IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1211 of 2008()
1. AHAMMED HUSSAIN,
... Petitioner
Vs
1. AMBILI, S/O.ISSAC,
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.S.RAJEEV
For Respondent :SRI.M.R.SARIN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.1211 OF 2008
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Dated 14th January 2009
O R D E R
Revision petitioner is the first accused in
S.C.1661/2006 on the file of Special Judge for trial
of Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act cases, Thiruvananthapuram.
Revision petitioner is challenging the charge framed
by the learned Sessions Judge for the offences.
2. Learned counsel appearing for revision
petitioner and first respondent and learned Public
Prosecutor were heard.
3. As the learned counsel appearing for
revision petitioners submitted that in the original
complaint based on which cognizance was taken by
learned Magistrate and later committed to the Special
court, the date of the alleged incident was not
mentioned and as per the sworn statement of the
original complainant/ first respondent in the case
incident was not on 30/3/2003 as stated in the charge
framed by the learned Sessions Judge. Original
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records were called for. Original complaint show that
in paragraph 4 of the complaint where the date of the
incident is to be mentioned, the date is not
mentioned and instead a gap is left evidently to be
filled up later. Though similar gaps left at the time
of typewriting the complaint where portions in Malayalam
are to be incorporated and those spaces were filled up
in Malayalam the date of the incident was left blank
even now. The sworn statement of first
respondent/complainant shows that alleged incident was
on the night of 30/6/2003 and not on 30/3/2003 as stated
in the charge. Therefore, as rightly pointed out by the
learned counsel appearing for revision petitioner there
is apparent mistake in the charge as the incident can
never be on 30/3/2003 stated therein.
4. Learned counsel appearing for revision
petitioner relying on the decision of Apex court in
Ramayya Munipalli v. State of Bombay (AIR 1955 SC
287) and Sankaran Moitra v. Sadhna Das and another (2006
(4) SCC 584) argued that when the alleged incident was
committed by the revision petitioner in the course of
performing his duty as the Sub Inspector or in any
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event, can only be purporting to be done in the course
of his official duty, sanction under Section 197 of Code
of Criminal Procedure is absolutely necessary. This
aspect was not taken into consideration by learned
Special Judge. Learned counsel appearing for first
respondent relying on the decision of learned Single
Judge of this court in State of Kerala v. Somarajan
(2000 (1) KLT 65) argued that no sanction is necessary.
But in view of the order to be passed in this petition,
it is not necessary for this court at this stage to
consider whether sanction as provided under Section 197
(1) or 197(2) of Cr.P.C is necessary. Learned counsel
appearing for revision petitioner submitted that
revision petitioner will file an application for an
order for discharge under Section 227 of Cr.P.C for the
reason that no sanction as provided under Section 197
of the Code is obtained by first respondent and
therefore, no cognizance of the offence as against
revision petitioner could be taken.
5. On the facts and circumstances, revision
is allowed. Charge framed by Special Judge,
Thiruvananthapuram in S.C.1661/2006 is set aside.
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Learned Special Judge is directed to re-hear the learned
Legal Advisor and revision petitioner and also consider
the application if any, filed by revision
petitioner/first accused for an order of discharge under
Section 227 on the ground of sanction under Section 197
of the Code and pass appropriate orders in accordance
with law and frame the charge thereafter in accordance
with law. Send back records.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.