IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Crl.Rev.Pet.No. 604 of 2010(A) ----------------------------- CC.596/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER/ ACCUSED: --------------------------------------------- AZAD ABDUL KALAM, SUB INSPECTOR OF POLICE, KANNUR CITY, MARAKKARKANDY, KANNUR. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENTS/ COMPLAINANT & STATE: ---------------------------------------------------------- 1. T.P.SABU, ADVOCATE, S/O.PADMANABHAN, `YADHUKULAM' MARAKKARAKANDY, THAYYIL, KANNUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SEENA R ADV. SRI.M.RAMESH CHANDER FOR R1 SMT.C.J.AJITHA FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 604 of 2010(A) APPENDIX: PETITIONER'S ANNEXURES: ANNEXURE A: TRUE COPY OF THE FIR IN CRIME No.290/2009 OF KANNUR CITY POLICE STATION. ANNEXURE B: TRUE COPY OF THE SEARCH LIST IN CRIME No.290/2009. ANNEXURE C: TRUE COPY OF THE PROPERTY LIST SUBMITTED BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, KANNUR IN CRIME No.290/2009 OF KANNUIR CITY POLICE STATION. ANNEXURE D: TRUE COPY OF THE WOUND CERTIFICATE ISSUED IN FAVOUR OF 1ST RESPONDENT BY THE ASSISTANT SURGEON OF DISTRICT HOSPITAL, KANNUR DATED 27.10.2009. ANNEXURE E: TRUE COPY OF THE O.P. TICKET OF 1ST RESPONDENT ISSUED FROM DISTRICT HOSPITAL, KANNUR DATED 27.10.2009. ANNEXURE F: TRUE COPY OF THE COMPLAINT IN CMP No.3305 OF 2009 PREFERRED BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, KANNUR. ANNEXURE G: TRUE COPY OF THE RELEVANT PAGES OF G.D. OF KANNUR CITY POLICE STATION MAINTAINED FOR 26.10.2009. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. S.S.SATHEESACHANDRAN,J. --------------------------------------- Crl.R.P. No. 604 OF 2010 ---------------------------------------- Dated this the 3rd day of November, 2011 ORDER Revision petitioner is a police officer. He is being prosecuted on a complaint filed by the 1st respondent, a practising advocate in the courts of Kannur. The magistrate after conducting an enquiry under Section 202 of the Code of Criminal Procedure, in which the complainant and three witnesses on his side were examined, ordered summons to the petitioner/accused, taking cognizance of the offences under Sections 341, 342, 323, 324, 294(b), 392 and 506 of Indian Penal Code under the complaint. Propriety, legality and correctness of the order passed by the magistrate in which some observations are made that the petitioner/accused, a public servant, is not entitled to the protection covered by Section 197 of the Code and no sanction is required for his prosecution on the complaint, is challenged in this revision. 2. Notice given, the 1st respondent/complainant has entered appearance. Crl.R.P. No. 604 of 2010 -2- 3. I heard the counsel on both sides. 4. Conflicting and divergent versions are presented by the respective counsel on the circumstances under which a complaint was filed by an advocate to prosecute the revision petitioner a police officer. Whereas the petitioner/accused has a case that on detecting of offences under the Gambling Act involving the complainant advocate and some others, he was taken into custody and the money transacted for gambling also seized, with a crime registered thereof, the complainant would allege that he was apprehended by the police from a public place, manhandled at that spot, and, later kept under illegal confinement without causing his production before the magistrate as envisaged by law. On the submissions made by the counsel with respect to the rival case presented, I find no comment, not even any observation be made by this court at this stage, especially where the challenge in the revision is against the order issuing process to the accused to appear before the magistrate. No doubt, the observation made by the magistrate in the impugned order that sanction under 197 of the Code is not Crl.R.P. No. 604 of 2010 -3- required for the prosecution of the petitioner/accused which was, in fact, not warranted when a process was ordered, would no way bar the petitioner to raise such a challenge, and, further, he is entitled to question his prosecution for want of sanction under Section 197 of Code. Sanction covered by Section 197 of Code is not an illusory provision, but, one which would govern the very jurisdiction of the court to entertain a complaint against a public servant if the offence imputed against him has a nexus with the discharge of his official duties. So much so the opinion formed, rather the observation made by the magistrate, only on the basis of the evidence of the doctor examined as witness in the enquiry under Section 202 of the Code that the complainant having suffered some injuries, sanction under Section 197 of the Code was not required to prosecute the petitioner, public servant, has no legal basis at all. Such observation made without hearing the petitioner/accused would not cause any prejudice to him in setting forth such a challenge questioning the prosecution for want of sanction. 5. Order issuing summons to him on the materials based Crl.R.P. No. 604 of 2010 -4- in the enquiry under Section 202 under complaint could not be termed as improper by this Court, and as such the challenge against that order cannot be sustained. 6. The learned counsel for the petitioner would submit that since the complainant is a practicing advocate, his appearance in response to the summons before a Court at Kannur is not feasible as the Bar Association there has already passed a resolution that none of the advocates of that bar should accept his brief. This court and also the apex Court have deprecated passing of such resolution as it goes against the professional ethics of the advocates. An advocate is expected to accept brief of any person who seeks his professional assistance unless he has justifiable ground to decline the same. Counsel for the respondent/complainant does not dispute that such a resolution has been passed by the Bar Association as represented. It appears that the appearance of the petitioner and continuation of the proceedings on the complaint filed by the 1st respondent in the magistrate Court, Kannur may not be in the interest of justice. Apprehension raised by the petitioner that he Crl.R.P. No. 604 of 2010 -5- will not get a fair and impartial enquiry or trial before that Court cannot be brushed aside. 7. In the circumstances, I direct to transfer of, the complaint, under Section 407 of the Code, to the Chief Judicial Magistrate Court, Thalassery, who on such transfer shall continue further proceedings in the case. Petitioner/accused is free to canvass the want of sanction, if any, required under Section 197 of Code from the appropriate government in taking cognizance of the offence under the complaint against him. If any such challenge is made, as it relates to the taking of the cognizance of the offences touching upon the jurisdiction, the court shall pass appropriate orders after hearing both sides. Subject to the directions/observations as above the revision is disposed of. Communicate a copy of the order to the Chief Judicial Magistrate, Thalassery also, for information and necessary steps in the matter. S.S.SATHEESACHANDRAN JUDGE. Kp/-