IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 Crl.Rev.Pet.No. 475 of 2008() ----------------------------- CC.180/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S): ACCUSED NO.1 ------------------------------------------ PRASOB,S.I.OF POLICE IRINJALAKUDA. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): STATE -------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/01/2009, ALONG WITH CRRP NO. 4202 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P.No.4202/2007 & 475 OF 2008 =========================== Dated this the 8th day of January,2009 ORDER Whether a Sub Inspector of Police could be prosecuted for an act allegedly done by him while acting or purporting to act in discharge of his official duty, without obtaining sanction under section 197 of the Code of Criminal Procedure?. Whether dismissal of a petition filed for discharge under section 245(2) of Code of Criminal Procedure on the ground that Sub Inspector of Police is not considering whether sanction is necessary to an officer not removable from his office only with the sanction of the Government and so sanction under sub section (1) of Section 197 is not necessary is a bar for considering the claim that sanction is necessary as provided under sub section (2) of Section 197 of Code of Criminal Procedure?. These are the questions to be decided in these revision petitions. CRRP 475/08 & 4202/2007 2 2. Crl.R.P.4202/2007 is filed by first accused, the then Sub Inspector of Police, Irinjalakuda challenging the order of dismissal of C.M.P.768/2007 filed by him under sub section (2) of Section 245 of Code of Criminal Procedure. Crl.R.P.475/2008 is filed by him challenging the order framing charge against him subsequent to the dismissal of CMP 768/2007. First respondent is the complainant. The complaint was filed before the learned Magistrate alleging that the four accused including the revision petitioner committed offences under sections 323,324,341,342,427,506(i) read with section 34 of Indian Penal Code. First respondent was a practising lawyer. Case of the first respondent in the private complaint was that on 23.2.2006 at about 5 p.m he was manhandled by the accused near Irinjalakuda Post Office after wrongfully detaining him and also later at the Police Station. Case of the revision petitioner is that the incident occurred when revision petitioner in his capacity as the Sub Inspector of CRRP 475/08 & 4202/2007 3 Police was questioning the driver involved in a collision of a car and bus at the public road on 23.2.2006, near Irinjalakuda Head post office at 5 p.m. It is the case of the revision petitioner that first respondent interfered and obstructed the official duties of the revision petitioner as a public servant and he caught hold of his uniform and also beat him and therefore along with the police constables, first respondent was arrested and at that time some force had to be used and first respondent was then taken to Irinjalakuda Police Station and Crime 111/2002 of Irinjalakuda Police Station for the offences under sections 341,353 and 332 of IPC was registered. It is contended that first respondent escaped from police custody with the help of his friends and another crime 113/2002 of Irinajalakuda Police Station was reigistered for the offences under section 143,147, 506(i),225(b), 353 read with section 149 of IPC was registered and the private complaint was lodged as a counterblast to the criminal cases registered CRRP 475/08 & 4202/2007 4 against him and as the revision petitioner at the time of the alleged commission of the offences was discharging his official duty as the Sub Inspector, he is entitled to the protection under Section 64 of Police Act and without obtaining sanction he cannot be prosecuted. It is also contended that without obtaining sanction as provided under section 197 of Code of Criminal Procedure prosecution as against him will not lie. First respondent resisted the claim contending that revision petitioner did not commit the offences in discharge of his official duty. It was contended that revision petitioner cannot inflict injuries on first respondent as done in this case and offences under sections 323,324, 427 and 506(i) cannot be committed while performing his official duty and therefore no sanction is necessary either under section 64 of the Police Act or Section 197 of the Code of Criminal Procedure. It was also contended that for the very same purpose revision petitioner had earlier filed CMP 9899/2005 which was CRRP 475/08 & 4202/2007 5 dismissed on 25.2.2006 and another petition for the same relief is not maintainable. Learned Magistrate as per order dated 17.9.2007 though found that dismissal of the earlier petition is not a bar, dismissed the application holding that sanction is not necessary under section 197(1) of the Code of Criminal Procedure as revision petitioner being a Sub Inspector is not a public servant who is removable only by the State Government as provided under sub section (1) of Section 197 of Code of Criminal Procedure. Revision is filed challenging the order contending that in view of the Division Bench decision of this court in Sarojini v. Prasannan (1996 (2) KLT 859), no prosecution will lie against a Sub Inspector of Police or a Police Constable in respect of the act committed by him as a public servant in discharge of his official duty under sub section (2) of Section 197 in view of the Notification issued by the Government dated 16.12.1997 which was followed CRRP 475/08 & 4202/2007 6 by this court in Shoukkathali v. State of Kerala (2005(3) KLT 634). Learned counsel relying on the decision in Shoukkathali's case and the Apex Court in Sankaran Moitra v. Sadhna Das (2006(4) SCC 584), Rakeshkumar Mishra v. State of Bihar (2006) 1 SCC 557) argued that sanction is mandatory as provided under section 197 of Code of Criminal Procedure to prosecute the revision petitioner as he was discharging his official duty as a Sub Inspector of Police at the time of alleged commission of the offence and therefore learned Magistrate should have discharged the petitioner under section 245(2) of Code of Criminal Procedure. 3. Learned counsel appearing for first respondent relying on the decision of the Apex Court in Amrik Singh v. State of Pepsu (A.I.R. 1955 S.C.309) and in Sankaran Moitra's Case (supra) argued that revision petitioner cannot commit an offence under section 323 and 324 and claim that those offences were committed while discharging CRRP 475/08 & 4202/2007 7 his official duty and therefore no sanction is necessary. Learned counsel also argued that when the earlier petition filed by the revision petitioner was dismissed by the learned Magistrate, a second application will not lie and therefore there is no reason to interfere with the order passed by the learned Magistrate. 4. Sub section (2) of Section 245 of the Code of Criminal Procedure provides that nothing in the section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if he considers the charge to be groundless after recording reasons. Under sub section (1) of Section 245, if after recording the evidence as provided under section 244 of Code of Criminal Procedure the Magistrate considers that no case against the accused has been made out which if unrebutted would warrant his conviction, Magistrate shall discharge him after recording reasons. The discharge provided under sub section (1) is after recording the evidence as provided CRRP 475/08 & 4202/2007 8 under section 244 and considering the evidence and satisfying that even if the said evidence stand unrebutted, the accused cannot be convicted. But sub section (2) of Section 245 of Code of Criminal Procedure enables the Magistrate to discharge the accused before recording the evidence under section 244, if he considers the charge to be groundless. 5. Section 197(1) of Code of Criminal Procedure provides that when any person who is a public servant not removable from his office save by or with sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction as provided under clause (a) or clause (b) as the case may be. Sub section (2) provides that no court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or CRRP 475/08 & 4202/2007 9 purporting to act in the discharge of his official duty except with the previous sanction of the Central Government. Learned Magistrate holding that revision petitioner is only a Sub Inspector of Police who is not a public servant removable from his office only with the sanction of the Government held that sub section (1) of Section 197 is not attracted. As rightly pointed out by the learned counsel appearing for revision petitioner, applicability of sub section (2) of Section 197 of the Code in view of the Notification issued by the State Government was not considered by the learned Magistrate, evidently because the decision of the court on the point was not brought to the notice of the learned Magistrate. That question was considered by the Division Bench of this Court in Sarojini's case (supra). By Notification dated 16.12.1977 State of Kerala directed that sub section (2) of Section 197 of the Code shall apply to all members of Forces charged with the maintenance of public order. Under sub section (3) CRRP 475/08 & 4202/2007 10 of Section 197, State Government may by notification, direct that provisions of sub section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government”occurring therein, the expression “State Government” were substituted. Construing the notification in the light of sub section (3) of Section 197 of the Code, the Division Bench held that by the Notification provisions of sub section (2) have been made applicable to members of Kerala State Police Force charged with maintenance of public order who formed a class of Police Force and though conceptually distinct, law and order are perhaps two sides of the same coin and it is unnecessary that there should be anything specific to show that those charged with maintenance of law and order have also been entrusted with the CRRP 475/08 & 4202/2007 11 maintenance of public order which is not so different or unrelated to require a specific investiture but is implicit in the former function. It was therefore held that even for prosecuting a Sub Inspector of Police or a Police Constable sanction as provided under sub section (2) of Section 197 is necessary and the decision to the contrary by a learned single Judge in Muhammed v. Sasi (1985 KLT 404) is not good law. It was held that if there is reasonable nexus between the impugned act/offence and discharge of his official duty, he is entitled to the protection intended by the Notification. This decision was followed by this Court in Shoukkathali's case (supra). Therefore revision petitioner who was admittedly a Sub Inspector of Police, having jurisdiction in that area and was discharging his official duty is definitely entitled to claim the protection under section 197(2) of the Code of Criminal Procedure, provided the act alleged was done in discharge of his official duty as a public servant. CRRP 475/08 & 4202/2007 12 6. Though learned counsel appearing for first respondent argued that revision petitioner is not entitled to file another petition for the same relief in view of dismissal of CMP 9899/2005 on 25.2.2006, by the said order learned Magistrate did not consider the question whether revision petitioner is entitled to the protection under sub section (2) of Section 197 of the Code. As that aspect was not decided earlier it cannot be said that an application will not lie, especially when sub section (2) of Section 245 enables the court to discharge the accused at any stage prior to the stage under sub section (1) of Section 245 of Code of Criminal Procedure. 7. The crucial question then is whether the alleged acts done by the revision petitioner was in discharge of his official duty. 8. Section 197 provides for sanction to take cognizance of an offence committed by an accused, while acting or purporting to act in discharge of his official duty. Even according to first CRRP 475/08 & 4202/2007 13 respondent, the alleged incident occurred at the time when revision petitioner was discharging his duty as Sub Inspector of Police. The case is that when a car collided with a bus at the scene of occurrence and revision petitioner was questioning the driver, first respondent intervened. Though learned counsel appearing for first respondent argued that in discharge of his official duty, or purporting to discharge his official duty revision petitioner is not entitled to cause any hurt or commit the offences alleged and therefore no sanction to prosecute is necessary, the question whether hurt if any caused is as alleged by first respondent or as claimed by revision petitioner is to be decided only after recording the evidence. It is the case of the revision petitioner that while he was discharging his duty as a public servant, first respondent intervened and caused obstruction in discharge of his official duty and caught cold of his shirt and therefore revision petitioner along with the police constables had to CRRP 475/08 & 4202/2007 14 arrest the first respondent and in that process had to use some force. Whether it is correct and justifiable are matters which could be decided only on recording the evidence. But in view of the settled legal position in Sankaran Moitra's case (supra) and Rakeshkumar Mishra's case(supra) it cannot be said that even if the act alleged by first respondent occurred, it was not done by the revision petitioner not in the discharge of his duty as a public servant. Therefore finding of the learned Magistrate that sanction is not necessary is not correct. The fact that sanction is necessary to prosecute the revision petitioner does not mean that revision petitioner cannot be prosecuted. It only means that for the purpose of prosecuting revision petitioner first respondent has to obtain sanction under section 197(2) of Code of Criminal Procedure and the order of discharge will not amount to an order of acquittal. The order passed in C.M.P.768/2007 dated 17.9.2007 is not sustainable and it is to be held CRRP 475/08 & 4202/2007 15 that revision petitioner cannot be prosecuted without obtaining sanction as provided under section 197(2) of Code of Criminal Procedure. Crl.R.P.4202/2007 is allowed. Revision petitioner is discharged under section 245(2) of the Code of Criminal Procedure holding that sanction as provided under section 197(2) of Code of Criminal Procedure is necessary to take cognizance of the offence alleged against the revision petitioner. It is made clear that after obtaining sanction first respondent is entitled to proceed against the revision petitioner. In view of the order in Crl.R.P.4202/2007 Crl.R.P.475/2008 is disposed of setting aside the charge framed as against the revision petitioner. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006