IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 Crl.MC.No. 2311 of 2009() ------------------------------------ C.M.P.2018/2009 IN C.C.1841/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, ALUVA CRIME NO.31/2004 OF ALUVA POLICE STATION. .................... PETITIONER(S): ---------------------- K.A. MOHAMMED, AGED 60 YEARS S/O.ALIKKUNHU, RET. ADDITIONAL SUB INSPECTOR OF POLICE (TRAFFIC UNIT), VADAKKEKALATHIL HOUSE MATTUPURAM, MANNAM P.O., NORTH PARAVOOR. BY ADV. SRI.C.KHALID, SRI.N.GOPINATHA PANICKER, SRI.T.P.SAJID. RESPONDENT(S): -------------------------- 1. K. SADASIVAN, AGED 58 YEARS, S/O. KOCHUPILLA, PULIKKAL HOUSE, S.N. PURAM, THAIKKATTIKARA, POST ALUVA. 2. SUB INSPECTOR OF POLICE ALUVA POLICE STATION. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.LIFFY P. FRANCIS. R2 & R3 BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.MC.No. 2311 of 2009 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE 1: COPY OF THE FIR IN CRIME NO.31/2004 DATED 10/01/2004. ANNEXURE 2: COPY OF THE COMPLAINT IN C.C. NO.1841/2006 DATED 16/06/2009. ANNEXURE 3: COPY OF THE WOUND CERTIFICATE OF THE 1ST RESPONDENT. ANNEXURE 4: COPY OF THE REPRESENTATION DATED NIL GIVEN BY V.M. SASI, CITU AND OTHERS TO CHIEF MINISTER. ANNEXURE 5: COPY OF THE REPORT ON 30/04/2004 SENT BY RURAL DY. S.P., ERNAKULAM. ANNEXURE 6: COPY OF THE PETITION DATED 16/06/2009 IN M.P. NO.2018/2009 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-I, ALUVA SUBMITTED BY 1ST RESPONDENT. ANNEXURE 7: COPY OF THE ORDER IN C.M.P. NO.2018/2009 IN C.C. NO.1841/2006 DATED 16/06/2009 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-I, ALUVA. ANNEXURE 8: COPY OF THE COMPLAINT DATED 29/01/2004. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.S. TO JUDGE rs N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.2311 of 2009 ---------------------------------------------------- Dated this the 4th day of November, 2011 Order The petitioner is the accused in CC No.1841 of 2006. It is now pending before JFCM Court, Aluva. The incident took place on 10.1.2004. The petitioner was then the A.S.I. of Aluva Traffic Police Station. The defacto complainant was the taxi driver. The petitioner was stated to have approached the taxi drivers for hiring taxi to escort the then Minister for Irrigation. The other taxi drivers did not oblige the petitioner. The first respondent/complainant was approached. His car was not Ambassador but Tata Indica. The complainant also did not agree to allow his vehicle to escort since he had already a commitment with another. Thereupon, the petitioner was stated to have wrongfully restrained the complainant, abused using obscene words, and fisted on his chest. The first respondent was stated to have undergone treatment. Wound certificate has been produced for that purpose. The first respondent thereafter filed a complaint before the learned Magistrate. After conducting enquiry under Crl.M.C.2311/09 2 Section 202, the learned Magistrate took cognizance of the offence as mentioned earlier. The learned counsel for the complainant would submit that that the case was actually posted for evidence and it was at that time, this petition was filed by the petitioner/accused. 2. The learned counsel for the petitioner submits that no sanction was obtained under Section 197 Cr.P.C. to prosecute the petitioner who was then working as A.S.I. of Police. According to the learned counsel, the act complained of against him is so connected with the discharge of his official duties and so he cannot be prosecuted without prior sanction under Section 197 Cr.P.C. This submission is resisted by the learned counsel for the first respondent. The learned counsel submits that there was already a direction by this court that before hiring the taxies, the taxi drivers/owners should be given prior notice. But no notice or information was given to the complainant and as such the refusal on the part of the first respondent in hiring out his vehicle cannot be a reason for the A.S.I. to commit the offences as mentioned above. It is contended that the first respondent and others were stated to have subsequently restrained the police officials and in Crl.M.C.2311/09 3 respect of that a crime was registered against the first respondent and others as Crime No.1268 of 2004. That case was charge sheeted by the police. The first respondent and other accused persons were acquitted in that case. 3. The question whether the act alleged in this case was part of the official duty the petitioner was performing at the relevant time is a matter to be decided on the basis of the evidence they may be adduced. At this stage, it is not proper to find whether it was so connected with the duty the petitioner was stated to have performing at the relevant time. Hence, after trial, the learned Magistrate will consider whether the prosecution is bad for want of sanction under Section 197 Cr.P.C. A specific point with regard to the same shall be raised by the learned Magistrate. After trial, the case will be disposed of by the learned Magistrate in accordance with law. The Crl.M.C. is disposed of as above. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.2311/09 4 Crl.M.C.2311/09 5