IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Crl.MC.No. 2203 of 2009() ------------------------- CRRP.28/2007 of FIRST ADDL.SESSIONS COURT, KOZHIKODE CMP.3644/1998 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... PETITIONER(S)/PETITIONER/COMPLAINANT: --------------- R.P.SHARMA,IPS,SON OF M.P.SHARMA, PRESENTLY WORKING AS INSPECTOR GENERAL OF POLICE, OFFICE OF THE DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE,NO.2,NRUPATHUNGA ROAD, BANGALORE-1. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S)/RESPONDENT: --------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 2203 OF 2009 ------------------------------------------ Dated 22nd October 2009 O R D E R Petitioner who is now working as Inspector General of Police, Karnataka State, filed this petition under Section 482 of Code of Criminal Procedure challenging Annexure-VI order whereunder learned Sessions Judge dismissed the revision confirming Annexure-V order passed by the Judicial First Class Magistrate-I, Kozhikode. Under Annexure-V order learned Magistrate dismissed the private complaint under Section 203 of Code of Criminal Procedure finding that without obtaining sanction under Section 197 of Code of Criminal Procedure respondents, who are police officials, cannot be prosecuted in view of the bar provided under Section 197 of Code of Criminal Procedure. Learned Sessions Judge in revision confirmed the finding. It is challenged in this petition filed under Section 482 of Code of Criminal Procedure. Learned counsel appearing for the petitioner would argue that the question of sanction need not necessarily be considered at the stage of an inquiry under Section 202 of Code of Crmc 2203/09 2 Criminal Procedure and can be relegated to a later stage and hence the order is to be quashed. Reliance was placed on the decisions reported in Raj Kishor Roy v. Kamaleshwar Pandey & another (AIR 2002 SC 2861) and Kalimuthu v. State (AIR 2005 SC 2257). The allegations raised against the respondents in the private complaints are admittedly acts either done in discharge of their official duty or in any event purporting to be done in discharge of their official duty. Therefore, findings of the learned Magistrate and learned Sessions Judge that for prosecuting the said respondents, sanction as provided under Section 197 of Code of Criminal Procedure is mandatory is not disputed. In fact no challenge was made as against the findings. Hence the only question is whether sanction is necessary for taking cognizance of the offences or question of sanction need not be decided at this stage. 2. Section 197 of Code of Criminal Procedure does not give any scope for doubt on the power of the court to take cognizance of an offences, when there is no sanction, if Section 197 of Code of Criminal Procedure applies to the facts. Sub Section (1) mandates that no court shall take cognizance of such offence except with Crmc 2203/09 3 the previous sanction. Therefore, before issuing summons, as provided under Section 204 of Code of Criminal Procedure, learned Magistrate is to satisfy that there is necessary sanction to prosecute the respondents in the private complaint because sanction is mandatory. 3. The decision relied on by the petitioner does not lay down a proposition that question of sanction under Section 197 of Code of Criminal Procedure need not be considered at the stage when cognizance is to be taken. On the other hand, it is specifically declared that the mandatory character of the protection afforded to a public servant is brought out by the expression. “No court shall take cognizance of such offence except with the previous sanction” and use of words, “no” and “shall”, make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. The decision only provides that question of sanction may arise at any stage of the proceedings and if, it arises, it is to be decided from state to stage. If court on the materials at the stage of taking cognizance or framing charge, cannot decide whether the alleged acts were done Crmc 2203/09 4 in discharge of the official duty or purporting to be in discharge of official duty, it will not preclude the court from deciding the necessary to obtain sanction under Section 197 at a later stage. The principles laid down does not mean that when in a case where sanction is mandatory, at the time of taking cognizance of the offence, the Magistrate need not be satisfied that there is sanction as provided under Section 197 of Code of Criminal Procedure. Hence I cannot agree with the submission that in view of the decision question of sanction under Section 197 of Code of Criminal Procedure need not be considered at the time when cognizance of the offence is taken. On the other hand, when Section 197 in absolute terms mandates that no court shall take cognizance of the offence without sanction under Section 197, if sanction is necessary, learned Magistrate cannot take cognizance. Complaint was rightly dismissed under Section 203 for want of sanction. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.