IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.MC.No. 954 of 2009(F) ------------------------ CC.65/2008 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... PETITIONER(S): 3RD ACCUSED ---------------------------------------------- GEORGE P.P., RESIDING AT PARIYATHAKATHUTTU, PULIYANAM P.O., ANGAMALLY (KORATTY UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) MUKUNDAPURAM, IRINJALAKUDA). BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): COMPLAINANT AND STATE ----------------------------------------------------------------- 1. MANIKUMAR, THAZHEKKAD SERVICE CO-OPERATIVE BANK LIMITED NO.R.167, RESIDING AT VELLIYATHU PARAMBIL HOUSE, THAZHEKKAD P.O., MUKUNDAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 954 OF 2009 ------------------------------------------ Dated 9th July 2009 O R D E R Petitioner is third accused in C.C.65/2008 on the file of Chief Judicial Magistrate, Trichur. Based on a complaint filed by first respondent before Special Judge, Vigilance, Trichur and forwarded for investigation, Annexure-II refer report was filed after investigation. First respondent thereafter filed Annexure-I protest complaint which was taken cognizance by the learned Magistrate for the offence under Sections 468, 471, 477 A and 120 B of Indian penal Code. Case of the first respondent is that he was ranked No.1 in the waiting list prepared for admission to J.D.C course for the year 2002. Petitioner secured admission to the course claiming to be working as peons in two primary societies. It is alleged that the applications were got approved with the aid of accused 3 and 4. First accused is wife of third accused and second accused is wife of fourth accused. Accused 3 and 4 are the inspectors to CRMC 954/09 2 verify the claim for admission to J.D.C course. It is alleged that in furtherance of their conspiracy among accused applications from defunct societies were procured by accused 1 and 2 which were approved by accused 3 and 4 and thus admissions were secured and all the accused thereby committed offences under Sections 468, 471, 477 A and 120 B of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against petitioner contending that petitioner is a public servant and as provided under Section 197 of Code of Criminal Procedure, without sanction learned Magistrate could not have taken cognizance as against the petitioner. It is also contended that police after investigation submitted Annexure-II final report stating that none of the offence alleged against the accused is established and Annexure-I complaint does not make out any offence as against the petitioner and therefore it is to be quashed. 2. Though notice was served on first respondent, the complainant before the learned Magistrate, he did not appear either personally or through a counsel. CRMC 954/09 3 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. As per Annexure-I complaint petitioner approved the applications of accused 1 and 2, though the applications were submitted through a defunct society as part of the conspiracy and petitioner also thereby committed the offences. Allegation against petitioner is that he approved Annexure-III application submitted through defunct society wherein petitioner has signed it as verified. As rightly argued by the learned counsel appearing for petitioner, it cannot be disputed that petitioner approved Annexure-III application in his capacity as the unit Inspector of Koratty under Mukundapuram Co-operative Assistant Registrar,during the course of performance of discharge of his duty. Question is whether in such circumstances, cognizance could be taken without sanction as provided under Section 197 of Code of Criminal Procedure. 4. Under Sub Section 1 of Section 197 when any person who is 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 CRMC 954/09 4 act in the discharge of his official duty, no offence was taken except with previous sanction. Admittedly no sanction as provided under Section 197 was obtained. Action alleged against petitioner is definitely in discharge of his official duty. In any case,it could only be while purporting to act in discharge of his official duty. Therefore, a sanction as provided under Sub Section 1 of Section 197 is a condition precedent for taking cognizance of the offence. As no sanction is obtained to prosecute the petitioner under Section 197 (1) of Code of Criminal Procedure, learned Magistrate could not have taken cognizance as against the petitioner. In view of that finding it is not necessary to go into other aspects canvassed by the petitioner. Petition is allowed. C.C.65/2008 on the file of Chief Judicial Magistrate, Trichur as against the petitioner/third accused is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.