IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.Rev.Pet.No. 1858 of 2008() ------------------------------ CC.1288/2008 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER: PETITIONER/4TH ACCUSED ------------------------------------------------------- SUNIL JACOB, ASSISTANT COMMISSIONER OF POLICE, MATTANCHERRY, ELENJIKKAL HOUSE, KATTOOR, MARARIKULAM. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: RESPONDENTS ------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. K.T. JOSEPH, S/O. K.V. THOMAS, KUZHIKKAT HOUSE, 50/1772, YUVAJANA SAMAJAM ROAD, COCHIN-20. BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R2 SRI.T.RAMPRASAD UNNI FOR R2 SMT.SARITHA DAVID CHUNKATH FOR R2 DIRECTOR GENERAL OF PROSECUTION ADV.SRI.P.G.THAMPI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 1858 of 2008 * * * * * * * * * * * * * * * * * * Dated this the 31 st day of July 2008 O R D E R In this Revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner (Sunil Jacob - Assistant Commissioner of Police, Mattancherry) who is the 4 th accused in C.C. No. 1288 of 2008 on the file of the Addl. Chief Judicial Magistrate, Ernakulam, challenges the order dated 26-5-2008 passed by the said Magistrate taking cognizance of offences punishable under Sections 342, 347, 465, 466, 468, 469, 471, 473, 474 and 120 B read with Sec. 34 I.P.C. against the petitioner herein and the other 3 accused persons and issuing process against them. 2. I heard Adv. Sri. S. Sreekumar the learned counsel Crl.R.P. No. 1858 of 2008 -:2:- appearing for the revision petitioner and Sr. Adv. Sri. K. Rama Kumar, the learned counsel appearing for the 2 nd respondent/complainant and Sr. Advocate Sri. P.G. Thampi, the learned Public Prosecutor, High Court of Kerala. SUMMARY OF THE FACTUAL MATRIX 3. The impugned order taking cognizance of the offences and issuing process against the accused was passed by the learned Magistrate on Annexure - IV private complaint filed on 16-1-2008 by the 2 nd respondent herein (K.T. Joseph) as C.M. P. No. 247 of 2008. The said K.T. Joseph is stated to be the President of the Pulses and Spices Suppliers' Association. The first accused in the said private complaint filed by K.T. Joseph is one K.P. Jyothish and accused Nos. 2 to 4 therein are K.V. Benney (Sub Inspector, Thoppumpady Police Station, K. Laljee (Circle Inspector of Police, Palluruthy) and Sunil Jacob (Assistant Commissioner of Police, Mattancherry). K.P. Jyothish referred to Crl.R.P. No. 1858 of 2008 -:3:- above was the complainant in an earlier complaint (Annexure-I private complaint) filed on 12-6-2007 against the complainant herein (K.T. Joseph) before the J.F.C.M. Kochi alleging the commission of offences punishable under Sections, 420, 465, 466, 467, 468 and 471 I.P.C. The said private complaint was forwarded under Sec, 156 (3) Cr.P.C. by the Kochi Magistrate to the Thoppumpady Police Station where it was registered as Crime No. 306 of 2007 for the aforesaid offences. K.P. Jyothish referred to above is the nephew of one Pandan Krishnan who was the Managing Director and holder of 2500 equity shares in a distillery by name Indo - Scottish Brand Private Limited (ISBPL), Karuvelipady, Kochi. The said Pandan Krishnan died unmarried on 5-11-2000 allegedly after executing a will bequeathing all his properties in favour of his two nephews Ajithkumar and Jyothish who are the children of Pandan Krishnan's sister Malini. Annexure I private complaint filed by Crl.R.P. No. 1858 of 2008 -:4:- K.P. Jyothish against the 2 nd respondent K.T. Joseph was to the effect that at a time when Pandan Krishnan was critically ill and in a state of coma pursuant to a kidney transplantation operation undergone by him in a hospital at Chennai, K.T. Joseph had fabricated Annexure IX agreement dated 14-2-2000 by forging the signature of Pandan Krishnan and had thereby fraudulently transferred 2500 equity shares of ISBPL in his favour and that by creating forged documents K.T. Joseph became the managing director of the said distillery. After the registration of Crime No. 306 of 2007, K.V. Benney, the Sub Inspector of Thoppumpady Police Station allegedly arrested K.T. Joseph during the early hours of 16-8-2007 and took him to the Thoppumpady Police Station where he is said to have been confined illegally. The further case of K.T. Joseph in Annexure IV private complaint is that pursuant to a criminal conspiracy hatched by K.P. Jyothish, K.V. Benney, K. Lalji and Sunil Jacob Crl.R.P. No. 1858 of 2008 -:5:- referred to above, a demand of Rs. 75 lakhs was made to K.T. Joseph while he was in police custody for payment to K.P. Jyothish and on his pleading for time to produce authentic documents regarding the transfer of shares of Pandan Krishnan in his favour, K.P. Jyothish and the three police officers with the ulterior motive of extorting money from K.T. Joseph are alleged to have concocted an agreement dated 14-2-2000 to make it appear that it was fabricated by K.T. Joseph for illegally effecting transfer of the equity shares of Pandan Krishnan in his favour. 4. At the instance of K.T. Joseph, the Director General of Police entrusted the investigation of Crime No. 306 of 2007 with a Special Investigation Team ('SIT' for short) headed by an I.P.S. Officer and the S.I.T. has filed a refer report before the Kochi Magistrate where Crime No. 306 of 2007 is pending. In the said refer report, the S.I.T. seems to have accepted the contentions of K.T. Joseph. The said refer report is pending consideration before Crl.R.P. No. 1858 of 2008 -:6:- the Kochi Magistrate. It is at this stage that K.T. Joseph filed Annexure IV private complaint before the Addl. Chief Judicial Magistrate, Ernakulam. K.T. Joseph alleged in Annexure IV private complaint that K.P. Jyothish, K.V. Benney, Lalji and Sunil Jacob committed offences punishable under Sections 120 B, 191, 192, 193, 195, 199, 200, 201, 342, 347, 465, 466, 468, 469, 471, 473 and 474 I.P.C. read with Sec. 34 I.P.C. It was on the said Annexure IV private complaint that the learned Addl. Chief Judicial Magistrate, Ernakulam after examining 17 witnesses and marking 10 documents, as per the impugned order dated 26-5- 2008 took cognizance of the offences referred to earlier and registered the case as C.C. 1283 of 2008 and issued process to K.P. Jyothish, K.V. Beeny, Lalji and Sunil Jacob as A1 to A4. THE COGNIZANCE 5. The impugned order reads as follows:- “The complainant Sri. K.T. Joseph , a businessman residing within the jurisdiction of this Court, has filed this complaint Crl.R.P. No. 1858 of 2008 -:7:- against one Mr. Jyothish and three serving police officers of the State Police Department alleging that all the four accused with dishonest intension have conspired together criminally, to foist a false case against him, removed him forcibly from his residence at Panampilly Nagar, during the early hours of 16-08-2007, and after preparation of some manipulated forged documents and wrongful confinement at Thoppumpady Police Station, with a view to extract huge amount of money as ransom from him under coercion, wrongfully produced him before the Magistrate concerned, aiming at further illegal detention, and seeking judicial intervention by invoking Sec. 190 and 200 Cr.P.C. Influence of a high ranking police officer who is in inimical terms with the complainant also was alleged in the complaint. 2. The first accused Jyothish is one of the sister's son of Late Pandan Krishnan of Kannur who was the Managing Director of M/s. Indo Scottish Brand Distillery at Karuvelippady within the jurisdiction of Thoppumpady Police Station. The 3 rd accused is the Circle Inspector of Police, Palluruthy who is having supervisory jurisdiction over Thoppumpady Police Station. The 4 th accused is the Asst. Commissioner of Police, Mattancherry having control over the 2 nd and 3 rd accused. 3. The complainant was examined on oath. He examined 17 witnesses and proved 10 documents during the pre-cognizance stage. The chronological progression of events culled out from the oral testimony and the materials produced and marked in this case during this pre-cognizance stage will throw more light for better visibility on the underlying factual scenario. Crl.R.P. No. 1858 of 2008 -:8:- 4. On 12-6-2007, the first accused filed a complaint (CMP No. 4079 of 2007) before the Judicial I Class Magistrate, Kochi, alleging that the complainant Sri. Joseph had forged an agreement purporting to be one which was executed between Sri. P. Krishnan, the uncle of the Ist accused and Mr. Joseph, agreeing to transfer certain shares of M/s. Indo Scottish Brand (P) Ltd. Karuvelippady, in favour of Sri. Joseph on 14-02-2000, while Sri. Krishnan was in a comma stage, after having undergone a kidney transplantation at Chennai. 5. However, the said complaint did not accompany any documents to support the allegations therein. On getting it forwarded from the Court under Sec. 156 (3) Cr.P.C. the 2 nd accused registered Crime No. 306 of 2007 of Thoppumpady Police Station, On 14-6-2007, against Sri. Joseph as the sole accused under Secs. 465, 466, 467, 468, 471 and 420 I.P.C. and took up the investigation. According to the complainant, a conspiracy was hatched out among all the 4 accused and as a result, the 2 nd accused filed a report before the Magistrate concerned on 3-8-2007 fixing him as the accused in the case with mala fides and without gathering any incriminating materials against him during the investigation, seeking a warrant for his arrest and also for a search warrant from Court to search a house allegedly belonging to him. Sri. Joseph was neither required to appear before police nor was he questioned in connection with the case. 6. The Court was made instrumental to carry out the illegal designs of the accused by issuing the search warrant and arrest warrant based on the report of the 2 nd accused. The search warrant with a different house number, was not made use of, as Crl.R.P. No. 1858 of 2008 -:9:- actually no search was conducted to get the documents allegedly forged by Sri. Joseph, but documents were forged at the instance of the accused, to give an impression that search was conducted. The 2 nd accused did not conduct any investigation regarding the claim of the complainant, that Sri. P. Krishnan had bequeathed his shares in the company in favour of the Ist accused and the Will was not seized, knowing that there was no such executable will. On the other hand, the case diary and oral testimony of C.W.2 Mr. S. Vijayan, Dy.S.P., C.W.3 Sri. Vijay Sreekumar I.P.S. and Dr. Georgie Abraham who transplanted the kidney of Sri. P. Krishnan (CW11), would reveal that Sri.P. Krishnan was perfectly healthy and normal on 14-02-2000, the date of alleged commission of forgery, as against the case of the Ist accused that he was in comma stage on that day. The testimony given by Adv. Bhargavan (CW8), Adv. Jyothsna (CW9), Sri.K.T. Binoj (CW5), CW12 Adv. Narasimhalu. CW13 Chartered Accountant Sri. Padmanabhan and CW15 Sri. Sreekumar, the Asst. Registrar of Companies, CW16 Sri.T.E. Joseph, Advocate, Chennai etc. would reveal that Sri. Krishnan was healthy and hail during the relevant period and that Sri. Krishnan had perfectly and legally transferred the shares of the company to the complainant, after compliance of all the legal formalities, which were required under the Companies Act. The investigator lost sight of the fact that the shares of a company could not have been transferred by the mere execution of an agreement. 7. Sri. Joseph was taken into custody by the 2 nd accused, from his residence during the early hours of 16-08- 2007 without even informing the reason for such action. Though the time of arrest was recorded as 8.30 a.m. the witness Crl.R.P. No. 1858 of 2008 -:10:- to the arrest (CW6, Jose Sebastian, CW7 Ulahannan) testified that they were made to sign in the arrest memo at the police station only at 1.30 p.m. the same day, consequent to the refusal of the complainant herein, to succumb to demand of the 3 rd accused by parting with the amount demanded, on behalf of the Ist accused, (vide testimony of CW6, 7, 10 and 17). 8. On 16-08-2007 afternoon the complainant was produced before the Magistrate concerned and was remanded to judicial custody. On 18-08-2007, he was released on bail subject to conditions, of which some were not even sought by the prosecution, and extraneous to the matter in issue. 9. After the release on bail the complainant herein approached the Police higher ups and got an order for the investigation of the case by a special team of officers and CW3 Mr. Vijay Sreekumar I.P.S. was entrusted with the investigation, as team leader, as per Order of DGP dated 7-9-2007 having No. D5-79809/07. Hew took up the investigation on 24-09-2007 after completion of investigation on 29-02-2008, filed the final report before DGP on 15-03-2008, and to the Court subsequently, in the negative to the complaint. 10. On going through the documents and oral testimony available before the court as on now, I find that it renders sufficient materials for the purpose of taking cognizance of the offence under Secs. 120 B, 342, 347, 465, 466, 468, 469, 471, 473, 474 read with S. 34 I.P.C. against all the four accused persons. 11. The next question to be considered is whether the Crl.R.P. No. 1858 of 2008 -:11:- accused Nos. 2 ,3 and 4 being public servants are entitled to the protection of Section 197 Cr.P.C. which requires sanction of Government for the offence alleged to have been committed by them while acting or purporting to act in discharge of their official duty. A3 and A4 are public servants not removable from the office, save by or with the sanction of the Government. 12. In Romesh Lal Jain v. Naginder Singh Rana - 2006 (1) SCC 294 = 2006 (2) SCC Cri. 593, the Hon'ble Supreme court held and observed as under (SCC page 312 para 33). “33. The upshot of the aforementioned discussion is that whereas an order of sanction in terms of 197 Cr.P.C. is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of proceeding, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore there may be cases were the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined”. 13. In the light of the dictum laid down in the above passage, it is necessary that the question regarding the necessity of sanction in the facts of the present case to be examined and considered Crl.R.P. No. 1858 of 2008 -:12:- at this pre-cognizance stage. 14. In B. Saha v. M.S. Kocha (1979 (4) SCC 177 it was held in para 17 as follows:- “17. The words “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed in Section 197 (1) of the Code are capable of a narrow as well as wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, it is no part of an official duty to commit an offence and never can be”. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these extremes. while on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of section 197 (1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision”. 15. “Use of the expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in public service and discharge of his duty. This Section does extend its protective cover to every act or omission done by a public servant in service, but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge Crl.R.P. No. 1858 of 2008 -:13:- of official duty. It has been widened further by extending protection to even those acts or omission which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty, then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in discharge of his duty and without any justification therefor, then the bar U/s. 197 of the Code is not attracted” (Supreme Today - 2008 (1) Supreme 572 = Raghunath A.G. v. State of Maharashtra and Ors. ) Crl.R.P. No. 1858 of 2008 -:14:- 16. The learned counsel for the complainant Sri.P.P. Haris argued that in the facts and circumstances of the case, the accused persons who are public servants cannot claim that what they did was by virtue of their office. According to him it is no part of official duty to commit offence as defined under the I.P.C. The specific actions alleged against the accused persons are altogether outside the scope of official duties of the accused persons, which no reasonable man would deem to commit under the colour of that office. He argued that a reasonable approach has to be taken in the facts and circumstances of the case and that reasonable and prudent approach goes against the accused persons. 17. In so far as the 2 nd accused is concerned, there is no question of requirement of sanction, as he is a sub inspector of Police and he can be removed from service even without the order of Government and therefore there is no application of Sec. 197 in his case. The question is that in what manner, was the act complained of, done and performed as part of official duty. 18. The investigation in Crime 306/07 of Thoppumpady Police Station, was entrusted by the court to the 2 nd accused only. At no point of time, the investigation was taken over by either A3 or A4. The materials brought in, would go to hsow that the 3 rd and 4 th accused were assuring their support throught clandestine understanding during the conspiracy between all the accused illegally for wrongful gain. The involvement and intervention of the 2 nd, 3 rd and 4 th accused with the Ist accused through the Crl.R.P. No. 1858 of 2008 -:15:- telephone calls immediately prior to the filing of the complaint before the Magistrate and the frequent telephonic contacts among the accused immediately prior to the arrest of the complainant herein, the details of which have been produced by the officials concerned, provides prima facie materials point towards the unholy nexus between the accused, which is certainly not a part of the official duties of A3 and A4. The presence of A3 at Thoppumpady Police Station in civil dress, when the complainant was brought in there, reassures his complicity and involvement, prima facie, warranting a trial, and the issuance of process as its prelude. 19. In the above circumstance, the case is taken on file as C.C. 1288/08 under Sections 120B, 342, 347, 465, 466, 468, 469, 471, 473, 474, read with Sec. 34 I.P.C. Issue s/s to all accused for their appearance on 12-06-2008. Dated this the 26 th day of May 2008”. THE PROSECUTOR'S STAND 6. Sri. P.G. Thampi, the learned Director General of Prosecutions submitted that the Special Investigation Team (SIT) which was subsequently entrusted with the duty of investigating Crime No. 306 of 2007 of Thoppumpady Police Station had come to the conclusion that the investigation conducted by the local police was not fair or bona fide and that he supports the refer Crl.R.P. No. 1858 of 2008 -:16:- report filed by the S.I.T. and further that the impugned order does not suffer from any illegality or impropriety. THE COMPLAINANT'S ARGUMENTS 7. Sr. Adv. Sri. K.Rama Kumar, the learned counsel appearing for the 2 nd respondent herein made the following submissions before me:- The further investigation conducted by the S.I.T. has revealed that the investigation conducted by Benny and Lalji was dishonest and fraudulent and Jyothish along with the three police officers had hatched a criminal conspiracy for extorting Rs. 75 lakhs from K.T. Joseph. Pandan Krishnan had validly transferred his equity shares in favour of Rose Mary, wife of K.T. Joseph. It was after recording the sworn statement of the complainant and examining 17 witnesses and marking 10 documents under Sec. 200 Cr.P.C. that the learned Magistrate took cognizance of the offences. Since three of the accused were police officers the Crl.R.P. No. 1858 of 2008 -:17:- learned Magistrate was taking the extra precaution of passing a detailed order without giving room for a possible defence based on want of sanction under Sec. 197 Cr.P.C. Since the Addl. Chief Judicial Magistrate has territorial jurisdiction over the entire revenue district of Ernakulam, he was not bound to conduct an enquiry under Sec. 202 Cr.P.C. The impugned order of taking cognizance and issuing summons to the accused is an interlocutory order which is not revisable under Secs. 397 read with Sec. 401 Cr.P.C. JUDICIAL RESOLUTION 8. I am afraid that I cannot fully agree with the above submissions made on behalf of the 2 nd respondent/complainant (K.T.Joseph). Eventhough Sri. S. Sreekumar as well as Sri. K. Rama Kumar made detailed submissions on the merits of the case, and cited several rulings to buttress their rival contentions, I do not propose to examine the merits of the case at this stage of the Crl.R.P. No.