IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 Crl.MC.No. 3002 of 2004(A) -------------------------- CC.108/2002 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. P.C.BABU, CIRCLE INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, KOZHIKODE -8. 2. P.V.NARAYANAN NAIR, SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, KOZHIKODE - 8. 3. K.K.SURESH, P.C.NO.4338, MEDICAL COLLEGE POLICE STATION, KOZHIKODE -8. 4. GANESHAN, S/O.BAPPUTTY, POLICE CONSTABLE, MEDICAL COLLEGE POLICE STATION, KOZHIKODE, PERIYATTIL HOUSE, KOZHIKODE 8. 5. RAGHAVAN, HEAD CONSTABLE NO.3238, MEDICAL COLLEGE POLICE STATION, KOZHIKODE 8. 6. PREMAN, HEAD CONSTABLE NO.3419, MEDICAL COLLEGE POLICE STATION, KOZHIKODE 8. 7. MADHAVAN, HEAD CONSTABLE NO.3549, MEDICAL COLLEGE POLICE STATION, KOZHIKODE 8. 8. DASAN, HEAD CONSTABLE NO.3634, MEDICAL COLLEGE POLICE STATION, KOZHIKODE 8. 9. SIVADASAN, HEAD CONSTABLE NO.3741, MEDICAL COLLEGE POLICE STATION, KOZHIKODE -8. BY ADV. MR.T.G.RAJENDRAN Kss ..2/- ..2... CRMC.NO.3002/2004 RESPONDENT(S): COMPLAINANT AND STATE: --------------------------------------------------------------------- 1. SANDEEP K.NAIR, S/O.C.K.KUTTIKRISHNAN NAIR, “GEETHAKRISHNA”, KULAPPALLY PARAMBU, P.O.MAYANAD, MAYANAD DESOM, CHELAVUR VILLAGE, KOZHIKODE TALUK, KOZHIKODE 673 008. 2. STATE REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.M.V.BOSE R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3002 OF 2004 =========================== Dated this the 11th day of December,2009 ORDER Petitioners are accused in C.C.108/2002, taken cognizance by Judicial first Class Magistrate Kunnamangalam for the offences under sections 143,147,166,167,452, 294(b), 323,342,427and 506(ii) read with section 149 of Indian Penal Code and Section 41(d) (c) (e) and (f) and (h) of Kerala Police Act. This petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings and the cognizance taken, contending that the acts alleged against the petitioners are acts allegedly committed by them in discharge of their official duty and without sanction learned Magistrate should not have taken cognizance of the offences. First petitioner is the Circle Inspector of Police and second petitioner the Sub Inspector of Police and the other petitioners are the Police Constables. 2. Learned counsel appearing for the petitioners first respondent the complainant were heard. 3. The allegation against the petitioners is Crl.M.C.3002/2004 2 that on 10.4.2002, while first respondent was in his house, his parents had gone to the relative’s house to attend the function in connection with the death of uncle Sreedharan Menon. First respondent was reading to prepare for the examination. At about 10.30 a.m, somebody pressed the calling bell. Thinking that parents had reached the house, he opened the door. Then all the petitioners trespassed into the room and warned that he shall not make any sound. They tried to hit him with fist and caught on his neck and pressed the neck and questioned him whether he is enemy of the Christian community and scolded him in filthy language. They broke opened the steel almirah. When first respondent questioned them, his mouth and nose were pressed, restraining him from even breathing. They forcibly took him in the police jeep to the Medical College Police Station and kept him there in illegal confinement. They did not even permit him to attend for his primary needs. On the next day he was produced before the Magistrate Kunnamangalam. At that time as he was warned that if he discloses anything to the Magistrate they will foist further criminal cases and due to feat first respondent could not disclose the atrocities to the Magistrate. A remand report was submitted before the court stating that arrest was intimated to Dr. Sherly Vasu who Crl.M.C.3002/2004 3 is residing in the same compound. But no such intimation was given. It is alleged that petitioners thereby committed the offences. 4. As rightly pointed out by the learned counsel appearing for the petitioners even if the allegations in Annexure I complaint is accepted as correct it cannot be disputed that the alleged offences were committed by the petitioners as Police Officials in discharge of their official duty. In any case those acts were committed purporting to be in discharge of their official duty. If that be so, sanction under section 197(1) of Code of Criminal Procedure is mandatory to prosecute them. As the learned Magistrate has taken cognizance without obtaining sanction as provided under section 197(1) of the Code of Criminal Procedure the cognizance taken can only be quashed. Petition is allowed. C.C.108/2002 on the file of Judicial First Class Magistrate Court, Kunnamangalam is quashed M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006