IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3137 of 2008()
1. TOMIN.J.THACHANKARY I.P.S.
... Petitioner
Vs
1. N.PRAKASHAN, PUTHENVALAPPIL
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :SRI.T.G.RAJENDRAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :03/11/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3137 OF 2008
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Dated this the 3rd day of November, 2008
O R D E R
Revision petitioner is the first accused in C.C.245 of 1996
on the file of Chief Judicial Magistrate, Alappuzha. Revision
petition is filed challenging Annexure-C order passed by the
Chief Judicial Magistrate rejecting his plea for discharge for
want of sanction under section 197(1) of Code of Criminal
Procedure and deciding to frame charge for the offence under
section 325, 330, 357, 107 and 120B read with section 34 of
Indian Penal Code. Originally the revision petitioner contended
before learned Magistrate that the prosecution will not lie
without sanction under section 197 (1) of Cr.P.C. Learned
Magistrate allowed Crl.M.P.243 of 1997 filed by the petitioner
and held that prosecution will not lie against the petitioner
without sanction. First respondent/complainant approached
Sessions Court, Alappuzha in Crl. Revision Petition 53 of 1997
challenging that order. Learned Sessions Judge on the materials
found that no sanction under section 197(1) of Cr.P.C. is
necessary to prosecute the petitioner or to take cognizance
against him. The view upheld by the learned Magistrate based
CRRP 3137/08 2
on section 64(3) of Kerala Police Act was also set aside.
Revision petition was allowed and the order of discharge was set
aside. Magistrate was directed to proceed with the case against
the petitioner. Petitioner challenged that order before this
Court in Crl. R.P. 1443 of 2004. But that revision petition was
not prosecuted and was allowed to be withdrawn on the request
of the petitioner to raise all his contentions before the trial
Court. Petitioner thereafter raised the plea based on want of
sanction under section 197(1) of Cr.P.C. before the learned
Magistrate at the stage of hearing under section 239
contending that he cannot be prosecuted without sanction as
provided under section 197(1) of Cr.P.C. Learned Magistrate as
per order dated 26.8.2008 rejected that plea and posted the case
for framing charge for the offences under sections 325, 343,
330, 357, 109 and 120B read with section 34 of IPC. The order
is challenged in this revision.
2. Learned counsel appearing for revision petitioner and
learned counsel appearing for first respondent were heard.
3. The learned counsel argued that in view of the
permission granted by this Court as per order in Crl.R.P. 1443 of
2004 petitioner is entitled to raise the defence that he cannot be
prosecuted without sanction under section 197(1) of Cr.P.C.
CRRP 3137/08 3
before the Magistrate and the order of the learned Sessions
Judge in Crl.R.P. 53 of 1997 will not prevent petitioner from
raising the defence. It is argued that the facts of the case would
reveal that petitioner was discharging his official duty and hence
sanction as provided under section 197(1) is mandatory.
Learned counsel appearing for first respondent pointed out that
even though the question of sanction under section 197(1) of
Cr.P.C. could be raised by an accused at any stage of the trial,
there is no material before the learned Magistrate to uphold the
plea as after the finding of the learned Sessions Judge, only
complainant was examined and learned Magistrate found that
the charge is to be framed. It is argued that petitioner if at all is
entitled to raise the plea after recording the evidence
substantiating the plea and not at this stage and if on the
evidence it is shown that petitioner was discharging his official
duty, it could be raised at that stage. There is force in the
submission.
4. When the learned Magistrate took cognizance of the
offence petitioner contended that sanction under section 197 (1)
of Cr.P.C. is a must before taking cognizance and for
prosecuting the petitioner. Though learned Magistrate upheld
that contention, learned Sessions Judge in Crl.R.P. 53 of 1997
CRRP 3137/08 4
reversed that order and held that sanction is not necessary.
Though petitioner challenged that order before this Court, the
revision was dismissed as withdrawn. True, petitioner was
permitted to raise all the defence before learned Magistrate.
But it does not mean that petitioner is entitled to raise plea at
this stage before relevant facts are brought out. Though the
first order was passed immediately after taking cognizance,
thereafter only complainant was examined and he was not even
allowed to be cross-examined. In such circumstances there is no
material to enable petitioner to raise the plea as learned
Magistrate cannot go into that question, in view of the finding of
learned Sessions Judge in Crl.R.P.53 of 1997 in the absence of
additional materials. If on subsequent evidence being let in,
petitioner could substantiate his plea that he is entitled to the
protection under section 197(1) of Code of Criminal Procedure,
petitioner is entitled to move an application at that stage or is
entitled to raise the plea after recording evidence.
Revision is disposed accordingly.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-