IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 Crl.Rev.Pet.No. 2666 of 2008() ----------------------------------------- SC.1222/2005 OF ADDL. SESSIONS COURT, (ADHOC NO.1), PALAKKAD .................... REVISION PETITIONER/ACCUSED ------------------------------------------------ K.V. PRABHAKARAN, C.I.OF POLICE, POLICE TRAINING SCHOOL, DHARMAPURAM, THRISSUR DISTRICT. NOW WORKING AS C.I.OF POLICE, CRIME BRANCH C.I.D., SIG III, KOZHIKODE. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------- 1. KANAKA LATHA, W/O. KUMARAN NAIR @ RAJAN NAIR, VALPPARAMBIL VEEDU, THRIKKADIRI VILLAGE, KIZHOOR DESOM, OTTAPPALAM TALUK PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 ADV. SRI.K.RAVI (PARIYARATH) FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/10/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL. RP.NO.2666/2008 ORDER ON CRL. MA.8068/2008 IN CRL. RP.2666/2008 DISMISSED 06/10/2008. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE Rs/ M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 2666 OF 2008 =========================== Dated this the 6th day of October,2008 ORDER Petitioner a Circle Inspector of Police filed this petition challenging the framing of charge for the offences under sections 341,324,352, 511 read with section 376, 354, 509 and 450 of IPC by Additional Sessions Court, Palakkad in S.C.1222/2005. 2. Learned counsel appearing for petitioner and learned counsel appearing for first respondent were heard. 3. The argument of the learned counsel appearing for petitioner is that in the absence of sanction as provided under section 197(1) of Code of Criminal Procedure, learned Sessions Judge should not have framed the charge when a case is registered against first respondent complainant and others as Crime No.7/2003 of Cherpulassery Police Station under section 55(i) of Kerala Abkari Act CRRP 2666/2008 2 and section 341, 225,332,294(b) and 427 read with section 34 IPC and also under section 3(1)(e) of P.D.P.P. Act and in such circumstance, the order framing charge is to be set aside. Reliance was placed on the decision of the Apex Court in Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001) 5 SCC 7), Sunilkumar v. State of Kerala (2007(2) KLD 274, Shoukkathali v. State of Kerala (2005(3) KLT 634) and Sankaran Moitra v. Sadhna Das and another (2006 (4) SCC 584). 4. Section 197 of Code of Criminal Procedure is intended to guard against vexatious proceedings against public servants from office except by or with sanction of the Government. The essential conditions are (i) The offence mentioned must be committed by a public servant. (2) The public servant must be employed in connection with the affairs of the union or a State and is not removable save by or with the sanction of the union or State Government. (3) The act was committed CRRP 2666/2008 3 while acting or purporting to act in the discharge of his official duty. In order to invoke section 197(1) there must be a reasonable connection between the act and the official duty. Even if the act exceeds, what is strictly necessary for discharge of the duty, sanction is necessary. The real test to be applied is laid down by the Apex Court in Rizwan Ahmed Javed Shaikh's case (supra) as followed in Sankaran Moitra's case (supra) as follows:- “15. The real test to be applied to attract the applicability of Section 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 while acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act CRRP 2666/2008 4 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 a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected.” 5. The allegation against the petitioner is that he took first respondent complainant to her bedroom and attempted to commit rape on her and also outraged her modesty and when she tried to escape, she was kicked and hurt. On the allegations, it cannot be said that the acts alleged against the petitioner are acts done in the course of his official duty or even purporting to be in discharge of his official duty. Hence sanction under section 197 (1) is not necessary. CRRP 2666/2008 5 Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006