IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.MC.No. 3593 of 2010() ------------------------- CP.25/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALI .................... PETITIONER(S): ACCUSED NO.1 --------------------------- C.S.IBRAHIM, AGED 53 YEARS, S/O.SAID MUHAMMED, CHIRAKANDATHIL HOUSE, ADIMALY KARA, MANNAMKANDAM VILLAGE. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. SONY MATHAI, AGED 29 YEARS, S/O.MATHAI, MANIMALA VEEDU, ERUTTUKANAM KARA, ANAVIRATTI VILLAGE, DEVIKULAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR FOR R2 SRI.C.P.UDAYABHANU FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.3593 of 2010 -------------------------------------- Dated this the 31st day of January, 2011. ORDER Accused No.1 in C.P.No.25 of 2009 of the court of learned Judicial First Class Magistrate, Adimaly is the petitioner before me seeking to quash proceedings against him for the reason that respondent No.1, complainant has not obtained sanction to prosecute him under Section 197(1) of the Code of Criminal Procedure (for short, “the Code”). It is contended by learned counsel that materials on record would indicate that petitioner was on official duty at the relevant time and hence it was necessary to obtain sanction under Section 197 (1) of the Code in the absence of which court below could not have been taken cognizance in view of the bar under Sub-section (b) of Section 197(1) of the Code. Learned counsel has placed reliance on the decisions of this Court reported in Moosa Vallikkadan v. State of Kerala (2010 (3) KLT 437) and Viswambharan v. State of Kerala (2010 (4) KLT 875). It is further contended that even if it is assumed that at the time alleged incident occurred petitioner was not wearing his uniform shirt, in view of Section 17 of the Kerala Police Act (for short, “the Act”) since petitioner was not on leave or under suspension he shall be considered to be on duty. Learned counsel for respondent No.1 contends that as per the averments in the complaint on which the learned Magistrate has taken cognizance petitioner was not on official duty at the relevant time and the question whether petitioner was on duty is a matter to Crl.MC No.3593/2010 2 be established by evidence being a question of fact. For the purpose of taking cognizance, averments in the complaint are to be considered. 2. I have heard learned Public Prosecutor also in the matter. 3. Alleged incident occurred on 27.10.2008 at about 3 p.m. Petitioner is the Assistant Sub Inspector of Police, Rajakkad while respondent No.1 also belongs to the same Department being the Sub Inspector of Police, Erumeli during the relevant time. According to respondent No.1, he along with family including his mother was travelling in a vehicle of his relative after attending a betrothal and when they reached the place of occurrence they heard that there was a road block. Respondent No.1 got out of the vehicle to find whether there is any way out to proceed further. While so, petitioner allegedly used obscene words at respondent No.1, wrongly restrained him by holding on the collar of his shirt and assaulted him. The mother of respondent No.1 preferred a complaint to the Rajakkad Police who registered Crime No.210 of 2008 for offences punishable under Section 341, 294(b) and 323 read with Section 34 of the Indian Penal Code (for short, “the IPC”). After investigation that case was referred as mistake of fact. Thereon respondent No.1 preferred a protest complaint alleging the same offences describing the incident in the way stated above against the petitioner, Sub Inspector of Police, Rajakkad and the Constables of that Station. Learned Magistrate after conducting necessary enquiry has taken cognizance against petitioner and others for offences punishable under Sections 341, 294(b) and 323 read with Section 34 of the IPC. In the meantime, on the complaint of petitioner, Rajakkad Police registered Crime No.208 of 2008 against Crl.MC No.3593/2010 3 respondent No.1 for offences punishable under Sections 325 and 332 of the IPC alleging that while petitioner was engaged in official duty controlling traffic, respondent No.1 assaulted him and thereby obstructed him from discharging his official duty. I am told that after investigation, offence under Section 332 was altered as one under Section 333 of the IPC triable by the court of Sessions and that case has been committed to the court of Sessions, Thodupuzha. 4. It is contended by learned counsel that petitioner was on official duty as revealed from Section 17 of the Act and even refer report submitted by the Police in Crime No.210 of 2008 (registered on the basis of complaint filed by mother of respondent No.1). Learned counsel contended that in the refer report it is stated after investigation that while petitioner was taking meals in the course of his duty on the relevant day, the Sub Inspector, Rajakkad informed him over telephone about traffic block at the place of occurrence, on receiving information without waiting to wear his uniform shirt he rushed to the spot for controlling traffic and at that time respondent No.1 assaulted him which has given rise to Crime No.208 of 2008. 5. No doubt, a public servant of the category referred to in Section 197 of the Code while acting or purporting to act in the discharge of his official duty is alleged to have committed offence, no court shall take cognizance of such offence except with previous sanction. It is not disputed that Assistant Sub Inspector of Police also will come within the category of public servant in view of the notification, S.R.O.No.1211/1977 dated 06.12.1977. Then the question is Crl.MC No.3593/2010 4 whether at this stage it could be said that sanction under Section 197(1) of the Code is required to prosecute the petitioner. In Moosa Vallikkadan v. State of Kerala (supra) this Court held that if a member of Kerala Police has committed an offence while acting or purporting to act in discharge of his official duty, court is precluded from taking cognizance of such offence except with previous sanction of State Government. Same view is taken in Viswambharan v. State of Kerala (supra) where also it is held that the Sub Inspector is also entitled to that protection. 6. Various decisions of the Supreme Court on the point inform me that in considering whether sanction is required under Section 197(1) of the Code the substratum and basic features of the allegations are to be looked into to decide whether there is nexus between the alleged act and official duty of the person concerned. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty. But the question is whether it has nexus with the official duty. In the present case allegation made by respondent No.1 is that petitioner was not on official duty at the relevant time and that he was not even wearing uniform shirt. This is confirmed by the refer report in Crime No.210 of 2008 also as read before me by the learned counsel for petitioner where it is stated that on getting information from the Sub Inspector of Police, Rajakkad petitioner who was taking meals rushed to the place of occurrence to control traffic without wearing uniform shirt. There could be no blind reliance on the refer report submitted by the Police. Question is whether Crl.MC No.3593/2010 5 petitioner was on official duty at the relevant time is a matter to be proved. Having regard to the allegations in the complaint I am unable to say at this stage either way on that point. If that be so, at this stage it is not possible for petitioner to plead that in the absence of sanction under Section 197(1) of the Code proceedings against him has to be dropped. I make it clear that this being a question of fact it is open to the petitioner at the appropriate stage to contend before the court concerned in case evidence shows that he was on duty and other requirements of Section 197(1) of the Code are satisfied that in the absence of sanction, prosecution against him is vitiated. With the above observation this petition is dismissed. THOMAS P.JOSEPH, Judge. cks