IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 Crl.MC.No. 3435 of 2010(B) -------------------------------------- [CC.NO.630/2010 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL] .................... PETITIONER/ACCUSED: ---------------------------------- D. RAJENDRAN, DY.SP, ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.VINOD KUMAR.C. RESPONDENTS/COMPLAINANTS: ------------------------------------------------- 1. ADVOCATE RAJESH B. NAIR, S/O. BHASKARAN NAIR, AGED 37 YEARS, KARINGODATH VEEDU, CHIRAYINKEEZHU VILLAGE, CHIRAYINKEEZHU. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY, SRI.ANOOP V NAIR, R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J ........................................... CRL.M.C..NO.3435 OF 2010 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER,2010 ORDER First respondent, an advocate practising in Attingal, filed Annexure 3 complaint before Judicial First Class Magistrate against the petitioner, DySP alleging that petitioner committed an offence under Section 294(b), 499 and 500 of IPC. It was taken cognizance by the learned Magistrate as C.C.630 of 2010. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that without obtaining sanction as provided under Section 197 of Code of Criminal Procedure, cognizance could not have been taken. Learned counsel appearing for the petitioner and learned counsel appearing for first respondent were heard. 2. Learned counsel appearing for the petitioner relying on the decision of this court in Shoukkathali V. State of Kerala (2005(3) KLT 634), Sunil Kumar V. State of Kerala (2007(4) KLT 359), Moosa Vallikkadan V. State of Kerala (2010(3) KLT 437), and the decision of the Apex Court in Rizwan Ahmed Javed Shaikh V. CRMC 3435/2010 2 Jammal Patel and others(AIR 2001 SC 2198) and Sankaran Moitra V. Sadhna Das and another (2006(4) SCC 584), argued that even as per the avermnets in Annexure 3 complaint, the incident occurred while petitioner was discharging duties as the DySP and therefore it is a case where cognizance could not have been taken without getting sanction under Section 197 of Code of Criminal Procedure. 3. Learned counsel appearing for the first respondent submitted that the question of sanction under Section 197 of Code of Criminal Procedure does not arise in this case as the allegations raised against the petitioner is that he committed offences under Section 294(b), 499 and 500 of IPC which cannot be part of his official duties. Learned counsel would also argue that first respondent had accompanied his client to the police station as he was called to the police station on a complaint filed by his wife. When petitioner scolded the client using foul language and compelled to hand over ornaments and money, first respondent had to clarify that disputes are pending before the Family Court. Then uttering obscene words, petitioner scolded first respondent and that was not in discharge of his official duty and therefore sanction provided under Section 197 of Code of Criminal Procedure is not necessary. CRMC 3435/2010 3 4. This court in Shoukkathali's case (supra) considered the ambit of the protection given under Section 197 of Code of Criminal Procedure to a police officer and held that any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties cannot be given a narrow meaning and official duty implies the act or omission which might have been done in the course of his service and discharge of his duty and once any act or omission has been found to have been committed by the public servant, in discharge of his official duty, it must be given a liberal and wide construction so as to advance the object of the section in favour of the public servant. This court in Sunil Kumar's case (supra) following the decision of the Apex Court in Rizwan Ahmed Javed Shaikh's case (supra) held that though it could be stated that it is not the official duty of a public servant to use the towel around the neck of an accused person to be apprehended and tighten the same, it may not be proper to conclude that it is not while discharging the official duty or purported official duty of the official concerned so as to lead the court to a conclusion that he is not entitled to the protection of Section 197 of Code of Criminal Procedure. Again in Moosa Vallikkadan's case (supra), this court held that S.I of police who allegedly went to the CRMC 3435/2010 4 office of an advocate in search of an accused against whom there was a warrant of arrest, would not be said to be acting beyond the scope of the authority so as to deprive him of the protection under Section 197 of Code of Criminal Procedure, as the act is in discharge of his duty of executing warrant of arrest as against an accused and therefore Section 197 of Code of Criminal Procedure would definitely be attracted. 5. The Honourable Supreme Court in Rizwan Ahmed Javed Shaikh's case laid down the real test to be applied. It was held that the test to be applied to attract the applicability of Section 197(2) is whether the act, which is done by a public officer is alleged to constitute an offence, was done by the public officer while acting in his official capacity, though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of duty. But if the act complained of is done, while acting as a public official and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected. That position has been affirmed by the Supreme Court later in Sankaran Moitra's case (supra). 6. The facts of the case are to be appreciated and the question CRMC 3435/2010 5 whether sanction under Section 197 of Code of Criminal Procedure is necessary or not is to be settled in the light of the test laid down by the Apex Court. The complaint reveals that first respondent as an advocate, accompanied his client to the office of the petitioner, the DySP. As per paragraph 5 of the complaint, petitioner had called the client alone and first respondent was waiting outside. It is alleged that while questioning the accused in that case, petitioner used abusive language and wanted the accused to hand over the gold ornaments and money to his wife, who filed the petition before the petitioner. In paragraph 6, it is alleged that while hearing the abuse, first respondent entered the room of the petitioner disclosing that he is an advocate practising in Attingal Courts and he is appearing for the the accused before the Family Court and the wife had filed a petition before the Family Court and also a complaint alleging an offence under Section 498A of Indian Penal Code and it is for the court to resolve the dispute. Then petitioner using abusive language, defamed, scolded and threatened the first respondent. It is on that basis, it is alleged that the offences were committed. On that admitted case, it is clear that petitioner was discharging his official duty as the DySP as he was questioning the accused on receipt of a petition against him. First respondent was not CRMC 3435/2010 6 invited to that room while the accused was being questioned. His presence could be termed as that of an intruder. Even if it is taken that petitioner scolded the accused or wanted the accused to hand over the gold ornaments and the money, which were allegedly with him, first respondent has no right to enter the room without the permission of the petitioner, while the accused in that case was being questioned. In any event it cannot be disputed that the alleged incident occurred while the accused was being questioned by the petitioner in discharge of his official duty. As held by the Apex Court when petitioner was discharging his official duty while the alleged incident occurred, whether the alleged act of the petitioner was a duty, which he has no right to do as a police officer or it was in dereliction of his duty. As declared by the Apex Court in Shreekantiah Ramayya Muncipalli V.State of Bombay (AIR 1955 SC 287) “ it is not the duty, we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it”. As declared in Sankaran Moitra's case (supra), the question is “ whether the act was done in performance of duty or purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning CRMC 3435/2010 7 that killing a man could never be done in an official capacity and consequently Section 197(1) could not be attracted”. Such a reasoning would be against the ratio of the decisions of the Apex Court. As the alleged act was committed in the course of discharge of the official duty of the petitioner as a DySP, petitioner is definitely entitled to the protection under Section 197(2) of the Code. Therefore, without sanction, learned Magistrate could not have taken cognizance of the offence against the petitioner. Hence cognizance taken can only be quashed. It is also made clear that on getting sanction, first respondent is entitled to proceed against the petitioner. 7. Petition is allowed. Cognizance taken on Annexure 3 complaint against the petitioner in C.C.630 of 2010 on the file of Judicial First Class Magistrate-I, Attingal is quashed. M.SASIDHARAN NAMBIAR, JUDGE lgk