IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 Crl.Rev.Pet.No. 1211 of 2008() ------------------------------ SC.1661/2006 of SESSIONS COURT, TRIVANDRUM .................... REVN. PETITIONER(S): ACCUSED ---------------------------- AHAMMED HUSSAIN, SUB INSPECTOR OF MALAYANKEEZH POLICE STATION, MALAYANKEEZH. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. AMBILI, S/O.ISSAC, AGED 33 YEARS, KIZHAKKINKARA THADATHARIKATHU, MAIPARAMPIL VEEDU, KALLAMAM, PANNIYODE P.O., NEDUMANGADU. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.R.SARIN FOR R1 SRI.M.R.SASITH FOR R1 SRI.P.SANTHOSHKUMAR (KARUMKULAM) FOR R1 R2 BY PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.1211 OF 2008 ------------------------------------------ Dated 14th January 2009 O R D E R Revision petitioner is the first accused in S.C.1661/2006 on the file of Special Judge for trial of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act cases, Thiruvananthapuram. Revision petitioner is challenging the charge framed by the learned Sessions Judge for the offences. 2. Learned counsel appearing for revision petitioner and first respondent and learned Public Prosecutor were heard. 3. As the learned counsel appearing for revision petitioners submitted that in the original complaint based on which cognizance was taken by learned Magistrate and later committed to the Special court, the date of the alleged incident was not mentioned and as per the sworn statement of the original complainant/ first respondent in the case incident was not on 30/3/2003 as stated in the charge framed by the learned Sessions Judge. Original CRRP 1211/08 2 records were called for. Original complaint show that in paragraph 4 of the complaint where the date of the incident is to be mentioned, the date is not mentioned and instead a gap is left evidently to be filled up later. Though similar gaps left at the time of typewriting the complaint where portions in Malayalam are to be incorporated and those spaces were filled up in Malayalam the date of the incident was left blank even now. The sworn statement of first respondent/complainant shows that alleged incident was on the night of 30/6/2003 and not on 30/3/2003 as stated in the charge. Therefore, as rightly pointed out by the learned counsel appearing for revision petitioner there is apparent mistake in the charge as the incident can never be on 30/3/2003 stated therein. 4. Learned counsel appearing for revision petitioner relying on the decision of Apex court in Ramayya Munipalli v. State of Bombay (AIR 1955 SC 287) and Sankaran Moitra v. Sadhna Das and another (2006 (4) SCC 584) argued that when the alleged incident was committed by the revision petitioner in the course of performing his duty as the Sub Inspector or in any CRRP 1211/08 3 event, can only be purporting to be done in the course of his official duty, sanction under Section 197 of Code of Criminal Procedure is absolutely necessary. This aspect was not taken into consideration by learned Special Judge. Learned counsel appearing for first respondent relying on the decision of learned Single Judge of this court in State of Kerala v. Somarajan (2000 (1) KLT 65) argued that no sanction is necessary. But in view of the order to be passed in this petition, it is not necessary for this court at this stage to consider whether sanction as provided under Section 197 (1) or 197(2) of Cr.P.C is necessary. Learned counsel appearing for revision petitioner submitted that revision petitioner will file an application for an order for discharge under Section 227 of Cr.P.C for the reason that no sanction as provided under Section 197 of the Code is obtained by first respondent and therefore, no cognizance of the offence as against revision petitioner could be taken. 5. On the facts and circumstances, revision is allowed. Charge framed by Special Judge, Thiruvananthapuram in S.C.1661/2006 is set aside. CRRP 1211/08 4 Learned Special Judge is directed to re-hear the learned Legal Advisor and revision petitioner and also consider the application if any, filed by revision petitioner/first accused for an order of discharge under Section 227 on the ground of sanction under Section 197 of the Code and pass appropriate orders in accordance with law and frame the charge thereafter in accordance with law. Send back records. M.SASIDHARAN NAMBIAR, JUDGE. uj.