IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 Crl.MC.No. 539 of 2006 ------------------------ CC.1856/2005 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... PETITIONERS: ACCUSED 3 AND 5 ------------------------------ 1. S.SURESH KUMAR, S/O.SUKUMARAN, PADMA VIHAR, KOPPAM, VITHURA P.O., THIRUVANANTHAPURAM, PRESENTLY WORKING AS SUB INSPECTOR OF POLICE, KOVALAM. 2. M.SANTHOSH KUMAR, S/O.P.V.M.NAIR, SREEPADMAM, MANAYIKULANGARA, KOLLAM-12, PRESENTLY WORKING AS CIRCLE INSPECTOR OF POLICE, PUNALUR. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS: --------------- 1. CHOORY USMAN, S/O.LATE ABDULLA HAJI, RESIDING AT MARIAM VILLA, SANTHOSH NAGAR, P.O.CHENGALA, KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.G.RAJENDRAN FOR R1 PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/2/2009, THE COURT ON 13-3-2009 PASSED THE FOLLOWING: ORDER ON CRL.M.A.No. 850/2006 in CRL.M.C. NO. 539/2006 Dismissed. 13-3-2009 Sd/-M.C. HARI RANI, JUDGE KS. M.C. HARI RANI, J. ====================== CRL.M.C.NO. 539 of 2006 ======================= Dated this the 13th day of March 2009 ORDER The petitioners herein are accused Nos.3 and 5 in C.C.No.1856/2005 on the file of the Judicial First Class Magistrate court, Kasaragod. The offences alleged against them are under Sections 294(B),341,342, 347, 348, 357, 363, 364A,307,420,456,465,468,469, 500 read with Section 109 of the Indian Penal Code. That case was taken cognizance by the court below on the basis of the complaint filed by the first respondent herein against the petitioners and other accused with the allegation that on 13-12—2004 at about 4 a.m. accused Nos.1 to 4 and others trespassed into his house and assaulted him. Thereafter, he was taken to Punalur police station and was illegally detained and forced to sign several blank papers. Copy of the complaint is produced as Annexure-I. According to the petitioners, they have not committed any offence as alleged in CRMC. 539/2006 -2- Annexure-I complaint and that further proceedings against them in C.C.No.1856/2005 is an abuse of process of court and is liable to be quashed. 2. Heard the learned counsel appearing for the petitioners and the first respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned counsel for the petitioners that Annexure-I complaint is not maintainable which is a counterblast to a crime registered by Punalur police against one Sanoj and others as Crime No.489/2004 for the offences punishable under Sections 420, 468 and 469 of the Indian Penal code. Copy of that F.I.R.is produced as Annexure-II. On the basis of Annexure-II F.I.R., the first petitioner, Sub Inspector of Police Punalur police station went to Kasaragod and conducted investigation of that crime and questioned some persons who had connection with the alleged incident. Accordingly, the first respondent herein was also questioned by the first petitioner on 13-12-2004 and the petitioners were acting in the course of and in the discharge of their official duties which is evident from Annexure-I complaint itself. Further no sanction as CRMC. 539/2006 -3- contemplated under Section 197 of Cr.P.C.has been obtained to initiate the criminal proceedings against the petitioners who were acting in discharge of their official duties. It is submitted by the counsel that the learned Magistrate took cognizance of the case against the petitioners on the basis of Annexure-I complaint without obtaining sanction as contemplated under Section 197(1) of Cr.P.C.and further proceedings in C.C.No.1856/2005 on the file of the Court of J.F.C.M,Kasaragod is liable to be quashed by invoking the jurisdiction under Section 482 of Cr.P.C. The learned counsel has relied on the decision of this Court in Shoukkathali v. State of Kerala, 2005(3)K.L.T.634 to substantiate the submissions. 4. The learned counsel for the first respondent submitted that the alleged overt acts against the complainant as stated in Annexure-I complaint cannot be said to be the acts done in the discharge of the official duties of the petitioners or in the purported discharge of their official duties. The alleged offence committed by them was stated in Annexure-A1 complaint that on 13-12-2004 at about 4 a.m.the petitioners along with other police officials unlawfully trespassed into the house of the first CRMC. 539/2006 -4- respondent/complainant by force and manhandled him. When the complainant resisted their illegal actions, there was some altercations between them. Thereafter, petitioners have taken the complainant by force to Kasaragod police station and subsequently to Punalur police station wherein he was illegally detained on that night. From Punalur police station he was forcibly taken to Kailash Mahal Lodge belonging to the relative of the first accused and accused Nos.1 to 3 and 5 have obtained his signature in a register maintained in the reception counter of that lodge and also obtained signatures on blank papers by threatening to cause his death and to cause grievous hurt. It is submitted by the learned counsel that though the first respondent herein was not an accused in Crime No.489/2004 registered on 26-11-2004 as revealed from the copy of the F.I.R.in that case produced as Annexure-II, he was arrested on 13-12-2004 illegally by the police officers including petitioners herein. In the anticipatory bail application filed by the first respondent before this court on apprehending illegal arrest by the Punalur police, it was submitted by the learned Public Prosecutor that the first respondent herein was not made an CRMC. 539/2006 -5- accused so far in Crime No.489/2004 and on that observation the application was dismissed on 7-1-2005. Thus according to the learned counsel, the first respondent was not an accused till 7-1-2005 and the petitioners and other accused mentioned in Annexure-I complaint have arrested the first respondent illegally and detained him which necessitated the filing of the complaint. The learned Magistrate took cognizance of the same after finding that a prima facie case is made out in the complaint against the accused mentioned therein including the petitioners. Therefore, the alleged acts done by the petitioners were not in the discharge of their official duties and hence sanction under Section 197 of Cr.P.C.is not necessary to proceed against them, it is submitted. The test to be employed in a case like this is considered in detail in para.15 of the case. Rizwan Ahmed Javed Shaikh v. Jammal Patel(2001(2)K.L.T. S.N.77(Case No.98) (SC)= A.I.R. 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 official capacity though CRMC. 539/2006 -6- 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 a 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 in Sankaran Moitra v. Sadhna Das (A.I.R. 2006 S.C. 1599). 5. 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 servant 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 CRMC. 539/2006 -7- protection under Section 197 of Cr.P.C.to be invoked, it must be 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. 6. 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 CRMC. 539/2006 -8- shall take cognizance of such offence 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.” It is in the case of the first respondent that petitioners 1 and 2, who are accused Nos.3 and 5 respectively in C.C.No.1856/2005, were Sub Inspector of Police and Circle Inspector of Police, respectively of Punalur police station as stated in the address shown in the complaint itself. 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 CRMC. 539/2006 -9- are matters to be decided by the learned Magistrate after considering the evidence to be adduced on the side of the prosecution and the defence side if any. 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 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 CRMC. 539/2006 -10- only be held that the petitioners Sub Inspector of Police and the Circle Inspector of Police 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 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.1856/2005 on the file of the Judicial First Class Magistrate Court, Kasaragod 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.