IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 Crl.Rev.Pet.No. 1407 of 2011() ------------------------------------------ CC.NO. 2917/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): REVISION PETITIONER/COMPLAINANT: ------------------------------------------------------------------------------------------- NIPUN CHERIYAN MANOORAN, AGED 25, S/O.ANTONY MANJOORAN, XX/89, (XXIV/427), TOWN HALL ROAD, CHANGAPUZHA NAGAR P.O., KOCHI. BY ADVS. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SMT.M.A.RUXANA RESPONDENT(S): ACCUSED & FORMAL PARTY: ---------------------------------------------------------------------- 1. ARJUNAN, P.C.E.6886, THRIKKAKARA POLICE STATION (NOW WORKING AS HEAD CONSTABLE AT UDAYAMPERUR POLICE STATION), ERNAKULAM.PIN- 682 317. 2. STATE OF KERALA TO BE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.P.UDAYABHANU R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN,J --------------------------------- Crl.R.P.No.1407 of 2011 --------------------------------------- Dated this the 8th day of June, 2011 ORDER The above revision petition is directed against the judgment dated 5.10.2010 in C.C.No.2917 of 2007 of the Court of Judicial First Class Magistrate-I, Aluva by which the learned Magistrate discharged the accused under Section 245(1) of Cr.P.C., against whom the revision petitioner herein preferred a private complaint alleging the offences punishable under Sections 217, 465, 466, 468 and 471 of IPC. 2. The petitioner herein is a student of the Model Engineering College, Trikkakkara and according to him, he had been severely ragged by certain students of the very same college and with the above allegation he had preferred a First Information Statement in the Trikkakkara Police Station based upon which Crime No. 319/2004 was registered for offences punishable under Section 2(b)(1)(ii) of Kerala Prohibition of Ragging Act, 1998. As there was no effective investigation, according to the petitioner, he had Crl.R.P.No.1407 of 2011 2 preferred W.P.(C).No.25971/2005 before this Court seeking an order for fair investigation. According to the petitioner in the above writ petition, the Station House officer of Trikkakkara Police Station appeared and filed an affidavit stating that the crime which was registered at the instance of the petitioner as Crime No.319/2004, was referred as mistaken of facts, after investigation. It is also specifically stated in the affidavit that the petitioner being the complainant was furnished a refer notice on 1.12.2004 through the accused in the above calender case. Eventually, this Court disposed of the above writ petition with the direction to the Magistrate to serve the copy of the notice of refer report to the petitioner herein and accordingly, on fresh notice to the petitioner he appeared before the learned Magistrate on 12.1.2006. 3. According to the petitioner on appearing before the court below and on perusal of the records he understood that the refer notice allegedly issued or served to the petitioner is a forged one. According to the petitioner the endorsement as “copy received” and the signature of the Crl.R.P.No.1407 of 2011 3 complainant are forged by the accused. According to the petitioner the above forgery was committed by the accused to help the accused in Crime No.319/2004. 4. Incorporating the above facts and allegation the petitioner herein approached the court below by filing a private complaint against the respondents/accused for the offences punishable under Sections 217,465,466, 468 and 471 of IPC and the said complaint was taken on file on 13.8.2007. After the appearance of the accused the complainant was cross examined as PW1 and Ext.P1 to P5 were marked. The charge was framed for the above offences. It is thereafter the accused preferred an application under Section 245 Cr.PC for a discharge on the ground of want of sanction under Section 197(2) of Cr.P.C. C.M.P.No.988/2010 is the said petition. After hearing the above petition, the learned Magistrate issued the impugned order discharging the accused and it is the above order of discharge is impugned in this revision petition. 5. I have heard Sri.K.S.Madhusudhanan, learned counsel appearing for the revision petitioner and Sri. Crl.R.P.No.1407 of 2011 4 C.P.Udhayabhanu, learned counsel appearing for the respondents and I have also heard the learned Public Prosecutor. 6. On the strength of the decision of the Hon'ble Apex court in State of Uttar Pradesh v. Paras Nath Singh reported in (2009) 6 Supreme Court Cases 372, the learned counsel for the petitioner vehemently submitted that the offence of forgery never be a part of official duty and therefore, no sanction under Section 197 of Cr.P.C is required to proceed against the respondents/accused in a private complaint. Whereas Sri.C.P.Udhayabhanu, the learned counsel for the respondents after inviting my attention to paragraph 9 of the complaint filed by the revision petitioner, it is submitted that even according to the revision petitioner the accused has committed the offences while doing his official duty. The learned counsel further submitted that from paragraph 9 of the complaint it is further revealed that the complainant himself had applied for sanction to prosecute the accused and he undertook to produce the sanction order as and when obtained from the Crl.R.P.No.1407 of 2011 5 competent authority. Thus, according to the learned counsel, the sanction under Section 197 is absolutely necessary in view of the facts and circumstances and the allegation involved in the complaint especially in view of the averments contained in the complaint. Therefore, the order issued by the learned Magistrate is perfectly legal and valid and no interference is warranted. 7. The learned Public Prosecutor supporting the contention advanced by the counsel for the petitioner submitted that the offence alleged against the accused is forgery which is not part of the official duty of the accused and as such formal sanction is absolutely not unwarranted. 8. I have heard the counsel for the petitioner as well as the respondent and the Public Prosecutor and I have also perused the order impugned. 9. The specific case of the complainant, the revision petitioner is that the accused forged the signature of the petitioner and made endorsement on the records to the effect that the petitioner had “received copy” and according to the petitioner he did not receive any such Crl.R.P.No.1407 of 2011 6 notice and never made such endorsement and put his signature. It is also the case of the petitioner that as there was no effective a fruitful investigation in the crime which was instituted at his instance, he was constrained to approach this Court by filing a writ petition for proper and fair investigation and it is only at that stage he came to know regarding the refer report allegedly made by the Police. It is also his specific case that, he came to know regarding the alleged “service of notice” on the refer report, only through the affidavit filed by the Station House Officer in this Court while considering the above writ petition. According to the petitioner, in terms of the notice issued by the Judicial First Class Magistrate as directed by this Court, he had appeared before the trial court and on verification of the records he realised about the commission of the offence of forgery. Thus, it can be seen that the specific allegation against the accused is that the accused had committed forgery. The Honourable Apex court, in the decision cited Supra has held in paragraph 22. “22. Above views are reiterated in State of Kerala v. V.Padmanabhan Nair. Both Amrik Singh and Crl.R.P.No.1407 of 2011 7 S.R.Munipalli were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, will, etc; forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar”. 10. But going by the order impugned it appears that the learned Magistrate was carried away by the averments contained in paragraph 9 of the complaint in question, since there is no discussion on merit apart from citing certain decisions in the order impugned. It is also discernible from the order that relying upon the decision of this Court reported in 2010(3) KLT 437 Moosa Vallikkadan v. State of Kerala, the Magistrate of the opinion that as and when a complaint is filed against a Police personnel sanction under Section 197 of Cr.P.C is absolutely necessary and according to the learned Magistrate since the accused is a Police Constable of Trikkakkara Police Station at the relevant time and therefore, he is a member of the Kerala Police and hence, the sanction under Section 197 (2) of Cr.P.C is absolutely necessary and therefore, cognizance is taken in bad in law. Thus the outcome of the Crl.R.P.No.1407 of 2011 8 discussion of the learned Magistrate appears to me that if the accused in a private complaint is a Police personnel no cognizance can be taken unless there is sanction under Section 197(2) of Cr.P.C. The above approach according to me, not proper and legal. It is the duty of the learned Magistrate to consider the issue as to whether a sanction under Section 197(2) of Cr.P.C. is legally necessary or not to take cognizance in the given fact and circumstances and more particularly considering the allegations raised in the complaint. But there is no such discussions. Therefore, according to me, it is only just and proper to remanded the matter to the learned Magistrate to consider the matter afreshly in the light of the decision cited Supra and after hearing the parties concerned. In the result, this revision petition is disposed of setting aside the judgment dated 5.10.2010 in C.C.No.2917/2007 of the Judicial First Class Magistrate Court-I, Aluva and remanded the matter back to the same court for fresh consideration and to pass appropriate orders in C.M.P.No.988/2010 in the manner indicated above. Crl.R.P.No.1407 of 2011 9 Accordingly, the learned Magistrate is directed to restore C.C.No.2917/2007 on 11.7.2011, on which date the complainant and accused are directed to appear before the said court either in person or through their counsel and the learned Magistrate is directed to proceed to dispose C.M.P.No.988/2010 in accordance with the merit as directed above. V.K.MOHANAN, JUDGE pm/