IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 19817 of 2006(H) ------------------------------------ PETITIONER: -------------------- HARISHKUMAR, S/O. KRISHNAPILLA, AGED 48 YEARS, CIRCLE INSPECTOR OF POLICE, KERALA POLICE ACADEMY, TRISSUR, RESIDING AT C-12, POLICE QUARTERS, PMG, THIRUVANANTHAPURAM. BY ADV. SRI.T.K.AJITHKUMAR (VALATH) RESPONDENTS: --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM DISTRICT. 3. THE ASSISTANT SUB INSPECTOR OF POLICE, VIZHINJAM POLICE STATION. 4. THE SUPERINTENDENT OF POLICE, CB CID, THIRUVANANTHAPURAM. 5. MR. GILBERT, S/O. ROMAN, AGED ABOUT 42 YEARS, ROY VILLA, TC.13/108, PETTA VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.C.P.UDAYABHANU FOR R5 SRI. AMJAD ALI, PUBLIC PROSECUTOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19817 of 2006(H) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME 98/2002 OF KOVALAM POLICE STATION. EXHIBIT P2: TRUE COPY OF THE COMPLAINT DATED 15/09/2003 FILED BEFORE THE JFCM COURT 111, NEYYATTINKARA. EXHIBIT P3: TRUE COPY OF THE ORDER OF THE JFCM COURT 111, NEYYATTINKARA DATED 4/06/2004. EXHIBIT P4: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME 26/2004 OF VIZHINJAM POLICE STATION. /TRUE COPY/ P.A. TO JUDGE scm M. SASIDHARAN NAMBIAR, J. ------------------------------------- W.P(C). No. 19817 of 2006 ------------------------------------ Dated this the 14th day of July, 2009 JUDGMENT The petitioner who was the Circle Inspector of Police, Vizhinjam filed this petition under Articles 226 and 227 of the Constitution of India for a writ or direction to quash the proceedings initiated under Exhibit P4, F.I.R in Crime 26/2004 of Vizhinjam Police Station registered against the petitioner and the then Sub Inspector for the offences under Sections 211, 342, 506(ii), 365, 465, 471 and 503 read with Section 34 of the Indian Penal Code. The case of the petitioner is that the fifth respondent, complainant had filed Exhibit P2 private complaint before Judicial Magistrate of the First Class- II, Neyyattinkara and when the enquiry contemplated under Section 202 of Code of Criminal Procedure was in progress, counsel appearing for the fifth respondent filed a memo before the court stating that as the fifth respondent is in England, he is not interested to proceed with the complaint. As a result, under Exhibit P3, the complaint was dismissed on 4/06/2004. Exhibit P4, F.I.R was registered on W.P(C). No. 19817/2006 Page numbers 8/02/2004 before the dismissal of the private complaint, based on a complaint received from the fifth respondent dated 10/9/2003, with respect to the same incident and therefore the second F.I.R. is to be quashed. The learned counsel also argued that as per Exhibit P2 complaint and Exhibit P4, F.I.R., the allegation is that the fifth respondent was illegally detained by the accused and also fabricated documents and thereby committed offences under Sections 211, 342, 506(ii), 365, 465, 471and 503 read with Section 34 of the Indian Penal Code and in fact, fifth respondent was an accused in Crime No.98/2002 registered by Kovalam Police for the offence under Section 420 read with Section 6(a) and (b) of the Foreign Recruitment Act and the petitioner is protected by the provisions of Section 64(3) of the Kerala Police Act and even if the investigation is allowed to be proceeded, petitioner cannot be prosecuted in view of Section 64(3) of Kerala Police Act and therefore, the case is to be quashed. 2. The learned counsel appearing for the fifth respondent pointed out that even though Exhibit P2 complaint was dismissed W.P(C). No. 19817/2006 Page numbers on a memo filed at the instance of the fifth respondent, as complaint is not pressed, before the dismissal of the complaint Exhibit P4, FIR was registered and the case was under investigation and Section 64(3) of Kerala Police Act even if available, it only to protect from taking cognizance of the offence and not from investigation and Section 64(3) would be available to the petitioner only if the action alleged was a lawful action and as per the allegations in Annexure 2 complaint, petitioner and other accused did not do the offensive acts lawfully and therefore, the case cannot be quashed. 3. The learned Public Prosecutor submitted that the case registered under Exhibit P4, F.I.R was investigated and the final report is prepared and is only to be filed and there is substance in the complaint raised by the fifth respondent. Subsection (3) of Section 64 of Kerala Police Act protects petitioner from prosecution for any act or direction lawfully made. It does not give immunity against illegal actions. The offending acts alleged against are not lawful acts. If that be so, Subsection (3) of Section 64 is not applicable. Even if Subsection (3) of Section 64 W.P(C). No. 19817/2006 Page numbers is applicable, it is only as against taking cognizance and does not affect the investigation. Even if sanction under Section 197 of Code of Criminal Procedure is necessary, it needed only for the purpose of taking cognizance and not for investigation. If the case of the petitioner is that cognizance cannot be taken, in view of Section 64(3) of Police Act and Section 197 of Code of Criminal Procedure that is not to be decided at this stage in this petition. In such circumstances, the complaint cannot be quashed as sought for. The Writ Petition is dismissed. M. SASIDHARAN NAMBIAR JUDGE scm