IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Crl.MC.No. 412 of 2006() ------------------------ CC.492/2003 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... PETITIONERS/ACCUSED: ------------------------ 1. SATHEESH KUMAR.K.P., PC K 1574, FORMERLY OF ERATTUPETTA POLICE STATION, NOW WORKING IN KARUKACHAL POLICE STATION, `VISHNU BHAVAN', KADAYINIKKADU P.O., KOTTAYAM DISTRICT. 2. T.S.BABU, PC K 4786, FORMERLY OF ERATTUPETTA POLICE STATION, NOW WORKING IN KIDANGOOR POLICE STATION, THOOMBANKAL HOUSE, MANJOOR P.O., KOTTAYAM DISTRICT BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO RESPONDENTS: COMPLAINANT AND STATE ------------------------------------------------ 1. SUNNY, S/O.VARKEY, KIDANGATHUKAROTT VEEDU, POONJAR P.O., THEKKEKARA KARA, POONJAR THEKKEKKARA VILLAGE, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM, KOCHI-31. ADV. SRI.BIJU ABRAHAM FOR R1 PUBLIC PROSECUTOR SMT.LAKSHMI RANI FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.663/06 IN CRL.M.C.NO.412/06 //DISMISSED// 6.1.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.412 OF 2006 ----------------------------------------------------- DATED THIS THE 6TH DAY OF JANUARY, 2009 O R D E R The petitioners 1 and 2 are accused 1 and 2 respectively in C.C.No.492/03 pending before the Court of J.F.C.M., Erattupetta. The offence alleged against the petitioners as revealed from the private complaint, Annexure II is under sections 325, 341 and 34 of Indian Penal Code. That private complaint preferred by the first respondent herein was taken on file by the learned Magistrate and proceeded further after taking cognizance of the same and some witnesses were already examined. This petition is filed by the petitioners under Section 482 of Cr.P.C. with the prayer to quash Annexure II complaint and all proceedings pending against them before the Court of J.F.C.M., Erattupetta in C.C.No.492/03. 2. Heard the learned counsel appearing for the petitioners and the first respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned counsel appearing for CRL.M.C.No.412/06 -2- the petitioners that C.C.No.492/03 was taken cognizance by the learned Magistrate on the basis of the private complaint filed by the first respondent herein, copy of which is marked as Annexure II. According to the learned counsel, the petitioners were working as police constables attached to Erattupetta Police Station and they were entrusted with the duty of executing a non-bailable warrant for arrest ordered against the first respondent herein who was the accused in C.C.No.115/01. Annexure I is the copy of the NBW issued by the J.F.C.M., Erattupetta wherein execution of that warrant was extended till 20.5.2003. It is also submitted by the learned counsel that the petitioners were on official duty and while executing Annexure I warrant, the first respondent resisted and he was overpowered by the petitioners. Since, the petitioners were on official duty they are entitled to get the protection of Section 197 Cr.P.C. 4. This petition is opposed by the learned counsel appearing for the first respondent and submitted that the NBW was issued against the first respondent in C.C.No.115/01 for the offence under section 138 of Negotiable Instruments Act and that case was already settled between the parties. Therefore, the action of the petitioners while attempting to take the first respondent to illegal custody and CRL.M.C.No.412/06 -3- manhandled and caused fracture to his right wrist was illegal and the petitioners are not entitled to get the protection of Section 197 of Cr.P.C. According to the learned counsel appearing for the first respondent, the petitioners were not on their official duty and approached the first respondent in mufti. 5. Heard the learned Public Prosecutor also, who has submitted that sanction under Section 197 of Cr.P.C. is mandatory to proceed against the petitioners in an offence like this. 6. On a perusal of the private complaint Annexure II, it is revealed that the petitioners were executing NBW ordered by the J.F.C.M., Erattupetta, Annexure I, wherein direction was given to them to execute the warrant before 20.5.2003. Whether the petitioners have committed the offence under sections 325, 341 and 34 of IPC and whether sufficient ingredients are there to punish them under the above sections are matters to be decided by the trial court. Even for deciding those aspects, whether the petitioners were doing their official duty and the alleged acts referred in C.C.No.492/03 were done by the petitioners within the purview of their official duty are yet to be decided. Admittedly, the prosecution has not obtained sanction to proceed against the petitioners as contemplated under Section 197 of CRL.M.C.No.412/06 -4- Cr.P.C. Considering the facts and circumstances of this case, it is evident that previous sanction under Section 197 of Cr.P.C. is mandatory in the present case to proceed against the petitioners herein who are the police constables, without which cognizance of the complaint cannot be taken against them. Therefore, continuation of the proceedings against them in C.C.No.492/03 would be an abuse of process of court and is liable to be quashed. In the result, this Crl.M.C. is allowed and the continuation of the proceedings against the petitioners herein who are accused 1 and 2 in C.C.No.492/03 on the file of J.F.C.M., Erattupetta is quashed, by exercising the power under Section 482 of Cr.P.C. This will not prejudice the right of the complainant to seek sanction under Section 197 of Cr.P.C. M.C.HARI RANI, JUDGE. dsn