petitioner. This provision enacts a complete bar against taking cognizance of offences punishable under Sections 172 to 188 of IPC otherwise than through a complaint in writing preferred by the Crl.M.C.No.4115/2017 -:11:- public servant concerned . The relevant portion of the provision is extracted below: _“195.xxx xxx xxx_ _(1) No Court shall take cognizance-_ _(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or_ _(ii) of any abetment of, or attempt to commit, such offence, or_ _(iii) of any criminal conspiracy to commit such offence, exempt on the complaint in writing of the_ _**public servant** concerned or of some other public servant to whom h eis administratively subordinate;”_ (emphasis supplied) 15. The expression 'the public servant concerned' in the section is of immense importance in the context of this case because it provides that the public servant who would be empowered to prosecute offenders for commission of the specific class of offences enumerated in Section 195(1)(a) is only that particular public servant who is concerned with the transaction in question. The special characteristic features of the offences mentioned in Section 195(1)(a) of the CrPC are of such a nature that their commission amounts to contempt of lawful authority of public servant and public justice. These offences are grouped in a Crl.M.C.No.4115/2017 -:12:- specific category under Chapter X of IPC. A close scrutiny of the nature and character of the said offences would reveal that they are commonly acts or wrongs committed against the public servants who are occupied or associated with discharge of their official duties. Therefore, there could seldom arise any possible occasion wherein persons accused of such offences could be prosecuted in the personal or private capacity of the public servants. What Section 195(1)(a) of the CrPC provides is that the particular public servant who is affected or offended by the wrongful acts enumerated therein alone could make complaints in writing to initiate prosecution. The concerned public servant affected by the wrongs cannot, as the Section itself indicates, delegate or assign his function to anybody else except to some other public who is administratively subordinate to him. In the light of the above discussion of law, I am of the opinion that the concerned public servant who prosecutes a person accused of offence punishable under Section 182 IPC has to be regarded as acting only in discharge of his Crl.M.C.No.4115/2017 -:13:- official duties. The decisions relied on by the learned counsel for the petitioner have not considered the scope of the proviso (a) to Section 200 in the perspective of legal bar created by Section 195(1) (a) of the CrPC and therefore they are distinguishable on facts. 16. The first respondent recorded the statement of Smt. Latha Nair in jail as part of his official duty and the nature and character of the offence under Section 182 IPC alleged to have been committed by the petitioner is obviously against the public justice. Having regard to the nature of offences in question and the legal philosophy underlying Section 195(1)(a), institution of Annexure-A complaint by the first respondent was essentially part of his legal duty. He being be the concerned public servant, could not have delegated his function to anybody else in the teeth of Section 195(1)(a). For the forgoing reasons, lodging of Annexure-A complaint before Judicial First Class Magistrate-II, Thiruvananthapuram by the first respondent could only be held as being part of the discharge of his Crl.M.C.No.4115/2017 -:14:- official duties as stipulated in proviso (a) to Section 200. The contention of the learned counsel for the petitioner that the first respondent must be deemed to have instituted Annexure-A complaint in his personal capacity is therefore unsustainable. 17. The power given to the Magistrate to exempt the examination of a public servant under Section 200 of the CrPC in a particular case should not, however, be understood that in all cases, such an exemption ought to be invariably granted. What the proviso recites and permits is that the Magistrate need not examine the complainant. The words 'need not' in the first proviso to Section 200 should not be misunderstood as 'must not'. The law gives discretion to the Magistrate to decide in a particular case as to whether examination of the complainant ought to be insisted or not. It depends on facts and circumstances of each individual case. The very purpose behind insistence of examination of a complainant under Section 200 is to guard against false and vexatious prosecution being brought Crl.M.C.No.4115/2017 -:15:- against innocent persons. Therefore, if the Magistrate has reason to believe that even a public servant acting in discharge of his official duties should be examined in a particular case to guard against false implication and prosecution of innocent persons, he has every power to direct examination of the complainant irrespective of him being a public servant acting in discharge of official duties. 18. In spite of the legal position as being above, a valid legal ground was raised by the petitioner for assailing the impugned order inasmuch as, the learned Magistrate failed to conduct enquiry under Section 202 of the CrPC, despite the fact that the petitioner was residing or rather carrying on his career or profession outside the territorial jurisdiction of the Magistrate. After the amendment to Section 202(1) of the CrPC came into effect from 23.06.2006, Magistrates entertaining complaints against the accused residing at places beyond the area in which they exercise jurisdiction, are bound to conduct an enquiry under Section 202. This is Crl.M.C.No.4115/2017 -:16:- imperative, the object behind the amendment being to ensure that persons outside the territorial jurisdiction of the court are not unnecessarily harassed and drawn to courts on flimsy, frivolous, false and untenable charges. Decisions relied on by the learned counsel for the petitioner in Jayalakshmi P.K. v. State or Kerala and Another [2014 (3) KHC 811], Mahendra Singh Dhoni v. Yerraguntla Shyamsundar and Another [2017 (1) KLD 814(SC)], Vijay Dhanuka and others v. Najima Mamtaj and Others [2014 KHC 4206] and Joseph K. T. v. State or Kerala and Another [2009 KHC 4394] are worth noticing in this respect. This requirement of law shall be observed mandatorily notwithstanding the case before the Magistrate may be one where he has exercised the discretion of dispensing with the examination of complainant under proviso (a) to Section 200. 19. The learned Magistrate has failed to observe the mandatory requirement of conducting enquiry under Section 202 of CrPC and for this reason itself, the impugned order has necessarily to fall to ground. Crl.M.C.No.4115/2017 -:17:- In the result, Crl.M.C. is allowed quashing the impugned order dated 27.07.2013 and the matter is remitted back to the learned Magistrate to conduct enquiry under Section 202(1) of the CrPC and decide whether any sufficient ground to proceed against the petitioner exists in the case. It is also made clear that the learned Magistrate will, in exercise of his discretion, also decide whether examination of the complainant under Section 200 is necessary in the facts and circumstances of the case. All pending interlocutory applications will stand closed. Sd/- ## T.V.ANILKUMAR,JUDGE DST //True copy/ P.A.To Judge Crl.M.C.No.4115/2017 -:18:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT WHICH WAS NUMBERED ON THE FILES OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, TRIVANDRUM AS CRL.M.P.NO.3870/13, WHICH IS NOW TAKEN TO THE FILES AS C.C.1980/13** **ANNEXURE B CERTIFIED COPY OF THE ORDER DATED 27.7.2013 IN CMP.3870/13 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-2, THIRUVANANTHAPURAM** ## **RESPONDENTS' EXHIBITS:NIL**