IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 Crl.MC.No. 455 of 2005() ------------------------ CP.20/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... PETITIONER(S): ACCUSED 1 TO 5 ----------------------------- 1. DAS P.V., PC.1525, PONKUNNAM POLICE STATION, PONKUNNAM. 2. P.V.VARGHESE, PC 4922, PONKUNNAM POLICE STATION, PONKUNNAM. 3. BALACHANDRAN K.GOPAL, HC 3897, PONKUNAM POLICE STATION, PONKUNNAM. 4. P.R.RAJU, HC K. 4205, PONKUNNAM POLICE STATION, PONKUNNAM. 5. S.SANAL KUMAR, CIRCLE INSPECTOR OF POLICE, RAILWAY. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): --------------- 1. ANOOP T. CHANDRAN, THEKKUMTHOTTATHIL VEETTIL, EDABHAGOMKARA, CHIRAKKADVU VILLAGE, KANJIRAPPALLY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM. SRI.K.GOPALAKRISHNA KURUP FOR R1 SRI.S.MANU FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON 11/03/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.1204/05 IN CRL.M.C.455/05 //DISMISSED// 11.3.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No. 455 OF 2005 ----------------------------------------------------- DATED THIS THE 11th DAY OF MARCH, 2009 O R D E R Petitioners 1 to 5 are accused Nos.1 to 5 in C.P.No.20/04 pending on the file of Judicial First Class Magistrate's Court-II, Kanjirappally. This petition is filed under Section 482 of Cr.P.C. with the prayer to quash Annexure-I complaint, Annexure VII order and Annexures VIII to XII summons and all proceedings in C.P.No.20/04 pending on the file of J.F.C.M.'s Court-II, Kanjirappally. 2. The facts of the case, as revealed from the statement of facts attached to this petition, is as follows: The first respondent as the complainant filed Annexure-I complaint before the J.F.C.M.'s Court-II, Kanjirappally alleging that petitioners 2, 5 and other 10 policemen identifiable by sight attached to Ponkunnam Police Station had on 14.8.2003 assaulted and manhandled him. It was numbered as C.M.P.No.4833/03 before that Court. The first respondent also filed another petition with the prayer to conduct a test identification parade to identify the persons responsible for CRL.M.C.No.455/05 -2- assaulting and manhandling him. True copy of that petition is produced as Annexure-II. The complaint Annexure I was filed by the first respondent with frivolous and oblique motives. The Sub Inspector of Police, Ponkunnam had registered a case against the first respondent and one Manoj for the offence punishable under sections 308 and 34 of IPC which was registered on the basis of the complaint given by one Venu, another Police Constable, attached to Ponkunnam Police Station, that he was brutally manhandled and assaulted by the first respondent herein and Manoj on 13.8.2003 at 8PM. Accordingly, Crime No.188/03 of Ponkunnam Police Station was registered against them and first respondent was arrested by the Sub Inspector on 14.8.2003 and produced before the J.F.C.M.'s Court, Kanjirappally and he was remanded to judicial custody. Subsequently, he was released on 26.8.2003. True copy of the remand report in Crime No.188/03 is produced as Annexure III. Subsequently, on 17.9.2003, Annexure I complaint has been filed by the first respondent herein against the petitioners to harass and to settle his personal vengeance against them, who are Police Officials. CRL.M.C.No.455/05 -3- After the receipt of Annexure I complaint, the learned Magistrate directed the Tahsildar and the Executive Magistrate, Kanjirappally as provided under Section 202 of Cr.P.C. to enquire into the complaint and to investigate the same for deciding whether any sufficient ground is there to proceed with the complaint. The Tahslidar who conducted the investigation directed the Circle Inspector of Police, Ponkunnam to give him the details and names of all police personnels on rolls in his Station and the duty assigned to each of them. True copy of that notice is produced as Annexure IV. After conducting a detailed enquiry and investigation, the Tahsildar and the Executive Magistrate, Kanjirappally came to the conclusion that the allegations levelled against the petitioners are concocted and filed a report produced as Annexure V with valid reasons. Subsequently, the learned Magistrate again directed the Tahsildar and the Executive Magistrate to conduct a test identification parade. In pursuance of that direction, the Tahsildar and the Executive Magistrate filed Annexure VI report before the Magistrate's Court, wherein, it was reported that the first respondent identified three persons, ie; CRL.M.C.No.455/05 -4- petitioners 1 to 3. On receipt of Annexure VI report, the court below took cognizance of the complaint for offences under sections 308 and 341 read with Section 34 of IPC and accepted the same to file as C.P.No.20/04. True copy of the order in C.P.No.20/04 is produced as Annexure VII. Thereafter, summons were issued to petitioners 1 to 5 as Annexures VIII to XII respectively. Therefore, this petition is filed to quash Annexure I complaint , Annexure VII order and the summons issued to the petitioners produced as Annexures VIII to XII and all further proceedings in C.P.20/04 pending against them before the J.F.C.M.-II, Kanjirappally. 3. Heard the learned counsel appearing for petitioners and the first respondent. Heard the learned Public Prosecutor also. 4. It is submitted by the learned counsel appearing for petitioners that Annexure I complaint was filed by the first respondent herein before the J.F.C.M.-II, Kanjirappally against petitioners 2, 5 and other 10 police men of Ponkunnam Police Station identifiable by sight, alleging assault and manhandling by CRL.M.C.No.455/05 -5- them on 14.8.2003, whereby they have committed offences punishable under sections 323, 324, 506(ii), 342 and 34 of IPC. In pursuance of that complaint, 202 enquiry was conducted by the learned Magistrate through the Tahsildar and Executive Magistrate, Kanjirappally and took cognizance of the same as C.P.No.20/04 for offences punishable under sections 308, 341 and 34 of IPC as revealed from the summons issued to them, produced as Annexures VIII to XII. No sanction as contemplated under Section 197 of Cr.P.C. has been obtained before initiating prosecution against the petitioners. The first respondent was arrested on 14.8.2003 in Crime No.188/03 of Ponkunnam Police Station as per the complaint of one Venu, another Police Constable for manhandling and assaulting him on 13.8.2003 at about 8PM. Immediately after the arrest, the first respondent was produced before the learned Magistrate on 14.8.2003 and at that time, no complaint has been made by the first respondent against the police personnels. It is also submitted that the petitioners were discharging their official duty and the court below took cognizance of the complaint without sanction for CRL.M.C.No.455/05 -6- prosecution as envisaged under Section 197 of Cr.P.C., which is liable to be quashed. 5. It is submitted by the learned counsel appearing for the first respondent that the learned Magistrate took cognizance of C.P.No.20/04 against the petitioners herein only after conducting enquiry under section 202 of Cr.P.C. and that sanction under Section 197 of Cr.P.C. is not necessary for proceeding against the petitioners for the reason that they were not discharging their official duty. According to the learned counsel, the nature of the acts which are alleged in the complaint, Annexure I reveals that it was not a bona fide exercise of the function of the police officials while arresting the first respondent as an accused. Further, specific allegations are there in the complaint to take cognizance of the same against the petitioners herein, which was taken cognizance by the Magistrate after satisfying that prima facie case is there against petitioners and proceeded against them. 6. There is no dispute that the first respondent was arrested on 14.8.2003 as an accused in Crime No.188/2003 and CRL.M.C.No.455/05 -7- he was produced before the learned Magistrate on that day itself. No complaint has been made by the first respondent against any of the police officials at that time. Going by the averments made in the complaint and also in the sworn statement, it is evident that the allegations of the complainant is that he was assaulted by the police officials, while they apprehended him as one of the accused in Crime No.188/03 and thereafter. Thus the alleged violence was employed by the petitioners in the course of the alleged attempt to apprehend the complainant as an accused in Crime No.188/03 in the alleged offence under sections 341, 323 and 308 read with section 34 of IPC. The first respondent has produced Annexure R1 (j), certified copy of the judgment dated 3.3.2004 in S.C.No.3/04 of Additional District and Sessions Judge, Fast Track Court (Ad hoc)-II, Kottayam, whereby the first respondent herein and another accused was acquitted in Crime No.188/03 of Ponkunnam Police Station, which was initiated against them in pursuance of the complaint filed by Venu, another Police Constable of Ponkunnam Police Station. 7. Admittedly, the petitioners herein are police officials of CRL.M.C.No.455/05 -8- Ponkunnam Police Station. According to them, they were discharging their official duty and no offence whatsoever has been committed by them as alleged in Annexure I complaint. According to the learned counsel for the first respondent, the alleged overt acts against the complainant as mentioned in Annexure I complaint cannot be said to be the acts done in the discharge of their official duty as alleged in this petition. The learned counsel for the complainant draws my attention to the specific allegations in the complaint regarding the custodial torture of the petitioners against the 1st respondent. So, the question is whether the acts alleged can be said to be committed in the discharge of their official duty or in the purported discharge of their official duty. The test to be employed is considered in detail in para-15 of Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001(2) KLT SN77 (C.No.98) (SC) = AIR 2001 SC 2198) in the following words. “The real test to be applied to attract the applicability of S.197(3) is whether the act which is done by a public officer and is alleged to constitute CRL.M.C.No.455/05 -9- an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as the public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected.” This test has been referred by the Supreme Court in the decision Sankaran Moitra v. Sadhna Das (AIR 2006 SC 1599). 8. It is true that whether prima facie case has been made out in Annexure I complaint to proceed against the petitioners was considered by the learned Magistrate after conducting 202 enquiry through the Tahsildar and Executive Magistrate, Kanjirappally as revealed from Annexures IV to VII and after recording the sworn statement of the complainant and the witnesses as revealed from Annexures R1(a) to R1(i) and CRL.M.C.No.455/05 -10- thereafter took cognizance of the case against the petitioners as C.P.No.20/04 and issued summons to the petitioners herein as accused 1 to 5. Whether the acts alleged in the complaint can be said to be committed in the discharge of their official duty or in the purported discharge of their official duty are matters to be decided by the learned Magistrate after considering the evidence, both oral and documentary to be adduced on the side of the prosecution and after considering the defence evidence,if any. 9. After considering the facts and circumstances of this case, it may not be proper to come to a conclusion that the alleged acts mentioned in Annexure I complaint is totally outside the official duty or purported official duty of the officials concerned and to come to a conclusion that they are not entitled to the protection under section 197 of Cr.P.C. The purpose of Section 197 of the Cr.P.C. is to afford the public servant protection, subject to the grant of sanction by the Government against unnecessary indictment by persons on whose feet he may have to tread while discharging his official duty. Therefore, on the basis of the notification dated 6.12.1977, criminal CRL.M.C.No.455/05 -11- proceedings can be initiated against the petitioners herein after obtaining sanction under section 197 (3) of Cr.P.C. and the prayer in this petition can be allowed. 10. In the result, this petition is allowed. The impugned order taking cognizance against the petitioners and the registration of C.P.No.20/04 against them are set aside. It is open to the complainant to initiate steps to prosecute the accused persons after obtaining the requisite sanction. M.C.HARI RANI, JUDGE. dsn