IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Crl.Rev.Pet.No. 4363 of 2006() ------------------------------ CC.601/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PARAPPANANGADI .................... REVN. PETITIONER: PETITIONER/COMPLAINANT: -------------------------------------------- ABDU S/O.KUNHAMMU CHUKKANPARAMBIL, KERALADEESWARAPURAM AMSOM, DESOM, TANUR. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS: ACCUSED: ----------------------- 1. SALIM, SUB INSPECTOR OF POLICE, TANUR POLICE STATION, MALAPPURAM DISTRICT. 2. IBRAHIM MON S/O.ALAVI, MOOSAMADATH, KORMAN KADAPURAM, TANUR, MALAPPURAM DISTRICT. 3. PATTARAKATH NAFEESA, D/O.CHERIYA BAVA, KORMAN KADAPPURAM, TANUR, MALAPPURAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK SRI.P.K.SURESH KUMAR FOR R1 SRI.K.P.SUDHEER FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.4363 of 2006 ---------------------------------------- Dated this the 23rd day of November, 2009 ORDER The revision petitioner is the complainant in C.C.No.601 of 1999 on the file of the Judicial Magistrate of the First Class-I, Parappanagadi. He filed the above complaint against the first respondent, the then Sub Inspector of Police, Thanur Police Station and as against respondents 2 and 3, alleging offence under Sections 109, 323, 324, 354, 506(i) read with Section 34 I.P.C. It is with an allegation that on 13/7/1998 a police constable attached to the Thanur Police Station went to the petty shop run by the revision petitioner at Unnyal and summoned the revision petitioner to go over to the Police Station on 14/7/1998 along with his wife. Though the revision petitioner was not informed about the reason for he being summoned to the police station, at 9.30 a.m. on 14/7/1998, the revision petitioner along with his wife and neighbours went to the police station and with the permission of the police constable on duty he went to the room of the first respondent wherein respondents 2 and 3 were present. Respondents 2 and 3 pointed out the revision petitioner and stated that he knew the person to whom the respondents 2 and 3 paid money. Crl.R.P.No.4363 of 2006 2 Then, the first respondent went close to the revision petitioner and showered him with filthy language, hit his head against the table and demanded to pay a sum of Rs.15,000/-. Again, the revision petitioner was hit at his chest with a stick. When the wife of the revision petitioner intervened requesting not to hurt the revision petitioner, she was also hurt and her modesty was outraged by pulling out her saree . 2. After taking cognizance process was issued. There after evidence was recorded under Section 244 of the Code of the Criminal Procedure and on finding that there are materials to sent the respondents for trial, a charge for offence under Sections 109, 323, 324, 354, 506(i) read with Section 34 I.P.C. was framed. When it was read over and explained, the respondents 1 to 3 pleaded not guilty. Hence they were sent for trial. When the case was posted for cross-examination of the revision petitioner and the witnesses, the learned counsel for the first respondent submitted that sanction under Section 197 of the Code of Criminal Procedure was not obtained to prosecute the first respondent who is a public servant. On the basis of the submission made by the learned counsel for the first respondent, Crl.R.P.No.4363 of 2006 3 either side was heard. Though the revision petitioner argued after giving reliance to a number of decisions that sanction is required to prosecute a public servant only when the offence alleged was committed during the course of discharge of the official duties and in this it is not so. The learned Magistrate did not accept the contention. Ultimately, the first respondent was acquitted for want of sanction under Section 197 of the Code of Criminal Procedure. Assailing the legality, correctness and propriety of the above order, this revision petitioner was filed. 3. Having heard either side, I find that there is no proof at present to come to a conclusion that the revision petitioner and his wife were summoned to the police station through a police constable that too, without issuing notice as contemplated under Section 160 of the Code of Criminal Procedure in the course of discharge of official duties. Even if it is assumed the revision petitioner and his wife were summoned to police station in discharge of any official duty, so long as there is no case that the revision petitioner and his wife had committed any breach of law in the police station, the first respondent had no authority to assault the revision petitioner or to outrage the modesty of the Crl.R.P.No.4363 of 2006 4 wife of the revision petitioner or to intimidate them. There is no material furnished by the revision petitioner to conclude that the offence alleged was committed during the course of the discharge of the duties. Where as it is vaguely stated that the first respondent is a public servant and to prosecute the first respondent sanction under Section 197 of the Code of the Criminal Procedure is required. There is no finding by the lower court that there is any nexus between the official act and the offence committed by the first respondent. For that reason itself the order impugned is not sustainable. 4. The learned counsel for the first respondent submitted that the revision petitioner and his wife were summoned to the police station upon the basis of a complaint filed by the second and third respondent and unfortunately those documents were destroyed as per the directions of the Superintendent of Police. However, at present, there is no documentary evidence. It is a matter of evidence as to whether the revision petitioner and his wife were summoned to the police station during the course of official duty or not. At present, there is no material to show that the revision petitioner and his Crl.R.P.No.4363 of 2006 5 wife were summoned to the police station and assaulted and outraged the modesty during the course of discharge of official duties. Whatever may be the reasoning for the summoning them to the police station so long as there is no case that the revision petitioner or his wife had committed breach of law or that for any valid reason the first respondent had to exercise force against the revision petitioner and his wife, at any stretch of imagination, it could be held that the offence alleged was committed during the course of the discharge of the duties. It is also pertinent to note that there is no case that either the revision petitioner is an accused who had committed a cognizable offence. Even if it is assumed that they are witnesses, the summoning of the wife of the revision petitioner to the police station is forbidden by the proviso to section 160 of the Code of Criminal Procedure. It is in violation the statutory bar she was summoned to the police station, assaulted and modesty was outraged. I fail to find that it was during the course of discharge of official duties. Learned magistrate palpably went wrong in concluding that the prosecution is bad for want of sanction under Section 197 of the Code of Criminal Procedure. In the above Crl.R.P.No.4363 of 2006 6 circumstance, I find that the order impugned is not sustainable and it is liable to be set aside in exercise of the revisional powers. In the result, the revision petition is allowed. While setting aside the order impugned the lower court is directed to proceed the trial and dispose the case in accordance with law at the earliest. P.S.GOPINATHAN, JUDGE skj.