IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1113 of 2006()
1. BABY M.P., SUB INSPECTOR OF POLICE,
... Petitioner
Vs
1. STATE OF KERALA - REP. BY
... Respondent
2. SOOPY, S/O. KUNHAMMED,
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :05/03/2009
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.1113 OF 2006
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DATED THIS THE 5th DAY OF MARCH, 2009
O R D E R
The petitioner is the sole accused in C.C.No.6/04 on the file
of the Judicial First Class Magistrate’s Court, Vadakara. This
petition is filed under Section 482 of Cr.P.C. to quash the
complaint, Annexure-IV and all further proceedings against the
petitioner. The offences alleged against the petitioner are under
Sections 342 and 323 of IPC, which was taken cognizance by the
learned Magistrate on the basis of the oral complaint made by the
2nd respondent herein, when he was produced before the learned
Magistrate after arrest in Crime No.572/03 of Vadakara Police
Station as per Annexure-I FIR. Annexure II is the search list.
Annexure III is the remand report. The allegation against the
petitioner is that while he arrested the 2nd respondent during
investigation of Crime No.572/03 of Vadakara Police Station on
25.9.2003, he manhandled the 2nd respondent as disclosed to the
Magistrate, which was recorded in Annexure IV. The learned
Magistrate after 202 enquiry and after recording the sworn
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statement of the second respondent and three other witnesses took
cognizance of the case against the petitioner, which is pending before
the Court of J.F.C.M., Vadakara as C.C.No.6/04. The second
respondent has also filed a complaint with the same allegations before
the Deputy Superintendent of Police as well as before the DIG of
Police, who conducted Departmental Enquiry and the petitioner was
exonerated as per Annexure VI order. It is alleged in this petition that
before taking cognizance of the case against the petitioner, sanction
under Section 197 Cr.P.C. has not been obtained and no offence as
alleged is made out against the petitioner and by invoking the
jurisdiction of this Court under Section 482 of Cr.P.C., the entire
proceedings in C.C.No.6/2004 on the file of Court of J.F.C.M., Vadakara
be quashed.
2. Heard the learned counsel appearing for the petitioner and
the 2nd respondent. Heard the learned Public Prosecutor also.
3. It is submitted by the learned counsel appearing for the
petitioner that the petitioner has not committed any offence as alleged
in Annexure IV complaint and that he was on official duty and arrested
the second respondent on 1.10.2003 in Crime No.572/03 of Vadakara
Police Station in respect of an offence under Section 402 of IPC
CRL.M.C.No.1113/06 -3-
registered against the 2nd respondent and four others. True copy of
the FIR is produced as Annexure I. After arrest, the 2nd respondent
was produced before the learned Magistrate on the same day at 8PM,
as revealed from the remand report Annexure III. According to the
learned counsel, the petitioner has complied with all the formalities
while arresting the 2nd respondent and this petition is not maintainable
for the reason that sanction under Section 197 of Cr.P.C. has not been
obtained before prosecuting the petitioner, who is admittedly the Sub
Inspector of Police, Vadakara and was on official duty and arrested the
2nd respondent in Crime No.572/03. Thus, it is the case of the
petitioner that no sanction has been obtained under Section 197(1)
Cr.P.C. to prosecute him and therefore the cognizance taken by the
learned Magistrate is unsustainable in law, as it violates the mandate
of Section 197(3) Cr.P.C.
4. The learned counsel for the 2nd respondent submitted that
the complaint of the 2nd respondent as revealed from Annexure IV is
regarding custodial assault and manhandling and the alleged overt acts
against the complainant cannot be said to be the acts done in the
discharge of his official duty or in the purported discharge of his official
duty.
CRL.M.C.No.1113/06 -4-
5. It cannot be disputed that the second respondent was
arrested by the petitioner herein, who is the accused in Crime
No.572/03. The offence alleged against the second respondent was
under Section 402 of IPC. Thus, it is clear that on 1.10.2003, the
petitioner had taken custody of the 2nd respondent in discharge of his
official duty as the Sub Inspector of Police, Vadakara Police Station,
during investigation of Crime No.572/2003. Even if the allegation of
the second respondent that the petitioner as the Sub Inspector of
Police, physically manhandled and assaulted him and the offence as
alleged in Annexure IV complaint is accepted, it is clear that it was
done in discharge of his official duties, as the Sub Inspector of Police.
If those allegations are true and he had exceeded the limit, the
question is whether in such a case, sanction is necessary and whether
the act alleged can be said to be committed in the discharge of his
official duties or in the purported discharge of his official duties. The
real test to be employed is considered in detail in para-15 of the
decision in Rizwan Ahmed Javed Shaikh v. Jammal Patel(2001
(2)K.L.T. S.N.77(Case No.98) (SC)= AIR 2001 SC 2198) in the
following words:
“The real test to be applied to attract the
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applicability of S.197(3) is whether the act which
is done by a public officer and is alleged to
constitute an offence was done by the public
officer whilst acting in his official capacity though
what he did was neither his duty nor his right to
do as such public officer. The act complained of
may be in exercise of the duty or in the absence
of such duty or in dereliction of the duty, if the
act complained of is done while acting as the
public officer and in the course of the same
transaction in which the official duty was
performed or purports to be performed, the
public officer would be protected.”
That test has been referred to with approval by the
Supreme Court in the latest decision on this aspect in
Sankaran Moitra v. Sadhna Das (AIR 2006 SC 1599)”
6. The protection given under Section 197 is to protect
responsible public servant against the institution of possibly vexatious
criminal proceedings for offences alleged to have been committed by
them while they are acting or purporting to act as public servants.
CRL.M.C.No.1113/06 -6-
This protection has certain limits and is available only when the alleged
act done by the public servants reasonably connected with the
discharge of his official duty. If in doing his official duty, he acted in
excess of his duty, but there is a reasonable connection between the
act and the performance of the official duty, the excess will not be a
sufficient ground to deprive the public servant from the protection.
But the protection under Section 197 of Cr.P.C. to be invoked, it must
be shown that the official concerned was accused of an offence alleged
to have been committed by him while acting or purporting to act in
the discharge of his official duty. One safe and sure test in this regard
would be considered if the omission or neglect on the part of the
public servant to commit the act complained of could have made him
answerable for a charge of dereliction of his official duty. If the
answer to this question is in the affirmative, it may be said that such
act was committed by the public servant while acting in the discharge
of his official duty and there was every connection with the act
complained of and the official duty of the public servant.
7. The question of exercise of the inherent power of the court
under Section 482 of the Code of Criminal procedure to quash the
proceedings taken in violation of the mandatory provisions of S.197(1)
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of Cr.P.C.was considered by the Apex Court in State of Orissa v.
Ganesh Chandra Jew, A.I.R. 2004 SC 2179, the Apex Court held:
” The mandatory character of the protection afforded to a
public servant is brought out by the expression, “no Court
shall take cognizance of such offence except with the
previous sanction”. Use of the words, ‘no’ and ‘shall’ make
it abundantly clear that the bar on the exercise of power by
the Court to take cognizance of any offence is absolute
and complete. Very cognizance is barred. That is the
complaint, cannot be taken notice of. According to Black’s
Law Dictionary the word ‘cognizance’ means “jurisdiction” or
the “exercise of jurisdiction” or “power to try and determine
causes”. In common parlance it means taking notice of. A
court, therefore, is precluded from entertaining a complaint
or taking notice of it or exercising jurisdiction if it is in
respect of a public servant who is accused of an offence
alleged to have committed during discharge of his official
duty.”
8. The petitioner herein is the Sub Inspector of Police and the
alleged offence was committed in discharge of his official duties. As
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declared by the Apex Court in a catena of cases, the protection
afforded by S.197 would be rendered illusory if the words “any offence
alleged to have been committed by him while acting or purporting to
act on the discharge of his official duty” is given a narrow meaning.
In that case, the section will be rendered sterile. Official duty implies
that the act or omission must have been done by him, in the course of
his service and in discharge of his duty. Once any act or omission has
been found to have been committed by a public servant in discharge of
his duty, then it must be given liberal and wide construction so as to
advance the object of the section in favour of the public servant. In
this case it is evident that petitioner had taken the 2nd respondent in
custody in the discharge of his official duties as is clear from the
complaint and the allegations specified therein. Therefore, in view of
notification dated 6.12.1977 issued by the State Government which
was considered by a Division Bench of this Court in Sarojini v.
Prasannan, (1996(2)K.L.T.859), it can only be held that the
petitioner, Sub Inspector of Police is an officer against whom sanction
as provided under Section 197(1)of Cr.P.C.is mandatory. The learned
Magistrate omitted to take into consideration all these facts and taken
cognizance of the case against the petitioner. Therefore, cognizance
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was taken without sanction and the continuation of the proceedings as
against the petitioner would be an abuse of process of court.
9. It is also held by the Apex Court in Sankaran Moitra v.
Sadhna Das and Another [2006(2) SCC (Cri).358] that
postponing a decision on the applicability or otherwise of Section 197
(1) of the Code can only lead to the proceedings being dragged on in
the trial court and a decision by this Court, here and now, would be
more appropriate in the circumstances of the case especially when the
accused involved are police personnel and the nature of the complaint
made is kept in mind.
10. In the circumstances, by exercising the power under section
482 of Cr.P.C., case against the petitioner in C.C.No.6/04 on the file of
J.F.C.M., Vadakara is quashed. This will not prejudice the rights of the
2nd respondent-complainant to initiate steps to prosecute the accused
person after obtaining the requisite sanction.
In the result, the Crl.M.C. is allowed.
Sd/-
M.C.HARI RANI, JUDGE.
dsn