IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 Crl.Rev.Pet.No. 3406 of 2008() ------------------------------ CRRP.1/2008 of SESSIONS COURT, ERNAKULAM CC.578/2006 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR (MP 3331/2006) .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- ALI P.P.,S/O PAREETH, PUTHIYEDATHU VEEDU, MUDAVOOR P.O., VAZHAPPILLY, MUVATTUPUZHA BY ADV. SRI.P.M.SANEER RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. N.MOHANAN, S.I. OF POLICE, KALADY POLICE STATION, KALADY, NOW WORKING AS S.I. OF POLICE, KOOTHATTUKULAM POLICE STATION, KOOTHATTUKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 3406/2008 OR DER ON CRL.M.A.10422 OF 2008 IN CRRP 3406 OF 2008 DISMISSED 20.10.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3406 OF 2008 ------------------------------------------ Dated this the 20th day of October, 2008 O R D E R Petitioner is the complainant in C.C.578 of 2006 on the file of Judicial First Class Magistrate, Perumbavoor. He filed a complaint alleging that second respondent, the Sub Inspector of Police, Kalady Police Station committed offences under section 167 and 471 of Indian Penal Code. The allegation in the complaint is that on 3.6.2004 at about 6.55 p.m. second respondent intercepted the lorry loaded with sand owned by the petitioner and even though the driver of the vehicle showed the pass, he did not release the lorry and wrongfully confined the lorry and the driver to the police station till the driver was released at 1.30 p.m. and lorry was produced before the District Collector and petitioner filed writ petition 1755 of 2004 to get the vehicle released and second respondent committed the offences alleged. When learned Magistrate took cognizance of the offences, second respondent filed M.P.3331 of 2006 for an order of discharge contending that the act was done in performance of his official duty and in discharge of his official CRRP3406/08 2 duty and he is entitled to the protection under section 197 of Cr.P.C. and without sanction he cannot be prosecuted. Learned Magistrate on the materials dismissed the applicaiton stating that it is a matter to be decided after recording the evidence. Second respondent challenged the order before Sessions Court, Ernakulam in Crl. R.P.1 of 2008. Learned Sessions Judge on reappreciation of evidence found that the act alleged was done in discharge of his official duty as Sub Inspector of police, Kalady and therefore sanction under section 197(1) of Code of Criminal Procedure is mandatory. Learned Sessions Judge relied on the decisions of this Court in Sunil Kumar v. State of Kerala (2007 (4) KLT 359) and Shoukkathali v. State of Kerala (2005 (3) KLT 634). Revision and M.P.3331 of 2006 were allowed and the proceedings were dropped as against second respondent. This revision petition is filed under section 397 read with section 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel relying on the decision of the Apex Court in P.K. Pradhan v. State of Sikkim (AIR 2001 SC 2547) argued that the question cannot be decided without giving opportunity to the petitioner to adduce evidence and only CRRP3406/08 3 after recording evidence the question of sanction should have been decided especially when the learned Magistrate found that the question can be considered after recording the evidence. 4. On hearing the learned counsel, I do not find any illegality or irregularity in the order passed by the learned Sessions Judge. Even if the case of the petitioner is accepted, the case is that while the lorry owned by petitioner was proceeding with sand, it was intercepted by the second respondent who was the Sub Inspector of police, Kalady, and that too in his capacity as Sub Inspector of police. He was acting on the information that sand was illegally being transported. Even if the case of the petitioner is correct and the driver had shown pass, it will not take the action of the second respondent outside the discharge of his official capacity or in any event purporting to be in discharge of his official duty. No further evidence is necessary to find out whether the Sub Inspector was intercepting the lorry and seizing the same and detained the driver and the vehicle in discharge of his official duty as Sub Inspector of police. Therefore learned Sessions Judge was perfectly correct in holding that without sanction under section 197 of Code of Criminal Procedure, second CRRP3406/08 4 respondent the Sub Inspector cannot be prosecuted in the complaint. The order of the learned Magistrate was rightly set aside and M.P.3331of 2006 was allowed. The argument of the learned counsel is that in any case the proceedings should not have been dropped as petitioner is entitled to proceed against second respondent after obtaining sanction. If sanction is obtained, second respondent can be prosecuted. Criminal Revision Petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-