IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.Rev.Pet.No. 1178 of 2008(B) -------------------------------------------- CRL.M.P.6852/2007 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. .................... PETITIONER/ COMPLAINANT: ------------------------------------------ A.K.LAKSHMANAN, S/O.KESAVAN, HEAD CONSTABLE (HC 3867), (RETD.), MUNDAKAYAM POLICE STATION, KOTTAYAM DISTRICT, RESIDING AT KATTATHARA HOUSE, THIRUVARRPPU P.O., KOTTAYAM. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENTS/ STATE AND THE ACCUSED: ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLICL PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.J.MATHEW, PRINCIPAL SECRETARY TO GOVT., GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. RAMAN SRIVASTAVA, DIRECTOR GENERAL OF POLICE, (KERALA), POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 4. S.SREEJITH, SUPERINTENDENT OF POLICE, KOTTAYAM. 5. MUHAMMED SHABEER, DEPUTY SUPERINTENDENT OF POLICE, CB-CID, KOTTAYAM. 6. RAMACHANDRAN N., DEPUTY SUPERINTENDENT OF POLICE, KANJIRAPPILLY, KOTTAYAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZER. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/09/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1178 OF 2008 ............................................ DATED THIS THE 16th DAY OF SEPTEMBER, 2008 ORDER Petitioner is the complainant in Crl.MP 6852 of 2007 on the file of Chief Judicial Magistrate, Kottayam. Respondents 1 to 5 are the accused. A complaint was filed alleging that accused, in furtherance of the common intention, committed offences under Section 109, 119, 120B, 167, 193, 196, 200, 204, 218, 465, 469 and 471 IPC. Petitioner was Head Constable attached to Mundakayam Police Station. Petitioner had sought permission for voluntary retirement with effect from 30.6.2004. It was rejected by third respondent on 25.7.2004. Petitioner filed WP(C) 23245 of 2004 for a direction to third respondent to refer the application to the government. Though the application was referred to the government, permission for voluntary retirement was rejected on 29.6.2005. Petitioner challenged that order in WP(C) 22552 of 2005. This court quashed the government order directing the government to reconsider the application. Petitioner filed Contempt Case 1385 of 2007 before this court to take action for not complying with the judgment of this court dated 6.6.2006. According to petitioner, on 23.10.2007, he was served with the government order G.O(Rt)227/2007/Home dated 25.1.2007 issued by second respondent, Home Secretary, by which the CRRP 1178/2008 2 application for voluntary retirement was dismissed by the government on 25.1.2007. Petitioner filed Crl.M.P.6852 of 2007 before Chief Judicial Magistrate court, Kottayam alleging commission of offences as stated earlier. This court disposed the contempt case on 23.11.2007 observing that it will not affect the contentions raised by petitioner in the complaint filed before Chief Judicial Magistrate. Learned Magistrate dismissed the criminal complaint on 15.3.2008 by the impugned order, holding that sanction as provided under Section 197 of Code of Criminal Procedure is necessary to take cognizance of the offences as against the accused. This petition is filed under Section 397 and 401 of Code of Criminal Procedure challenging the impugned order. 2. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that learned Chief Judicial Magistrate was not justified in dismissing the complaint for want of sanction as sanction provided under Section 197 of Cr.P.C. is not necessary on the facts and circumstances of the case. The argument is that though government order GO(Rt)227/2007/Home dated 25.1.2007 was issued by second respondent in his capacity as Secretary to Government of Kerala, it was not issued while acting or purporting to act in discharge of his official duties. It was argued that the government order dated 25.1.2007 shows that the CRRP 1178/2008 3 punishment role minutes against the petitioner have been examined and the findings of the Enquiry Officer shows that there is a possibility of inflicting major penalty of termination from service. It is contended that the said statement was falsely incorporated in that order and the order was created with intend to commit fraud and without the authority of the Government of Kerala and therefore no sanction is necessary as provided under Section 197 of Code of Criminal Procedure. 3. Learned counsel, relying on the decision of Apex Court in Prakash Singh Badal and another V. State of Punjab and others (2007 (1)SCC 1), argued that the fact that second respondent is the Home Secretary and the order was passed in that capacity does not mean that sanction under Section 197 of Code of Criminal Procedure is necessary to prosecute the case, when the allegations raised is that the order was fraudulently created and therefore the impugned order is to be quashed. 4. The entire case of petitioner is built on the allegation that in furtherance of the common intention of respondents 2 to 6, second respondent, the Home Secretary created the government order G.O (Rt) 227/2007/Home dated 25.1.2007 containing false recitals and it was created fraudulently and therefore the offences as alleged were committed. It cannot be disputed that government order dated CRRP 1178/2008 4 25.1.2007 was issued by second respondent, in his capacity as the Principal Secretary to Government of Kerala and he is competent to issue the government order in that capacity. There is no specific allegation in the complaint that the said order was not issued on 25.1.2007 as seen therein, though learned counsel appearing for petitioner argued that a total reading of the complaint would show that what was intended by petitioner was that it was issued subsequently. 5. Section 197 of Code of Criminal Procedure mandates that when any person, who is, or was a public servant not removable from his office, save by, or with the sanction of the government, is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence, except with the previous sanction as provided under clause(a) or (b) of subsection (1) therein. The section is intended to guard against vexatious proceedings against a public servant without security sanction. The essential conditions are, (1) offence must be committed by the public servant. (2) He is not removable from his office save by or with the sanction of the Central or State Government, as the case may be. Question is whether the act complained of against the public servant CRRP 1178/2008 5 which is alleged to constitute the offence was committed while discharging his official duty and it has reasonable connection with his official duty. Where there is something in the nature of the act complained, that attaches to it the official character of the person doing the act, then Section 197 shall apply. (See S.B.Saha v. M.S.Kochar (1979 (4) SCC 177) 6. It cannot be disputed that the impugned order dated 25.1.2007 was issued by second respondent in his capacity as the Principal Secretary to Government of Kerala. Therefore issuance of the order is definitely in his capacity as Home Secretary. It was issued in discharge of his official duty as the Principal Secretary to State of Kerala. Though learned counsel relied on paragraph 50 of the decision of the Apex Court in Prakash Singh Badal's case (supra), the facts are entirely different. In that case allegation against the Chief Minister was that he committed cheating under Section 420 and also committed offences under Section 467, 468, 471 and 120(B) of IPC. It was held that by no stretch of imagination, by their very nature, offences cannot be regarded as having been committed by public servant, while acting or purporting to act in discharge of his official duty, as in discharge of an official duty, nobody can commit offences under Section 420, 467, 468 or 471 of IPC. That cannot be equated with the facts of the present case. Here the very allegation is that the CRRP 1178/2008 6 government order was issued by second respondent in his capacity as the Home Secretary. It can only be in discharge of his official duty. Learned Magistrate was fully justified in holding that sanction as provided under Section 197 of Code of Criminal Procedure is mandatory. The Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-