A. Radhika v. Wilson Sundararaj, 2021- Interference with Independence of Authority if Investigating Officer questioned in all cases of acquittal

DATE: 26th February, 2021
 

JUDGES: N. Anand Venkatesh
 

PARTIES: A. Radhika (PETITIONER)
Wilson Sundararaj (RESPONDENT)
 

SUBJECT: This judgement deals with section 211 of I.P.C and 304 Cr.P.C. The question before the Madras High Court was of the independence of investigating officer and whether the fact that the accused is acquitted by the court attracts the offence u/s 211 I.P.C against the investigating officer or not.

AN OVERVIEW

1. In 2005, the respondents in a case were facing trial for several offences under I.P.C. which was transferred from Egmore Police Station to CBCID. The petitioner in the present case was the Deputy Superintendent of Police and the trial was based on his report. The Trial Court acquitted all the accused from the charges framed.
2. After acquittal the respondent filed a complaint under section 340 Cr.P.C., against de facto complainant and that the entire case was a malicious prosecution against him.
3. Thus, this petition was filed before the present court by the petitioner challenging the summons.
4. The petitioner contended that the offence under section 211 of I.P.C. cannot be instituted solely on the ground that the respondents were acquitted by the Court. Thus, if no offence has been committed under section 211 IPC, there is no occasion for the court summon the petitioner for conducting preliminary enquiry.
5. The second contention of the petitioner was if there was malicious prosecution, only a suit for damages can be filed and not complaint under section 340 Cr.P.C.
6. On the other hand the respondent contended that the entire case was false and he has been dragged intentionally as an accused for filing Habeas Corpus for an illegal arrest. The petitioner has been called out by the court for preliminary enquiry and the court can decide in accordance with law whatever the petitioner is questioning.

IMPORTANT PROVISIONS

INDIAN PENAL CODE

• Section 211:- False charge of offence made with intent to injure.—Whoev­er, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, 1[imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

CRIMINAL PROCEDURE CODE

• Section 34:- Procedure in cases mentioned in section 195.

(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.

ISSUES: The key issue before the court were-

• Whether the offence under section 21 I.P.C. has been committed or not?
• Whether section 340 Cr.P.C is applicable in the present circumstances or not?
• Whether the Petitioner needs to go through enquiry before the court?

ANALYSES OF THE JUDGEMENT

• It is not an alien fact that crime rate is increasing day by day and the police at many instances is involved in fabricating facts against innocent people. The courts have acknowledged such issues where agony is caused upon innocent people by the people in authority. However, that does not mean in every case where the accused are acquitted, the police have maliciously roped them in.
• In this case, the court is dealing with a similar issue where the accused after acquittal has filed a complaint against the investigating officer for malicious prosecution. Aggrieved by the summons, the Investigating Officer filed a petition.
• The court observed that a complaint u/s 211 for false charges has been made. To acknowledge the issue, the court looked upon the ingredients of section 211 I.P.C. which are-

a. The complaint must have falsely charged a person with having committed an offence,
b. The complainant must have the knowledge that there was no lawful ground for such complaint at the time of filing,
c. The complainant must have the intention to cause injury.

• Referring to Santokh Singh &Ors. v. Izhar Hussain&Anr , the court was of the view that to institute criminal proceeding u/s 211 of I.P.C, intent to cause injury and the knowledge that there is no lawful ground for such proceedings in necessary.
• Coming to the charges u/s 340 Cr.P.C, the court looked into the provision and observed that to initiate proceedings under the said provision, application has to be made to the court upon which the court can initiate enquiry to offence referred in section 195(1)(b). The offence set out in the complaint has to be made out.
• Further, the court referred to language of section 211 of I.P.C for false charges and observed it can only relate to initial accusations through which the criminal law was set in motion. The court referred to Iqbal Singh Marwah case in which it was held that offence u/s 195(1)(b) Cr.P.C, will get attracted only when a document is in custodia legis.
• As of this case the main grievance of the respondent was that he had to undergo the agony of malicious prosecution. The court observe that if investigating officers are going to be exposed to such proceedings in all cases where the accused persons are acquitted from all charges, it will directly interfere with the independence of the authority in conducting an investigation.
• Referring to Santokh Singh case, the court held that, false charges relates back initiation of proceedings and it can never be related to flase charge framed after the final report have been filed.
• Thus, the offence has not been out against the petitioner. Also, the suit for malicious proceedings u/s 340 IPC has to be satisfy the requirements of section 195(1)(b) which was the case in present circumstances.
• Thus, the court held that the petitioner does not have to go through the ordeal of enquiry before the court.

CONCLUSION

• The malpractices of the policing authorities have made the common people quite pessimistic of the procedure for securing justice which is to an extent justified. But, the police have been assigned with some powers to fulfil some purpose and as long as that purpose is served questioning the investigation will certainly be an interference with the powers that has been lawfully assigned to them.
• Apart from that, the investigating officer in the present scenario investigated the F.I.R. only when it has been transferred to CBCID from Egmore Police Station. Thus, he is not the person who has framed the charges on the accused and thus cannot be questioned for an act that he has not done.
• Also, there are many cases in which due to lack of evidence, or the cases where the chain of circumstances could not be established, the accused is acquitted. The does not mean that there is certainly fault on the side of investigating officer. It would not be wise to question the investigation without any substance evidence to prove the same. Therefore, in the present scenario the court is right in its decision.

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