P. ESAKKIMUTHU AND ORS. Vs. STATE OF TAMIL NADU REPRESENTED BY SECRETARY TO GOVERNMENT, FOREST DEPARTMENT, MADRAS AND ORS.

JUDGEMENT

(1.) TWO points are raised by learned Counsel against the validity of the impugned order which was passed under Standing Order 690 of the Police Standing Orders. The first point is that Police Standing Order 690 is repugnant to the provisions of Section 197, Code of Criminal Procedure and therefore it is invalid. Under Police Standing Order 690, the police should obtain the prior concurrence of the Collector in the mofussil and that of the Head of the department to which the Government servant belongs in Madras City before charge -sheeting any Government servant for offences alleged to have been committed by him during the discharge of his official duties. Under Section 197 Code of Criminal Procedure, when any person who is or was a Judge or a Magistrate or a Public servant not removable from his office, save by or with the sanction of the Government is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of Such offence except with the previous sanction of the State Government in the case of persons employed in connection with the affairs of the State. Learned Counsel points out that the Forest Ranger who is the first of the persons mentioned in the list contained in the impugned order, namely, Alagirisami, Forest Range Officer, Shenkottai, is a Government servant who cannot be removed from service except with the sanction of the State Government. According to learned Counsel, the papers pertaining to that officer have been forwarded to the State Government for sanction under Section 197, Code of Criminal Procedure. Though with regard to all the other officials, namely, Abdul Kader, Forester, Puliyarai, up to Guruswami, Forest watcher, no sanction from the State Government is necessary, the police Standing Order as it stands is repugnant to the provisions of Section 197, Code of Criminal Procedure. While under the Code, the sanction of the Government is required, Police Standing Order makes it sufficient if the concurrence of the Collector is obtained. Learned Counsel submits that the language of Police Standing Order 690 is general and wide and will be applicable to all Government servants including those who cannot be removed except with the sanction of the Government. Hence he submits that the police Standing Order cannot stand. I do not agree. Even assuming that there is a repugnancy between the Police Standing Order and the Criminal Procedure Code, it is only with reference to those officials who cannot be removed from service except with the sanction of the State Government. Admittedly, the officials with reference to whom the Collector has given the concurrence under the impugned order, are persons who can be removed even without the sanction of the State Government. They can be removed by the appointing authorities or higher officials and therefore they do not fall within the provisions of Section 197, Code of Criminal Procedure. The Police Standing Order, if at all it is repugnant, it is only with reference to such officials who cannot be removed from service except by the State Government. Hence there is no repugnancy vis -a -vis the other officials. So far as the present Petitioners are concerned, it is quite valid and therefore the contention of the learned Counsel on this point has to fail.

(2.) THE second contention urged by learned Counsel is that in the order a finding had been given by the Collector that he is satisfied that the accused officers have committed the offence under Sections 147, 148, 341 and 323, I.P.C. According to learned Counsel, the Collector cannot give such a finding and he has only to state that he is prima facie of the opinion that the offence has been committed by these persons. I am of the view that this does not in any way the situation. There is a judgment of this Court which has enjoined such officials when granting concurrence under the Police Standing Orders to express their opinion clearly that they are satisfied that the offences have been committed. It is only in pursuance of such judgment, the Collector would appear to have used the language which he has employed in the impugned order. It will not alter the situation. Just because the Collector has expressed his satisfaction that the accused officer have committed the offences, it does not mean that the Magistrate can accept that and convict the accused officers. The Magistrate concerned has to consider the evidence let in before him independently and come to such conclusion as he deems fit. While arriving at a finding by the Magistrate the opinion expressed by the Collector will not in any way weigh with the Magistrate and anything mentioned by the Collector while giving concurrence will not be given any weight by the trial Magistrate. Hence there is no substance in this point at all.