IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.Rev.Pet.No. 3137 OF 2008() ------------------------------ CC.245/1996 OF CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED NO.1: --------------------- TOMIN.J.THACHANKARY I.P.S. INSPECTOR GENERAL OF POLICE, (UNDER SUSPENSION) (FORMER ASST.SUPERINTENDENT OF POLICE ALAPPUZHA), 32/2899, THAMMANAM PO, COCHIN-32. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. N.PRAKASHAN, PUTHENVALAPPIL, PARAVUR, ALAPPUZHA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.G.RAJENDRAN FOR R1 SRI. R. BINU SASTHAMANGALAM FOR R1 PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3137 OF 2008 ------------------------------------------ Dated this the 3rd day of November, 2008 O R D E R Revision petitioner is the first accused in C.C.245 of 1996 on the file of Chief Judicial Magistrate, Alappuzha. Revision petition is filed challenging Annexure-C order passed by the Chief Judicial Magistrate rejecting his plea for discharge for want of sanction under section 197(1) of Code of Criminal Procedure and deciding to frame charge for the offence under section 325, 330, 357, 107 and 120B read with section 34 of Indian Penal Code. Originally the revision petitioner contended before learned Magistrate that the prosecution will not lie without sanction under section 197 (1) of Cr.P.C. Learned Magistrate allowed Crl.M.P.243 of 1997 filed by the petitioner and held that prosecution will not lie against the petitioner without sanction. First respondent/complainant approached Sessions Court, Alappuzha in Crl. Revision Petition 53 of 1997 challenging that order. Learned Sessions Judge on the materials found that no sanction under section 197(1) of Cr.P.C. is necessary to prosecute the petitioner or to take cognizance against him. The view upheld by the learned Magistrate based CRRP 3137/08 2 on section 64(3) of Kerala Police Act was also set aside. Revision petition was allowed and the order of discharge was set aside. Magistrate was directed to proceed with the case against the petitioner. Petitioner challenged that order before this Court in Crl. R.P. 1443 of 2004. But that revision petition was not prosecuted and was allowed to be withdrawn on the request of the petitioner to raise all his contentions before the trial Court. Petitioner thereafter raised the plea based on want of sanction under section 197(1) of Cr.P.C. before the learned Magistrate at the stage of hearing under section 239 contending that he cannot be prosecuted without sanction as provided under section 197(1) of Cr.P.C. Learned Magistrate as per order dated 26.8.2008 rejected that plea and posted the case for framing charge for the offences under sections 325, 343, 330, 357, 109 and 120B read with section 34 of IPC. The order is challenged in this revision. 2. Learned counsel appearing for revision petitioner and learned counsel appearing for first respondent were heard. 3. The learned counsel argued that in view of the permission granted by this Court as per order in Crl.R.P. 1443 of 2004 petitioner is entitled to raise the defence that he cannot be prosecuted without sanction under section 197(1) of Cr.P.C. CRRP 3137/08 3 before the Magistrate and the order of the learned Sessions Judge in Crl.R.P. 53 of 1997 will not prevent petitioner from raising the defence. It is argued that the facts of the case would reveal that petitioner was discharging his official duty and hence sanction as provided under section 197(1) is mandatory. Learned counsel appearing for first respondent pointed out that even though the question of sanction under section 197(1) of Cr.P.C. could be raised by an accused at any stage of the trial, there is no material before the learned Magistrate to uphold the plea as after the finding of the learned Sessions Judge, only complainant was examined and learned Magistrate found that the charge is to be framed. It is argued that petitioner if at all is entitled to raise the plea after recording the evidence substantiating the plea and not at this stage and if on the evidence it is shown that petitioner was discharging his official duty, it could be raised at that stage. There is force in the submission. 4. When the learned Magistrate took cognizance of the offence petitioner contended that sanction under section 197 (1) of Cr.P.C. is a must before taking cognizance and for prosecuting the petitioner. Though learned Magistrate upheld that contention, learned Sessions Judge in Crl.R.P. 53 of 1997 CRRP 3137/08 4 reversed that order and held that sanction is not necessary. Though petitioner challenged that order before this Court, the revision was dismissed as withdrawn. True, petitioner was permitted to raise all the defence before learned Magistrate. But it does not mean that petitioner is entitled to raise plea at this stage before relevant facts are brought out. Though the first order was passed immediately after taking cognizance, thereafter only complainant was examined and he was not even allowed to be cross-examined. In such circumstances there is no material to enable petitioner to raise the plea as learned Magistrate cannot go into that question, in view of the finding of learned Sessions Judge in Crl.R.P.53 of 1997 in the absence of additional materials. If on subsequent evidence being let in, petitioner could substantiate his plea that he is entitled to the protection under section 197(1) of Code of Criminal Procedure, petitioner is entitled to move an application at that stage or is entitled to raise the plea after recording evidence. Revision is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-