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P.Kunhi Bava vs Thazhepuram Nabeesu on 14 February, 2007

Kerala High Court
P.Kunhi Bava vs Thazhepuram Nabeesu on 14 February, 2007
       

  

  

 
 
  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

                             ----------------------

                         Crl.M.C.No.2712 of 2006

                       ----------------------------------------

              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

Crl.M.C.No.2712/06 12

Crl.M.C.No.2712/06 13

R.BASANT, J

C.R.R.P.No.

ORDER

21ST DAY OF JULY 2006

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