IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 Crl.MC.No. 2217 of 2006(K) -------------------------- CC.1334/2000 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): ACCUSED NO.3: ---------------------------- K. CHANDRASEKHARA BABU IPS, S/O. KRISHNAN, DIRECTOR, EMPLOYMENT & TRAINING, GOVERNMENT OF KERALA, KRISHNAMANGALAM,MANNANTHALE, THIRUVANANTHAPURAM. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------------------------------- Crl.M.C.No.2217 of 2006 ----------------------------------------------- Dated this the 19th day of March, 2010 O R D E R Petition is filed to quash Annexure-D order. 2. Petitioner is the 3rd accused in the charge sheet Annexure-A filed by the police. The allegation against petitioner is that he along with two others, as accused nos.1 and 2, forged a document which is purported to be a copy of the admission register issued by the school Headmistress to prove the address and date of birth of first accused for issue of passport. 3. An application for issue of passport was filed along with the said forged document and the verification certificate issued by 3rd accused. The 3rd accused issued the verification certificate allegedly showing false details, stating that the source of conduct and character of first accused will not fall under Section 6(2) of the Indian Passports Act 1967 and also that the Crl.M.C.No.2217/2006 -:2:- first accused was residing in the address shown in the application for passport for the past two years etc. and all the three accused had common intention to forge the document and commit other offences. The offences alleged against petitioner and other accused are under Sections 468, 471 read with Section 34 of IPC and Section 12(2) of Indian Passports Act 1967. 4. The petitioner filed a petition for discharge but, without considering the contentions raised by petitioner, trial court dismissed the petition as per Annexure-D order which is challenged in this case. 5. Learned counsel for petitioner submitted that petitioner is an I.A.S. Officer, who was working as Additional Secretary to Government of Kerala in the year 1992-1993 and that, even if the entire allegations are accepted, he is entitled to the benefit under Section 197 of the Code of Criminal Procedure (for short 'the Code) and Section 15 of the Indian Passports Act. 6. According to learned counsel for petitioner even if the prosecution case is accepted, the alleged acts committed by petitioner, which may constitute an offence, the court ought not to have taken cognizance of the offence against petitioner, since Crl.M.C.No.2217/2006 -:3:- he is entitled to the benefit under Section 197 of the Code. 7. As per Section 197 of the Code, Court shall take cognizance of offence committed by a public servant while acting or purporting to act in the discharge of his official duty except with previous sanction of the concerned Government. Even if the allegations are accepted, the act allegedly committed by petitioner falls under the expression “while acting or purporting to act in the discharge of his official duty” and hence, without previous sanction from the Government, court ought not to have taken cognizance against the offence committed by him. 8. So also, Section 15 of the Indian Passports Act is a bar for institution of prosecution against any offence under Indian Passports Act without previous sanction of the Government or such other officer or authority. But, in this case, the sanction under Section 15 of the Indian Passports Act was also not obtained, it is argued. It is also pointed out that though serious contentions were raised in respect of benefit of Section 197 of the Code and Section 15 of the Indian Passports Act, the trial court has not considered any of the above contentions in the order under challenge. 9. Learned Public Prosecutor submitted that sanction Crl.M.C.No.2217/2006 -:4:- was obtained prior to the filing of the complaint and hence, none of the arguments raised are sustainable. Sanction was issued on 26.4.2000 and it was produced in the court also, it is submitted. But, learned counsel for petitioner argued that such sanction was not produced before court and it is not even mentioned in the charge that petitioner is a Government servant. 10. On hearing both sides and going through the documents produced, I am satisfied that there is a failure on the part of the learned Chief Judicial Magistrate to consider the question whether there was previous Government sanction as required under Section 197 of the Code or not. It is not discernible from Annexure-D order whether sanction is produced before the Court or not. 11. In the light of the controversy regarding obtaining of sanction and producing in court, it is not possible to enter any finding regarding the contentions raised on the protection under Section 197 of the Code. It can also be seen that trial court has not considered whether there is bar under Section 15 of the Act in instituting a complaint against petitioner without previous sanction and whether such sanction was obtained or not. Crl.M.C.No.2217/2006 -:5:- 12. The trial court ought to have considered these vital aspects, especially since petition was moved for discharge and in the petition, all these grounds were taken up also. The order under challenge is therefore liable to be set aside. The matter is to be remanded for reconsideration and disposal. In the result, the following order is passed: 1) Annexure-D order is set aside. 2) The trial court is directed to reconsider the matter afresh and dispose of the petition for discharge in accordance with law, in the light of the observations made in this order. Petition is allowed. K.HEMA, JUDGE krs.