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. 2432 of 2006() ------------------------- C.C.No.485/04 OF J.F.C.M., SASTHAMCOTTAH PETITIONER(S): ACCUSED 1 TO 3: ------------------------------------- 1. N.K. BABU, SUB INSPECTOR OF POLICE, SASTHAMCOTTAH POLICE STATION, KOLLAM DISTRICT. 2. VINCENT, HEAD CONSTABLE, SASTHAMCOTTAH POLICE STATION, KOLLAM DISTRICT. 3. GREEK, CONSTABLE, SASTHAMCOTTAH POLICE STATION, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------- 1. MANOJ KUMAR, KOCHUTHUNDIL KIZHAKKATHIL, THURUTHIKKARA MURI, KUNNATHOOR VILLAGE, KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SHRI BECHU KURIAN THOMAS FOR R1 PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON 11/03/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.4627/08 IN CRL.M.C.NO.2432/06 //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. 2432 of 2006 ======================= Dated this the 11th day of March 2009 ORDER Petitioners 1 to 3 in this petition are accused Nos.1 to 3 in C.C.No.485/2004 on the file of the Judicial First Class Magistrate Court, Sasthamcottah and the offences alleged against them are under Sections 341,342,323, 294(b) read with Section 34 of the Indian Penal Code. The allegation against them as revealed from Annexure-A1 complaint is that on 25-2-2003 at about 9.30 a.m.while the first respondent herein was plying a school bus through the public road Nediyavila-Kaliyilayikathu Mukku, the petitioners came in a police jeep and crossed the jeep in front of the bus. Thereafter, the first petitioner shouted abusive words and pulled the neck and collar of the shirt worn by the first respondent and forcibly took him from the bus and assaulted him. Petitioners 2 and 3 also assaulted the first respondent and all the petitioners took the first respondent into the police jeep and continued torture. Petitioners 1 to 3 are police officials who CRMC 2432/2006 -2- are Sub Inspector, Head Constable, and Police Constable respectively. It is alleged in this petition that petitioners 1 to 3 were on official duty and they arrested the first respondent in pursuance of a non-bailable warrant pending against the first respondent, the accused in Crime No.90/2003 at Sasthamcottah police station. Copy of the F.I.R. in that case is produced as Annexure-II wherein the offence alleged against the first respondent was under Section 324 of the Indian Penal Code. True copy of the charge sheet laid by the first petitioner herein against the first respondent in that case is produced as Annexure-III and the offences alleged are under Sections 324 and 326 of I.P.C. and taken on file as C.C.No.250/2003 which is pending. According to the petitioners, they have not committed any offence as alleged in Annexure-I complaint and they were discharging their official duties and arrested the first respondent after complying with all formalities. Further, no sanction under Section 197 of the Code of Criminal Procedure has been obtained before lodging the prosecution against the petitioners who are police officials. Therefore, this petition filed under Section 482 of Cr.P.C.with the prayer to quash all further CRMC 2432/2006 -3- proceedings as against the petitioners in Annexure-I complaint in C.C.No.485/2004 pending before the Judicial First Class Magistrate Court, Sasthamcottah. 2. Heard the learned counsel appearing for the petitioners and the first respondent. 3. It is submitted by the learned counsel for the petitioners that petitioners 1 to 3 have not committed any offence as alleged in Annexure-I complaint and they were on official duties and they arrested the first respondent on 25-2-2003 in pursuance of a non-bailable warrant pending against the first respondent in Crime No.90/2003 of Sasthamcottah police station which is now pending as C.C.No.250/2003. Annexures-II and III are the copies of the F.I.R. and the final report in that crime. According to the petitioners, they have complied with all the formalities while arresting the first respondent and this petition is not maintainable for the reason that sanction under Section 197 of Cr.P.C. has not been obtained before prosecuting the petitioners who are the police officials and they were on official duties. 4. The learned counsel has relied on a decision of this Court in Shoukkathali v. State of Kerala, 2005(3)K.L.T.634 CRMC 2432/2006 -4- to substantiate the submissions. 5. It is the case of the petitioners that no sanction has been obtained under Section 197(1) of Cr.P.C. to prosecute against them and therefore the cognizance taken by the learned Magistrate is unsustainable in law as it violates the mandate of Section 197(3) of the Cr.P.C. The learned counsel for the first respondent submitted that the alleged overt acts against the complainant cannot be said to be the acts done in the discharge of their official duties or in the purported discharge of their official duties. It is the case of the first respondent in Annexure-I complaint that petitioners 1 to 3 were working as the Sub Inspector, Head Constable and Police Constable respectively at Sasthamcottah police station and is still continuing as such. On 25-2-2003, the alleged offence has been committed by them while doing their official duties as such while apprehending the first respondent, who is an accused in Crime No.90/2003 and that too while executing a non-bailable warrant pending against him in respect of an incident occurred on 11-2-2003 which also was registered by Sasthamcottah police. Thus it is absolutely clear that on 25-2-2003, petitioners 1 to 3 had taken custody of CRMC 2432/2006 -5- the first respondent in discharge of their duties as Sub Inspector, Head Constable and Police Constable at Sasthamcottah police station. Even if the allegation of the first respondent that the first petitioner, Sub Inspector of Police along with other police officials physically manhandled and assaulted him and the offence as alleged in Annexure-I complaint is accepted, it is clear that it was committed in discharge of their official duties as the Sub Inspector and other police officials. If those allegations are true and they had exceeded the limit, the question is whether in such a case sanction is necessary and whether the Act alleged can be said to be committed in the discharge of their official duties or in the purported discharge of their official duties. The real test to be employed is considered in detail in para.15 of the decision in Rizwan Ahmed Javed Shaikh v. Jammal Patel(2001(2) K.L.T. S.N.77(Case 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 an offence was done by the public officer whilst acting in his CRMC 2432/2006 -6- 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.” 6. The protection given under Section 197 is to protect responsible public servant against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. This protection has certain limits and is available only when the alleged act done by the public servants reasonably connected with the discharge of his official duty. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. But the protection under Section 197 of Cr.P.C.to be invoked, it must be CRMC 2432/2006 -7- shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. One safe and sure test in this regard would be considered if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. 7. The question of exercise of the inherent power of the court under Section 482 of the Code of Criminal procedure to quash the proceedings taken in violation of the mandatory provisions of S.197(1)of Cr.P.C.was considered by the Apex Court in State of Orissa v. Ganesh Chandra Jew, A.I.R. 2004 SC 2179, the Apex Court held: “ The mandatory character of the protection afforded to a public servant is brought out by the expression, “no Court shall take cognizance of such offence CRMC 2432/2006 -8- except with the previous sanction”. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means “jurisdiction” or the “exercise of jurisdiction” or “power to try and determine causes”. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.” 8. The first petitioner herein is the Sub Inspector of Police and the other petitioners are Head Constable and Police Constable respectively and the alleged offence was committed in discharge of their official duties. As declared by the Apex Court in a catena of cases, the protection afforded by S.197 would be rendered illusory if the words “any offence alleged to have been CRMC 2432/2006 -9- committed by him while acting or purporting to act on the discharge of his official duty” is given a narrow meaning. In that case, the section will be rendered sterile. Official duty implies that the act or omission must have been done by him, in the course of his service and in discharge of his duty. Once any act or omission has been found to have been committed by a public servant in discharge of his duty, then it must be given liberal and wide construction so as to advance the object of the section in favour of the public servant. In this case it is evident that petitioners had taken the first respondent in custody in the discharge of their official duties as is clear from Annexure-I complaint and in the allegations specified therein. Therefore, in view of notification dated 6-12-1977 issued by the State Government which was considered by a Division Bench of this Court in Sarojini v. Prasannan, (1996(2)K.L.T.859), it can only be held that the first petitioner, Sub Inspector of Police is an officer against whom sanction as provided under Section 197 (1)of Cr.P.C.is mandatory. The learned Magistrate omitted to take into consideration of these facts and taken cognizance of the case against the petitioners. Therefore, cognizance was taken CRMC 2432/2006 -10- without sanction and the continuation of the proceedings as against the petitioners would be an abuse of process of court. In the circumstances by exercising the power under Section 482 of Cr.P.C., case against the petitioners in C.C.No.485/20204 on the file of the Judicial First Class Magistrate Court, Sasthamcottah is quashed. This will not prejudice the right of the complainant to initiate steps to prosecute the accused persons after obtaining the requisite sanction. In the result, the Crl.M.C.is allowed. M.C. HARI RANI JUDGE ks.