IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 Crl.MC.No. 2729 of 2008() ------------------------- CC.1601/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, CHALAKUDY .................... PETITIONER(S)/1ST ACCUSED: ------------------------------------------- C.J.MARTIN, SUB INSPECTOR OF POLICE, PONKUNNAM, KOTTAYAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S)/STATE & COMPLAINANT: ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MALATHI, W/O LATE GOPALA MENON, ULIYIDATH HOUSE, PULLANI DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.BABU CHERUKARA FOR R2 SRI.P.JOSHY JOSE FOR R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON 08/02/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2729 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2010. ORDER In this petition, the petitioner seeks to have Annexure A1 complaint in C.C.1601 of 2007on the file of the Judicial Magistrate of the First Class, Chalakudy quashed. 2. The second respondent in this petition, who is the complainant before the court below, lodged a complaint before the Judicial Magistrate of the First Class, Chalakudy alleging offences punishable under Sections 427, 447 and 506 of the Indian Penal Code. The allegation was that the accused persons had trespassed into her property and committed mischief therein. The specific allegation against the petitioner is that he, out of his way, helped the second and third respondents in committing the offensive acts. The other accused persons had trespassed into the property of the Crl.M.C.2729/2008. 2 complainant and tampered and destroyed the eastern boundary. The allegation is that on the basis of a false complaint filed by the second accused, the petitioner herein at about 8.15 in the night of 8.11.2006 went over to the house of the complainant and with the aid of Police Constables, removed the fence on the eastern side of the property of the complainant. The complainant would point out that a suit was pending between the parties at the relevant time. Going by the complaint, notice was issued to the petitioner herein pointing out his high handed action. On receiving the notice, according to the complainant, the petitioner became furious and on 10.11.2006 at about 7.45 p.m. he came along with about five Police Constables and then aided the second and third accused in destroying the boundary of the property belonging to the complainant. The allegation against the petitioner, who is the first accused was that he illegally and without justification aided the second and third accused in committing the offensive acts and he did so in his personal capacity. He is also said to Crl.M.C.2729/2008. 3 have threatened the complainant and the members of her family with dire consequences. It was based on these allegations that the complaint was lodged. It appears that the court below took cognizance of the offence. Aggrieved by the same, the petitioner has come up before this court. 3. The short point raised in this proceedings is that even going by the averments in the complaint, it is clear that the petitioner has acted in its official capacity and if that be so, the prosecution launched without sanction contemplated under Section 197 of the Cr.P.C. is not maintainable. 4. Learned counsel appearing for the petitioner drew the attention of this court to the various averments in the petition and pointed out that it is clear that the petitioner had acted in his official capacity. Emphasize was laid on paragraphs 4 and 6 of the complaint. It is true that in paragraph 4 it is stated that based on a false complaint filed by the second accused, the petitioner had acted in the manner objectionable to the complainant. A reading of Crl.M.C.2729/2008. 4 paragraph 6 would also reveal that there was a complaint before the petitioner. But there are other averments which would show that the complaint of complainant is that the petitioner had personal vengeance against him and his acts had nothing to do with his official duty. Attention was drawn to the specific averment that the first offensive act is said to have been committed by the petitioner and others at about 8.15 p.m. on 8.11.2006. The other offensive act is said to have been committed at 7.45 p.m. on 10.11.2006. 5. Even assuming that there was a complaint by the second accused, regarding the acts said to have been committed by the complainant and members of her family, it is doubtful whether the petitioner could have acted in the manner he did. It is specifically averred in the complaint that it was in the night of 8.11.2006 that the petitioner had aided the second accused in his acts. It is also pointed out in the complaint that it was brought to the notice of the petitioner that there are civil suits pending before the authorities with regard to the properties owned by them. It Crl.M.C.2729/2008. 5 is further stated by the complainant that in night of 10.11.2006 at about 7.45 p.m. after receiving the notice issued on the basis of the complaint, the petitioner came to the house of the complainant and abused and threatened her. Whether these can form part of the official duty is to be determined. As far as the case on hand is concerned, the question regarding the sanction is a mixed question of fact and law. Evidence may be necessary before a final conclusion can be reached in this regard. 6. Considering the above facts, it may not be possible now to say that the petitioner had acted only in his official capacity. Reserving the right of the petitioner to raise the issue regarding sanction at the appropriate stage, this petition stands dismissed. P. BHAVADASAN, JUDGE sb.