@JUDGMENTTAG-ORDER
N. A. Britto, J.@mdashThe Petitioner herein is a complainant in C. C. No. 74/P/07/II. By this revision petition, filed u/s 397/401 of the Code(Code of Criminal Procedure, 1973), the petitioner(hereinafter referred to as the complainant) has taken exception to the Order dated 31-8-2009 of the learned Additional Sessions Judge, Margao, by which the learned Additional Sessions Judge has quashed and set aside the Order issuing process against the respondent no.2(hereinafter referred to as the accused) under various Sections of I.P.C.
2. Some facts may be stated to dispose off the present petition.
3. The Order issuing process against the accused, it appears, came to be made on 25-2-2009, in the second round, pursuant to the Order dated 17-11-2008 of the learned District & Sessions Judge, Margao. In terms of the said Order, the learned J.M.F.C. was pleased to order issuance of process against the accused under Sections 116, 119, 167, 192, 193, 218, 464, 465, 469 and 499 of I.P.C.
4. The genesis of the complaint can be traced back to the days when the complainant was working as a Manager of M/s. Ramesh Hotels Private Limited, a company which was owned by Ramesh Khanna and his wife Andre Khanna. One S. V. Balaram was the Manager and attorney of the said Company. On account of disputes of termination of certain employees of the said Company, one Natividade Fernandes, Alex alias Peter Calado, Menino Costa and Rocky Ferrao filed a complaint dated 22-5-2005 against the said three persons for harassment at their work place, etc. to the accused who then was working as a Police Inspector of Verna Police Station.
5. The said complaint, inter alia, stated that the said employees were employed by the complainant in the year 1996 when he was working as manager from the year 1996 to April, 2003. Certain allegations were made against the said Ramesh Khanna that he had raped one of the employees by name Shanta alias Anumawa Natekar, somewhere in the year 2001. Allegations were also made that the complainant had brought the said incident to the notice of the said Ramesh Khanna and the said S. V. Balaram on account of which there was a hot exchange of bad words, and thereafter the complainant resigned on the said issue in April, 2003. According to the complainant the said Natividade Fernandes requested the complainant to accompany him to the Police Station as the complainant was also holding a power of attorney of the said Shanta. By then, the said Shanta was not available in Goa, she having left the job and gone to her native place. This was on 24-3-2005. According to the complainant, the said Natividade had informed the complainant that the said complaint dated 22-3-2005 was filed on 23-3-2005 and the accused had requested the said Natividade to produce the said rape victim, and as such the said Natividade had requested the complainant to accompany him to the Verna Police Station on 25-3-2005 as the complainant was holding a power of attorney.
6. According to the complainant, he accepted the request of the said Natividade and went to the Verna Police Station with a copy of the power of attorney of the said Shanta and also an affidavit sworn by her and other documents regarding rape which the complainant was having with him. On going to the Police Station he met P.S.I. Shailesh, and then the accused who is stated to have asked the complainant as to who he was; and when the complainant told the accused that he was power of attorney holder of the rape victim and had come at the request of the said Natividade as the presence of the rape victim was required by him, the accused got furious against the complainant and started shouting at the top of his voice saying that he did not know him and that he should get out from there and used filthy language such as "bloody shit, should I check you as power of attorney of the rape victim? Get the rape victim here, I want her here,.... etc." The complainant further stated that the accused refused to take the documents and the power of attorney and when the complainant asked the accused to give in writing the reason for not accepting the same the accused told the complainant to go away and do whatever he could whereupon the complainant thanked the accused and walked out and then filed complaint to the Governor of Goa, the Superintendent of Police, South, etc.
7. The complainant''s complaint was sent for inquiry to Shri S. R. Gholtekar, Dy. S.P. along with the the said complaint of the said Natividade and three others dated 22-3-2005, and the said Dy. S.P. was asked to conduct necessary inquiry against the accused, but according to the complainant no inquiry whatsoever was conducted against the accused(Para 7 of the complaint). However, the complainant in his statement on oath recorded on 26-7-2007 has conceded that based on these two inquiry reports prepared by the accused, Dy. S.P. Vasco prepared his own inquiry report and forwarded to the Governor, Chief Minister... etc. The complaint appears to have been filed only after the Goa Information Commission provided the complainant with the said two reports with much resistance from the Police Department. I assume no complaint has been filed against Shri Goltekar, Dy. S.P. based on the said report dated 17-5-2005.
8. From the inquiry conducted and report dated 17-5-2005 submitted by Shri Goltekar, S.D.P.O., Vascodagama to the Superintendent of Police, it can be seen that various statements were recorded including that of the said Shanta. The said Shanta did not support the story of rape. The inquiry report opines that the complainant wanted to magnify the image of Mr. Khanna as an offender and wanted to gain sympathy by using power of attorney of the so called victim who was illiterate. It also shows that the complainant had instigated all the gardeners/workers of Mr. Khanna and the application was submitted to tarnish the image of Mr. and Mrs. Khanna. It also discloses that the application was engineered by the complainant who instigated the workers to fulfill his desire and tarnish the image of Mr. and Mrs. Khanna, when the management refused to meet his demand, and to settle score of personal enmity with Mr. and Mrs. Khanna, by using government authorities. A copy of the report was produced at the time of hearing.
9. The entire case of the complainant is that both the reports were fabricated by the accused without authority knowing fully well that they would be used against the complainant and to protect the rape accused Shri Khanna and his agent S. V. Balaram(accused of what?)
10. Reverting to the facts of the case, Shri Menezes, learned Counsel on behalf of the Petitioner, submits that the Petitioner would restrict his case to offences punishable under Sections 167, 192, 218 and 499 I.P.C. and further submits that the learned Magistrate in issuing the process had rightly considered, the parameters required to be followed for the issuance of process against the accused, as stated by the Apex Court in the case of
a). The other three applicants were summoned to record their statements in this connection through P.C.5899, however all of them had refused to accept the same and informed that Mr. Joe Pereira is following up matter with the Government.
b). They also remained absent for inquiry.
c).From the entire inquiries conducted and on going through the petition it appears that the workers/applicants under feeling of insecurity regarding their job has made these allegations with ulterior motive.
11. Learned Counsel submits that the said reports could not have contained the personal opinion of the accused.
12. On the other hand, Shri S. Samant, learned Counsel on behalf of the accused, submits that the accused was divested from inquiring into the matter as the complaint dated 22-3-2005 of Natividade Fernandes and others was being looked into by Shri Goltekar, as well as the complaint made by the complainant against the accused, and in case the accused was divested from inquiring into the said two complaints, then it could not be said that the accused was entrusted with preparation or translation of any document within the meaning of Section 167 I.P.C. Learned Counsel further submits that the accused had recorded the statement of the said S. V. Balaram and forwarded it to the Dy. S.P. along with his report, and if at all he conveyed anything to the Dy.S.P., it was based on what the said Balaram had stated against the complainant and others.
13. The accused, it appears, had taken the plea that he could not be prosecuted without sanction in terms of Section 197(1)(b) of the Code but surprisingly that plea failed before the learned Sessions Judge and the matter was not pursued further, after the Order dated 17-11-2008 of the learned Sessions Judge, in Criminal Revision Application No.70 of 2008.
14. The learned trial Court appears to have proceeded on the assumption that the accused was holding a parallel inquiry which was not in his official capacity and that is also the impression which appears to have been gathered by the learned Sessions Judge in her Order dated 17-11-2008 in Criminal Revision Application No.70 of 2008 when she stated that the learned Magistrate ought to have held that the action of the accused to continue a parallel inquiry was in dereliction of his duty, and, therefore the protection of Section 197 was not available to him. Both the Courts below appear to have not noticed that the said two reports dated 6-5-2005(Exh.9) and 9-5-2005(Exh.13), on the face of them disclosed that they were made pursuant to communications received from the said S.D.P.O. as can be seen from the reference numbers of his letters mentioned in the said two reports, and that is also now apparent from the fourth and fifth unnumbered paragraphs of report dated 17-5-2005 made by the said Dy. S. P. Shri Goltekar to the Superintendent of Police. Shri Goltekar has concluded that it is the complainant who had instigated all the gardeners/workers of the said Khanna to satisfy his desires and tarnish the image of Mr. and Mrs. Khanna. In case there was any dereliction of duty on the part of the accused it was for his superiors to take action against him and not the complainant. It is not understood as to why the complainant and others had remained quite for a period of three/four years in case the said Khanna had misbehaved with the said Mrs. Shanta and that too after she had left the services and gone to her native place. It is also not understood why the complainant also kept quiet, in case, he left the said company in the year 2003?
15. Be that as it may, the said two reports dated 6-5-2005 and 9-5-2005 are the internal communications made by the accused to his superior officer, i.e. Sub Divisional Police Officer, and as can be seen from the very face of the said two documents, they were sent pursuant to the latter''s letters dated 16-4-2005 and 28-4-2005, and, in my opinion there was no question of the complainant obtaining copies of the same and then prosecuting the accused for preparation or translation of false documents(Section 167), fabricating false evidence(Section 192), framing incorrect record or writing with intent to save person from punishment(Section 218), Defamation(Section 499/500), I.P.C.
16. The learned revisional Court has, after referring to Section 167, I.P.C. rightly concluded, in para 22, that Section 167 I.P.C. would be attracted only when a public servant was entrusted with preparation of a document and since in the case at hand according to the complainant, the accused was divested from the inquiry the provisions of the Section were not attracted. The section is intended to punish official perversity. It is meant to penalize those who for corrupt motives, prostitute their office whether by doing a wrong act or by preparing an incorrect document. The section is attracted when a public servant with the duty of a preparation of a document, frames it incorrectly though it is said that the section is vague generally, it is not indefinite. In the case at hand, as can be seen from the said two reports/letters that the Dy.S.P. had called for his opinion/report and had given it to him and the same has been accepted after a further inquiry by Dy.S.P. and his report is more damning to the complainant. Framing suggests preparing something which is incorrect. Reports on the whole cannot be said to be fabricated, even if some statements were incorrectly made. Considering the facts, no offence u/s 167, I.P.C. was disclosed.
17. The essence of Section 192 I.P.C. is that a circumstance has to be made or a false entry in any book or record, or electronic record or a document containing a false statement should be made intending that such circumstance, false entry or false statement may appear in a judicial proceeding, or any proceedings taken in law by a public servant as such, or before arbitrator, etc. Admittedly, the Dy. S.P. was not conducting any judicial proceeding or any proceeding as required in law, his inquiry being conducted only administratively and, therefore even if the accused did make a statement that the other three applicants had refused to accept the summons sent through P.C. 5899 which was incorrect according to the complainant. In my opinion, Section 192 would not be attracted since the said Section essentially deals with fabricating false evidence to be given before the three sets of authorities mentioned in the section. This, the learned revisional Court has considered in para 28 of the Judgment observing that only because a false statement was made it could not be said that false evidence was fabricated thereby so as to attract Sections 192/193 I.P.C.
18. The learned revisional Court has then referred to Section 218 I.P.C. and has observed that the said section would be attracted only when a public servant who is entrusted with preparation of any record or writing, frames the same in a manner he knows is incorrect, and has further observed that it is the case of the complainant himself that the complainant was not entrusted with the investigation or inquiry in the alleged offence of rape, and, therefore any record prepared by the accused would not be a record in writing prepared by a public servant who was entrusted with the duty of preparation of the record, and, therefore Section 218 was not attracted. It may be stated that this section 218 I.P.C. is closely analogous to section 167. Suffice to say that the accused was not entrusted with the preparation of any record or writing.
19. Thereafter, the learned revisional Court has referred to Section 499 I.P.C. and referring to the statement dated 29-4-2005 of S. V. Balaram recorded by the accused has observed that the accused only narrated the facts as informed to him by the said Balaram, and it was not a statement made by the accused as a person, and, therefore the provisions of Sections 499/500 I.P.C. were not attracted. In fact, the learned revisional Court has rightly concluded that making a report of a statement recorded by him to a person who is a higher in authority cannot be said to be covered by Section 499 I.P.C.
20. Considering the above, I find that there is no merit in this petition. It appears that the complaint itself was motivated. That is also the conclusion arrived at by the Dy. S.P. Shri Goltekar who was asked to inquire into the complaints of the said Natividade Fernandes and three others as well as the complaint of the complainant. There is no reason why the complainant and others should have remained quite for almost three/four years in case the said Khanna had misbehaved with the said Mrs. Shanta. To sum up, the entire case of the complainant, as can be seen from the statement on oath, is that both the reports given by the accused to the Dy. S.P. Were false. The inquiry has revealed that it is the case of the complainant which is false. There is absolutely no merit in this Criminal Revision Application, and accordingly the same is hereby dismissed. The complainant to pay costs of Rs.5000/-to the accused.
