IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.MC.No. 1113 of 2006() 1. BABY M.P., SUB INSPECTOR OF POLICE, Petitioner Vs 1. STATE OF KERALA - REP. BY Respondent 2. SOOPY, S/O. KUNHAMMED, For Petitioner :SRI.M.K.DAMODARAN (SR.) For Respondent :PUBLIC PROSECUTOR The Hon'ble MRS. Justice [ENTITY] Dated :05/03/2009 O R D E R [ENTITY], J. [CASE NUMBER] DATED THIS THE 5th DAY OF MARCH, 2009 O R D E R
The petitioner is the sole accused in [CASE NUMBER] on the file of the Judicial First Class Magistrate's Court, Vadakara. This petition is filed under [SECTION] of [ACT] to quash the complaint, Annexure-IV and all further proceedings against the petitioner. The offences alleged against the petitioner are under [SECTION] and [SECTION] of [ACT], which was taken cognizance by the learned Magistrate on the basis of the oral complaint made by the 2nd respondent herein, when he was produced before the learned Magistrate after arrest in [CASE NUMBER] of Vadakara Police Station as per Annexure-I FIR. Annexure II is the search list. Annexure III is the remand report. The allegation against the petitioner is that while he arrested the 2nd respondent during investigation of [CASE NUMBER] of Vadakara Police Station on 25.9.2003, he manhandled the 2nd respondent as disclosed to the Magistrate, which was recorded in Annexure IV. The learned Magistrate after 202 enquiry and after recording the sworn statement of the second respondent and three other witnesses took cognizance of the case against the petitioner, which is pending before the Court of J.F.C.M., Vadakara as [CASE NUMBER]. The second respondent has also filed a complaint with the same allegations before the Deputy Superintendent of Police as well as before the DIG of Police, who conducted Departmental Enquiry and the petitioner was exonerated as per Annexure VI order. It is alleged in this petition that before taking cognizance of the case against the petitioner, sanction under [SECTION] [ACT] has not been obtained and no offence as alleged is made out against the petitioner and by invoking the jurisdiction of this Court under [SECTION] of [ACT], the entire proceedings in [CASE NUMBER] on the file of Court of J.F.C.M., Vadakara be quashed.
2. Heard the learned counsel appearing for the petitioner and the 2nd respondent. Heard the learned Public Prosecutor also.
3. It is submitted by the learned counsel appearing for the petitioner that the petitioner has not committed any offence as alleged in Annexure IV complaint and that he was on official duty and arrested the second respondent on 1.10.2003 in [CASE NUMBER] of Vadakara Police Station in respect of an offence under [SECTION] of [ACT] registered against the 2nd respondent and four others. True copy of the FIR is produced as Annexure I. After arrest, the 2nd respondent was produced before the learned Magistrate on the same day at 8PM, as revealed from the remand report Annexure III. According to the learned counsel, the petitioner has complied with all the formalities while arresting the 2nd respondent and this petition is not maintainable for the reason that sanction under [SECTION] of [ACT] has not been obtained before prosecuting the petitioner, who is admittedly the Sub Inspector of Police, Vadakara and was on official duty and arrested the 2nd respondent in [CASE NUMBER]. Thus, it is the case of the petitioner that no sanction has been obtained under [SECTION] [ACT] to prosecute him and therefore the cognizance taken by the learned Magistrate is unsustainable in law, as it violates the mandate of [SECTION] [ACT]
4. The learned counsel for the 2nd respondent submitted that the complaint of the 2nd respondent as revealed from Annexure IV is regarding custodial assault and manhandling and the alleged overt acts against the complainant cannot be said to be the acts done in the discharge of his official duty or in the purported discharge of his official duty.
5. It cannot be disputed that the second respondent was arrested by the petitioner herein, who is the accused in [CASE NUMBER]. The offence alleged against the second respondent was under [SECTION] of [ACT]. Thus, it is clear that on 1.10.2003, the petitioner had taken custody of the 2nd respondent in discharge of his official duty as the Sub Inspector of Police, Vadakara Police Station, during investigation of [CASE NUMBER]. Even if the allegation of the second respondent that the petitioner as the Sub Inspector of Police, physically manhandled and assaulted him and the offence as alleged in Annexure IV complaint is accepted, it is clear that it was done in discharge of his official duties, as the Sub Inspector of Police. If those allegations are true and he had exceeded the limit, the question is whether in such a case, sanction is necessary and whether the act alleged can be said to be committed in the discharge of his official duties or in the purported discharge of his official duties. The real test to be employed is considered in detail in para-15 of the decision in [PRECEDENT] in the following words:
"The real test to be applied to attract the applicability of [SECTION] is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as the public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected."
That test has been referred to with approval by the Supreme Court in the latest decision on this aspect in [PRECEDENT]"
6. The protection given under [SECTION] is to protect responsible public servant against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. This protection has certain limits and is available only when the alleged act done by the public servants reasonably connected with the discharge of his official duty. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. But the protection under [SECTION] of [ACT] to be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. One safe and sure test in this regard would be considered if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.
7. The question of exercise of the inherent power of the court under [SECTION] of the [ACT] to quash the proceedings taken in violation of the mandatory provisions of [SECTION] of [ACT]was considered by the Apex Court in [PRECEDENT], the Apex Court held:
" The mandatory character of the protection afforded to a public servant is brought out by the expression, "no Court shall take cognizance of such offence except with the previous sanction". Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means "jurisdiction" or the "exercise of jurisdiction" or "power to try and determine causes". In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty."
8. The petitioner herein is the Sub Inspector of Police and the alleged offence was committed in discharge of his official duties. As declared by the Apex Court in a catena of cases, the protection afforded by [SECTION] would be rendered illusory if the words "any offence alleged to have been committed by him while acting or purporting to act on the discharge of his official duty" is given a narrow meaning. In that case, the section will be rendered sterile. Official duty implies that the act or omission must have been done by him, in the course of his service and in discharge of his duty. Once any act or omission has been found to have been committed by a public servant in discharge of his duty, then it must be given liberal and wide construction so as to advance the object of the section in favour of the public servant. In this case it is evident that petitioner had taken the 2nd respondent in custody in the discharge of his official duties as is clear from the complaint and the allegations specified therein. Therefore, in view of notification dated 6.12.1977 issued by the State Government which was considered by a Division Bench of this Court in [PRECEDENT], it can only be held that the petitioner, Sub Inspector of Police is an officer against whom sanction as provided under [SECTION] mandatory. The learned Magistrate omitted to take into consideration all these facts and taken cognizance of the case against the petitioner. Therefore, cognizance was taken without sanction and the continuation of the proceedings as against the petitioner would be an abuse of process of court.
9. It is also held by the Apex Court in [PRECEDENT] that postponing a decision on the applicability or otherwise of [SECTION] of the Code can only lead to the proceedings being dragged on in the trial court and a decision by this Court, here and now, would be more appropriate in the circumstances of the case especially when the accused involved are police personnel and the nature of the complaint made is kept in mind.
10. In the circumstances, by exercising the power under [SECTION] of [ACT], case against the petitioner in [CASE NUMBER] on the file of J.F.C.M., Vadakara is quashed. This will not prejudice the rights of the 2nd respondent-complainant to initiate steps to prosecute the accused person after obtaining the requisite sanction.
In the result, the [CASE NUMBER] is allowed.
[ENTITY], JUDGE.