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

J U D G M E N T

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

one year and four years respectively.   

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

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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.

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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-

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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-

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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.  

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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

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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

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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

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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.

30

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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