V. RAJARAM versus STATE REPRESENTED BY THE INSPECTOR OF POLICE CBI/SCB on 26 November 2019

[2019] 14 S.C.R. 977

V. RAJARAM

v.

STATE REPRESENTED BY THEINSPECTOR OF POLICE CBI/SCB

(Criminal Appeal Nos.1765-1766 of 2019)

NOVEMBER 26, 2019

[R. BANUMATHI AND A.S. BOPANNA, JJ.]

Penal Code, 1860: ss.217 and 221 – Prosecution case wasthat a group of persons (Accused no.1 to 16) armed with dandas(sticks) and iron rods trespassed into the newspaper office andvandalized it and set it on fire – Three employees of the newspaperoffice got stuck in the engulfing fire and lost their life – A1 to A16were charged under IPC, Explosive Substances Act and Tamil NaduProperty (Prevention of Damage and Loss) Act – Appellant-accusedNo.17 who was the then jurisdictional Deputy Superintendent ofPolice was charged for offence under ss.217 and 221 – Case againstthe appellant was that he did not take action to prevent the crimeand intentionally disobeyed the directions of law and allowed theaccused to escape from the place of occurrence – Trial courtacquitted the appellant on the ground that on the date of occurrence,appellant was not the superior officer present at the place ofoccurrence and that PW-30-Additional Superintendent of Police wasthe superior officer and the bandobust was arranged under thehead of PW-30 – State’s appeal against acquittal – High Courtreversed the acquittal of 9 out of 16 main accused – High Courtalso reversed the acquittal of appellant and convicted him undercharged offences – On appeal, held: The evidence on record clearlyshowed that the bandobust at the Newspaper office was posted underthe control of PW-30 and the appellant was acting under the directionof PW-30 – Evidence on record further made it clear that theappellant and other police personnel used force to chase away theagitators – Evidence of PW-2-News Editor and PW-3-ChiefOperating Officer of Newspaper office was to the effect thatappellant immediately responded to them that action would be takenat once and that he had not received any order from his superiorswhich showed that there was no lack of diligence on his part – In

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Ahis evidence, PW-30 did not state anything about the appellanthaving disobeyed his orders – s.217 is attracted when there isdisobedience of the direction of law with intention to save theaccused – In a tense situation where there is law and order problem,normally a superior gives out instructions on how to handle asituation and the subordinates are expected to carry them out –BResponsibility for the actions lies with the superior – In the instantcase, there was nothing to show that the appellant disobeyed theorders of PW-30 who was the officer placed In-charge of thebandobust nor there was any lack of diligence and inaction on thepart of the appellant to sustain his conviction – On the contrary,Cthere is clear evidence to show that the appellant and other policepersonnel used mild force against the miscreants and thus, chasedthem away to prevent any further untoward incident – As regardsconviction under s.221, one of the essential ingredients is theintentional omission to apprehend a person or intentionally aidingsuch person to escape – PW-29-Superintendent of Police and PW-D30 who were present on the spot issued directions and accordingly,the appellant acted – After the occurrence was over, PW-29 directedthe appellant to search for the accused – Accordingly, the appellantwent in search of the accused and arrested accused No.1 to 4 onvarious dates – There is no evidence that appellant intentionallyEomitted to apprehend the accused on the spot – The view of trialcourt that ingredients of ss.217 and 221 were not made out wasplausible one – High Court ought not to have substituted its viewswith the conclusion of the trial court – Conviction of the appellantnot sustainable.

FAllowing the appeals, the Court

Conclusion

FAllowing the appeals, the Court

HELD: 1. Ex.-P82 is the bandobust duty list as ordered byPW-29-Superintendent of Police. As per Ex.-P82, police officialswere present at the place of occurrence for bandobust and PW-30-Additional Superintendent of Police, a superior officer of theGappellant, is mentioned at serial No.1. PW-1-Sub-Inspector ofPolice stated that on the date of occurrence, bandobust was underthe leadership of PW-30 who came to the place of occurrencewith striking force and they chased the agitators along with theappellant. SI-PW-1 stated that about ten persons of Madurai H

Armed Reserve Police Force came in a single vehicle and thatthe appellant had asked that the vehicle to be parked away safelyand asked the police force that they should be scattered sparselywithout standing together at one place. In his chief examination,PW-1 has also stated that all of them along with the appellant andother police personnel had used force on the agitators and theychased away the agitators. PW-1 also stated that the appellantwas informing about the development in the place of occurrencethen and there through wireless to PW-29, Superintendent ofPolice. As per Ex.-P82 and from the evidence of PW-1, it is seenthat thus the appellant was not the senior most officer present atthe scene of occurrence to issue directions; PW-30 was the higherofficer present there who was to issue directions and the appellantwas to act under the direction and guidance of PW-30.[Para 24] [992-B-F, H; 993-A]

2. PW-2 was working as News Editor of DinakaranNewspaper in Madurai. In his examination-in-chief, he deposedthat he informed about the attack to PW-3, Chief Operating Officer(COO) of Dinakaran in Chennai and PW-3 requested the policeto give security and stop the attacks. PW-3 deposed that PW-2told him that more and more people were entering inside theoffice and that PW-2 gave him the telephone number of theappellant who was standing outside the office and that he (PW-3)immediately called the appellant over phone and the appellanttold him that the police were on their way and that action wouldbe taken immediately. The evidence of PWs 2 and 3 showed thatthe appellant immediately responded to them by stating that actionwould be taken at once and that he has not received any orderfrom his superiors. The evidence of PWs 2 and 3 shows that theappellant was taking action and there was no lack of diligence onhis part. [Paras 25, 26] [993-B, F-G; 994-B]

3. The evidence of PW-29 and Ex.-P82 clearly show thatPW-30 was the officer In-charge of the security bandobust.Theappellant, who was the Deputy Superintendent of Police at therelevant time was under the supervision and control of PW-30.In his evidence, PW-30 has not stated anything about theappellant having disobeyed his orders. In order to attract the A

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Aingredients of Section 217 IPC, there should have beendisobedience of the direction of law with intention to save theaccused. In a tense situation where there is law and order problem,normally a superior gives out instructions on how to handle asituation and the subordinates are expected to carry them out. Ifeach subordinate police officer start taking actions on his ownBwithout order from the superior officer, it would lead to chaosand 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 disobeyedthe orders of PW-30 who was the officer placed In-charge of theCbandobust nor there was any lack of diligence and inaction on thepart of the appellant to sustain the conviction of the appellantunder Sections 217 IPC and 221 IPC. [Paras 30, 31] [995-G-H;996-A-D]

4. Insofar as the conviction under Section 221 IPC isDconcerned, one of the essential ingredients of Section 221 IPC isthe intentional omission to apprehend a person or intentionallyaiding such person to escape. PW-29-Superintendent of Policeand PW-30-Additional Superintendent of Police who were presenton the spot issued directions and accordingly, the appellant acted.

After the occurrence was over, PW-29 directed the appellant toEsearch for the accused. Accordingly, the appellant went in searchof the accused and arrested accused No.1 on 15.05.2007; accusedNo.2 on 16.05.2007 and accused Nos.3 and 4 on 10.05.2007.There is no evidence to show that the appellant intentionallyomitted to apprehend the accused on the spot to sustain theFconviction under Section 221 IPC.[Para 33] [996-G-H; 997-A-B]

5. When the trial court has recorded the finding that theingredients of Sections 217 IPC and 221 IPC are not made outwhich is a plausible view, the High Court could not havesubstituted its views with the conclusion of the trial court. So far Gas the appellant is concerned, the prosecution has not provedhis guilt and the conviction of the appellant cannot be sustained.The High Court was not right in reversing the order of acquittalpassed by the trial court. [Para 34] [997-C-D]

Sidhartha Vashisht alias Manu Sharma v. State (NCT ofHDelhi) (2010) 6 SCC 1 : [2010] 4 SCR 103;Anvar P.V.

V. RAJARAM v. STATE REPRESENTED BY THEINSPECTOR OF POLICE CBI/SCB

v. P.K. Basheer and Others (2014) 10 SCC 473 : [2014]11 SCR 399 ; Shafhi Mohammad v. State of HimachalPradesh (2018) 2 SCC 801 ;Sonu alias Amar v. Stateof Haryana (2017) 8 SCC 570 : [2017] 8 SCR 151 –referred to.

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Case Law Reference

[2010] 4 SCR 103[2014] 11 SCR 399(2018) 2 SCC 801[2017] 8 SCR 151

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos.1765-1766 of 2019

From the Judgment and Orders dated 21.03.2019 & 25.03.2019of the Madurai Bench of Madras High Court in Crl.A. (MD) No. 274of 2011

B. Balaji (for V. Giri, Sr. Adv.), S. Arun Prakash, M. Mani Kandan,R. Sudhakaran, M. A. Arunesh, Ankur Prakash, Advs. for the Appellant.

Ms. Sonia Mathur, Sr. Adv., Rajesh K. Singh, Mukul Singh,Ms. Sadapurna Mukherjee, Sushil Kumar Dubey, Ms. Divya Nair, AnujAggarwal, Puneet Pathak, Arvind Kumar Sharma, Advs. for theRespondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1. Leave granted.

2. These appeals arise out of the judgment and order dated21.03.2019 and 25.03.2019 passed by the High Court of Madras atMadurai Bench in Crl.A. (MD) No.274 of 2011 in and by which theHigh Court set aside the order of acquittal passed by the Principal SessionsJudge, Madurai in Sessions Case No.3 of 2009 and convicted theappellant-accused No.17 under Sections 217 IPC and 221 IPC andsentenced him to undergo rigorous imprisonment for one year and fouryears respectively.

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A3. Brief facts which led to filing of these appeals are as under:-

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A3. Brief facts which led to filing of these appeals are as under:- On 09.05.2007, the newspaper Dinakaran carried public opinionresults regarding the political heir of the then Chief Minister M.Karunanidhi which suggested that Mr. M.K. Stalin had greater publicapproval as the political successor of M. Karunanidhi than his elderBbrother M.K. Alagiri. Protests were staged against the newspaper bythe supporters of M.K. Alagiri before the Dinakaran office. Around10:00 a.m., about fifty persons led by Saravanan, Ex-Secy, VolunteerWing of DMK came to the office of Dinakaran Newspaper in vehiclesand started causing damage to the glass panes of the office and theyalso started breaking the glass doors with wooden logs. PW-30-Selvaraj-Cthe then Additional Superintendent of Police and the appellant along withpolice personnel came to the spot. Under the command, the police presentthere including the appellant used force against the agitators and chasedthem away. Again, the said Saravanan came with a group of people withsoda bottles and started pelting the same at the office of DinakaranDNewspaper. The appellant and other police personnel used force andchased them away. At 11:45 a.m., the supporters gathered before theoffice of Dinakaran Newspaper. A group of persons (accused Nos.1 to16) led by V.P. Pandi, S/o Ponnusamy @ Attack Pandi, came to theoffice of the Dinakaran Daily in a white colour Tata Sumo car armed with dandas (sticks) and iron rods. They trespassed into the office andEset fire to two wheelers parked inside the compound, near the securityoffice. Thereafter, they vandalised the Dinakaran premises andproceeded to set on fire the reception area. The private security guardson duty were no match to resist the mischief and criminal acts of themiscreants. Three employees of Dinakaran Newspaper-Vinoth KumarF(Deceased No.1), Gopinath (Deceased No.2) and Muthuramalingam,security guard, (Deceased No.3) got stuck in the engulfing fire and havelost their lives in the said incident. On getting information, M.Balasubramanian, Fire Station Officer (PW-50) along with a team offire service personnel and fire engines went to Dinakaran office at 12noon and took efforts to douse the fire.G

4. On the basis of complaint made by SI-Aladiyan (PW-1), on09.05.2007, FIR was registered in Othakadai Police Station in Cr. No.226of 2007 at 01:00 p.m. under Sections 147, 148, 449, 436, 302, 307, 332and 120B IPC, under Sections 4 and 5 of the Explosive Substances Act H

and under Section 4 of the Tamil Nadu Property (Prevention of Damageand Loss) Act against accused No.1-V.P. Pandi @ Attack Pandi andothers. Lakshmanan, Inspector of Police (PW-70) had taken up the initialinvestigation and sent the bodies of deceased persons for post-mortem.Dr. G. Natarajan (PW-63) who conducted the autopsy opined that thecause of death of all the deceased is suffocation associated with headinjuries. PW-70 prepared the observation mahazar (Ex.-P181) and Roughsketch (Ex.-P219). PW-70-Investigating Officer seized the materialobjects-broken glass pieces and burnt two wheelers and other materialobjects from the scene of occurrence and proceeded with theinvestigation. Investigation of the case was transferred to the CBI asper notification No.SC/2816-2/2007 dated 10.05.2007 under Section 6of Delhi Special Police Establishment Act, 1946 issued by theGovernment of Tamil Nadu and also notification No.228/25/2007 AVDII under Section 5 of Delhi Special Police Establishment Act. In pursuanceof these notifications, on 18.05.2007, Cr.No.226 of 2007 of OthakadaiPolice Station was transferred to CBI and re-registered as R.C.6/S/2007/CBI/SCB/Chennai by CBI and taken up for investigation. Oncompletion of investigation, charge sheet was filed on 06.08.2007 againstseventeen accused persons. A1 to A16 were charge-sheeted for theoffences punishable under Sections 147, 148, 449, 302 read with Section149 IPC, 436 read with Section 149 IPC and under Sections 4 and 5 ofthe Explosive Substances Act and under Section 4 of the Tamil NaduProperty (Prevention of Damage and Loss) Act. The appellant-accusedNo.17 who was the then jurisdictional Deputy Superintendent of Policewas charge-sheeted for the offences punishable under Sections 217 IPCand 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 andunder Sections 4 and 5 of the Explosive Substances Act and under Section4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act.The appellant-accused No.17 was charged for the offences punishableunder Sections 217 IPC and 221 IPC.

6. On being questioned, the appellant denied the charges andpleaded not guilty. Upon consideration of evidence, the trial court acquittedthe appellant by holding that the evidence adduced against the appellantis not sufficient to prove the charges under Sections 217 IPC and 221

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AIPC. The trial court noted the submission of the counsel for the appellantthat on the date of occurrence, appellant was not the superior officerpresent at the place of occurrence and that PW-30-AdditionalSuperintendent of Police was the superior officer and the bandobustwas arranged under the head of PW-30. The trial court held that theprosecution has not proved that the appellant-accused No.17 intentionallyBdisobeyed the directions of law and intentionally allowed the accused toescape from the place of occurrence. Insofar as the sanction forprosecution, the trial court held that the Principal Secretary who issuedthe sanction order, was not examined and that the examination ofBalakrishnan, Deputy Secretary (PW-67) is not sufficient to prove theCsatisfaction of the Principal Secretary who signed the sanction order-Ex.-P212.

7. In the appeal preferred by CBI, the High Court reversed theacquittal and convicted 9 out of 16 main accused under Sections 147,148, 449, 302 read with Section 149 IPC, 436 read with Section 149

DIPC, under Sections 4 and 5 of the Explosive Substances Act and underSection 4 of the Tamil Nadu Property (Prevention of Damage and Loss)Act. The High Court also reversed the acquittal of the appellant-accusedNo.17 and convicted him under Sections 217 IPC and 221 IPC andsentenced him to undergo rigorous imprisonment for one year and four

years respectively. The High Court held that it has been clearly establishedEthrough the evidence of T.S. Anbu, Superintendent of Police (PW-29)that the police pickets, which were posted for protecting the Dinakaranoffice, were headed by Selvaraj (PW-30) and assisted by the appellant-accused-Rajaram, Deputy Superintendent of Police. The High Courtheld that from the photographs and video footage, it was noticed that theFappellant was seen going along with accused No.1 and that the appellantdid 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 AdditionalSuperintendent of Police Selvaraj (PW-30) cannot absolve the appellantfrom criminal liability. Observing that the trial court erred in ignoring theevidence of PW-77-Goutham Roy, Senior Scientific Officer, CentralGForensic Science Laboratory and in discarding the photographs andvideographs, the High Court allowed the appeal preferred by CBI andreversed the acquittal of the appellant and convicted and sentenced himto undergo imprisonment as aforesaid. The revision preferred by onePoongodi, mother of Vinoth Kumar (Deceased No.1) was closed. TheH

appellant was questioned on sentence in Crl. A. (MD) No.274 of 2011i.e. criminal appeal preferred by the CBI. The sentence of imprisonmentwas imposed on the appellant in Crl.A. (MD) No.274 of 2011.

8. Mr. V. Giri, learned Senior counsel for the appellant contendedthat the High Court has failed to consider that since the Senior PoliceOfficers viz. Superintendent of Police (PW-29) and AdditionalSuperintendent of Police (PW-30) were regulating the police bandobustand giving directions, the appellant cannot be held liable for not preventingthe crime committed by the accused. It was further contended that theHigh Court has committed error in relying upon the Compact Discs withoutthere being any certification as required under Section 65-B of the IndianEvidence Act to prove the same. Learned Senior counsel furthersubmitted that PW-27-Annal-Photographer of Nakkeeran Bi-weeklyMagazine who is said to have taken video and the photographs and PW-28-Oliraja-News-reporter of said Nakkeeran Bi-weekly magazine, haveturned hostile and have not supported the case of prosecution and thishas not been kept in view by the High Court. The learned Senior counselcontended that the High Court erred in reversing the order of acquittalof the appellant and the High Court did not keep in view the well settledprinciple that generally, order of acquittal shall not be interfered withunless there is erroneous appreciation of evidence and the judgment ofthe trial court is perverse.

9. Per contra, Ms. Sonia Mathur, learned Senior counsel appearingon behalf of the respondent-CBI has supported the judgment of the HighCourt and submitted that at the relevant point of time when the offencewas committed, the appellant was In-charge of the bandobust dutyfrom 09:30 a.m. at the Dinakaran Newspaper Building and the appellantdeliberately did not take any action in preventing the mischief and thecriminal acts of the accused. Drawing our attention to the ingredients ofSections 217 IPC and 221 IPC, the learned Senior counsel for therespondent-CBI has submitted that the appellant who was In-charge ofthe bandobust could have easily prevented the attack and the arson andarrested the accused “Attack Pandi” and other accused when they wentabout committing the offence. Learned Senior counsel further submittedthat M.O.45-CD and photographs and six Compact Discs (M.Os.49 to54) were sent to Central Forensic Science Laboratory (CFSL), NewDelhi and the evidence of PW-77-Senior Scientific Officer of CFSLproves that the photographs and videos in the CD’s are not tampered A

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Awith and while so, the trial court erred in discarding the opinion given bythe Expert. It was submitted that the High Court rightly relied uponM.O.45-CD and other material objects-Compact Discs and the evidenceof Expert-PW-77 and the High Court rightly held that there was notampering of the Compact Discs and the video CD’s in establishing therole of the accused person and the failure of the appellant in his lawfulBduty. Placing reliance upon Sidhartha Vashisht alias Manu Sharma v.State (NCT of Delhi)(2010) 6 SCC 1, learned Senior counsel submittedthat in an appeal against acquittal, the High Court has the power toreview the entire evidence and come to its own conclusion and reversethe order of acquittal and the paramount consideration is to prevent theCmiscarriage of justice. It was submitted that the High Court has rightlyreversed the acquittal and convicted the appellant and the learned Seniorcounsel prayed for dismissal of the appeal.

10. We have carefully considered the above contentions andperused the impugned judgment, evidence and other materials on record.DThe point falling for consideration is whether the judgment of the trialcourt qua the appellant was perverse and whether there were substantialgrounds for the High Court to reverse the order of acquittal of theappellant recorded by the trial court and convict the appellant for theoffences punishable under Sections 217 IPC and 221 IPC.

E11. Appellant was the then jurisdictional Deputy Superintendentof Police. The appellant was arrayed as accused No.17 and was chargedfor the offences punishable under Sections 217 IPC and 221 IPC allegingthat the appellant who was on bandobust duty, did not take effectivesteps to prevent the crime and to apprehend the criminals on the spotand thus, alleged to have acted in aid of the accused. The allegationFagainst the appellant (who was the Deputy Superintendent of Police,Oomachikulam Sub-Division at the relevant point of time) is that despitebeing present at the time of incident in Dinakaran office and despitehaving a team of thirty-nine police personnel with two rifles, fifty liverounds and other arms and accessories, apart from accessories likeGhelmet, shields, lathis, etc. posted for bandobust duty at Dinakarannewspaper premises, he did not take effective steps to prevent the crime.Further allegation against the appellant is that he deliberately refrainedfrom issuing orders to thirty-nine police personnel present at the spot toprevent the incident and no step was taken to apprehend the miscreants,rather the appellant intentionally omitted to apprehend the miscreantsH

despite the fact that they committed various cognizable offences in hispresence and alleged to have intentionally aided them in escaping fromthe place of occurrence.

12. PW-2-A. Muthupandiyan, News Editor of DinakaranNewspaper in Madurai has stated that on 09.05.2007, DinakaranNewspaper has published an opinion poll regarding the political heir ofM. Karunanidhi as to “Who is the political heir of Karunanidhi?”, whichcreated furore. PW-2 has stated that in the morning of 09.05.2007, ahuge group of people came to Dinakaran Newspaper office and attackedand damaged the office building and that he started evacuating the womenstaff to safety and also tried to protect the computers and other importantitems inside the office. PW-2 has also stated that Dinakaran office wasset fire and that he called the fire service immediately and also complainedto the Othakkadai Police Station and asked the police to give protectionto their employees and the office. PW-2 has stated that he has alsoinformed about this attack to PW-3-R.M.R. Ramesh, Chief OperatingOfficer of Dinakaran in Chennai. PW-2 has further stated that since thepolice did not take any action for giving protection, he obtained the mobilenumber of the appellant standing outside and asked PW-3 to talk to theappellant. PW-2 further stated that PW-3-Chief Operating Officer hasspoken to the appellant and that he does not know what they had talkedand later, PW-3 has spoken to another DSP, Kalifullah Khan.

13. PW-3-R.M.R. Ramesh who has been working as ChiefOperating Officer of Dinakaran Newspaper, Head office at Chennaihas stated that PW-2-Muthupandiyan had called him at 09:00 a.m. on09.05.2007 and informed him about the attack on Dinakaran Newspaperoffice. PW-3 has also stated that on being informed by PW-2, he spoketo the appellant who was standing outside the office and the appellanttold him that their police group was on their way and the action would betaken immediately. PW-3 further stated that since he was informed thatmore people started entering their office, he again called the appellantand requested him to take action at once. PW-3 further stated that theappellant informed him that he has not yet received any order from hissuperiors and that PW-3 obtained the number of another DSP, KalifullahKhan and he spoke to the said DSP who told PW-3 that he would supplymore police personnel to bolster up security since more people wereinside. PW-3 further stated that by that time it was 11:00 a.m. and hewas informed by PW-2 that the entire reception was in flames and that AB

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Ahe 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 thatthe entire office building was engulfed in flames and that two employeeshave lost their lives by the billowing smoke cloud and that he informedthe Chairman, Dinakaran and immediately, they went to Madurai byflight.B

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

14. CBI collected M.O.45-CD containing thirty-one photographswhich are said to have been taken by PW-27-Annal who has been thenCworking as the Photographer of Nakkeeran Bi-weekly Magazine. M.Os.49 to 54-Compact Discs are said to have been handed over to CBI byPW-2-Muthupandiyan, News Editor of Dinakaran Office. TheInvestigating Officer has stated that six Compact Discs-M.Os. 49 to 54were handed over to him by PW-2; but PW-2 denied handing over ofM.Os. 49 to 54. As seen from the evidence of PW-77, Senior ScientificDOfficer of CFSL, Compact Discs-M.Os.49 to 54 and M.O.45 were sentto the Laboratory. In his report, PW-77 gave his opinion that “originalphotographs and videographs look strong in resolution”. In his evidence,PW-77 has stated that none of the photographs are tampered and all thephotographs and videographs are original because of its strong resolution.

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15. PW-28-Olirajan has been working as the Madurai News-reporter of Nakkeeran Bi-weekly Magazine and PW-27-Annal has beenworking as the Photographer of Nakkeeran Bi-weekly Magazine. Caseof the prosecution is that PWs 27 and 28 have covered the incident thathappened in Dinakaran office on 09.05.2007 and they have reported theFnews 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 stomachpain and that he went to the Dinakaran office only at 02:00 p.m. andsaw some demonstration and protest going on. PW-27 has thus, onlystated about the demonstration that were going on in Dinakaran officeGat 02:00 pm and that he took the photos of it and sent the same to theHead Office. Likewise, PW-28 who was then working as the News-reporter in Nakkeeran Bi-weekly Magazine has stated that at the timeof occurrence, he did not go to the place of occurrence and he did notcollect any news. But PWs 27 and 28 have thus, turned hostile and haveHnot supported the case of prosecution.

16. PW-75-Nakkeeran Gopal is the Editor and Publisher ofNakkeeran Bi-weekly Magazine. In his evidence, PW-75 has statedthat PWs 27 and 28 are the persons collecting news for the Bi-weeklyMagazine in Madurai and they used to send the news and photos to theirHead Office. PW-75 has stated that at the time of CBI enquiry, as perthe 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 Editorin Nakkeeran Magazine at Chennai had also stated about PWs 27 and28 having been engaged by their Magazine in Madurai and that theyused to collect news and photos and send it to their Head Office. PWs26 and 75 have stated about the receipt of news and photographs of theoccurrence that took place in Dinakaran office and the photographs andnews published in their Magazine; but PWs 26 and 75 have admittedthat they have not taken the photographs and they do not know personallyabout the news or the photographs taken.

17. Mr. V. Giri, learned Senior counsel for the appellant has raisedobjection regarding M.O.45-CD and six Compact Discs (M.Os.49 to54) and that the same are not admissible. Learned Senior counselcontended that M.O.45 and M.Os.49 to 54 are not primary evidenceand the same should have been proved in accordance with Section 65-Bof the Indian Evidence Act. Reliance was placed upon Anvar P.V. v.P.K. Basheer and Others (2014) 10 SCC 473 to contend that electronicevidence, by way of secondary evidence, shall not be admitted in evidenceunless the requirements under Section 65-B of the Evidence Act aresatisfied. Learned Senior counsel has also drawn our attention to ShafhiMohammad v. State of Himachal Pradesh (2018) 2 SCC 801 andsubmitted that in Shafhi Mohammad, after referring to Anwar case,two Judges Bench has distinguished the decision and in para (29) of thejudgment, it was observed that the requirement of a certificate underSection 65-B(4) of the Evidence Act is not always mandatory. LearnedSenior counsel further submitted that the decision in Shafhi Mohammadhowever, has been referred to a larger Bench on 26.07.2019 in C.ANos.20825-20826 of 2017.

18. Learned Senior counsel for the respondent-CBI has submittedthat the evidence of PW-77, Senior Scientific Officer of CFSL establishesthe truthfulness of the videographs and the photographs and that in hisevidence, PW-77 made it clear that the photographs, M.O.45-CD and A

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Athe Compact Discs-M.Os.49 to 54 were original and that they were nottampered with. Placing reliance upon Sonu alias Amar v. State ofHaryana (2017) 8 SCC 570, learned Senior counsel submitted thatunder Section 65-B of the Indian Evidence Act, at the time of admittingthe material objects, the accused did not take any objection before thetrial court with regard to the requirement of Section 65-B(4) certification.BIt was submitted that any objection regarding the admission of documents/material objects should be taken at the stage of trial and at the time ofmarking of documents as an exhibit and not later.

19. Placing reliance upon Shafhi Mohammad case, learned Seniorcounsel submitted that a piece of evidence/material objects should notCbe kept out of Court’s consideration on the ground that certificate underSection 65-B(4) is unavailable because, the ultimate objective of a criminalprosecution is to arrive at the truth. Learned Senior counsel therefore,submitted that though the certification under Section 65-B(4) is notavailable, by considering the evidence of PW-77-Senior Scientific OfficerDof CFSL, the Compact Discs were rightly taken into consideration bythe High Court to prove the criminal acts of the accused and the act ofthe appellant in not acting diligently.

20. For reversing the order of acquittal of the appellant, the HighCourt referred to M.O.45-CD, photographs and M.Os.49 to 54. M.O.45-ECD, photographs and the news published in Nakkeeran Magazine andother evidence were relied upon by the prosecution. As pointed out earlier,PW-2, News Editor of Dinakaran office has denied handing over of sixCompact Discs-M.Os. 49 to 54 to the Investigating Officer. TheInvestigating Officer in his evidence has stated that PW-2 has handedover six Compact Discs-M.Os. 49 to 54. The High Court referred to theFreport of PW-77, Senior Scientific Officer of CFSL and held that theevidence of PW-77 shows that the photos and the videos have not beendoctored. Referring to M.O.45-CD and other material objects-CompactDiscs, the High Court observed that the trial court erred in brushingaside the video footage and the photos contained in the Compact DiscsGon a presumptuous ground that the same could have been doctored andthat the said approach of the trial court is perverse. On such findings,the High Court reversed the acquittal of all the accused and also theacquittal of the appellant-accused No.17. Since the appeals against otheraccused convicted under Section 302 IPC are admitted and pendingbefore the Supreme Court, we do not propose to go into the merits of theH

contentions regarding M.O.45-CD, photographs and other CompactDiscs-M.Os.49 to 54. Lest, it might affect the interest of the parties inother criminal appeals which are pending before in the Supreme Court.We therefore, consciously refrain from expressing our views on thecontentions regarding M.O.45-CD and other Compact Discs (MOs.49to 54) and the photographs and other electronic evidence relied upon bythe prosecution and the news published in Nakkeeran Bi-weeklyMagazine.

Arguments

21. The appellant has been convicted for the offences punishableunder Sections 217 IPC and 221 IPC. At the relevant time, the appellantwas the Deputy Superintendent of Police of the jurisdictional Division.The allegation against the appellant is that he disobeyed the laws withintention to save the accused from legal punishment and also intentionallyallowed the accused to escape from the place of occurrence andtherefore, he is charged for the offences punishable under Sections 217IPC and 221 IPC. In the light of the oral evidence adduced, it is to beseen whether the prosecution has proved the charges against the appellantunder Sections 217 IPC and 221 IPC and whether the High Court wasright in reversing the order of acquittal of the appellant.

22. Section 217 IPC deals with disobedience on the part of publicservants in respect of official duty. To prove the charges under Section217 IPC, the following ingredients must be proved:-

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

(ii) such disobedience must be with intention to save, orknowledge 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 bylaw.

Section 221 IPC deals with omission to apprehend the offendersor suffering the escape of the offenders. To prove the charges underSection 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 personfor the same; A

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A(iv) that he omitted to apprehend; that he did so intentionally.

23. In the light of the oral evidence adduced by the prosecution, itis to be seen whether the High Court was right in holding that the appellantcould have easily prevented the incident and the arson and arrested theaccused “Attack Pandi” and his group when they went about committingBthe 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 werepresent in the place of occurrence for bandobust and PW-30-Selvaraj-Additional Superintendent of Police, a superior officer of the appellant,Cis mentioned at serial No.1. PW-1-Sub-Inspector of Police has statedthat on the date of occurrence, bandobust was under the leadership ofPW-30-Selvaraj, Additional Superintendent of Police who came to theplace of occurrence with striking force and they chased the agitatorsalong with the appellant. PW-1 has also stated that police personnelwere divided into seven groups and were directed to be on bandobustDduty on seven points. SI-PW-1 has stated that about ten persons ofMadurai Armed Reserve Police Force came in a single vehicle and thatthe appellant had asked that the vehicle to be parked away safely andasked the police force that they should be scattered sparsely withoutstanding together at one place. In his chief examination, PW-1 has alsoEstated that all of them along with the appellant and other police personnelhad used force on the agitators and they chased away the agitators.PW-1 also stated that the appellant was informing about the developmentin the place of occurrence then and there through wireless to PW-29,Superintendent of Police. In his cross-examination on behalf of theappellant, PW-1-SI-Aladiyan has stated as under:- F

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“The security was organized on that day under the charge ofMr. Selvaraj, the Additional Superintendent……The DSP wasstanding near his vehicle to relay the developments happeningthere to the S.P. through wireless communication…..To statethat our vehicles were parked at a distance so as not to createGtraffic jam is correct. To state that on that day the policesecurity services were well executed is correct”.

As per Ex.-P82 and from the evidence of PW-1, it is seen thatthus the appellant was not the senior most officer present at the sceneof occurrence to issue directions; PW-30-Additional Superintendent of H

Police was the higher officer present there who was to issue directionsand 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 ofDinakaran Newspaper in Madurai. In his examination-in-chief, PW-2has deposed that he has informed about the attack to PW-3-R.M.R.Ramesh, Chief Operating Officer (COO) of Dinakaran in Chennai andPW-3 has requested the police to give security and stop the attacks. Inhis chief-examination, PW-2 has stated as under:- “Even when asking the police for giving protection, they didnot 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 17[th] accused in this case. Our COOhas talked to the DSP Mr. Rajaram on his phone. I do notknow what they had talked. Later, COO has talked to anotherDSP Mr. Kalifullah Khan too”.

In his cross-examination on behalf of the appellant, PW-2 hasstated 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 toldthe police that when he asked the appellant to take action, theappellant-Rajaram told him that “he could not take any actionand there is no such necessity to do so……”.

26. PW-3-R.M.R. Ramesh, Chief Operating Officer of Dinakaranhas deposed that PW-2-Muthupandiyan told him that more and morepeople are entering inside the office and that PW-2 gave him the telephonenumber of the appellant who was standing outside the office and that he(PW-3) immediately called the appellant over phone and the appellanttold him that the police were on their way and that action would be takenimmediately. PW-3-Chief Operating Officer of Dinakaran office hasfurther stated that since more people started entering the office, he calledthe appellant again and requested him to take action at once. Accordingto PW-3, the appellant replied as under:- “……he has not received any order yet from his superiors. Irequested him to provide the telephone number of his immediatehigher authority. He gave me the telephone number of DSP

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AMr. Kalifulla Khan. I called up DSP Mr. Kalifulla Khan andhe told me that he would supply more police personnel tobolster up security since more people were inside. By thattime, it was 11.00 a.m.…...”.

From the evidence of PWs 2 and 3, it is seen that the appellantBimmediately responded to them by stating that action would be taken atonce and that he has not received any order from his superiors. Theevidence of PWs 2 and 3 shows that the appellant was taking action andthere was no lack of diligence on his part.

27. PW-29-T.S. Anbu, then Superintendent of Police (Rural) ofCMadurai District has stated about the issuance of order (Ex.-P82) forproviding security to Dinakaran office. In his evidence, PW-29 has statedthat 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 behalfof the appellant, PW-29 has stated as under:-D

“As per P.W. Ex.82, the higher official dispatched for givingsecurity and protection was S.P. Selvaraj. If any such officerwants to leave that place assigned to him, he has to get mypermission. Mr. Selvaraj who was assigned to this duty didnot get any such permission from me. If he did not get myEpermission that will mean that he was doing his duty assignedto him. The higher authority of that security group isresponsible for that group…..”.

From the evidence of PW-29 and Ex.-P82, it is clear that PW-30was the higher officer placed as In-charge of the security.F

28. In his evidence, PW-30-Selvaraj, Additional Superintendentof Police has stated that about 35 police personnel along with the appellantwere engaged in bandobust duty and at about 11:18 a.m. since therewas no further law and order problem, he went to the High Court and atabout 11:40 a.m., he noticed the smoke coming out from Dinakaran officeGand immediately, he rushed to the place of occurrence. PW-30 furtherstated that he enquired the appellant about the measures taken to put offthe fire and that the appellant informed that fire brigade had alreadybeen informed. As pointed out earlier, in his cross-examination, as perthe evidence of PW-29-Superintendent of Police and Ex.-P82, the higherofficial dispatched for giving security and protection was PW-30-AdditionalH

Superintendent of Police. When there was agitation near Dinakaranoffice, it is not known as to why PW-30 left for the High Court. Havingbeen deputed to be on duty near Dinakaran office, if PW-30 wanted toleave the place of duty assigned to him, he ought to have taken thepermission from his superior officer. Nothing has come on record thatPW-30 has taken any such permission from PW-29 for going to theHigh Court. In cross-examination, PW-29-Superintendent of Police hasstated that PW-30 did not get permission from him to leave the placeand 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 theDinakaran office was posted under the control of PW-30 and the appellantwas acting under the direction of PW-30. The trial court has rightlypointed out that PW-30-Additional Superintendent of Police is shown atserial No.1 in Ex.-P82 and what kind of action to be taken is to bedecided by the superior officer. From the evidence, it is brought on recordthat the appellant and other police personnel have used force and chasedaway the agitators. The High Court found that though the appellant waspresent at the place of occurrence, the accused committed the offencein his presence and he has not apprehended the accused. As discussedearlier, from the evidence it has come on record that the police onbandobust including the appellant have chased the agitators. From theevidence of PW-1-Sub-Inspector of Police, it is seen that the appellantand the other police officers have taken action and also used force inchasing away the agitators. Further from the evidence of PW-2-NewsEditor of Dinakaran office and PW-3-Chief Operating Officer ofDinakaran office, it is seen that the appellant immediately responded tothem by stating that he has not received any order from his superiorsand that action would be taken immediately. The evidence of PWs 2 and3 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 thesecurity bandobust.The appellant, who was the Deputy Superintendentof Police at the relevant time was under the supervision and control ofPW-30. In his evidence, PW-30 has not stated anything about the appellanthaving disobeyed his orders. In order to attract the ingredients of Section217 IPC, there should have been disobedience of the direction of lawwith intention to save the accused. The prosecution has not adduced AB

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Aany evidence to show that the appellant-accused has disobeyed thedirection of law or the direction of the superior officer-PW-30 or actedwith the intention of saving the accused.

31. While it may be true that at the time of incident near Dinakaranoffice i.e. on 09.05.2007 between 11-12:00 a.m., the situation becameBworse, at the same time, it has come on record that the police weretaking action to chase the agitators. In the light of such evidence, itcannot be said that there was inaction or negligence on the part of theappellant. In a tense situation where there is law and order problem,normally a superior gives out instructions on how to handle a situationand the subordinates are expected to carry them out. If each subordinateCpolice officer start taking actions on his own without order from thesuperior officer, it would lead to chaos and confusion. Responsibility forthe actions lies with the superior: in the present case, PW-30-AdditionalSuperintendent of Police. There is nothing on record to show that theappellant disobeyed the orders of PW-30 who was the officer placed In-Dcharge of the bandobust nor there was any lack of diligence and inactionon the part of the appellant to sustain the conviction of the appellantunder Sections 217 IPC and 221 IPC.

32. As pointed out earlier, one of the essential ingredients to makeout the offence under Section 217 IPC is that the public servant shouldEhave disobeyed any directions of law with the intention to save anyperson from legal punishment. In the present case, there is no evidenceto show that the appellant has disobeyed the directions of any law. Onthe contrary, there is clear evidence to show that the appellant, PW-1-Sub-Inspector of Police and other police personnel have used mild forceagainst the miscreants and thus, chased them away to prevent any furtherFuntoward incident. Absolutely, there is no evidence to show that theappellant did not obey the command of PW-30 or PW-29-Superintendentof Police who were present on the spot for issuing directions andcommands. There is no evidence to prove that the appellant omitted todo any act to sustain the conviction under Section 217 IPC.G

33. Insofar as the conviction under Section 221 IPC is concerned,one of the essential ingredients of Section 221 IPC is the intentionalomission to apprehend a person or intentionally aiding such person toescape. PW-29-Superintendent of Police and PW-30-AdditionalSuperintendent of Police who were present on the spot issued directionsHand 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 noevidence to show that the appellant intentionally omitted to apprehendthe accused on the spot to sustain the conviction under Section 221 IPC.

34. Upon appreciation of evidence and considering the ingredientsof Sections 217 IPC and 221 IPC, the trial court acquitted the appellant.When the trial court has recorded the finding that the ingredients ofSections 217 IPC and 221 IPC are not made out which is a plausibleview, the High Court could not have substituted its views with theconclusion of the trial court. So far as the appellant is concerned, theprosecution has not proved his guilt and the conviction of the appellantcannot be sustained. In our considered view, the High Court was notright in reversing the order of acquittal passed by the trial court and theimpugned judgment qua the appellant is not sustainable and the appellantis acquitted.

35. Mr. B. Balaji, learned counsel appearing on behalf of theappellant has submitted that because of the criminal case, the appellanthas not been paid the pension and other retiral benefits and prayed forappropriate directions. Since the conviction of the appellant is set asideand he is acquitted of the charges, the appellant is at liberty to work outhis remedy in accordance with law. The concerned authorities shalltake note of the acquittal of the appellant.

36. The appellant was charged for the offences punishable underSections 217 IPC and 221 IPC alleging that he disobeyed the laws withintention to save the accused and that he was not diligent in apprehendingthe accused. Upon consideration of oral evidence adduced by theprosecution, we have held that the charges against the appellant underSections 217 IPC and 221 IPC are not proved and the conviction of theappellant has been set aside and the appellant is acquitted. The appellantis not in any way involved in the main occurrence. The very chargeagainst the appellant for which he was tried is different and distinct fromthe charge for which the other accused were tried. Hence, the instantappeal was heard separately. The other accused who have been convictedunder Section 302 IPC and other offences have preferred appeals andthose appeals are pending before the Supreme Court. The appeals A

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Apreferred by the other accused shall be considered on their own meritsand the findings in these appeals shall not have a bearing one way or theother 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 BenchBin Crl.A. (MD) No.274 of 2011 convicting the appellant-accused No.17under Sections 217 IPC and 221 IPC are set aside and these appealsare allowed and the appellant is acquitted of the aforesaid charges.

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Devika Gujral

Appeals allowed.

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