IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 Crl.MC.No. 2256 of 2009() ------------------------- ST.330/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PONNANI ................... PETITIONER(S): ACCUSED ---------------------- MOOSA VALLIKKADAN, SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, P.O.PONNANI SOUTH, PONNANI TALUK, MALAPPURAM DIST., PERMANENTLY RESIDING AT OORAKAM VILLAGE, OORAKAM P.O., KIZHMURI DESOM, TIRURANGADI TALUK, MALAPPURAM DIST. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MAJIDA A.M., AGED 28 YEARS, W/O. P.K.KALIMUDEEN, ADVOCATE, JIM ROAD, THRIKKAVU, P.O.PONNANI, PONNANI TALUK, MALAPPURAM DISTRICT. PUBLIC PROSECUTOR SRI.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CR V. RAMKUMAR, J. ........................................................ Crl.M.C. 2256 of 2009 ............................................................. Dated this the 21st day of July 2010 ORDER The petitioner who is a member of the Kerala State Police Force and who was working at the relevant time as the Sub Inspector of Police Ponnani, seeks to quash the cognizance taken and the summons issued to him by the J.F.C.M. - I, Ponnani in S.T. No. 330 of 2008 for offences punishable under Sections 323 and 453 I.P.C. The aforesaid S.T. Case arose out of Annexure - A private complaint filed by the 2nd respondent herein (Smt. Majida, A.M.) who is a lady Advocate practicing at Ponnani. THE PROSECUTION CASE 2. The case of the prosecution as alleged in Annexure - A private complaint can be summarised as follows:- On 19-2-2008 at about 11 a.m. when the complainant -:2:- Crl.M.C. 2256 of 2009 Advocate was discussing a matter with her clients including one Moideen in her office at Gym Road, Ponnani , the accused Sub Inspector of Police, Ponnani barged into her office room without her permission and asked his police party to take her clients as well as the complainant into custody . When the complainant and her husband obstructed the above attempt, an altercation took place between her and the accused in the course of which the accused called her obscene words and gave her a push on her shoulder. Thereafter the complainant's clients including Moideen (three in number) were taken into custody and carried in the police jeep. When the jeep reached the main road two of her clients were let off but Moideen was taken away in the jeep. The accused has thereby committed offences punishable under Sections 294 (b), 447, 452 and 323 I.P.C. -:3:- Crl.M.C. 2256 of 2009 THE COGNIZANCE 3. The learned Magistrate took cognizance only of the offences punishable under Sections 453 and 323 I.P.C. and issued summons to the petitioner. It is the said order which is assailed in this Crl.M.C. filed under Sec. 482 Cr.P.C. THE DEFENCE OF THE ACCUSED POLICE OFFICER 4. According to the petitioner there was a warrant of arrest (Annexure- B) issued by the Family Court, Malappuram at Manjeri against the said Moideen who was the respondent in a maintenance application and the said Moideen was evading the process of the court. The petitioner was taking into custody the said Moideen in execution of the warrant of arrest against him. Since the petitioner was acting in discharge of his official duties as the Sub Inspector of Police, the learned Magistrate erred in taking -:4:- Crl.M.C. 2256 of 2009 cognizance of the aforesaid offences for want of the requisite sanction under Sec. 197 (2) Cr.P.C. 5. I heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. The 2nd respondent/complainant has, however, chosen to remain ex parte. JUDICIAL EVALUATION 6. After hearing both sides and after perusing the records I am inclined to accept the petitioner's contentions. Way back in the year 1977 the Government of Kerala had issued a notification under Sec. 197 (3) Cr.P.C. The said notification which was published in the Kerala Gazette dated 27-12-1977 reads as follows:- -:5:- Crl.M.C. 2256 of 2009 GOVERNMENT OF KERALA Home (A) Department NOTIFICATION No. 61135/A2/77/Home Dated, Trivandrum 6th December 1977 S.R.O. No. 1211/77 - In exercise of the powers conferred by sub-section (3) of section 197 of the code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of subsection (2) of the said section shall apply to all members of the Kerala State Police, charged with the maintenance of public order. By order of the Governor, S.Narayanaswamy, Special Secretary Explanatory Note Section 197 of Criminal Procedure Code affords protection from false vexatious or malafide prosecution to some categories of public servants in the shape of a requirement of previous sanction of the government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in discharge of their official duties. The members of the armed forces of the union are so protected. Government consider that that members of the Kerala Police force who are charged with the maintenance of public order are also in need of similar protection. the notification is issued to achieve this objective. -:6:- Crl.M.C. 2256 of 2009 In K.K. S. Muhammed v. Sasi - 1985 KLT 404 a learned Judge of this Court had taken the view that the protection under the aforesaid notification would be available to members of the Kerala Police Force only when they were charged with the duty of maintenance of public order and not when they were acting or purporting to act in discharge of their official duties by way of law and order. But the said decision was overruled by a Division Bench of this Court in Sarojini v. Prasannan - 1996 (2) KLT 859 and subsequently by the Supreme Court in Rizwan Ahammed Javed Shaikh v. Jammal Pattel - AIR 2001 SC 2198. It is now well settled that by virtue of the aforesaid notification issued under Sec. 197 (3) Cr.P.C. the protection under Sec. 197 (2) Cr.P.C. would be available to a member of the police force charged with the maintenance of law and order -:7:- Crl.M.C. 2256 of 2009 eventhough the act in question which was alleged to be an offence committed by the accused police officer was not referable to his duty of maintenance of public order. Thus, if a member of the Kerala Police has committed an offence while acting or purporting to act in discharge of his official duty, the Court is precluded from taking cognizance of such offence except with the previous sanction of the State Government as enjoined by Section 197 (2) Cr.P.C. and by virtue of Section 197 (3) Cr.P.C., the words “Central Government” occurring in Sections 197 (2) Cr.P.C. stand substituted “State Government”. A police officer entitled to protection under Section 197 (2) Cr.P.C. by virtue of the notification issued under Section 197 (3) Cr.P.C. need not be removable from his office by or with the sanction of the Government . Admittedly the petitioner was, at the relevant time, -:8:- Crl.M.C. 2256 of 2009 the Sub Inspector of Police, Ponnani and, therefore, he is a member of the Kerala Police Force covered by the aforesaid notification and will be protected by Sec. 197 (2) Cr.P.C. if the offending act was committed by him while acting or purporting to act in discharge of his official duty. 7. What is to be considered next is the question as to whether the petitioner was at the relevant time acting or purporting to act in discharge of his official duty. The interpretation placed on the words “while acting or purporting to act in the discharge of his official duty” occurring in Section 197 (1) Cr.P.C. will hold good for the very same words occurring in Section 197 (2) as well. In S.P. Saha and others v. M.S. Kochar - AIR 1979 SC 1841 a three Judges' Bench of the Supreme Court observed as follows:- -:9:- Crl.M.C. 2256 of 2009 18. The words “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” employed in Section 197 (1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for “It is no part of an official duty to commit an offence, and never can be”. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J. in Baijnath v. State of Madhya Pradesh - AIR 1966 SC 220 at p. 222 “It is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure code will be attracted”. 19. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. 20. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar, J. of the Federal Court in Hori Ram v. Emperor, 1939 FCR 159 is generally applied with advantage. -:10:- Crl.M.C. 2256 of 2009 After referring with approval to those observations of Varadachariar J. Lord Simonds in H.B. Gill v. The King - AIR 1948 PC 128 tersely reiterated that the “test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office”. 21. Speaking for the Constitution Bench of this court, Chandrasekhar Aiyer, J. restated the same principle, thus: :.............in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty............there must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. (emphasis supplied)” The legal position was succinctly summed up by the Supreme Court in Amrik Singh v. The State of PEPSU - AIR 1955 SC 309 thus :- “The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his -:11:- Crl.M.C. 2256 of 2009 official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution”. The above legal position has been re-iterated in Sankaran Moitra v. Sadhna Das and Another - AIR 2006 SC 1599. 8. Thus, the test appears to be that if the accused public servant or member of the Forces, when challenged , can reasonably claim that what he did was by virtue of his office, then the protection under Section 197 Cr.P.C. will be available to him and he can be prosecuted for the act before a criminal Court only with the previous sanction of the Government . It is the quality of the act that is important and if the act falls within the -:12:- Crl.M.C. 2256 of 2009 scope and range of his official duties, then the protection contemplated by Sec. 197 Cr.P.C. would be available to him. Take the case of an accountant who misappropriates the moneys received in that capacity but indulges in defalcation of accounts to make it appear that he had remitted the amounts in the treasury. In a prosecution of the accountant for offences punishable under Secs. 409 and 477 A I.P.C. , it would be futile for the prosecution to contend that sanction to prosecute him for the offence punishable under Sec. 409 I.P.C. is not necessary whereas prosecution sanction may be necessary to prosecute him for the offence punishable under Sec. 477 A I.P.C.. This is because, if his actions were challenged, he could very well claim with reference to the entries made by him that the amounts received by him were remitted in the Treasury. The question -:13:- Crl.M.C. 2256 of 2009 whether his claim is true or false or whether the entries made by him were dishonestly made, is irrelevant at that stage. The decision is Baijunath v. State of M.P. - AIR 1966 SC 220 has to be confined to the facts of that case only. This is because, the Apex Court itself observed in Amrik Singh's Case (supra) as follows:- “In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197 (1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197 (1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required”. 9. In Sunilkumar v. State of Kerala - 2007 (4) KLT 359 the accused were a Sub Inspector of Police and a Police Constable. They were chasing the complainant who was -:14:- Crl.M.C. 2256 of 2009 suspected of carrying contraband arrack in a jerrycan in an autorickshaw. In an attempt to catch hold of the complainant after overpowering him, the Sub Inspector of Police used a towel around his neck and tightened the same. In the prosecution of the Sub Inspector by means of a private complaint alleging an offence punishable under Sec. 307 I.P.C. a learned Judge (R. Basant, J) of this Court held that on the facts and circumstances of the case it could not be held that the alleged conduct of the police officer was totally alien to the official act which he was performing so as to deprive him of the protection under Sec. 197 Cr.P.C. The same view was taken by the same learned Judge in an unreported decision in Crl.M.C. No. 2712 of 2006 in which the Addl. Sub Inspector and the police constables attached to the Crime Detection Party of the Thalassery Police Station were -:15:- Crl.M.C. 2256 of 2009 prosecuted for offences punishable under Sections 323, 506 (ii) and 302 read with Section 34 I.P.C. for chasing an alleged fugitive by name Mujeeb who while running away fell into an unguarded well and for throwing a heavy stone into the well which hit the said Mujeeb on his head resulting in his sustaining injuries to which he succumbed . 10. After giving my anxious consideration to the facts and circumstances of the case, I have no hesitation to hold that the petitioner a Sub Inspector of Police who allegedly went to the office of the 2nd respondent complainant (Advocate) in search of Moideen against whom there was a warrant of arrest could not be said to be acting beyond the scope of his authority so as to deprive him of the protection under Sec. 197 Cr.P.C. Incidentally, the question may arise whether the petitioner who -:16:- Crl.M.C. 2256 of 2009 was executing the arrest warrant against Moideen was justified in entering the office room of the complainant Advocate without her permission. It is not known whether Moideen chanced to be there as a sheer coincidence or was being harboured or sheltered by the complainant. But if the act of the petitioner was in performance of his official duty, it does not matter even if the act exceeds what is strictly necessary for the discharge of the duty. The following observations by a Constitution Bench of the Supreme Court in Matajog Dobey v. H.C. Bhari - AIR 1956 SC 44, are apposite:- “There must be a reasonable connection between the act and the official duty . It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merit. What we must find out is whether the act and the official duty are so inter- related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation”. (emphasis supplied) -:17:- Crl.M.C. 2256 of 2009 It is relevant in this connection to note that prosecution sanction which is a pre-condition for taking cognizance in a given case is not an immunity from prosecution. It only insulates the public servant from being unnecessarily vexed and harassed by dragging him to a criminal court. The purpose behind the provision is that public servants (against whom there will be disgruntled elements) can function without fear or favour and with peace of mind and they are actually prosecuted only on genuine complaints. The result of the foregoing discussion is that the cognizance taken by the learned Magistrate against the petitioner to whom the protective umbrella under Section 197 Cr.P.C. has been extended, was bad in law. Accordingly, S.T. 330 of 2008 on the file of J.F.C. M. Ponnani shall stand quashed. It is however -:18:- Crl.M.C. 2256 of 2009 made clear that this order will not stand in the way of the 2nd respondent prosecuting the petitioner after obtaining the requisite sanction. Dated this the 21st day of July, 2010. V. RAMKUMAR, JUDGE.