IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 477 of 2007()
1. V.MURALIDHARAN NAIR,
... Petitioner
Vs
1. SAJU.M.ANTONY S/O.ANTONY,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.S.SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :23/02/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.477 of 2007
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Dated this the 23rd day of February 2007
O R D E R
The petitioner is a Circle Inspector of Police. He faces
allegations interalia under Section 326 read with 34 I.P.C.
Cognizance has been taken on the basis of a private complaint
filed by the respondent/complainant. After cognizance was
taken, the petitioner came to this court with the grievance that
the cognizance taken offends the mandate of Section 197 Cr.P.C.
The petitioner’s plea for protection under Section 197 Cr.P.C
was earlier not considered by the learned Magistrate and the
revisional court but this court observed in the order dated
22/01/2004 in Crl.M.C.No.3148 of 2000 that the petitioner can
claim discharge under Section 245 Cr.P.C.
2. The petitioner, accordingly, raised a claim for
discharge under Section 245(2) Cr.P.C. The learned Magistrate
took up the matter for consideration and by the impugned order
(copy of which is produced as Annexure-IV) directed that the
said question – as to the requirement of sanction under Section
197 Cr.P.C shall be raised as a point and considered later at the
time of final argument.
Crl.M.C.No.477/07 2
2. The learned counsel for the petitioner submits that
the approach made by the learned Magistrate is absolutely
incorrect and runs counter to the law and also the specific
directions issued by this court in Annexure-II. I find merit in that
contention. Cognizance cannot be taken by a court if the
requirement of Section 197 Cr.P.C are not satisfied. The bar is
against taking cognizance and not against continuing with the
proceedings. The learned Magistrate, at the stage of taking
cognizance, is bound to consider whether sanction under Section
197 Cr.P.C is necessary or not. Cognizance is taken ex parte and
therefore, at that point of time, it is possible that the learned
Magistrate may not have applied his mind pointedly to that
question. But when the accused receives summons, he is
certainly entitled to contend that the ex parte cognizance taken
against him is bad for the reason that it offends Section 197
Cr.P.C. When that objection is raised, it is impermissible for the
court to relegate consideration of that question at any later
stage. If that were permitted, that would render sterile the
protection under Section 197 Cr.P.C which mandates the
cognizance cannot be taken except with the sanction of the
Crl.M.C.No.477/07 3
court. This position can be reiterated in Sankaran Moitra v.
Sadhna Das [AIR 2006 SC 1599]. I am, therefore, of the opinion
that Annexure-IV order is grossly incorrect. I am, in these
circumstances, of the opinion that it is not necessary to wait for
issue and return of notice to the respondent/complainant in the
matter.
3. This Criminal Miscellaneous Case is, in these
circumstances, allowed. The learned Magistrate is directed to
consider CMP.No.245 of 2006 wherein the claim for discharge
under Section 245(2) Cr.P.C has been raised on the ground that
the cognizance taken is bad for want of sanction under Section
197 Cr.P.C straight away on the basis of the materials presently
available in the proceedings.
Hand over copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.477/07 5
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006