IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 Crl.MC.No. 3278 of 2010 ---------------------------------- [CC.NO.236/2010 OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD] .................... PETITIONER/4TH ACCUSED: ----------------------------------------- ABDUL GAFOOR, DY.SUPERINTENDENT OF POLICE(RETD.) JESHMANS, THALANKARA CLESTER, NULLIPPADI, KASARAGOD. BY ADVS. SRI.M.RAMESH CHANDER, SRI.ANEESH JOSEPH. RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------- 1. T.A. USMAN, AGED 63 YEARS, S/O. LATE S.ABDULRAHMAN,RESIDING IN REHMANIYA MANZIL, KUNNIL THALANGARA, THALANGARA VILLGE AND POST, KASARAGOD TALUK AND DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. R1 BY ADV. SRI.S.JIJI, R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/11/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. -------------------------------------------------------- Crl.M.C No.3278 OF 2010 --------------------------------------------------------- Dated this the 11th day of November, 2010. O R D E R Petitioner the 4th accused in C.C.No.236 of 2010 on the file of Chief Judicial Magistrate Court, Kasaragod, filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken against him contending that as Annexure-A1 complaint was filed against the petitioner in his capacity as Sub Inspector of Police, Kasargod, in respect of an act allegedly done in the discharge of his official duty, learned Magistrate could not have taken cognizance without the sanction as provided under Sub Section 2 of Section 197 of Code of Criminal Procedure. Though notice was served on the respondent, the complainant before the Judicial First Class Magistrate, he did not appear. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioner pointed out that in paragraph 6 of Annexure-A1 complaint, petitioner specifically stated that he has taken steps to get sanction for prosecution of the accused three and four and petitioner was then shown as the 3rd accused in Annexure-A1 complaint, though cognizance was taken showing petitioner as the 4th accused. Learned counsel Crl.M.C No.3278 OF 2010 2 pointed out that as held by this Court in Moosa Vallikkadan v. State of Kerala, (2010 (3) KLT 437), cognizance taken can only be quashed, as sanction is a condition for taking cognizance. 4. Annexure-A1 complaint shows that the acts alleged against the petitioner were performed in discharge of his official duty as Deputy Superintend of Police. In any case it would be purporting to be in discharge of his official duty. In such circumstances, sanction as provided under Sub Section 2 of Section 197 is mandatory. As the learned Magistrate could not have taken cognizance as against the petitioner without sanction the cognizance taken can only be quashed. But after getting sanction, first respondent could be prosecuted in accordance with law. Petition is allowed. Cognizance taken in C.C.No.236 of 2010 by Chief Judicial Magistrate Court, Kasaragod, against petitioner the fourth accused is quashed. M.SASIDHARAN NAMBIAR, JUDGE. mns