IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2641 of 2004(A)
1. SALIM RAJ, FORMER SUB INSPECTOR OF
... Petitioner
Vs
1. M.SURESH KUMAR, MUKKATTU VEEDU,
... Respondent
2. THE STATE OF KERALA, REP. BY THE
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :SRI.T.S.JOHN
The Hon'ble MR. Justice A.K.BASHEER
Dated :18/12/2008
O R D E R
A.K.BASHEER, J.
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CRL.R.P.No.2641 OF 2004
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Dated this the 18th day of December, 2008
O R D E R
This revision petition is directed against the order of
remand passed by the Additional District and Sessions (Adhoc)
Fast Track Court-II, Pathanamthitta, in Crl.A.No.39/1999
directing the trial court to hear the accused on the question
of sentence and dispose of the case in accordance with law.
2. Petitioner, who was working as Sub Inspector of
Police, was tried for offences punishable under Sections
342,348,232,325 and 506(ii) I.P.C. At the conclusion of the
trial, the learned Magistrate found the petitioner guilty under
Sections 342 and 323 I.P.C and he was accordingly convicted
and sentenced to undergo rigorous imprisonment for six
months for the offence under Section 342 I.P.C and also to pay
a fine of Rs.5,000/= and in default, to undergo simple
imprisonment for two months. He was also convicted and
sentenced to undergo rigorous imprisonment for one month and
to pay a fine of Rs.1,000/= under Section 323 I.P.C with a
default sentence of simple imprisonment for one month. It
was further directed that a sum of Rs.4,000/- shall be paid to
the complainant, if the fine amount was realised.
3. The above order was challenged by the petitioner
before the Sessions Court. The learned Sessions Judge while
confirming the order of conviction, took the view that the
order of the learned Magistrate could not be sustained in as
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much as the accused was not heard on sentence.
4. The above order of remand is under challenge in
this revision petition primarily on the ground that the
prosecution by itself was totally vitiated since the petitioner
being a public servant, prior sanction under Section 197(1) of
the Code of Criminal Procedure was not admittedly obtained.
Learned counsel points out that this contention was
specifically raised before the learned Sessions Judge. Several
decisions were also cited before the learned Sessions Judge in
support of the above contention.
5. Learned Sessions Judge in paragraph-9 of the impugned
judgment has dealt with the above contention thus:
9. The argument of appellant’s counsel
that sanction u/s 197 Cr.P.C was necessary in
this case does not appear to be sound. In order
to attract the requirement of sanction u/s 197
Cr.P.C, the accused must be a public servant
not removable from his office except by or with
the sanction of the Government and when the
offence alleged was committed while acting or
purporting to act in the discharge of this official
duty. Accused is not proved to be a public
servant who is not removable from his office
save by or with the sanction of the Government.
The offence of wrongful confinement and
causing hurt alleged in this case is not an act in
the discharge of the official duty of the accused.
Therefore, this argument has no force.”
6. Having heard learned counsel for the petitioner and
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learned counsel for respondent No.1/complainant, I am of the
view that there is considerable force in the contention raised
by the petitioner. In my view, learned Sessions Judge ought to
have dealt with the question of sanction appropriately. If the
petitioner ultimately succeeds on that issue, he may be
entitled to get an order of acquittal/discharge. Since, the
above question has not been considered in its proper
perspective in the light of the precedents, I am satisfied that
the case has to be remitted to the Sessions Court for fresh
disposal in accordance with law.
Therefore, the oder of the learned Sessions Judge is set
aside. Learned Sessions Judge shall hear the appeal afresh
and dispose it of in accordance with law. It will be open to the
petitioner and respondent No.1 to raise all their contentions
before learned Sessions Judge. The court below shall make an
earnest endavour to dispose of the case as expeditiously as
possible, at any rate, within six months from the date of receipt
of a copy of this judgment.
(A.K.BASHEER, JUDGE)
cl
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