IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 Crl.MC.No. 1911 of 2008(F) ------------------------- CC.175/2006 of JUDL. MAGISTRATE OF FIRST CLASS, KASARGODE .................... PETITIONER(S): ACCUSED ---------------------- T.SANTHOSH, S/O THANKAPPAN PILLAI, AGED 52 YEARS, SECRETARY, ALAPPUZHA MUNICIPALITY, ALAPPUZHA. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1911 of 2008(F) APPENDIX PETITIONERS ANNEXURES I: COPY OF THE COMPLAINT NO:.C.NO:175/2006 OF JUDICIAL FIRST CLAS MAGISTRATE COURT, KASARGODE DATED 7.2.2006 RESPONDENTS ANNEXURES NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 1911 OF 2008 (F) ------------------------------------------ Dated this the 23rd day of November, 2011 O R D E R The petitioner is the accused in C.C. No:175/2006 of Judicial First Class Magistrate Court, Kasargode. The complaint was filed against him alleging offence under section 201 of I.P.C. The gist of the allegation is that samples were collected by the Food Inspector, Mobile Vigilance Squad. One sample was sent for chemical analysis and the other sample was kept in the custody of Local Health Authority namely, the Secretary of Kasargode Municipality. When the accused applied for sending the second sample for analysis, it was reported that the second sample was destroyed/damaged beyond identification. It was stated to be due to the wrong committed by the accused. Notice was Crl. M.C. No: 1911 OF 2008 (F) -2- sent to the petitioner, who was the Secretary, seeking his explanation. That explanation was found unsatisfactory and hence complaint was filed against him. The learned counsel for the petitioner submits that the destruction of the records by the petitioner was not due to any intentional act but it so happened only because of some omission or negligence on the part of the staff members of the Municipality. Of course the liability of the petitioner cannot be disputed since the second sample was kept in his custody. It is argued by the learned counsel for the petitioner that cognizance in this case was taken against the petitioner ignoring the fact that sanction, under section 197 of Cr.P.C., was required. Secretary of the Municipality is a public servant coming under section 21(12)(b) of I.P.C. Since the Crl. M.C. No: 1911 OF 2008 (F) -3- offence complained of is the consequence or result of an act or omission occurred in the discharge of his official duties. At any rate, since that act or omission has rational nexus with the duty he was to perform, the Court can take cognizance of the offence against the petitioner only if sanction was issued under section 197 of Cr.P.C. No sanction was obtained in this case. As such, the cognizance taken by the learned Magistrate has to be set aside. In the result, this petition is allowed. Further action in C.C. No:175/2006 of J.F.C.M. Kasargode is quashed. But it is made clear that this will not in any way affect the departmental enquiry, if any, initiated against him. N.K. BALAKRISHNAN, JUDGE jjj