IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 523 of 2000() ----------------------------- CRR.11/1998 of SESSIONS COURT, KOLLAM CC.68/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... PETITIONERS :- (RESPONDENTS/ACCUSED): ------------------------------------------------ 1. M.H. LATHEEF, SUB INSPECTOR OF POLICE, ANCHAL POLICE STATION. 2. ABDUL MAJEED, POLICE CONSTABLE, ANCHAL POLICE STATION. 3. SALIM, POLICE CONSTABLE, ANCHAL POLICE STATION. 4. SUNIL KUMAR, A.R.P.C. DRIVER, ANCHAL POLICE STATION. 5. HARIDAS, POLICE CONSTABLE, ANCHAL POLICE STATION. 6. SUGATHAN, HEAD CONSTABLE OF G.D. CHARGE, ANCHAL POLICE STATION. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS (PETITIONERS/COMPLAINANT): ---------------------------------------------------- 1. V.S SAJEEV, VIJAYA VILASOM, PATHADY, YEROOR, (DIED ON 22.1.2000 REPRESENTED BY HIS WIFE VASANTHA KUMARI) 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 31. BY PUBLIC PROSECUTOR SRI. B. JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/7/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.523 of 2000 ----------------------------------------- Dated this the 10th July, 2009 O R D E R A private complaint was filed against petitioners herein, who are the Sub Inspector of Police, police constables, head constable and police driver, attached to Anchal Police Station, by the complainant, alleging offences under Sections 143, 323, 324, 341 and 506(ii) read with 149 of the Indian Penal Code. 2. According to complainant, on 3.1.1995 at about 9.30 p.m, he had gone to a hotel by name 'Eat N Park' at Anchal for having a coffee and while he was parking motor bike, accused came in a jeep and stopped near complainant and first accused abused him, accused 1 to 3 manhandled him and fourth accused kicked him on his abdomen. The complainant was dragged to the jeep and was taken to police station. At the police station also he was also manhandled by accused 1 and 5. The complainant was illegally detained in the police station. All the accused committed the various offences and they Crl.RP.523/00 2 were prosecuted for offences under Sections 143, 323, 324, 341 and 506(ii) read with 149 of the Indian Penal Code. 3. The prosecution examined PW1 to PW5 and marked Exhibits P1 to P3. They were cross-examined also. On an evaluation of the evidence at length, trial court held that there was a cloud with regard to the genuineness of the case of the complainant and it was also held that complainant had filed a false complaint against accused 1 to 6 with ulterior intention to harass accused. 4. Accused 1 to 6 were discharged under Section 245(1) Cr.P.C. The trial court also found that complainant has not established accusation levelled against accused 1 to 6 by means of clear and convincing evidence that they manhandled him with weapons etc. A revision was filed challenging the said order of discharge. During the pendency of the revision, PW1 de facto complainant died on 22.1.2000. Hence, his wife Crl.RP.523/00 3 filed Crl.M.P.No.448/2000 for leave to continue the proceedings. The petition was allowed. 5. The revisional court considered the rival contentions and held that if there are grounds for presuming that the accused committed the offences and hence, charge has to be framed. Proof beyond reasonable doubt is not necessary at the stage of framing charge. On the evidence available, the court should consider whether it could proceed further and that there is sufficient material available on record to presume guilt. The order of the trial court was set aside and learned Magistrate was directed to frame charge against accused and proceed in accordance with law. It is the said order that is under challenge in this revision. 6. On perusing the records and the judgment under challenge, I find that there are sufficient materials before the court to 'presume' guilt of the accused. It is sufficient if there are materials to “presume” that the accused committed the alleged Crl.RP.523/00 4 offences. As per Section 245 Cr.P.C, the Magistrate can discharge an accused only if the court finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, upon taking all the evidence referred to in Section 244 and reasons also must be recorded. From the evidence of PW1 to PW4 and the documents produced, it cannot be said that no case is made against the accused which, if unrebutted would warrant his conviction. 7. PW1 has clearly stated that accused 1 to 6 manhandled him and medical evidence also was produced to support this. PW2, PW3 and PW5 were also examined. The doctor was examined as PW4 and it is revealed from his evidence that complainant had sustained injuries, which may be caused, as alleged. On consideration of the above evidence, it cannot be said that no case is made out against the accused and if such evidence remains unrebutted, it is possible that a conviction can be entered. Crl.RP.523/00 5 8. The accused set up a defence that complainant was arrested in connection with another crime committed by him and a case was also registered against him. The date of alleged offence is on 3.1.1995 at 11.15 p.m, as per the police case. But, according to PW1, the incident in this case occurred prior to that at 9.30 p.m on 3/1.95. Even if a case was registered against petitioners, there is no explanation for the injuries, which are allegedly sustained by PW1 from the side of the accused. Therefore, court can proceed against accused and requirements under Section 245(1) Cr.P.C are satisfied to frame charge against them. As the revisional court held, the trial court has to frame charge against the accused. I do not find any illegality or impropriety in the order passed. 9. A ground is taken that court ought to have found that petitioners are police officers and they were discharging their duties and hence, sanction was necessary to prosecute the accused. As per Section 197 Crl.RP.523/00 6 Cr.P.C, as rightly pointed out by the learned Sessions Judge, this is not a case where Section 197 Cr.P.C will apply. The accused are in the rank of Sub Inspector and below. As per Section 197 Cr.P.C, sanction would be necessary only if a public servant is not removable from his office save by or with the sanction of the Government. In this case, none of the police officials come to that category and hence, sanction may not be necessary. 10. It has also been held by the learned Sessions Judge that the alleged attack on PW1 cannot be said to have been made in the discharge of official duty. I do not find any perversity in such finding also, on perusal of the records, so as to interfere with the said finding. In cross-examination, it is only brought out that a case was registered against complainant, but from that fact alone it cannot be held that the incident alleged in this case happened in the course of discharge of official duty by the accused. Crl.RP.523/00 7 11. Another ground taken is that learned Sessions Judge could not have allowed complaint to be proceeded by impleading the wife of the complainant, since she cannot be figured as a complainant, after the death of the original complainant. It is to be noted that this ground is raised on a wrong understanding of the position. The wife of the complainant was not impleaded as complainant. She is only allowed to continue the prosecution. This can be allowed under Section 302 Cr.P.C. As per Section 302 Cr.P.C., a person can continue the prosecution. That does not mean that the said person, who is permitted to continue the prosecution is impleaded as the complainant. It is now well settled that a legal representative can be permitted to continue the prosecution. In the above circumstances, I do not find any ground to interfere with the impugned order passed. In the result, the following order is passed: Crl.RP.523/00 8 (i) The order under challenge is confirmed. (ii) The trial court is directed to dispose of the case in accordance with law, as expeditiously as possible, giving preference to this case. The Criminal Revision Petition is dismissed. Sd/- K.HEMA, JUDGE vgs. /True copy/ P.A to Judge Crl.RP.523/00 9 K.HEMA, J. ------------------------------ Crl.R.P.NO.523 of 2000 ------------------------------ O R D E R 10.7.2009