IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 Crl.MC.No. 2021 of 2008() ------------------------- CP.175/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... PETITIONER(S): ------------------------ 1. HARIDASAN, (RETIRED SUB INSPECTOR OF POLICE), S/O.GOVINDANKUTTY NAIR, NITHIYALAM, MURINGODE, MELMURINGODE P.O., PERAVOOR, KANNUR DISTRICT. 2. SATHEESAN, P.C.3801, S/O.NARAYANAN, AGED 46 YEARS, KARUNA NIVAS, EDAKKUNNAM P.O., KEEZHOOR, KANNUR DISTRICT, (WORKING AT ARALAM POLICE STATION, KANNUR). BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): STATE AND COMPLAINANT: --------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MUHAMMED KUNHI, S/O.V.P.HARIS, V.P.HOUSE, P.O.MATTANNUR, KANNUR DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. I.V.PRAMOD R2 BY ADVS. SRI.C.KHALID, SRI.N.GOPINATHA PANICKER, SRI.R.O.MUHAMED SHEMEEM, SRI.T.P.SAJID, SMT.NAMITHA JYOTHISH. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss N.K. BALAKRISHNAN, J. = = = = = = = = = = = = = = = = Crl.M.C. NO. 2021 OF 2008 = = = = = = = = = = = = = = = = Dated this the 5th day of April, 2011. O R D E R Petitioners are first and 2nd accused in C.P.Nos.175/07 of Judicial First Class Magistrate, Mattanur. That case was taken on file against the accused u/s 304 r/w 34 IPC. Against A3 case was taken u/s 279 IPC also. It is alleged that one Hijas, son of complainant, was riding a motorcycle bearing No. KL-13/Q- 1696. Fawas is stated to be the pillion rider. The incident was stated to have taken place at 2 p.m. on 12.4.2006. The allegation was that the deceased Hijas did not stop the motorcycle when the police officials showed signal to stop the vehicle. Since the vehicle was not stopped and as they did not obey the directions of the Crl.M.C. NO. 2021 OF 2008 -:2:- police and sped away from the scene, police officials(A1 and A2) chased the vehicle in a police jeep driven by A3. In Annexure A1, complaint it was alleged that A1 and A2 made exhortations to A3 to cause the police jeep hit the motorcycle ridden by the deceased. It was further contended that the police jeep which was driven by A3 hit behind the motorcycle and due to the impact the motorcycle hit a mini lorry KL-13/M-7294 which came from the opposite direction and as a result of the same the motorcycle capsized and the complainant's son Hijas sustained serious injuries to which he later succumbed. It was stated that the pillion rider also sustained injuries. According to the complainant the accused in furtherance of their common intention did the aforesaid act with the knowledge that death was likely to be caused by Crl.M.C. NO. 2021 OF 2008 -:3:- their act. 2. The learned counsel for petitioners 1 and 2 would submit that the petitioners being police officials were discharging their duties as enjoined under the Police Act and Rules and so the prosecution initiated against them is bad in law as no sanction was obtained u/s 197 Cr.P.C. and hence the proceedings initiated by the Court below have to be quashed. This contention has been strongly resisted by the learned counsel for the respondent/complainant who submits that the act alleged against the police officials is not part of their official duties and so they cannot claim protection under S.197 Cr.P.C. 3. It is not necessary to probe deep into those aspects since it appears that at present the petitioners were only served with summons in Crl.M.C. NO. 2021 OF 2008 -:4:- CPNo.175/07. Their contention that the whole case has to be quashed by invoking inherent power u/s 482 cannot be sustained but at the same time the petitioners can urge all contentions before the Sessions Court while considering the case for framing charge against them. The question whether the offences alleged were committed by the petitioners while acting or purporting to act in the discharge of their official duties, is to be considered by the Sessions court before framing charge against the accused. With this observation this Crl.M.C. is disposed of. 4. It is submitted that petitioners have not appeared before the learned Magistrate. They have to appear before the Magistrate and take bail. Learned counsel for the petitioners submits that before the trial Court personal Crl.M.C. NO. 2021 OF 2008 -:5:- attendance of the accused may not be insisted on all hearing dates. 5. The petitioners are police officials now in service and hence according to them, it would cause much hardship to them if their physical presence is insisted on all hearing dates. It is for the learned Sessions Judge trying the case to take a decision as to whether the physical presence of the accused would be required only when it is actually required for the conduct of the case. N.K. BALAKRISHNAN,JUDGE. ul/-