IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 2641 of 2004(A) ------------------------------- CRAP.39/1999 of ADDL.DISTRICT & SESSIONS (ADHOC), FAST TRACK COURT-II, PATHANAMTHITA CC.822/1991 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------- SALIM RAJ, FORMER SUB INSPECTOR OF POLICE, THIRUVALLA. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENTS/RESPONDENTS/ COMPLAINANT AND STATE; ------------------------------------- 1. M.SURESH KUMAR, MUKKATTU VEEDU, VAIPUR MURI ANIKAD VILLAGE, MALLAPPALLY TALUK. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.S.JOHN FOR R1 SRI.M.S.RADHAKRISHNAN NAIR FOR R1 PUBLIC PROSECUTOR SRI.C.M. KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.R.P.No.2641 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2008 O R D E R This revision petition is directed against the order of remand passed by the Additional District and Sessions (Adhoc) Fast Track Court-II, Pathanamthitta, in Crl.A.No.39/1999 directing the trial court to hear the accused on the question of sentence and dispose of the case in accordance with law. 2. Petitioner, who was working as Sub Inspector of Police, was tried for offences punishable under Sections 342,348,232,325 and 506(ii) I.P.C. At the conclusion of the trial, the learned Magistrate found the petitioner guilty under Sections 342 and 323 I.P.C and he was accordingly convicted and sentenced to undergo rigorous imprisonment for six months for the offence under Section 342 I.P.C and also to pay a fine of Rs.5,000/= and in default, to undergo simple imprisonment for two months. He was also convicted and sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs.1,000/= under Section 323 I.P.C with a default sentence of simple imprisonment for one month. It was further directed that a sum of Rs.4,000/- shall be paid to the complainant, if the fine amount was realised. 3. The above order was challenged by the petitioner before the Sessions Court. The learned Sessions Judge while confirming the order of conviction, took the view that the order of the learned Magistrate could not be sustained in as 2 Crl.R.P.No.2641/04 much as the accused was not heard on sentence. 4. The above order of remand is under challenge in this revision petition primarily on the ground that the prosecution by itself was totally vitiated since the petitioner being a public servant, prior sanction under Section 197(1) of the Code of Criminal Procedure was not admittedly obtained. Learned counsel points out that this contention was specifically raised before the learned Sessions Judge. Several decisions were also cited before the learned Sessions Judge in support of the above contention. 5. Learned Sessions Judge in paragraph-9 of the impugned judgment has dealt with the above contention thus: 9. The argument of appellant's counsel that sanction u/s 197 Cr.P.C was necessary in this case does not appear to be sound. In order to attract the requirement of sanction u/s 197 Cr.P.C, the accused must be a public servant not removable from his office except by or with the sanction of the Government and when the offence alleged was committed while acting or purporting to act in the discharge of this official duty. Accused is not proved to be a public servant who is not removable from his office save by or with the sanction of the Government. The offence of wrongful confinement and causing hurt alleged in this case is not an act in the discharge of the official duty of the accused. Therefore, this argument has no force.” 6. Having heard learned counsel for the petitioner and 3 Crl.R.P.No.2641/04 learned counsel for respondent No.1/complainant, I am of the view that there is considerable force in the contention raised by the petitioner. In my view, learned Sessions Judge ought to have dealt with the question of sanction appropriately. If the petitioner ultimately succeeds on that issue, he may be entitled to get an order of acquittal/discharge. Since, the above question has not been considered in its proper perspective in the light of the precedents, I am satisfied that the case has to be remitted to the Sessions Court for fresh disposal in accordance with law. Therefore, the oder of the learned Sessions Judge is set aside. Learned Sessions Judge shall hear the appeal afresh and dispose it of in accordance with law. It will be open to the petitioner and respondent No.1 to raise all their contentions before learned Sessions Judge. The court below shall make an earnest endavour to dispose of the case as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. (A.K.BASHEER, JUDGE) cl 4 Crl.R.P.No.2641/04