V. Rajaram vs State represented by the Inspector of Police CBI/SCB

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1765-1766 2019 (Arising out of SLP(Crl.) Nos.3433-34 of 2019)

V. RAJARAM ...Appellant VERSUS

STATE REPRESENTED BY THE INSPECTOR OF POLICE CBI/SCB …Respondent

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. These appeals arise out of the judgment and order dated

21.03.2019 and 25.03.2019 passed by the High Court of Madras at

Madurai Bench in Crl.A. (MD) No.274 of 2011 in and by which the

High Court set aside the order of acquittal passed by the Principal

Sessions Judge, Madurai in Sessions Case No.3 of 2009 and

convicted the appellant-accused No.17 under Sections 217 IPC and

221 IPC and sentenced him to undergo rigorous imprisonment for Signature Not Verified

one year and four years respectively.

Digitally signed by MADHU BALA Date: 2019.11.26 16:43:42 IST Reason:

3. Brief facts which led to filing of these appeals are as under:-

1

On 09.05.2007, the newspaper Dinakaran carried public

opinion results regarding the political heir of the then Chief Minister

M. Karunanidhi which suggested that Mr. M.K. Stalin had greater

public approval as the political successor of M. Karunanidhi than his

elder brother M.K. Alagiri. Protests were staged against the

newspaper by the supporters of M.K. Alagiri before the Dinakaran

office. Around 10:00 a.m., about fifty persons led by Saravanan,

Ex-Secy, Volunteer Wing of DMK came to the office of Dinakaran

Newspaper in vehicles and started causing damage to the glass

panes of the office and they also started breaking the glass doors

with wooden logs. PW-30-Selvaraj-the then Additional

Superintendent of Police and the appellant along with police

personnel came to the spot. Under the command, the police present

there including the appellant used force against the agitators and

chased them away. Again, the said Saravanan came with a group of

people with soda bottles and started pelting the same at the office of

Dinakaran Newspaper. The appellant and other police personnel

used force and chased them away. At 11:45 a.m., the supporters

gathered before the office of Dinakaran Newspaper. A group of

persons (accused Nos.1 to 16) led by V.P. Pandi, S/o Ponnusamy

@ Attack Pandi, came to the office of the Dinakaran Daily in a white

colour Tata Sumo car armed with dandas (sticks) and iron rods.

2 They trespassed into the office and set fire to two wheelers parked

inside the compound, near the security office. Thereafter, they

vandalised the Dinakaran premises and proceeded to set on fire the

reception area. The private security guards on duty were no match

to resist the mischief and criminal acts of the miscreants. Three

employees of Dinakaran Newspaper-Vinoth Kumar (Deceased

No.1), Gopinath (Deceased No.2) and Muthuramalingam, security

guard, (Deceased No.3) got stuck in the engulfing fire and have lost

their lives in the said incident. On getting information, M.

Balasubramanian, Fire Station Officer (PW-50) along with a team of

fire service personnel and fire engines went to Dinakaran office at

12 noon and took efforts to douse the fire.

4. On the basis of complaint made by SI-Aladiyan (PW-1), on

09.05.2007, FIR was registered in Othakadai Police Station in Cr.

No.226 of 2007 at 01:00 p.m. under Sections 147, 148, 449, 436,

302, 307, 332 and 120B IPC, under Sections 4 and 5 of the

Explosive Substances Act and under Section 4 of the Tamil Nadu

Property (Prevention of Damage and Loss) Act against accused

No.1-V.P. Pandi @ Attack Pandi and others. Lakshmanan, Inspector

of Police (PW-70) had taken up the initial investigation and sent the

bodies of deceased persons for post-mortem. Dr. G. Natarajan (PW-

3

63) who conducted the autopsy opined that the cause of death of all

the deceased is suffocation associated with head injuries. PW-70

prepared the observation mahazar (Ex.-P181) and Rough sketch

(Ex.-P219). PW-70-Investigating Officer seized the material objects-

broken glass pieces and burnt two wheelers and other material

objects from the scene of occurrence and proceeded with the

investigation. Investigation of the case was transferred to the CBI

as per notification No.SC/2816-2/2007 dated 10.05.2007 under

Section 6 of Delhi Special Police Establishment Act, 1946 issued by

the Government of Tamil Nadu and also notification No.228/25/2007

AVD II under Section 5 of Delhi Special Police Establishment Act. In

pursuance of these notifications, on 18.05.2007, Cr.No.226 of 2007

of Othakadai Police Station was transferred to CBI and re-registered

as R.C.6/S/2007/CBI/SCB/Chennai by CBI and taken up for

investigation. On completion of investigation, charge sheet was filed

on 06.08.2007 against seventeen accused persons. A1 to A16 were

charge-sheeted for the offences punishable under Sections 147,

148, 449, 302 read with Section 149 IPC, 436 read with Section 149

IPC and under Sections 4 and 5 of the Explosive Substances Act

and under Section 4 of the Tamil Nadu Property (Prevention of

Damage and Loss) Act. The appellant-accused No.17 who was the

then jurisdictional Deputy Superintendent of Police was charge-

4 sheeted for the offences punishable under Sections 217 IPC and

221 IPC.

5. Accused Nos.1 to 16 were charged under Sections 147, 148,

449, 302 read with Section 149 IPC, 436 read with Section 149 IPC

and under Sections 4 and 5 of the Explosive Substances Act and

under Section 4 of the Tamil Nadu Property (Prevention of Damage

and Loss) Act. The appellant-accused No.17 was charged for the

offences punishable under Sections 217 IPC and 221 IPC.

6. On being questioned, the appellant denied the charges and

pleaded not guilty. Upon consideration of evidence, the trial court

acquitted the appellant by holding that the evidence adduced

against the appellant is not sufficient to prove the charges under

Sections 217 IPC and 221 IPC. The trial court noted the submission

of the counsel for the appellant that on the date of occurrence,

appellant was not the superior officer present at the place of

occurrence and that PW-30-Additional Superintendent of Police was

the superior officer and the bandobust was arranged under the head

of PW-30. The trial court held that the prosecution has not proved

that the appellant-accused No.17 intentionally disobeyed the

directions of law and intentionally allowed the accused to escape

from the place of occurrence. Insofar as the sanction for

5 prosecution, the trial court held that the Principal Secretary who

issued the sanction order, was not examined and that the

examination of Balakrishnan, Deputy Secretary (PW-67) is not

sufficient to prove the satisfaction of the Principal Secretary who

signed the sanction order-Ex.-P212.

7. In the appeal preferred by CBI, the High Court reversed the

acquittal and convicted 9 out of 16 main accused under Sections

147, 148, 449, 302 read with Section 149 IPC, 436 read with

Section 149 IPC, under Sections 4 and 5 of the Explosive

Substances Act and under Section 4 of the Tamil Nadu Property

(Prevention of Damage and Loss) Act. The High Court also

reversed the acquittal of the appellant-accused No.17 and convicted

him under Sections 217 IPC and 221 IPC and sentenced him to

undergo rigorous imprisonment for one year and four years

respectively. The High Court held that it has been clearly

established through the evidence of T.S. Anbu, Superintendent of

Police (PW-29) that the police pickets, which were posted for

protecting the Dinakaran office, were headed by Selvaraj (PW-30)

and assisted by the appellant-accused-Rajaram, Deputy

Superintendent of Police. The High Court held that from the

photographs and video footage, it was noticed that the appellant

6 was seen going along with accused No.1 and that the appellant did

not take any action to prevent the crime and to apprehend the

criminals. The High Court further held that failure of the CBI to

prosecute Additional Superintendent of Police Selvaraj (PW-30)

cannot absolve the appellant from criminal liability. Observing that

the trial court erred in ignoring the evidence of PW-77-Goutham

Roy, Senior Scientific Officer, Central Forensic Science Laboratory

and in discarding the photographs and videographs, the High Court

allowed the appeal preferred by CBI and reversed the acquittal of

the appellant and convicted and sentenced him to undergo

imprisonment as aforesaid. The revision preferred by one Poongodi,

mother of Vinoth Kumar (Deceased No.1) was closed. The

appellant was questioned on sentence in Crl. A. (MD) No.274 of

2011 i.e. criminal appeal preferred by the CBI. The sentence of

imprisonment was imposed on the appellant in Crl.A. (MD) No.274

of 2011.

8. Mr. V. Giri, learned Senior counsel for the appellant contended

that the High Court has failed to consider that since the Senior

Police Officers viz. Superintendent of Police (PW-29) and Additional

Superintendent of Police (PW-30) were regulating the police

bandobust and giving directions, the appellant cannot be held liable

7 for not preventing the crime committed by the accused. It was

further contended that the High Court has committed error in relying

upon the Compact Discs without there being any certification as

required under Section 65-B of the Indian Evidence Act to prove the

same. Learned Senior counsel further submitted that PW-27-Annal-

Photographer of Nakkeeran Bi-weekly Magazine who is said to

have taken video and the photographs and PW-28-Oliraja-News-

reporter of said Nakkeeran Bi-weekly magazine, have turned hostile

and have not supported the case of prosecution and this has not

been kept in view by the High Court. The learned Senior counsel

contended that the High Court erred in reversing the order of

acquittal of the appellant and the High Court did not keep in view

the well settled principle that generally, order of acquittal shall not

be interfered with unless there is erroneous appreciation of

evidence and the judgment of the trial court is perverse.

9. Per contra, Ms. Sonia Mathur, learned Senior counsel

appearing on behalf of the respondent-CBI has supported the

judgment of the High Court and submitted that at the relevant point

of time when the offence was committed, the appellant was In-

charge of the bandobust duty from 09:30 a.m. at the Dinakaran

Newspaper Building and the appellant deliberately did not take any

8 action in preventing the mischief and the criminal acts of the

accused. Drawing our attention to the ingredients of Sections 217

IPC and 221 IPC, the learned Senior counsel for the respondent-

CBI has submitted that the appellant who was In-charge of the

bandobust could have easily prevented the attack and the arson

and arrested the accused “Attack Pandi” and other accused when

they went about committing the offence. Learned Senior counsel

further submitted that M.O.45-CD and photographs and six

Compact Discs (M.Os.49 to 54) were sent to Central Forensic

Science Laboratory (CFSL), New Delhi and the evidence of PW-77-

Senior Scientific Officer of CFSL proves that the photographs and

videos in the CD’s are not tampered with and while so, the trial court

erred in discarding the opinion given by the Expert. It was submitted

that the High Court rightly relied upon M.O.45-CD and other

material objects-Compact Discs and the evidence of Expert-PW-77

and the High Court rightly held that there was no tampering of the

Compact Discs and the video CD’s in establishing the role of the

accused person and the failure of the appellant in his lawful duty.

Placing reliance upon Sidhartha Vashisht alias Manu Sharma v.

State (NCT of Delhi) (2010) 6 SCC 1, learned Senior counsel

submitted that in an appeal against acquittal, the High Court has the

power to review the entire evidence and come to its own conclusion

9 and reverse the order of acquittal and the paramount consideration

is to prevent the miscarriage of justice. It was submitted that the

High Court has rightly reversed the acquittal and convicted the

appellant and the learned Senior counsel prayed for dismissal of the

appeal.

10. We have carefully considered the above contentions and

perused the impugned judgment, evidence and other materials on

record. The point falling for consideration is whether the judgment of

the trial court qua the appellant was perverse and whether there

were substantial grounds for the High Court to reverse the order of

acquittal of the appellant recorded by the trial court and convict the

appellant for the offences punishable under Sections 217 IPC and

221 IPC.

11. Appellant was the then jurisdictional Deputy Superintendent of

Police. The appellant was arrayed as accused No.17 and was

charged for the offences punishable under Sections 217 IPC and

221 IPC alleging that the appellant who was on bandobust duty, did

not take effective steps to prevent the crime and to apprehend the

criminals on the spot and thus, alleged to have acted in aid of the

accused. The allegation against the appellant (who was the Deputy

Superintendent of Police, Oomachikulam Sub-Division at the

10 relevant point of time) is that despite being present at the time of

incident in Dinakaran office and despite having a team of thirty-nine

police personnel with two rifles, fifty live rounds and other arms and

accessories, apart from accessories like helmet, shields, lathis, etc.

posted for bandobust duty at Dinakaran newspaper premises, he

did not take effective steps to prevent the crime. Further allegation

against the appellant is that he deliberately refrained from issuing

orders to thirty-nine police personnel present at the spot to prevent

the incident and no step was taken to apprehend the miscreants,

rather the appellant intentionally omitted to apprehend the

miscreants despite the fact that they committed various cognizable

offences in his presence and alleged to have intentionally aided

them in escaping from the place of occurrence.

12. PW-2-A. Muthupandiyan, News Editor of Dinakaran

Newspaper in Madurai has stated that on 09.05.2007, Dinakaran

Newspaper has published an opinion poll regarding the political heir

of M. Karunanidhi as to “Who is the political heir of Karunanidhi?”,

which created furore. PW-2 has stated that in the morning of

09.05.2007, a huge group of people came to Dinakaran Newspaper

office and attacked and damaged the office building and that he

started evacuating the women staff to safety and also tried to

11 protect the computers and other important items inside the office.

PW-2 has also stated that Dinakaran office was set fire and that he

called the fire service immediately and also complained to the

Othakkadai Police Station and asked the police to give protection to

their employees and the office. PW-2 has stated that he has also

informed about this attack to PW-3-R.M.R. Ramesh, Chief

Operating Officer of Dinakaran in Chennai. PW-2 has further stated

that since the police did not take any action for giving protection, he

obtained the mobile number of the appellant standing outside and

asked PW-3 to talk to the appellant. PW-2 further stated that PW-3-

Chief Operating Officer has spoken to the appellant and that he

does not know what they had talked and later, PW-3 has spoken to

another DSP, Kalifullah Khan.

13. PW-3-R.M.R. Ramesh who has been working as Chief

Operating Officer of Dinakaran Newspaper, Head office at Chennai

has stated that PW-2-Muthupandiyan had called him at 09:00 a.m.

on 09.05.2007 and informed him about the attack on Dinakaran

Newspaper office. PW-3 has also stated that on being informed by

PW-2, he spoke to the appellant who was standing outside the

office and the appellant told him that their police group was on their

way and the action would be taken immediately. PW-3 further stated

12 that since he was informed that more people started entering their

office, he again called the appellant and requested him to take

action at once. PW-3 further stated that the appellant informed him

that he has not yet received any order from his superiors and that

PW-3 obtained the number of another DSP, Kalifullah Khan and he

spoke to the said DSP who told PW-3 that he would supply more

police personnel to bolster up security since more people were

inside. PW-3 further stated that by that time it was 11:00 a.m. and

he was informed by PW-2 that the entire reception was in flames

and that he asked PW-2 to ensure protection of the employees

and the machines. PW-3 also stated that by 01:00 p.m., PW-2

called him and told him that the entire office building was engulfed

in flames and that two employees have lost their lives by the

billowing smoke cloud and that he informed the Chairman,

Dinakaran and immediately, they went to Madurai by flight.

Submissions regarding M.O.45-CD, photographs and the Compact Discs (M.Os. 49 to 54)

14. CBI collected M.O.45-CD containing thirty-one photographs

which are said to have been taken by PW-27-Annal who has been

then working as the Photographer of Nakkeeran Bi-weekly

Magazine. M.Os. 49 to 54-Compact Discs are said to have been

handed over to CBI by PW-2-Muthupandiyan, News Editor of

13 Dinakaran Office. The Investigating Officer has stated that six

Compact Discs-M.Os. 49 to 54 were handed over to him by PW-2;

but PW-2 denied handing over of M.Os. 49 to 54. As seen from the

evidence of PW-77, Senior Scientific Officer of CFSL, Compact

Discs-M.Os.49 to 54 and M.O.45 were sent to the Laboratory. In his

report, PW-77 gave his opinion that “original photographs and

videographs look strong in resolution”. In his evidence, PW-77 has

stated that none of the photographs are tampered and all the

photographs and videographs are original because of its strong

resolution.

15. PW-28-Olirajan has been working as the Madurai News-

reporter of Nakkeeran Bi-weekly Magazine and PW-27-Annal has

been working as the Photographer of Nakkeeran Bi-weekly

Magazine. Case of the prosecution is that PWs 27 and 28 have

covered the incident that happened in Dinakaran office on

09.05.2007 and they have reported the news to their Magazine and

sent the photos to their Chennai Head Office. PWs 27 and 28 have

denied going to the spot and covering the incident. PW-27 has

stated that on 09.05.2007, he was suffering from stomach pain and

that he went to the Dinakaran office only at 02:00 p.m. and saw

some demonstration and protest going on. PW-27 has thus, only

14 stated about the demonstration that were going on in Dinakaran

office at 02:00 pm and that he took the photos of it and sent the

same to the Head Office. Likewise, PW-28 who was then working

as the News-reporter in Nakkeeran Bi-weekly Magazine has stated

that at the time of occurrence, he did not go to the place of

occurrence and he did not collect any news. But PWs 27 and 28

have thus, turned hostile and have not supported the case of

prosecution.

16. PW-75-Nakkeeran Gopal is the Editor and Publisher of

Nakkeeran Bi-weekly Magazine. In his evidence, PW-75 has stated

that PWs 27 and 28 are the persons collecting news for the Bi-

weekly Magazine in Madurai and they used to send the news and

photos to their Head Office. PW-75 has stated that at the time of

CBI enquiry, as per the request of Investigating Officer (CBI), he has

handed over M.O.45-CD to the Investigating Officer. PW-75 has

also stated that in M.O.45-CD, thirty-one photographs were

recorded. PW-26-Kamaraj, Joint Editor in Nakkeeran Magazine at

Chennai had also stated about PWs 27 and 28 having been

engaged by their Magazine in Madurai and that they used to collect

news and photos and send it to their Head Office. PWs 26 and 75

have stated about the receipt of news and photographs of the

15 occurrence that took place in Dinakaran office and the photographs

and news published in their Magazine; but PWs 26 and 75 have

admitted that they have not taken the photographs and they do not

know personally about the news or the photographs taken.

17. Mr. V. Giri, learned Senior counsel for the appellant has raised

objection regarding M.O.45-CD and six Compact Discs (M.Os.49 to

54) and that the same are not admissible. Learned Senior counsel

contended that M.O.45 and M.Os.49 to 54 are not primary evidence

and the same should have been proved in accordance with Section

65-B of the Indian Evidence Act. Reliance was placed upon Anvar

P.V. v. P.K. Basheer and Others (2014) 10 SCC 473 to contend that

electronic evidence, by way of secondary evidence, shall not be

admitted in evidence unless the requirements under Section 65-B of

the Evidence Act are satisfied. Learned Senior counsel has also

drawn our attention to Shafhi Mohammad v. State of Himachal

Pradesh (2018) 2 SCC 801 and submitted that in Shafhi

Mohammad, after referring to Anwar case, two Judges Bench has

distinguished the decision and in para (29) of the judgment, it was

observed that the requirement of a certificate under Section 65-B(4)

of the Evidence Act is not always mandatory. Learned Senior

counsel further submitted that the decision in Shafhi Mohammad

16 however, has been referred to a larger Bench on 26.07.2019 in C.A

Nos.20825-20826 of 2017.

18. Learned Senior counsel for the respondent-CBI has submitted

that the evidence of PW-77, Senior Scientific Officer of CFSL

establishes the truthfulness of the videographs and the photographs

and that in his evidence, PW-77 made it clear that the photographs,

M.O.45-CD and the Compact Discs-M.Os.49 to 54 were original and

that they were not tampered with. Placing reliance upon Sonu alias

Amar v. State of Haryana (2017) 8 SCC 570, learned Senior

counsel submitted that under Section 65-B of the Indian Evidence

Act, at the time of admitting the material objects, the accused did

not take any objection before the trial court with regard to the

requirement of Section 65-B(4) certification. It was submitted that

any objection regarding the admission of documents/material

objects should be taken at the stage of trial and at the time of

marking of documents as an exhibit and not later.

19. Placing reliance upon Shafhi Mohammad case, learned

Senior counsel submitted that a piece of evidence/material objects

should not be kept out of Court’s consideration on the ground that

certificate under Section 65-B(4) is unavailable because, the

ultimate objective of a criminal prosecution is to arrive at the truth.

17 Learned Senior counsel therefore, submitted that though the

certification under Section 65-B(4) is not available, by considering

the evidence of PW-77-Senior Scientific Officer of CFSL, the

Compact Discs were rightly taken into consideration by the High

Court to prove the criminal acts of the accused and the act of the

appellant in not acting diligently.

20. For reversing the order of acquittal of the appellant, the High

Court referred to M.O.45-CD, photographs and M.Os.49 to 54.

M.O.45-CD, photographs and the news published in Nakkeeran

Magazine and other evidence were relied upon by the prosecution.

As pointed out earlier, PW-2, News Editor of Dinakaran office has

denied handing over of six Compact Discs-M.Os. 49 to 54 to the

Investigating Officer. The Investigating Officer in his evidence has

stated that PW-2 has handed over six Compact Discs-M.Os. 49 to

54. The High Court referred to the report of PW-77, Senior Scientific

Officer of CFSL and held that the evidence of PW-77 shows that the

photos and the videos have not been doctored. Referring to

M.O.45-CD and other material objects-Compact Discs, the High

Court observed that the trial court erred in brushing aside the video

footage and the photos contained in the Compact Discs on a

presumptuous ground that the same could have been doctored and

18 that the said approach of the trial court is perverse. On such

findings, the High Court reversed the acquittal of all the accused

and also the acquittal of the appellant-accused No.17. Since the

appeals against other accused convicted under Section 302 IPC are

admitted and pending before the Supreme Court, we do not

propose to go into the merits of the contentions regarding M.O.45-

CD, photographs and other Compact Discs-M.Os.49 to 54. Lest, it

might affect the interest of the parties in other criminal appeals

which are pending before in the Supreme Court. We therefore,

consciously refrain from expressing our views on the contentions

regarding M.O.45-CD and other Compact Discs (MOs.49 to 54) and

the photographs and other electronic evidence relied upon by the

prosecution and the news published in Nakkeeran Bi-weekly

Magazine.

21. The appellant has been convicted for the offences punishable

under Sections 217 IPC and 221 IPC. At the relevant time, the

appellant was the Deputy Superintendent of Police of the

jurisdictional Division. The allegation against the appellant is that he

disobeyed the laws with intention to save the accused from legal

punishment and also intentionally allowed the accused to escape

from the place of occurrence and therefore, he is charged for the

19 offences punishable under Sections 217 IPC and 221 IPC. In the

light of the oral evidence adduced, it is to be seen whether the

prosecution has proved the charges against the appellant under

Sections 217 IPC and 221 IPC and whether the High Court was

right in reversing the order of acquittal of the appellant.

22. Section 217 IPC deals with disobedience on the part of public

servants in respect of official duty. To prove the charges under

Section 217 IPC, the following ingredients must be proved:-

(i) there must be an intentional disobedience of law by a public servant; and

(ii) such disobedience must be with intention to save, or knowledge that he will thereby (a) save a person from legal punishment; or (b) save any property from forfeiture or charge to which it is liable by law.

Section 221 IPC deals with omission to apprehend the offenders or

suffering the escape of the offenders. To prove the charges under

Section 221 IPC, the prosecution must prove:-

(i) that the accused is a public servant; (ii) that the person in question had been charged with an offence; or that such person was liable to be apprehended for an offence;

(iii) that the accused was legally bound to apprehend such person for the same;

(iv) that he omitted to apprehend; that he did so

intentionally.

20

23. In the light of the oral evidence adduced by the prosecution, it

is to be seen whether the High Court was right in holding that the

appellant could have easily prevented the incident and the arson

and arrested the accused “Attack Pandi” and his group when they

went about committing the cognizable offences.

24. Ex.-P82 is the bandobust duty list as ordered by PW-29-T.S.

Anbu, Superintendent of Police. As per Ex.-P82, police officials

were present in the place of occurrence for bandobust and PW-30-

Selvaraj-Additional Superintendent of Police, a superior officer of

the appellant, is mentioned at serial No.1. PW-1-Sub-Inspector of

Police has stated that on the date of occurrence, bandobust was

under the leadership of PW-30-Selvaraj, Additional Superintendent

of Police who came to the place of occurrence with striking force

and they chased the agitators along with the appellant. PW-1 has

also stated that police personnel were divided into seven groups

and were directed to be on bandobust duty on seven points. SI-PW-

1 has stated that about ten persons of Madurai Armed Reserve

Police Force came in a single vehicle and that the appellant had

asked that the vehicle to be parked away safely and asked the

police force that they should be scattered sparsely without standing

together at one place. In his chief examination, PW-1 has also

21 stated that all of them along with the appellant and other police

personnel had used force on the agitators and they chased away

the agitators. PW-1 also stated that the appellant was informing

about the development in the place of occurrence then and there

through wireless to PW-29, Superintendent of Police. In his cross-

examination on behalf of the appellant, PW-1-SI-Aladiyan has

stated as under:-

“The security was organized on that day under the charge of Mr. Selvaraj, the Additional Superintendent……The DSP was standing near his vehicle to relay the developments happening there to the S.P. through wireless communication…..To state that our vehicles were parked at a distance so as not to create traffic jam is correct. To state that on that day the police security services were well executed is correct”.

As per Ex.-P82 and from the evidence of PW-1, it is seen that thus

the appellant was not the senior most officer present at the scene of

occurrence to issue directions; PW-30-Additional Superintendent of

Police was the higher officer present there who was to issue

directions and the appellant was to act under the direction and

guidance of PW-30-Additional Superintendent of Police.

25. PW-2-Muthupandiyan has been working as News Editor of

Dinakaran Newspaper in Madurai. In his examination-in-chief, PW-2

has deposed that he has informed about the attack to PW-3-R.M.R.

Ramesh, Chief Operating Officer (COO) of Dinakaran in Chennai 22 and PW-3 has requested the police to give security and stop the

attacks. In his chief-examination, PW-2 has stated as under:-

“Even when asking the police for giving protection, they did not take any action standing witness to the incident. Therefore, I had gathered the mobile phone number of the DSP Mr. Rajaram standing out and asked our COO to talk to him. DSP Mr. Rajaram is the 17th accused in this case. Our COO has talked to the DSP Mr. Rajaram on his phone. I do not know what they had talked. Later, COO has talked to another DSP Mr. Kalifullah Khan too”.

In his cross-examination on behalf of the appellant, PW-2 has

stated that he requested the appellant Rajaram to take action. PW-2

was treated hostile by the prosecution. In his cross-examination

from the prosecution side, PW-2 denied having told the police that

when he asked the appellant to take action, the appellant-Rajaram

told him that “he could not take any action and there is no such

necessity to do so……”.

26. PW-3-R.M.R. Ramesh, Chief Operating Officer of Dinakaran

has deposed that PW-2-Muthupandiyan told him that more and

more people are entering inside the office and that PW-2 gave him

the telephone number of the appellant who was standing outside

the office and that he (PW-3) immediately called the appellant over

phone and the appellant told him that the police were on their way

and that action would be taken immediately. PW-3-Chief Operating

Officer of Dinakaran office has further stated that since more people 23 started entering the office, he called the appellant again and

requested him to take action at once. According to PW-3, the

appellant replied as under:-

“……he has not received any order yet from his superiors. I requested him to provide the telephone number of his immediate higher authority. He gave me the telephone number of DSP Mr. Kalifulla Khan. I called up DSP Mr. Kalifulla Khan and he told me that he would supply more police personnel to bolster up security since more people were inside. By that time, it was 11.00 a.m. …...”.

From the evidence of PWs 2 and 3, it is seen that the appellant

immediately responded to them by stating that action would be

taken at once and that he has not received any order from his

superiors. The evidence of PWs 2 and 3 shows that the appellant

was taking action and there was no lack of diligence on his part.

27. PW-29-T.S. Anbu, then Superintendent of Police (Rural) of

Madurai District has stated about the issuance of order (Ex.-P82) for

providing security to Dinakaran office. In his evidence, PW-29 has

stated that he has deputed a total of 41 persons comprising of

PW-30-Selvaraj, Additional Superintendent of Police, the appellant-

DSP, Inspectors, Sub-Inspectors and the Police Constables. In his

cross-examination on behalf of the appellant, PW-29 has stated as

under:-

24

“As per P.W. Ex.82, the higher official dispatched for giving security and protection was S.P. Selvaraj. If any such officer wants to leave that place assigned to him, he has to get my permission. Mr. Selvaraj who was assigned to this duty did not get any such permission from me. If he did not get my permission that will mean that he was doing his duty assigned to him. The higher authority of that security group is responsible for that group…..”.

From the evidence of PW-29 and Ex.-P82, it is clear that PW-30

was the higher officer placed as In-charge of the security.

28. In his evidence, PW-30-Selvaraj, Additional Superintendent of

Police has stated that about 35 police personnel along with the

appellant were engaged in bandobust duty and at about 11:18 a.m.

since there was no further law and order problem, he went to the

High Court and at about 11:40 a.m., he noticed the smoke coming

out from Dinakaran office and immediately, he rushed to the place

of occurrence. PW-30 further stated that he enquired the appellant

about the measures taken to put off the fire and that the appellant

informed that fire brigade had already been informed. As pointed

out earlier, in his cross-examination, as per the evidence of PW-29-

Superintendent of Police and Ex.-P82, the higher official dispatched

for giving security and protection was PW-30-Additional

Superintendent of Police. When there was agitation near Dinakaran

office, it is not known as to why PW-30 left for the High Court.

25 Having been deputed to be on duty near Dinakaran office, if PW-30

wanted to leave the place of duty assigned to him, he ought to have

taken the permission from his superior officer. Nothing has come on

record that PW-30 has taken any such permission from PW-29 for

going to the High Court. In cross-examination, PW-29-

Superintendent of Police has stated that PW-30 did not get

permission from him to leave the place and go to the High Court.

29. As held by the trial court, Ex.-P82 and the evidence of PW-29-

Superintendent of Police would show that the bandobust at the

Dinakaran office was posted under the control of PW-30 and the

appellant was acting under the direction of PW-30. The trial court

has rightly pointed out that PW-30-Additional Superintendent of

Police is shown at serial No.1 in Ex.-P82 and what kind of action to

be taken is to be decided by the superior officer. From the evidence,

it is brought on record that the appellant and other police personnel

have used force and chased away the agitators. The High Court

found that though the appellant was present at the place of

occurrence, the accused committed the offence in his presence and

he has not apprehended the accused. As discussed earlier, from

the evidence it has come on record that the police on bandobust

including the appellant have chased the agitators. From the

26 evidence of PW-1-Sub-Inspector of Police, it is seen that the

appellant and the other police officers have taken action and also

used force in chasing away the agitators. Further from the evidence

of PW-2-News Editor of Dinakaran office and PW-3-Chief Operating

Officer of Dinakaran office, it is seen that the appellant immediately

responded to them by stating that he has not received any order

from his superiors and that action would be taken immediately. The

evidence of PWs 2 and 3 shows that there was no lack of diligence

on the part of the appellant.

30. The evidence of PW-29 and Ex.-P82 clearly show that PW-30-

Additional Superintendent of Police was the officer In-charge of the

security bandobust. The appellant, who was the Deputy

Superintendent of Police at the relevant time was under the

supervision and control of PW-30. In his evidence, PW-30 has not

stated anything about the appellant having disobeyed his orders. In

order to attract the ingredients of Section 217 IPC, there should

have been disobedience of the direction of law with intention to

save the accused. The prosecution has not adduced any evidence

to show that the appellant-accused has disobeyed the direction of

law or the direction of the superior officer-PW-30 or acted with the

intention of saving the accused.

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31. While it may be true that at the time of incident near

Dinakaran office i.e. on 09.05.2007 between 11-12:00 a.m., the

situation became worse, at the same time, it has come on record

that the police were taking action to chase the agitators. In the light

of such evidence, it cannot be said that there was inaction or

negligence on the part of the appellant. In a tense situation where

there is law and order problem, normally a superior gives out

instructions on how to handle a situation and the subordinates are

expected to carry them out. If each subordinate police officer start

taking actions on his own without order from the superior officer, it

would lead to chaos and confusion. Responsibility for the actions

lies with the superior: in the present case, PW-30-Additional

Superintendent of Police. There is nothing on record to show that

the appellant disobeyed the orders of PW-30 who was the officer

placed In-charge of the bandobust nor there was any lack of

diligence and inaction on the part of the appellant to sustain the

conviction of the appellant under Sections 217 IPC and 221 IPC.

32. As pointed out earlier, one of the essential ingredients to

make out the offence under Section 217 IPC is that the public

servant should have disobeyed any directions of law with the

intention to save any person from legal punishment. In the present

28 case, there is no evidence to show that the appellant has disobeyed

the directions of any law. On the contrary, there is clear evidence to

show that the appellant, PW-1-Sub-Inspector of Police and other

police personnel have used mild force against the miscreants and

thus, chased them away to prevent any further untoward incident.

Absolutely, there is no evidence to show that the appellant did not

obey the command of PW-30 or PW-29-Superintendent of Police

who were present on the spot for issuing directions and commands.

There is no evidence to prove that the appellant omitted to do any

act to sustain the conviction under Section 217 IPC.

33. Insofar as the conviction under Section 221 IPC is concerned,

one of the essential ingredients of Section 221 IPC is the intentional

omission to apprehend a person or intentionally aiding such person

to escape. PW-29-Superintendent of Police and PW-30-Additional

Superintendent of Police who were present on the spot issued

directions and accordingly, the appellant acted. After the occurrence

was over, PW-29 directed the appellant to search for the accused.

Accordingly, the appellant went in search of the accused and

arrested accused No.1 (V.P. Pandi @ Attack Pandi) on 15.05.2007;

accused No.2 (M. Thiruchelvam) on 16.05.2007 and accused Nos.3

and 4 (Prabhu @ Arockiyaprabu and M. Saravanamuthu) on

10.05.2007. There is no evidence to show that the appellant

29 intentionally omitted to apprehend the accused on the spot to

sustain the conviction under Section 221 IPC.

34. Upon appreciation of evidence and considering the

ingredients of Sections 217 IPC and 221 IPC, the trial court

acquitted the appellant. When the trial court has recorded the

finding that the ingredients of Sections 217 IPC and 221 IPC are not

made out which is a plausible view, the High Court could not have

substituted its views with the conclusion of the trial court. So far as

the appellant is concerned, the prosecution has not proved his guilt

and the conviction of the appellant cannot be sustained. In our

considered view, the High Court was not right in reversing the order

of acquittal passed by the trial court and the impugned judgment

qua the appellant is not sustainable and the appellant is acquitted.

35. Mr. B. Balaji, learned counsel appearing on behalf of the

appellant has submitted that because of the criminal case, the

appellant has not been paid the pension and other retiral benefits

and prayed for appropriate directions. Since the conviction of the

appellant is set aside and he is acquitted of the charges, the

appellant is at liberty to work out his remedy in accordance with law.

The concerned authorities shall take note of the acquittal of the

appellant.

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36. The appellant was charged for the offences punishable under

Sections 217 IPC and 221 IPC alleging that he disobeyed the laws

with intention to save the accused and that he was not diligent in

apprehending the accused. Upon consideration of oral evidence

adduced by the prosecution, we have held that the charges against

the appellant under Sections 217 IPC and 221 IPC are not proved

and the conviction of the appellant has been set aside and the

appellant is acquitted. The appellant is not in any way involved in

the main occurrence. The very charge against the appellant for

which he was tried is different and distinct from the charge for which

the other accused were tried. Hence, the instant appeal was heard

separately. The other accused who have been convicted under

Section 302 IPC and other offences have preferred appeals and

those appeals are pending before the Supreme Court. The appeals

preferred by the other accused shall be considered on their own

merits and the findings in these appeals shall not have a bearing

one way or the other in those appeals.

37. In the result, the impugned judgment and order dated

21.03.2019 and 25.03.2019 passed by the High Court of Madras at

Madurai Bench in Crl.A. (MD) No.274 of 2011 convicting the

appellant-accused No.17 under Sections 217 IPC and 221 IPC are

31 set aside and these appeals are allowed and the appellant is

acquitted of the aforesaid charges.

…………………….J. [R. BANUMATHI]

…………………….J. [A.S. BOPANNA]

New Delhi;

November 26, 2019.

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