High Court Kerala High Court

Baby M.P. vs State Of Kerala – Rep. By on 5 March, 2009

Kerala High Court
Baby M.P. vs State Of Kerala – Rep. By on 5 March, 2009
       

  

  

 
 
  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.
        -----------------------------------------------------
                 CRL.M.C.No.1113 OF 2006
      -----------------------------------------------------
      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

CRL.M.C.No.1113/06 -2-

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

CRL.M.C.No.1113/06 -5-

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)

CRL.M.C.No.1113/06 -7-

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

CRL.M.C.No.1113/06 -8-

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

CRL.M.C.No.1113/06 -9-

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