IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 Crl.MC.No. 3179 of 2010() ------------------------------------ CC.504/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... PETITIONERS/ACCUSED ------------------------------------ 1. V.P. NARAYANANKUTTY, S.I. OF POLICE, KOLLENGODE POLICE STATION, PALAKKAD DISTRICT. 2. SURESH KUMAR, P.C.4047, TRAFFIC POLICE STATION, THRISSUR. 3. VIJAYAN, P.C.3702, OFFICE OF C.I. OF POLICE, OLLUR POLICE STATION. BY ADV. SRI.P.VIJAYA BHANU, SRI.UNNI SEBASTIAN KAPPEN, SRI.P.M.RAFIQ. RESPONDENTS/COMPLAINANT AND STATE ---------------------------------------------------------------- 1. JAYESH KUMAR, S/O.SUBADRAMMA, KOORCHAMVEETTIL, CHEMBOOTHARA DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3179 OF 2010 =========================== Dated this the 11th day of October,2010 ORDER First petitioner was the Sub Inspector and petitioners 2 and 3 the Police Constables attached to Peechi Police Station during June 2003. First petitioner in his capacity as Sub Inspector submitted Annexure A report to the effect that while on official duty along with the police constables, at about 11.45 p.m. on the night of 22.1.2003, finding the second respondent along with others causing obstruction to the programme organised in connection with the temple festival asked them to sit. But first respondent caught the collar of the uniform worn by the Sub Inspector and pressed his neck. When first petitioner caught the fourth respondent, Radhakrishnan who who was with the first respondent caused hurt Crl.M.C.3179/2010 2 to first petitioner by beating with the aid of petitioners 2 and 3.First respondent and the said Radhakrishnan were detained and taken to the police station and under Annexure B Crime 18/2003 for the offence under section 332 read with section 34 of Indian Penal Code was registered. Subsequently first respondent filed Annexure D complaint before Judicial First Class Magistrate Court-III, Thrissur which was taken cognizance under Annexure E order for the offence under sections 324, 341 and 506(1) read with section 34 of Indian Penal Code. This petition is filed under section 482 of Code of Criminal Procedure to quash the case pending before the learned Magistrate taken cognizance under Annexure E order contending that continuation of proceedings is an abuse of process of the court and in any case without obtaining sanction as provided under section 197 of Code of Criminal Procedure, petitioners cannot be prosecuted. Petitioners also produced Annexure C wound certificate evidencing the hurt sustained by the first petitioner as Crl.M.C.3179/2010 3 stated in Annexure A report. 2. Though notice was served on the first respondent, he did not appear. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioners pointed out that Annexure A report was submitted immediately after the incident based on which Annxure B F.I.R was registered and subsequently based on the final report submitted after investigation, cognizance was taken for the offence under section 332 read with section 34 of Indian Penal Code against first respondent and Radhakrishnan as C.C.267/2006 but later on an application filed by the Assistant Public Prosecutor, by Annexure F order the case was permitted to withdrawn and the learned Magistrate while taking cognizance under Annexure E order did not consider the question whether cognizance could be taken without sanction and as sanction is Crl.M.C.3179/2010 4 mandatory cognizance taken is to be quashed. 5. What is alleged in Annexure D complaint is with regard to the same incident, based on which Annexure A report was filed by the first petitioner, version in Annexure D is contrary to the version of the first petitioner in Annexure A. When Annexure A report of the first petitioner shows that first respondent along with Radhakrishnan disobeyed the directions of the first petitioner and thereafter first respondent caught the collar of the uniform worn by the first petitioner and also pressed his neck and Radhakrishnan caused hurt by beating the first petitioner, the version in Annexure D complaint filed by the first respondent is that while he was sitting quiet and witnessing the function, petitioners without any reason approached him and proclaiming that he was being watched for some time hit the first respondent with a bamboostick several times and petitioners 2 and 3 wrongfully restrained him and thereafter took him to the Police Station Crl.M.C.3179/2010 5 and also caused hurt from the Police Station and released him on bail only later and thereby committed the offences. Annexure C the wound certificate prepared by the Medical officer establishes that first petitioner was examined by the doctor and it was disclosed to the doctor that he sustained the injuries when he was attacked by the first respondent and Radhakrishnan. The injury noted was pain on the throat and shoulder and cheek. 6. As rightly pointed out by the learned counsel appearing for the petitioners, the very allegation in Annexure D establish that the incident alleged by the first respondent in Annexure D complaint is with regard to the incident which culminated in his arrest and subsequent detention in the police station and thereafter releasing him on bail. It cannot be disputed that first petitioner Sub Inspector of Police along with the police constables arrested the first respondent and took him to the Police Station with regard to Crl.M.C.3179/2010 6 the incident which took place in the temple compound. The version in Annexure D is that first respondent was sitting quiet when without provocation petitioners came there and thereafter proclaiming that he was being watched caused hurt to him by beating with a bamboo stick. The version in Annexure A report submitted by the Sub Inspector immediately after the incident reveals that the incident occurred when first respondent caused obstruction to the official duty of the first petitioner and first respondent caught the collar of the uniform worn by the first petitioner. Whatever be the genesis of the incident, it is absolutely clear that first respondent was taken into custody by the first petitioner along with petitioners 2 and 3 in discharge their official duty as the Sub Inspector and Police Constables. 7. Question is whether in such circumstance sanction under section 197 of Code of Criminal Procedure is warranted. This court in Shoukkathali v. State of Kerala (2005(3) KLT 634) considered the Crl.M.C.3179/2010 7 question whether sanction of the Government is necessary to prosecute the Sub Inspector. Following th earlier decision of the Division Bench in Sarojini v. Prasannan (1996(2) KLT 859) it was held that to prosecute a Sub Inspector of police, sanction under section 197(1) of Code of Criminal Procedure is necessary as the offence alleged was committed in discharge of the official duty of the Sub Inspector. The Division Bench in Sarojini's case (supra) considered the effect of Government Notification dated 6.12.1977 held:- “By the notification above mentioned, the provisions of sub section (2) have been made applicable to members of Kerala Police charged with 'maintenance of public order' who form a class of the police force. As we have already said, 'maintenance of public order' can fall within the Crl.M.C.3179/2010 8 definition of 'law and order' the former being an extension of the latter. Though conceptually distinct they are perhaps two sides of the same coin. 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 maintenance of 'public order' which is not so different or unrelated to require a specific investiture but is implicit in the former function. Though not in so many words, a view to this effect taken in the unreported decision in Criminal Appeal No.317 of 1989, in our view, is correct and that to the Crl.M.C.3179/2010 9 contrary stated in 1985 KLT 404 with respect does not seem to lay down the correct law.” Hence sanction is necessary to prosecute the petitioners if the offence alleged was committed in discharge of their official duty as Sub Inspector and Police Constables. 8. On the admitted facts, the incident alleged against the petitioners is in discharge of their duty. Therefore without sanction learned Magistrate could not have taken cognizance of the offences. Petition is allowed. C.C.504/2010 on the file of Judicial First Class Magistrate-II, Thrissur as against petitioners is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006