IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 Crl.MC.No. 1316 of 2010() ------------------------- CP.10/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, KAYAMKULAM. .................... PETITIONERS/ACCUSED NO. 1 AND 2: ------------------------------------------------------- 1. BALABHADRAN, POLICE CONSTABLE, A-3832, S/O. THANKAPPAN, TRAFIC POLICE STATION, KAYAMKULAM, RESIDING AT LALITHALAYAM, KRISHNAPURAM VILLAGE, KAYAMKULAM. 2. VIDHAYADHARAN, POLICE CONSTABLE, A 4039, S/O. NANU, KAYAMKULAM POLICE STATION, RESIDING AT PALAPPALLY HOUSE, PAYIKUZHY MURI OACHIRA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENTS/STATE & DEFACTO COMPLAINANT: --------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. MOHANAN, S/O. KUTTAPPAN, CHAKKAMCHERIL VEEDU, OMALLOOR MURI, CHUNAKKARA VILLAGE. R1 BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN. R2 BY ADV. SRI.M.V.THAMBAN, SRI.R.REJI, SRI.B.BIPIN, SMT.THARA THAMBAN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.MC.No. 1316 of 2010 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A1 COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JFCM KAYAMKULAM. ANNEXURE A2 COPY OF THE FIR IN CRIME NO.91/2008. ANNEXURE A3 COPY OF THE FINAL REPORT IN CRIME NO.91/2008. ANNEXURE A4 COPY OF THE COMPLAINT SUBMITTED BY THE 4TH ACCUSED BEFORE THE KAYAMKULAM POLICE STATION. ANNEXURE A5 COPY OF THE RELEVANT PAGES OF THE REGISTER OF PETITION. ANNEXURE A6 COPY OF THE CERTIFICATE ISSUED BY THE KAYAMKULAM POLICE STATION STATING THAT 1ST PETITIONER/1ST ACCUSED WAS ON DUTY DURING THE RELEVANT TIME. ANNEXURE A7 COPY OF THE CERTIFICATE ISSUED BY THE KAYAMKULAM POLICE STATION STATING THAT 2ND PETITIONER/2NDACCUSED WAS ON DUTY DURING THE RELEVANT TIME. ANNEXURE A8 COPY OF THE NOTIFICATION OF GOVT. OF KERALA NO.61155/A2/HOME DATED 06/12/1977. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.S. TO JUDGE rs N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.1316 of 2010 ---------------------------------------------------- Dated this the 15th day of November, 2011 Order The petitioners are A1 and A2 in a case which is now pending committal proceedings as C.P.No.10 of 2010 on the file of JFCM Court-I, Kayamkulam. A1 was the Head Constable and A2 was the Constable of Kayamkulam Police Station at the relevant time. A private complaint was filed by the 2nd respondent against the aforesaid petitioners and two other persons. These petitioners were arrayed as A2 and A3 in that private complaint. A4 in the complaint was the person who lodged complaint against the second respondent herein. It was alleged that on the basis of the complaint given by A4 therein, the police officials went to the house of the second respondent and he was forcefully taken in the vehicle to the police station from where R2 herein was wrongfully restrained and beaten by the petitioners. According to the 2nd respondent, he sustained injuries - abrasion to his left ear, as he was hit or beaten by the petitioners. The complaint so filed by the 2nd respondent before the learned Magistrate was Crl.M.C.1316/2010 2 forwarded to the police for investigation. Thereupon crime was registered. The investigation was conducted by the Dy.S.P., DCRB Alappuzha and a final report was filed. The learned counsel for the petitioners (A2 and A3) before the court below would submit that even accepting the case of the complainant, it can only be found that they went to the house of R2 and brought him to the police station in connection with the complaint given by A4 which was purely in exercise of their official duties. Simply by incorporating an allegation that R2 was abducted/kidnapped and adding Section 367 IPC, the petitioners cannot be roped in so as to face the trial for the offences shown in the final report. In the final report the offences alleged to have been committed by the petitioners are under Sections 367, 341 and 323 r/w 34 IPC. Section 367 is a sessions offence. 2. The fact that a complaint was given by the 4th accused against R2 herein is borne out from the entries in the petition register, a copy of which is produced as Annexure A5. There serial No.81/08 relates to the complaint stated to have been given by A4 (Lalji Sebastian) against R2 herein (Mohanan). The allegation therein was that Mohanan, R2 herein, was frequently Crl.M.C.1316/2010 3 calling the sister of Lalji Sebastian over mobile phone and was in the habit of making sexual overtures, using obscene words etc. The entry as against serial No.81/08 says that both sides were called to the police station and R2 herein was warned and the petition was closed. Of course, the learned counsel for the second respondent would submit that the entries therein are not correct. However, the fact remains that there was a complaint against R2 and it was pursuant to that complaint, the police officials went there and brought him to the police station in a police jeep. That would negative the allegation that the petitioners had kidnapped or abducted R2 in order to cause grievous hurt or for doing such other offending acts. Therefore, the offence under Section 367 cannot lie, the learned counsel for the petitioners submits. 3. It is pointed out by the learned counsel for the second respondent that the statements given by the sister of A4 and the son of R2 had stated the reason for making telephone calls. The question is not whether making a telephone call to a girl was actually an offending act or not. There was a complaint and so the police officials were justified in bringing R2 to the police station to question him regarding the complaint against him. Crl.M.C.1316/2010 4 Therefore, the learned counsel for the petitioners is justified in his submission that Section 367 IPC is not attracted in this case. 4. The other allegation is regarding the wrongful restraint of R2 as envisaged under Section 341 IPC. The allegation is that R2 was wrongfully restrained. The so-called restraint was in the police station. He was restrained for questioning him. That was part of the official duties, namely, R2 was called to the police station to question him with regard to the complaint against him. It cannot be said that offence under Section 341 is also attracted. Therefore, that charge also cannot be sustained. 5. Now, the crucial point is whether the first petitioner hit R2 in this case and caused hurt to him. The learned counsel for the second respondent drew the attention of the court to the statement given by the Assistant Sub Inspector Mr.Mohammed Raja whose statement is to the effect that he had actually seen the first petitioner physically assaulting the second respondent. The statement given by R2 is that the first petitioner herein had beaten him causing injury to his ear. There is no allegation that the second petitioner had beaten the 2nd respondent. Therefore, the charge against the second petitioner herein cannot be Crl.M.C.1316/2010 5 sustained. But so far as the charge against the first petitioner is concerned, in the light of the statement given by R2 and the witness mentioned above (Mohammed Raja), it cannot be now said by this court in this petition under Section 482 that the allegation regarding hitting or giving blows on R2 is totally incorrect. 6. The learned counsel for the second respondent would submit that the certificate issued by the doctor would show that there was perforation of right ear. But the learned counsel would submit that though the incident, according to R2 took place on 7.3.2008, he was admitted in the hospital only on 9.3.2008 and that R2 actually refused to give statement to the police when he was in the hospital. It is also pointed out that his statement was to the effect that he would give the statement only after consulting his relatives and hence, according to the learned counsel, the complaint was subsequently trotted out thoroughly brooding over the matter, in order to wreak vengeance on the petitioners. I am not entering into the merit of that contention. It is argued by the learned counsel for the petitioners that the statements given by the two doctors would show that the Crl.M.C.1316/2010 6 perforation of right ear noted in the wound certificate could not have been due to the blow given by the 1st petitioner since the possibility of that injury being caused in some other manner also could not be ruled out as stated by the doctor. If perforation was not the result of the alleged blow, then certainly the offence under Section 325 IPC cannot be attracted. It has already been stated that there is no allegation or causing of hurt by the second petitioner. The allegation which remains is only against the first petitioner. Whether he is entitled to get protection under Section 197 Cr.P.C. is a matter which has to be gone into only after the evidence is recorded as to whether the alleged act was done by him in the discharge of his official duty. 7. In the light of what is stated above, this Crl.M.C. is disposed of in the manner indicated herein below: (a) The entire proceedings as against the second petitioner in C.P.No.10 of 2010 on the file of JFCM Court-I, Kayamkulam is quashed. (b) The proceedings against the 1st petitioner for offences under Sections 341 and 367 IPC stands quashed. As such, the Committal Proceedings initiated by the learned Magistrate is set Crl.M.C.1316/2010 7 aside. (c) The learned Magistrate will proceed with the case as against the first petitioner only for the offence under Section 323 or 325 IPC. The question whether the first petitioner is entitled to protection under Section 197 Cr.P.C. shall be determined as one of the points, after the trial is over. The first petitioner is at liberty to putforward all his contentions before the court below. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.1316/2010 8