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Cannot convict u/s 221,217 IPC unless there is any intentional disobedience or omission of any direc

V.Rajaram V. State Represented by the Inspector of Police CBI/SCB, 1765-1766 2019 (Arising out of SLP(Crl.) Nos.3433-34 of 2019) – November 26, 2019

The Dinakaran newspaper carried a public opinion that M.K.Stalin is the political successor of M.Karunanidhi than M.K.Alagiri. Agitated by this, the supporters of M.K.Alagiri, started to create havoc in the Dinakaran office. The appellant, DSP, along with other police personals came to the spot and chased them away from the spot. Again the agitators came to the spot created an outbreak in the office and the appellants again chased them again.  Then for the third time a group of persons came to the office and trespassed and set fire in the premises which took the life of 3 innocent employees. An FIR was registered in Othakadai Police Station which was later transferred to CBI. On the investigation charge sheet was filed on appellant-accused u/s 217&221 IPC. The trial Court acquitted the appellant holding that there is no enough evidence and on the date of occurrence the appellant was not the superior authority.

In the appeal preferred by CBI, the HC reversed the acquittal and convicted him u/s 217&221 and sentenced him rigorous imprisonment for 1&4 yrs respectively. This decision was made from proofs of photographs and video footages. The HC also held that the failure of CBI to prosecute ASP cannot absolve the appellant from criminal liability.

Now this case reached the door steps of SC. The major issue in this case is whether the conviction of the appellant u/s 217&221 is valid?

Ld. Senior counsel for appellant contended that the HC has failed to consider that the SP and ASP were only leading and directing the police force and the appellant cannot be held liable for not preventing the crime. Also the HC has committed error by relying on the Compact Discs without the certificates required. The photographer who took the video and photographs has turned hostile.

Ld. Counsel appearing on behalf of the respondent-CBI submitted that at the relevant point of time, the appellant was only the in-charge of the bandobust. The appellant deliberately avoided taking action in preventing the mischief and criminal acts. Also the photographs and Compact Discs were sent to Central Forensic Science Laboratory (CFSL) which proved that they were not tampered and the Trial Court erred in discarding the opinion of expert. Referring Sidhartha Vashisht V. State, it can be found that the HC has rightly reversed the acquittal and convicted the appellant.

After carefully considering the contentions and perusing the impugned judgment, evidence and other materials on record, the SC held that the DSP did not take effective steps to apprehend the criminals even when he was provided with the necessary police force and other instruments. Also from the evidence of the PW-2&3 it can be found that even after giving information to the appellant-DSP about the havoc caused no action was taken on their part to control the mob violence. Also from the evidence of PW-77, Senior Science Officer of CFSL, it can be found that the photographs and videographs were not tampered and all of them were original. PW-28 a newspaper reporter and PW-27 a photographer of another newspaper are noted as covering the incident and reported it in their magazine; however they turned hostile and denied the allegation.

The counsel for the appellant objected the Compact Discs are not primary evidence and they are inadmissible u/s 65-B of Indian Evidence Act. Referring Anvar V. Basheer and Ors, the electronic evidence shall not be admitted in evidence unless requirements u/s 65-B of the Evidence Act is satisfied. Shafhi Mohammad V. State of Himachal Pradesh was also referred for supporting this argument.

The counsel for respondent-CBI, on the basis of PW-77, contended that videographs and photographs were truthful. In Sonu V. State of Haryana it was held that “The objection regarding the admission of documents/material objects should be taken at the stage of trial and at the time of making of documents as an exhibit and not later”. Based on this case, the counsel contended that the evidence should not be denied on the mere fact of non-availability of certificate u/s 65-B.

The SC held that

“Lest, it might affect the interest of the parties in other criminal appeals which are pending before in the SC. We therefore, consciously refrain from expressing our views on the contentions regarding M.O.45-CD and other Compact Discs and the photographs and the news published in Nakkeeran Bi-weekly magazine”.

From the evidence of various parties related to the case it is found that the police on in-charge including the appellant have chased the agitators. From the evidence of PW-1-SP, it can be concluded that the appellant and other police officers have taken action and used force to chase away the agitators. From the evidence of PW-2&3, it can be seen that there is no lack of diligence on the part of appellant. Also PW-30-ASP has not stated that the appellant has disobeyed his order.

“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.”“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.”

The SC observed that inorder to attract S.217 IPC, the public servant must have disobeyed any of the directions of law with the intention to save the accused.  Here the appellant has neither disobeyed the orders of the superior nor has he lacked diligence and action. For conviction u/s 221 the essential ingredient is the intentional omission to apprehend a person or intentionally aiding such a person to escape. But here the appellant has thoroughly followed the instructions of the PW-29-SP and PW-30-ASP and accordingly arrested A-1&2. The Trial Court has rightly acquitted the appellant and recorded that the ingredient of S.217&221 are not made out. Also the prosecution has not proved that guilt of the appellant.

“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.”

Also the pension and other retirement benefits denied to the appellant based on the conviction should also be set aside and he has at the liberty to work out his remedy in accordance with law.

Priyadharshini R

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