IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 Crl.Rev.Pet.No. 2567 of 2007() -------------------------------------------- CC.764/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... REVN. PETITIONER(S): ACCUSED 1 & 2 ------------------------------------------------------- 1. V.RAJENDRAN, (INSPECTOR - THIRUVALLAM PS), PRESENTLY WORKING AS SUB - INSPECTOR, CITY SPECIAL BRANCH, THIRUVANANTHAPURAM-RESIDING AT "MANGALATHU HOUSE", CHALAMANGALAM, ULIATHARA VILLAGE, THIRUVANANTHAPURAM. 2. A.VIKRAMAN, (ADDL.SUB-INSPECTOR, THIRUVALLAM PS). BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2 IMPLEADED. 2. K.S.DERICK ANGEL, KUDAYALMULLA VILA, ANGEL HOME VELLARADA, NEYYATTINKARA , TRIVANDRUM. ADDL. R2 IS IMPLEADED AS PER ORDER DTD. 18.9.2009 IN CRL.MA. 9052/2009. BY PUBLIC PROSECUTOR SRI.T.R.RAJESH ADDL. R2 BY ADV.SRI.G.SUDHEER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss CRRP. 2567/2007 APPENDIX PETITIONER'S ANNEXURES A:- COPY OF THE FORWARDING LETTER BY THE PRINCIPAL MUNSIFF COURT, THIRVANANTHAPURAM DT. 15.1.09. B:- COPY OF THE FINAL REPORT AND FIR IN CRIME NO.70/99 OF THIRUVALLAM P.S. C:- COPY OF THE COMPLAINT IN CC 764/99 BEFORE THE JMFC II NEYYATTINKARA. RESPONDENT'S ANNEXURES NIL;:- TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2567 OF 2007 ----------------------------------------- Dated this the 17th day of November 2011 ORDER Challenge in the revision is against the order passed by the Judicial First Class Magistrate-II, Neyyattinkara in C.M.P No.9069/2006 dated 07-10-2006 in C.C No.764/1999. Petitioners are the accused (A1 and A2) in the above case. They are police officers who are being prosecuted on a complaint filed by the additional second respondent. They have raised a challenge by filing the aforesaid Crl.M.P that their prosecution without obtaining sanction from the Government is barred by Section 197 of the Code of Criminal Procedure (for short, 'the Code') contending that the alleged overtacts imputed against them, which are disputed, could only be treated as acts done in discharge of their official duties as public servants. They also produced some documents to sustain the challenge raised against their prosecution for want of sanction. The second respondent/complainant had filed objections to the application. The magistrate, after hearing both sides, allowed the reception of the documents produced with such petition, but, deferred the challenge raised against their prosecution holding that it cannot be considered at that stage. Propriety, legality and Crl.R.P No.2567 OF 2007 2 correctness of the order, over the nonconsideration of the challenge raised as to want of sanction by the magistrate, is assailed by the petitioners/accused filing this revision. 2. The order impugned by the magistrate is passed on 07-10-2006. The records of the case would show that pursuant to such order, evidence of the complainant and the witnesses were recorded. On the basis of the materials tendered, the magistrate formed an opinion that there is sufficient ground to presume the guilt of the accused under Sections 294(b), 324 and 326 r/w Section 34 IPC, to proceed with their trial for such offences, and accordingly, charges were framed against them for the aforesaid offences. The revision is seen filed nearly four months later, pursuant to framing of the charges against the accused as aforesaid. Want of sanction for prosecution under Section 197 of the Code could be raised at any stage of the case as it relates to the jurisdiction of the court in taking cognizance of the offences against a public servant in respect of acts done by him in discharge or purportedly in discharge of duties of the post office held by him. The impugned order passed by the magistrate challenged in the revision at the most only indicate of deferring of the consideration of the challenge raised by the accused. True, when such a challenge was raised, it could not have Crl.R.P No.2567 OF 2007 3 been deferred, but, considered at that point of time since, as already indicated, it is a matter touching the jurisdiction of the court. However, the accused having submitted to that order and participated in the further proceedings of the case, and also taking note the revision is filed only after framing of charges against him, at this stage, I find, the propriety and correctness of the order passed by the magistrate need not be decided on its merits. After framing of the charge against the accused, it appears, further proceedings in the case are stalled by virtue of the orders passed by this court in the revision staying the continuation of the proceedings. It is open to the accused to raise the plea canvassed in the petition filed by them before the magistrate and if any such request is made, before proceeding further with the trial, the magistrate shall consider the same on its merits after hearing both parties, and pass appropriate orders thereof. The order passed by the magistrate in the aforesaid C.M.P on 07-10-2006 will be treated only as an interim order not amounting to disposal of the petition filed by the accused, so that the petitioners/accused need not file any fresh petition to raise the challenge already mooted by them. 3. Parties are directed to appear through their counsel before the magistrate on 12-12-2011 and on such appearance the Crl.R.P No.2567 OF 2007 4 magistrate shall take up the aforesaid C.M.P, hear the parties and dispose it on its merits as expeditiously as possible, at any rate within a period of six weeks. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge