IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2712 of 2006()
1. P.KUNHI BAVA,
... Petitioner
2. C.DAMODARAN,
Vs
1. THAZHEPURAM NABEESU,
... Respondent
2. M.SURESH, P.C.NO.2973,
3. STATE OF KERALA, REP. BY
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.GRASHIOUS KURIAKOSE
The Hon'ble MR. Justice R.BASANT
Dated :14/02/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.2712 of 2006
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Dated this the 14th day of February 2007
O R D E R
The petitioners are accused 1 and 2 in a prosecution
initiated against three persons (the second respondent herein is
the third accused) under Sections 323, 506(II) and 302 read with
34 I.P.C. The said proceedings has been initiated against them
by the first respondent herein. The first respondent is the
mother of the deceased person – one Mujeeb by name.
Cognizance was taken by the learned Magistrate. The necessary
enquiry was conducted. The second respondent/second
petitioner herein did not participate in the enquiry. The learned
Magistrate, by the impugned order, has committed accused 1
and 3 to the court of Session to face allegations interalia under
Section 302 I.P.C. Both the petitioners have assailed the
cognizance taken by the learned Magistrate . The first petitioner
assails the order of committal also. The second respondent has
not entered appearance but the learned counsel for the
petitioner contends that the contentions urged would apply to
the second respondent herein also who is the third accused who
has also been committed to the court of Session as per the
Crl.M.C.No.2712/06 2
impugned order.
2. The crux of the allegations against the accused persons
is that they, being Additional Sub Inspector of Police and Police
Constables attached to the crime detection party of the
Thalassery police station, in the course of investigation of a crime
after apprehending two accused persons, went in search of the
son of the complainant. He was traced. The said person Mujeeb
took to his heals to escape from the police party. The police party
consisting of the accused persons chased the said Mujeeb. While
he was running away, he fell into a well. There is an allegation
that he was pushed into the well. After he fell into the well, there
was an attempt to get him out of the well. A heavy stone was
allegedly thrown into the well by the members of the police party
which allegedly hit the deceased on his head and he later
succumbed to such injury suffered by him. These, in short, are
the allegations raised.
3. The learned counsel for the petitioners submits that
the very cognizance taken by the learned Magistrate violates the
mandates of Section 197 Cr.P.C and therefore the entire
Crl.M.C.No.2712/06 3
proceedings is bad and vitiated for want of the requisite sanction
under Section 197 Cr.P.C. The learned counsel, in these
circumstances, prays that the cognizance taken by the learned
Magistrate may be set aside.
4. The petitioners, admittedly, are not public servants not
removable from his office save by or with the sanction of the
Government. Section 197(1) Cr.P.C does not therefore
admittedly apply to them.
5. A contention is raised that under the notification issued
by the State Government under Section 197(3) Cr.P.C dated
06/12/1977, the petitioners are entitled to the protection of
Section 197(2) Cr.P.C and that the petitioners are claiming the
protection not under Section 197(1) but under Section 197(2)
Cr.P.C on the strength of the notification dated 06/12/1977 issued
under Section 197(3) Cr.P.C.
6. There has been a controversy as to whether the said
notification which offers protection to the officials of the police
force engaged in law and order duty would make them eligible to
claim the protection of Section 197(2) Cr.P.C. But the said
Crl.M.C.No.2712/06 4
question appears to be concluded by the decision of a Division
Bench of this court in Sarojini v. Prasannan [1996(2) KLT 859].
The learned counsel for the petitioners submits that it is not
necessary to rely on the said decision any more in the light of the
later decision of the Supreme Court in Rizwan Ahmed Javed
Shaikh v. Jammal Patel [2001 SC 2198]. In both these decisions,
the earlier decision of the Single Bench of this court in
Muhammed v. Sasi [1985 KLT 404] has been considered and
disapproved. I am of the opinion that it is not necessary to
consider that question in any further detail as the decision in
Rizwan Ahmed Javed Shaikh v. Jammal Patel [AIR 2001 SC 2198]
squarely covers the issue and protects officers/officials like the
petitioners who fall within the sweep of the members of the
Kerala Police Force, which force is charged with the maintenance
of public order. It is, therefore, not necessary to pointedly
consider the question whether the petitioners who are admittedly
members of the Kerala Police Force were engaged in
maintenance of public order or maintenance of law and order. In
the light of the decision of the Supreme Court in Rizwan Ahmed
Crl.M.C.No.2712/06 5
Javed Shaikh v. Jammal Patel [AIR 2001 SC 2198] the petitioners
who fall within the sweep of the notification – being members of
the Kerala Police Force are certainly entitled to the protection of
Section 197(2) Cr.P.C.
7. While the learned counsel for the petitioners submits
that all the accused persons were acting (or purporting to act) in
the discharge of their official duty, the learned counsel for the
respondent/complainant contends that the precise overt acts
alleged against the accused persons must lead the court to the
conclusion that they were not acting or purporting to act in the
discharge of their official duty. Pushing a person into the well
and throwing a stone on the head of the person who had fallen
into the well cannot be held to be acts falling within the sweep of
the expression ” acting or purporting to act in the discharge of
official duty” of such public servants. Therefore, they are not
entitled to the protection of Section 197(2), at any rate, contends
the learned counsel for the respondent.
8. This question as to how the expression “acting or
purporting to act in the discharge of official duty” is to be
Crl.M.C.No.2712/06 6
understood has been the subject matter of discussion in several
judicial precedents. One of the earliest decision on the point is
that by the Constitutional Bench in Matajog Dobey v. H.C.Bhari
[AIR 1956 SC 44]. The Bench said as extracted below on the test
to be adopted for finding out whether Section 197 of the code was
attracted or not. The said passage is extracted with approval in
the latest decision on this aspect by the Supreme Court in
Sankaran Moitra v. Sadhna Das [AIR 2006 SC 1599].
” Slightly differing tests have been laid down in the
decided cases to ascertain the scope and the meaning
of the relevant words occurring in Section 197 of the
Code: “any offence alleged to have been committed by
him while acting or purporting to act in the discharge
of his official duty”. But the difference is only in
language and not in substance. The offence alleged to
have been committed must have something to do, or
must be related in some manner, with the discharge of
official duty. No question of sanction can arise under
Section 197, unless the act complained of is an
offence; the only point to determine is whether it was
committed in the discharge of official duty. There
must be a reasonable connection between the act and
the official duty. It does not matter even if the act
exceeds what is strictly necessary for the discharge of
the duty, as this question will arise only at a later
stage when the trial proceeds on the merit. What we
must find out is whether the act and the official duty
are so inter-related that one can postulate reasonably
that it was done by the accused in the performance of
the official duty, though possibly in excess of the
Crl.M.C.No.2712/06 7
needs and requirements of the situation.”
9. The principle though clearly stated presents practical
problems in its applications. Two Judge Bench of the Supreme
Court in Rizwan Ahmed Javed Shaikh v. Jammal Patel AIR 2001
SC 2198 adverted to the earlier observations of the Supreme
Court in S.B.Saha v. K.S.Kochar [AIR 1979 SC 1841] where this
dilemma was referred to the Supreme Court in the following
words.
” The words “any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his official duty” employed in
Section 197(1) of the Code, are capable of a narrow
as well as a wide interpretation. If these words are
construed too narrowly, the section will be rendered
altogether sterile, for, “it is not part of an official duty
to commit an offence, and never can be”. In the
wider sense, these words will take under their
umbrella every act constituting an offence committed
in the course of the same transaction in which the
official duty is performed or purports to be
performed. The right approach to the import of these
words lies between two extremes. While on the one
hand, it is not every offence committed by a public
servant while engaged in the performance of his
official duty, which is entitled to the protection of
Section 197(1) an act constituting an offence, directly
and reasonably connected with his official duty will
require sanction for prosecution under the said
provision. As pointed out by Ramaswami.K in
Crl.M.C.No.2712/06 8
Baijnath v. State of Madhya Pradesh, AIR 1966 SC
220 at P.222 “It is the quality of the Act that is
important and if it falls within the scope and range of
his official duties, the protection contemplated by
Section 197 of the Criminal Procedure Code will be
attracted.”
(emphasis supplied)
10. The real test to be applied is reiterated in the same
decision in paragraph 15 in the following words which have been
accepted by the three Judge Bench in Sankaran Moitra v. Sadhna
Das [AIR 2006 SC 1599] also in paragraph 15 of Rizwan Ahmed
Javed Shaikh v. Jammal Patel AIR 2001 SC 2198:
“The real test to be applied to attract the
applicability of Section 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.”
(emphasis supplied)
11. The question again is one of applying this real test to
the facts scenario available in this case. The learned counsel for
Crl.M.C.No.2712/06 9
the respondent clearly concedes that for all acts done till the
deceased who was chased by the petitioners reached the well
would qualify for protection under Section 197 Cr.P.C. So far,
there is no controversy. The crucial question is hence whether
the act which led to the deceased falling into the well and the
alleged subsequent throwing of the stone into the well after
exhorting the accused to come out would qualify for exemption
under Section 197 Cr.P.C.
12. It is of course not the duty of any public servant to
commit any offence. At the same time every culpable act
committed by him under the cloak or the cover of his official duty
will not qualify him for protection under Section 197 Cr.P.C.
Alert appreciation of facts is necessary. Without any dispute, the
deceased was required by the petitioners, in accordance with law,
to be arrested. They were justified in chasing him to ensure his
arrest. Even after he fell into the well, the petitioners were
obliged to save him and get him out of the well to arrest him, in
accordance with law. It can certainly be said that it is not part of
the official duty to throw a stone into the well at a person who
Crl.M.C.No.2712/06 10
while being chased had fallen into the well. But according to me,
in any view of the matter, the petitioners cannot be denied the
protection of Section 197 Cr.P.C in as much as they were
essentially performing the function in the discharge of their
official duty – of attempting to arrest the deceased who was
required to be arrested in accordance with law. Throwing a stone
into the well even if it be for the purpose of ensuring that the
deceased comes out of the well may not be strictly justified; but at
any rate, it cannot be held that such conduct was totally outside
the official duty of the petitioners. They were essentially
performing official duty and were acting or purporting to act in
the discharge of their official duty for the purpose of Section 197
Cr.P.C and to me, it will be imprudent and irrational to cull out
the one alleged act of throwing a stone into the well where the
deceased accused had fallen, to take it out of the sweep of Section
197 Cr.P.C.
13. It follows from the above discussions that applying the
real test enumerated in Rizwan Ahmed Javed Shaikh v. Jammal
Patel [AIR 2001 SC 2198] accepted in Sankaran AIR 2006 SC
Crl.M.C.No.2712/06 11
1599 the conclusion is safe that the accused persons that is
petitioners 1 and 2 herein and the second respondent/the third
accused are entitled to the protection of Section 197(2) on the
strength of the notification under Section 197(3) Cr.P.c dated
06/12/1977. Cognizance taken must therefore be held to be bad
in law.
14. This Criminal Miscellaneous Case is in these
circumstances allowed. Cognizance taken by the learned
Magistrate and all subsequent acts including C.P.79/05 and
S.C.No.106/06 against the petitioners as also the second
respondent are quashed. This order will not in any way fetter the
liberty of the first respondent to prosecute the accused if and
after obtaining the requisite sanction under Section 197 of the
Cr.P.C, in accordance with law.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.2712/06 13
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006