IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 475 of 2008()
1. PRASOB,S.I.OF POLICE
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
Crl.R.P.No.4202/2007 &
475 OF 2008
===========================
Dated this the 8th day of January,2009
ORDER
Whether a Sub Inspector of Police could be
prosecuted for an act allegedly done by him while
acting or purporting to act in discharge of his
official duty, without obtaining sanction under
section 197 of the Code of Criminal Procedure?.
Whether dismissal of a petition filed for discharge
under section 245(2) of Code of Criminal Procedure
on the ground that Sub Inspector of Police is not
considering whether sanction is necessary to an
officer not removable from his office only with the
sanction of the Government and so sanction under
sub section (1) of Section 197 is not necessary is
a bar for considering the claim that sanction is
necessary as provided under sub section (2) of
Section 197 of Code of Criminal Procedure?. These
are the questions to be decided in these revision
petitions.
CRRP 475/08 & 4202/2007 2
2. Crl.R.P.4202/2007 is filed by first
accused, the then Sub Inspector of Police,
Irinjalakuda challenging the order of dismissal of
C.M.P.768/2007 filed by him under sub section (2)
of Section 245 of Code of Criminal Procedure.
Crl.R.P.475/2008 is filed by him challenging the
order framing charge against him subsequent to the
dismissal of CMP 768/2007. First respondent is the
complainant. The complaint was filed before the
learned Magistrate alleging that the four accused
including the revision petitioner committed
offences under sections 323,324,341,342,427,506(i)
read with section 34 of Indian Penal Code. First
respondent was a practising lawyer. Case of the
first respondent in the private complaint was that
on 23.2.2006 at about 5 p.m he was manhandled by
the accused near Irinjalakuda Post Office after
wrongfully detaining him and also later at the
Police Station. Case of the revision petitioner is
that the incident occurred when revision
petitioner in his capacity as the Sub Inspector of
CRRP 475/08 & 4202/2007 3
Police was questioning the driver involved in a
collision of a car and bus at the public road on
23.2.2006, near Irinjalakuda Head post office at 5
p.m. It is the case of the revision petitioner
that first respondent interfered and obstructed the
official duties of the revision petitioner as a
public servant and he caught hold of his uniform
and also beat him and therefore along with the
police constables, first respondent was arrested
and at that time some force had to be used and
first respondent was then taken to Irinjalakuda
Police Station and Crime 111/2002 of Irinjalakuda
Police Station for the offences under sections
341,353 and 332 of IPC was registered. It is
contended that first respondent escaped from police
custody with the help of his friends and another
crime 113/2002 of Irinajalakuda Police Station was
reigistered for the offences under section 143,147,
506(i),225(b), 353 read with section 149 of IPC
was registered and the private complaint was lodged
as a counterblast to the criminal cases registered
CRRP 475/08 & 4202/2007 4
against him and as the revision petitioner at the
time of the alleged commission of the offences was
discharging his official duty as the Sub Inspector,
he is entitled to the protection under Section 64
of Police Act and without obtaining sanction he
cannot be prosecuted. It is also contended that
without obtaining sanction as provided under
section 197 of Code of Criminal Procedure
prosecution as against him will not lie. First
respondent resisted the claim contending that
revision petitioner did not commit the offences in
discharge of his official duty. It was contended
that revision petitioner cannot inflict injuries on
first respondent as done in this case and offences
under sections 323,324, 427 and 506(i) cannot be
committed while performing his official duty and
therefore no sanction is necessary either under
section 64 of the Police Act or Section 197 of the
Code of Criminal Procedure. It was also contended
that for the very same purpose revision petitioner
had earlier filed CMP 9899/2005 which was
CRRP 475/08 & 4202/2007 5
dismissed on 25.2.2006 and another petition for the
same relief is not maintainable. Learned
Magistrate as per order dated 17.9.2007 though
found that dismissal of the earlier petition is
not a bar, dismissed the application holding that
sanction is not necessary under section 197(1) of
the Code of Criminal Procedure as revision
petitioner being a Sub Inspector is not a public
servant who is removable only by the State
Government as provided under sub section (1) of
Section 197 of Code of Criminal Procedure.
Revision is filed challenging the order contending
that in view of the Division Bench decision of this
court in Sarojini v. Prasannan (1996 (2) KLT 859),
no prosecution will lie against a Sub Inspector of
Police or a Police Constable in respect of the act
committed by him as a public servant in discharge
of his official duty under sub section (2) of
Section 197 in view of the Notification issued by
the Government dated 16.12.1997 which was followed
CRRP 475/08 & 4202/2007 6
by this court in Shoukkathali v. State of Kerala
(2005(3) KLT 634). Learned counsel relying on the
decision in Shoukkathali’s case and the Apex Court
in Sankaran Moitra v. Sadhna Das (2006(4) SCC 584),
Rakeshkumar Mishra v. State of Bihar (2006) 1 SCC
557) argued that sanction is mandatory as provided
under section 197 of Code of Criminal Procedure to
prosecute the revision petitioner as he was
discharging his official duty as a Sub Inspector of
Police at the time of alleged commission of the
offence and therefore learned Magistrate should
have discharged the petitioner under section 245(2)
of Code of Criminal Procedure.
3. Learned counsel appearing for first
respondent relying on the decision of the Apex
Court in Amrik Singh v. State of Pepsu (A.I.R. 1955
S.C.309) and in Sankaran Moitra’s Case (supra)
argued that revision petitioner cannot commit an
offence under section 323 and 324 and claim that
those offences were committed while discharging
CRRP 475/08 & 4202/2007 7
his official duty and therefore no sanction is
necessary. Learned counsel also argued that when
the earlier petition filed by the revision
petitioner was dismissed by the learned Magistrate,
a second application will not lie and therefore
there is no reason to interfere with the order
passed by the learned Magistrate.
4. Sub section (2) of Section 245 of the Code
of Criminal Procedure provides that nothing in the
section shall be deemed to prevent a Magistrate
from discharging the accused at any previous stage
of the case if he considers the charge to be
groundless after recording reasons. Under sub
section (1) of Section 245, if after recording the
evidence as provided under section 244 of Code of
Criminal Procedure the Magistrate considers that no
case against the accused has been made out which if
unrebutted would warrant his conviction,
Magistrate shall discharge him after recording
reasons. The discharge provided under sub section
(1) is after recording the evidence as provided
CRRP 475/08 & 4202/2007 8
under section 244 and considering the evidence and
satisfying that even if the said evidence stand
unrebutted, the accused cannot be convicted. But
sub section (2) of Section 245 of Code of Criminal
Procedure enables the Magistrate to discharge the
accused before recording the evidence under
section 244, if he considers the charge to be
groundless.
5. Section 197(1) of Code of Criminal
Procedure provides that when any person who is a
public servant not removable from his office save
by or with sanction of the Government is accused
of any offence alleged to have been committed by
him while acting or purporting to act in the
discharge of his official duty, no court shall take
cognizance of such offence except with the previous
sanction as provided under clause (a) or clause
(b) as the case may be. Sub section (2) provides
that no court shall take cognizance of any offence
alleged to have been committed by any member of the
Armed Forces of the Union while acting or
CRRP 475/08 & 4202/2007 9
purporting to act in the discharge of his official
duty except with the previous sanction of the
Central Government. Learned Magistrate holding
that revision petitioner is only a Sub Inspector of
Police who is not a public servant removable from
his office only with the sanction of the
Government held that sub section (1) of Section 197
is not attracted. As rightly pointed out by the
learned counsel appearing for revision petitioner,
applicability of sub section (2) of Section 197 of
the Code in view of the Notification issued by the
State Government was not considered by the learned
Magistrate, evidently because the decision of the
court on the point was not brought to the notice of
the learned Magistrate. That question was
considered by the Division Bench of this Court in
Sarojini’s case (supra). By Notification dated
16.12.1977 State of Kerala directed that sub
section (2) of Section 197 of the Code shall apply
to all members of Forces charged with the
maintenance of public order. Under sub section (3)
CRRP 475/08 & 4202/2007 10
of Section 197, State Government may by
notification, direct that provisions of sub
section (2) shall apply to such class or category
of the members of the Forces charged with the
maintenance of public order as may be specified
therein, wherever they may be serving, and
thereupon the provisions of that sub-section will
apply as if for the expression “Central
Government”occurring therein, the expression “State
Government” were substituted. Construing the
notification in the light of sub section (3) of
Section 197 of the Code, the Division Bench held
that by the Notification provisions of sub section
(2) have been made applicable to members of Kerala
State Police Force charged with maintenance of
public order who formed a class of Police Force and
though conceptually distinct, law and order are
perhaps two sides of the same coin and it is
unnecessary that there should be anything specific
to show that those charged with maintenance of law
and order have also been entrusted with the
CRRP 475/08 & 4202/2007 11
maintenance of public order which is not so
different or unrelated to require a specific
investiture but is implicit in the former function.
It was therefore held that even for prosecuting a
Sub Inspector of Police or a Police Constable
sanction as provided under sub section (2) of
Section 197 is necessary and the decision to the
contrary by a learned single Judge in Muhammed v.
Sasi (1985 KLT 404) is not good law. It was held
that if there is reasonable nexus between the
impugned act/offence and discharge of his official
duty, he is entitled to the protection intended by
the Notification. This decision was followed by
this Court in Shoukkathali’s case (supra).
Therefore revision petitioner who was admittedly a
Sub Inspector of Police, having jurisdiction in
that area and was discharging his official duty is
definitely entitled to claim the protection under
section 197(2) of the Code of Criminal Procedure,
provided the act alleged was done in discharge of
his official duty as a public servant.
CRRP 475/08 & 4202/2007 12
6. Though learned counsel appearing for first
respondent argued that revision petitioner is not
entitled to file another petition for the same
relief in view of dismissal of CMP 9899/2005 on
25.2.2006, by the said order learned Magistrate
did not consider the question whether revision
petitioner is entitled to the protection under sub
section (2) of Section 197 of the Code. As that
aspect was not decided earlier it cannot be said
that an application will not lie, especially when
sub section (2) of Section 245 enables the court to
discharge the accused at any stage prior to the
stage under sub section (1) of Section 245 of Code
of Criminal Procedure.
7. The crucial question then is whether the
alleged acts done by the revision petitioner was
in discharge of his official duty.
8. Section 197 provides for sanction to take
cognizance of an offence committed by an accused,
while acting or purporting to act in discharge of
his official duty. Even according to first
CRRP 475/08 & 4202/2007 13
respondent, the alleged incident occurred at the
time when revision petitioner was discharging his
duty as Sub Inspector of Police. The case is that
when a car collided with a bus at the scene of
occurrence and revision petitioner was questioning
the driver, first respondent intervened. Though
learned counsel appearing for first respondent
argued that in discharge of his official duty, or
purporting to discharge his official duty revision
petitioner is not entitled to cause any hurt or
commit the offences alleged and therefore no
sanction to prosecute is necessary, the question
whether hurt if any caused is as alleged by first
respondent or as claimed by revision petitioner is
to be decided only after recording the evidence.
It is the case of the revision petitioner that
while he was discharging his duty as a public
servant, first respondent intervened and caused
obstruction in discharge of his official duty and
caught cold of his shirt and therefore revision
petitioner along with the police constables had to
CRRP 475/08 & 4202/2007 14
arrest the first respondent and in that process had
to use some force. Whether it is correct and
justifiable are matters which could be decided
only on recording the evidence. But in view of the
settled legal position in Sankaran Moitra’s case
(supra) and Rakeshkumar Mishra’s case(supra) it
cannot be said that even if the act alleged by
first respondent occurred, it was not done by the
revision petitioner not in the discharge of his
duty as a public servant. Therefore finding of
the learned Magistrate that sanction is not
necessary is not correct. The fact that sanction
is necessary to prosecute the revision petitioner
does not mean that revision petitioner cannot be
prosecuted. It only means that for the purpose of
prosecuting revision petitioner first respondent
has to obtain sanction under section 197(2) of
Code of Criminal Procedure and the order of
discharge will not amount to an order of acquittal.
The order passed in C.M.P.768/2007 dated
17.9.2007 is not sustainable and it is to be held
CRRP 475/08 & 4202/2007 15
that revision petitioner cannot be prosecuted
without obtaining sanction as provided under
section 197(2) of Code of Criminal Procedure.
Crl.R.P.4202/2007 is allowed. Revision
petitioner is discharged under section 245(2) of
the Code of Criminal Procedure holding that
sanction as provided under section 197(2) of Code
of Criminal Procedure is necessary to take
cognizance of the offence alleged against the
revision petitioner. It is made clear that after
obtaining sanction first respondent is entitled to
proceed against the revision petitioner.
In view of the order in Crl.R.P.4202/2007
Crl.R.P.475/2008 is disposed of setting aside the
charge framed as against the revision petitioner.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006