IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4363 of 2006()
1. ABDU S/O.KKUNHAMMU CHUKKANPARAMBIL,
... Petitioner
Vs
1. SALIM, SUB INSPECTOR OF POLICE,
... Respondent
2. IBRAHIM MON S/O.ALAVI,
3. PATTARAKATH NAFEESA, D/O.CHERIYA BAVA,
4. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/11/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.4363 of 2006
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Dated this the 23rd day of November, 2009
ORDER
The revision petitioner is the complainant in C.C.No.601 of
1999 on the file of the Judicial Magistrate of the First Class-I,
Parappanagadi. He filed the above complaint against the first
respondent, the then Sub Inspector of Police, Thanur Police Station
and as against respondents 2 and 3, alleging offence under
Sections 109, 323, 324, 354, 506(i) read with Section 34 I.P.C. It is
with an allegation that on 13/7/1998 a police constable attached to
the Thanur Police Station went to the petty shop run by the revision
petitioner at Unnyal and summoned the revision petitioner to go
over to the Police Station on 14/7/1998 along with his wife. Though
the revision petitioner was not informed about the reason for he
being summoned to the police station, at 9.30 a.m. on 14/7/1998,
the revision petitioner along with his wife and neighbours went to
the police station and with the permission of the police
constable on duty he went to the room of the first respondent
wherein respondents 2 and 3 were present. Respondents 2 and 3
pointed out the revision petitioner and stated that he knew the
person to whom the respondents 2 and 3 paid money.
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Then, the first respondent went close to the revision petitioner
and showered him with filthy language, hit his head against the
table and demanded to pay a sum of Rs.15,000/-. Again, the
revision petitioner was hit at his chest with a stick. When the
wife of the revision petitioner intervened requesting not to hurt
the revision petitioner, she was also hurt and her modesty was
outraged by pulling out her saree .
2. After taking cognizance process was issued. There
after evidence was recorded under Section 244 of the Code of
the Criminal Procedure and on finding that there are materials
to sent the respondents for trial, a charge for offence under
Sections 109, 323, 324, 354, 506(i) read with Section 34 I.P.C.
was framed. When it was read over and explained, the
respondents 1 to 3 pleaded not guilty. Hence they were sent for
trial. When the case was posted for cross-examination of the
revision petitioner and the witnesses, the learned counsel for the
first respondent submitted that sanction under Section 197 of
the Code of Criminal Procedure was not obtained to prosecute
the first respondent who is a public servant. On the basis of the
submission made by the learned counsel for the first respondent,
Crl.R.P.No.4363 of 2006
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either side was heard. Though the revision petitioner argued
after giving reliance to a number of decisions that sanction is
required to prosecute a public servant only when the offence
alleged was committed during the course of discharge of the
official duties and in this it is not so. The learned Magistrate did
not accept the contention. Ultimately, the first respondent was
acquitted for want of sanction under Section 197 of the Code of
Criminal Procedure. Assailing the legality, correctness and
propriety of the above order, this revision petitioner was filed.
3. Having heard either side, I find that there is no proof
at present to come to a conclusion that the revision petitioner
and his wife were summoned to the police station through a
police constable that too, without issuing notice as contemplated
under Section 160 of the Code of Criminal Procedure in the
course of discharge of official duties. Even if it is assumed the
revision petitioner and his wife were summoned to police station
in discharge of any official duty, so long as there is no case that
the revision petitioner and his wife had committed any breach of
law in the police station, the first respondent had no authority to
assault the revision petitioner or to outrage the modesty of the
Crl.R.P.No.4363 of 2006
4
wife of the revision petitioner or to intimidate them. There is no
material furnished by the revision petitioner to conclude that the
offence alleged was committed during the course of the
discharge of the duties. Where as it is vaguely stated that the
first respondent is a public servant and to prosecute the first
respondent sanction under Section 197 of the Code of the
Criminal Procedure is required. There is no finding by the lower
court that there is any nexus between the official act and the
offence committed by the first respondent. For that reason itself
the order impugned is not sustainable.
4. The learned counsel for the first respondent
submitted that the revision petitioner and his wife were
summoned to the police station upon the basis of a complaint
filed by the second and third respondent and unfortunately those
documents were destroyed as per the directions of the
Superintendent of Police. However, at present, there is no
documentary evidence. It is a matter of evidence as to whether
the revision petitioner and his wife were summoned to the police
station during the course of official duty or not. At present,
there is no material to show that the revision petitioner and his
Crl.R.P.No.4363 of 2006
5
wife were summoned to the police station and assaulted and
outraged the modesty during the course of discharge of official
duties. Whatever may be the reasoning for the summoning them
to the police station so long as there is no case that the revision
petitioner or his wife had committed breach of law or that for
any valid reason the first respondent had to exercise force
against the revision petitioner and his wife, at any stretch of
imagination, it could be held that the offence alleged was
committed during the course of the discharge of the duties. It is
also pertinent to note that there is no case that either the
revision petitioner is an accused who had committed a
cognizable offence. Even if it is assumed that they are witnesses,
the summoning of the wife of the revision petitioner to the police
station is forbidden by the proviso to section 160 of the Code of
Criminal Procedure. It is in violation the statutory bar she was
summoned to the police station, assaulted and modesty was
outraged. I fail to find that it was during the course of discharge
of official duties. Learned magistrate palpably went wrong in
concluding that the prosecution is bad for want of sanction under
Section 197 of the Code of Criminal Procedure. In the above
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circumstance, I find that the order impugned is not sustainable
and it is liable to be set aside in exercise of the revisional
powers.
In the result, the revision petition is allowed. While
setting aside the order impugned the lower court is directed to
proceed the trial and dispose the case in accordance with law at
the earliest.
P.S.GOPINATHAN, JUDGE
skj.