IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 33002 of 2007(D) -------------------------- CRIME NO.184/1996 OF THALASSERY POLICE STATION -------------------------------- PETITIONER(S): --------------- THAZHEPURAM NABEESU, T.P.HOUSE, MAVILAYI AMSOM, KEEZHARA DESOM, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. P.KUNHAN BAVA, RETD. SUB INSPECTOR OF POLICE, S/O.IMBICHI, PATTANI HOUSE, P.O.PALAPETTI, SCHOOLPADI, MALAPPURAM DISTRICT. 3. C.DAMODARAN, RETD. ASST.SUB INSPECTOR, CHEROLI HOUSE P.O., KOORRARA, MALAPPURAM DISTRICT. 4. M.SURESH, P.C.NO.2973, TRAFFIC POLICE STATION, TELLICHERY-1. ADV. SRI.K.V.SOHAN FOR R2,4 SMT.SREEJA SOHAN.K. FOR R2,4 GOVERNMENT PLEADER MR.KAMMAPPU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33002 of 2007 :2: A P P E N D I X PETITIONER'S EXHIBIT 1. EXHIBIT P1 : Complaint filed by the petitioner before the ACJM Court, Thalassery as CMP No.3131/1996 2. EXHIBIT P2 : Order dated 31.12.2005 in C.P.No.1/1998 of the ACJM Court, Thalassery along with diary extract and Form No.44 3. EXHIBIT P3 : Order dated 14.2.2007 in Crl.M.C No.2712/2006 of this Hon'ble Court 4. EXHIBIT P4 : Petition dated 14.2.2007 submitted by the petitioner before the 1st respondent 5. EXHIBIT P5 : Order dated 20.8.2007 of the 1st respondent RESPONDENT'S EXHIBIT : NIL //True Copy// P.A to Judge V.RAMKUMAR, J. ------------------------------------- W.P(C) No.33002 OF 2007 -------------------------------------- Dated this the 13th day of July, 2010 JUDGMENT Petitioner, who is the mother of one Mujeeb challenges the refusal on the part of the 1st respondent to accord sanction to prosecute respondents 2 to 4, who were the Police Officers attached to crime detection party of Thalassery Police Station. According to the petitioner, on 27.3.1996 at 9 P.M, the 2nd respondent herein, who was the Additional Sub Inspector of Police, Thalassery and respondents 3 and 4 who were constables attached to the crime detection party of Thalassery Police Station during the course of investigation of Crime No.184/1996 against the six persons including the said Mujeeb (for allegedly beating one Pradeepan), went in search of the petitioner's son Mujeeb and seeing the police party her son ran away and the police officers referred above, pushed him into the well in the property of one Janaki @ Vellachayil Vijayalakshmi and since the petitioner's son did not come out of the well, in spite of the direction of the accused Nos.1 and 3, the 1st accused hurled a granite stone at Mujeeb and the stone struck on his head and Mujeeb sustained fatal injuries. W.P(C) No.33002 OF 2007 : 2 : Even though he was rescued from the well he succumbed the injuries on 28.3.1996. 2. After the death of the petitioner's son, the petitioner preferred a private complaint before the Additional Chief Judicial Magistrate Court, Thalassery as CMP No.3131/1996. The learned Magistrate took cognizance of the offences punishable under Sections 323, 506(II) and 302 read with 34 IPC against the Additional Sub Inspector of Police and two police constables ie; respondent Nos.2 to 4 herein and registered the case as C.P.No.1/1998. Out of the three accused persons, the 2nd accused was absconding. Therefore, after conducting the mandatory enquiry under Section 202 Cr.P.C the learned Magistrate as per Ext.P2 order dated 31.12.2005 committed the case as against A1 and A3 to the Court of Sessions. The case as against the absconding accused No.2 was re-filed as C.P.No.79/2007. 3. Accused Nos.1 and 2 filed Crl.M.C.No.2712/2006 before this Court contending inter alia that since the offences alleged against them were said to have been committed during the discharge of their official duty, the cognizance W.P(C) No.33002 OF 2007 : 3 : taken as against them without the requisite sanction for prosecution under Section 197 Cr.P.C was bad in law. As per Ext.P3 order dated 14.2.2007, this Court upheld their contentions and held that the petitioners and 2nd respondent (3rd accused) therein could be prosecuted only after obtaining the requisite sanction under Section 197 Cr.P.C. Thereafter, the petitioner submitted Ext.P4 application before the Home Secretary, Government of Kerala seeking sanction to prosecute respondent Nos.2 to 4 herein. As per Ext.P5 communication dated 20.8.2007, the petitioner was informed that the permission to prosecute respondent Nos.2 to 4 herein was declined since enquiries conducted through the Director General of Police revealed that the allegations raised against them were baseless. Ext.P5 was the reply given to the petitioner on her application under the Right to Information Act, 2005. Hence this writ petition. 4. Since Ext.P5 was only a communication informing the petitioner about the refusal to accord prosecution sanction, this Court called for the files. The learned Government Pleader produced before this Court the files W.P(C) No.33002 OF 2007 : 4 : pertaining to Ext.P4 application. The said files also contain only the recommendations of the Superintendent of Police, Kannur to the Director General of Police, Kerala that there is no need to accord sanction for prosecution. There is no formal order refusing sanction to prosecute respondents 2 to 4. Ext.P5 also cannot be treated as an order refusing prosecution sanction. Accordingly, this writ petition is disposed of directing the 1st respondent to consider all aspects of the matter and issue a formal speaking order disposing of Ext.P4 application for prosecution sanction. The petitioner shall be given an opportunity of being heard by the Government before disposal of the Ext.P4 application for prosecution sanction. The learned Counsel appearing for respondent Nos.2 to 4 made a request for a personal hearing by the 1st respondent. The accused have no right to be heard in the matter of prosecution sanction which belongs to the realm of investigation. The right of the accused to be heard arises only when they are summoned pursuant to the process issued by the Court under Section 204 Cr.P.C and not before. No doubt, if a sanction for prosecution has been accorded in a given W.P(C) No.33002 OF 2007 : 5 : case, the accused are free to assail the same at the appropriate stage. The 1st respondent after passing a speaking order disposing of Ext.P4 application shall communicate the said order to the petitioner. This writ petition is disposed of as above. V.RAMKUMAR, JUDGE dmb