Anoop Jose v. State of Kerala and Sabu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936** ## **CRL.MC.NO. 4045 OF 2012** **----------------------------------** ***[AGAINST ALL PROCEEDINGS IN C.C. NO.504/2010 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KOCHI]** ***THE LOWER COURT PROCEEDINGS NUMBER C.C. NO.504/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.I, KOCHI, OCCURRING IN CRL.M.C. NO.4045/2012 IS CORRECTED AND SUBSTITUTED AS C.C. NO.504/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, KOCHI, AS PER ORDER DTD. 02/01/13 IN CRL.M.A. NO.60/2013 IN CRL.M.C. NO.4045/2012.** **..............** ## **PETITIONER/2ND ACCUSED:** **-----------------------------------------** **ANOOP JOSE, AGED 34 YEARS,S/O.K.C.JOSEPH, SUB INSPECTOR OF POLICE, CHANGANASSERY (RESIDING AT KANJIRAPPALLIL HOUSE, KUZHIMATTOM P.O, KOTTAYAM).** **BY ADV. SRI.K.SASIKUMAR.** ## **RESPONDENT/COMPLAINANT & THE STATE :** **-----------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN -682 031.** ## **2. SABU, S/O. LATE ANTONY,** **AGED 40 YEARS, C.C.15/1869, KIZHAKECHEENVALLY, EAST OF SATHA TEMPLE, PALLURUTHY ROAD, KOCHI-6.** **R1 BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB, R2 BY ADV. SRI.P.CHANDRASEKHAR.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.4045/2012:** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **ANNEXURE A1: A TRUE COPY OF THE C.M.P FILED BY THE 2ND RESPONDENT BEFORE J.F.C.M-I, KOCHI IN C.C. NO.(504/2010)*** ***CORRECTED AS C.C. NO.504/2011 VIDE ORDER DATED 02/01/2013 IN CRL.M.A. NO.60/13.** **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.4045 of 2012 ---------------------------------------------Dated this the 10[th] day of June, 2014 ## **ORDER** This petition is filed u/s.482 of Cr.P.C. to quash AnnexureA1 complaint filed before Judicial First Class Magistrate Court-I, Kochi for offence punishable u/s.325, 506(ii), 211, 119, 202, 203, 167, 197, 218 r/w.120B IPC. The above complaint was filed by the 2[nd] respondent against four persons alleging the aforesaid offences. The petitioner is the 2[nd] accused in the above case, who was the then Sub Inspector of Police, Harbour Police Station, Willington Island, Kochi. The petitioner contended that the alleged incident was occurred on 20.1.2009 whereas Annexure-A1 complaint was filed only on 20.4.2010 and there is a long delay of more than one year and therefore, it is barred by limitation. Moreover, previous sanction of the Government is necessary for prosecuting the petitioner, since he is a public servant as mentioned u/s.197 of the Code of Criminal Crl.M.C.No.4045/12 2 Procedure. If trial is proceeded on the basis of Annexure-A1 complaint, it is a mere abuse of the process of Court. 2. The 2[nd] respondent's allegation in Annexure-A1 complaint was that on 20.1.2009 he was a driver of a container lorry bearing Registration No.Kl-7J-1974 and at 8 p.m., after unloading the articles in the container terminal, parked the lorry on the side of the road east of BOT bridge near ATH hotel without making any obstruction for public traffic and he engaged in calculating the accounts of that day. At that time, the 1[st] accused came there and informed the complainant not to park the vehicle there and wanted him to remove the vehicle to the 'pay and park' yard. But, the 2[nd] respondent refused to take the vehicle from there. Since the 'pay and park' yard collected excess parking fee, the vehicle owners were reluctant to park the vehicles in the pay and park yard. There was a common agitation with regard to that aspect. Therefore, if 2[nd] respondent takes the vehicle to the parking yard, the other drivers will oust him from their union. Moreover, the accused called obscene words and took the 2[nd] respondent to the police station and assaulted him. At that Crl.M.C.No.4045/12 3 time, the 2[nd] respondent informed them that he is a law student and in addition to that, he is doing work. Without hearing him, they brutally manhandled him, as a result, he sustained serious injuries and subsequently produced before Court and registered crime No.72/2009 of Harbour Police station, Kochi. In the circumstances, he filed Annexure-A1 complaint before Judicial First Class Magistrate Court-I, Kochi. Hence, this petition. 3. The learned counsel appearing for the petitioner contended that on 20.1.2009 at 9.30 p.m., the 2[nd] respondent, who was the driver of the vehicle, had not abide by the directions issued by the Police officers. Therefore, the above crime was registered against the 2[nd] respondent u/s.283 and 353 IPC, which is pending before Judicial First Class Magistrate Court-I, Kochi. In order to make defence in that case, a false case was foisted by the 2[nd] respondent by filing Annexure-A1 complaint. There is a long delay of one year and four months in filing the complaint. Moreover, the petitioner is entitled to get the protection u/s.197 (1) Cr.P.C. and Sections 64 of the Kerala Police Act, 1960. The learned Crl.M.C.No.4045/12 4 counsel for the petitioner relied on the Apex Court decision in _**Arun Kumar & another**_ v. _**Abdubaker**_ [2012 (3) KHC 724], _**Unni Rajan**_ v. _**State of Kerala and anothe**_ r [2012 (2) KHC 707], _**Sankaran Moitra**_ v. _**Sadhna Das and another**_ [2006 (4) SCC 584], _**Sarojini**_ v. _**Prasannan**_ [1996 (2) KLT 859] and _**Shoukkathali**_ v. _**State of Kerala**_ [2005 (3) KLT 634]. 4. The learned counsel appearing for the 2[nd] respondent strongly resisted the above contention and contended that no sanction is necessary for prosecuting the accused, since they are not public servants not removable from their office save by or with the sanction of the Government or accused of any offence while acting or purporting to act in discharge of their official duty. Crl.M.C.No.2860/2001 filed by 1[st] and 4[th] accused was disposed by this Court reserving the right to file applications before trial court. According to the learned counsel for the 2[nd] respondent, the petitioner is not entitled to get protection u/s.197(2) also. The learned counsel for the 2[nd] respondent relied decisions in _**Prakash P. I.P.S**_ v. _**State of Kerala and another**_ [2011 (2) KHC 1] and _**Center for P.I.L**_ . v. _**Union of India**_ [2005 Crl.M.C.No.4045/12 5 ## KHC 1851]. 5. Before analysing the respective contentions, I wish to advert to the relevant portion of Section of 197 Cr.P.C., ## which reads as follows: “ **Prosecution of Judges and public servants** - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the 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 - (a) in the case of a person who is empoyed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government, provided xxxxxxx (omitted) (2) 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 purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply o 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” occuring therein, the expression “State Government” were substituted. (3A)xxxxxxx(omitted) (3B)xxxxxxx(omitted) (4)The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held”. Crl.M.C.No.4045/12 6 In order to attract 197 Cr.P.C, it is necessary that accused person must have committed the offence while acting or purporting to act in discharge of his official duty. The words “any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty” under section 197(1) of the Code is very relevant. This protection is given to any person who is or was a Judge, or Magistrate or a public servant not removable from his office save by or with sanction of government accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Therefore , Government employees (both Central and State) u/s.197 (1) (a) (b) of the Code alleged to have committed any offence are entitled to get this protection as if their employment is in connection with the affairs of the Union or State. The members of armed forces are protected under Section 197(2) of the Code and this protection has been extended under Section 197(3) of the Code to the members of the force charged with the maintenance of public order where ever they may be serving, the state government may by issuing a Crl.M.C.No.4045/12 7 notification, specify such class or category as mentioned u/s 197(3) of the Code. A reading of Section 197(1) shows that all the officers are not protected u/s.197(1) Cr.P.C. Only those officers or public servant not removable from his office save by or with the sanction of the Government accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty alone is protected. 6. The object behind Sec.197 of the Code is to guard some proceedings against public servants by obtaining permission of the Government or superior officer for prosecution. The verdict of the constitution bench of the Apex Court in **K.Satwant Singh V. State of Pubjab** (AIR 1960 SC 266) is very relevant. In that case, the Supreme Court held as follows. (Supreme Court criminal Digest Vol.iv11321) “Some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe and offence punishable under S.161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. Supreme Court has no hesitation in saying that where a public servant Crl.M.C.No.4045/12 8 commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences. H was not prosecuted for any offence concerning his act of certification. He was prosecuted for abettting the accused to chear. His offence was not one committed by him while acting or purporting to act in the discharge of his official duty. Therefore provisions of S.197 of the Code are inapplicable even if H be regarded as a public servant who was removable from his office by the Governor-General in Council or a Provincial Government”. 7. The object, nature and scope of section 197 Cr.P.C were explained by Apex Court in **Puk Raj V. State of Rajasthan** (1973 SCC crl 944) ibid (11308). It was held as ## follows:- “The intention behind Section 197 of Cr.P.C is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. There must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of the performance of his duty. The mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself be sufficient to justify the case being Crl.M.C.No.4045/12 9 thrown out for want of sanction. Facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case. It would be open to the accused to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by S.197 Cr.P.C”. 8. The first leading decision of the Apex Court on this point was in _**Shree Kantiah Ramayya Munipalli**_ v. _**State of Bombay**_ (1955 (1) SCR 1177: AIR 1955 SC 287) in which their Lordships relied on the decision of the Privy Council in _**H.H.B.Gill**_ V _**king**_ (AIR 1948 PC 128) (six Judges Bench). The question of sanction u/s.197 (1) Criminal Procedure Code (1898) came up before Privy Council in _**H.H.B. Gill's**_ case (supra) Lord Simonds discussed the difference between Section 270 of the Government of India Act 1935 and Section 197(1) of Code of Criminal Procedure 1898, in which the term “while acting or purporting to act in the discharge of his official duty” was considered. In this decision, Privy Council approved two decisions of the Federal Court reported in Hori Ram Singh's case (AIR 1939 FC 43) and Hectors case (AIR 1944 FC 66) and held as under:- Crl.M.C.No.4045/12 10 “ The words “in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown” in s.270, Government of India Act 1935, have precisely the same connotation as the words in S.197(1) ' any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. No temporal meaning should be given to the words in S.197 ' while acting, etc'. It is therefore impossible to differentiate between the two sections. “A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge receiving a bribe, though the officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. A public servant charged with an offence under S.120B read with S.161, Penal Code cannot justify his act of receiving bribe as an act done by him by virtue of the office that he held. No sanction under S.197 is therefore necessary for the institution of proceedings against a public servant or an offence under S.120B read with S.161, Penal Code”. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged of the authorities, their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited in Hori Ram Singh's case, think it sufficient to say that in their opinion no sanction under Sec.197 (new) of the Code of Criminal Procedure was needed”.Again in Amrik Singh v. State of Pepsu [AIR 1955 SC 309] Apex Court held that it is not every offence committed by a public servant that requires sanction for prosecution u/s.197(1) Cr.P.C., nor every act done by him while he is actually engaged in the performance of his official duties, so that, if questioned, it could be claimed to have been done by virtue of the office. It is only when the act complained of is directly connected with his official duties that sanction is necessary.” 9. The next contention put forward by the learned counsel for the petitioner is that the petitioner is entitled to get protection of the public order, which is a matter of evidence. Immediately after filing a complaint against a police officer, he Crl.M.C.No.4045/12 11 cannot, on the same day itself, claim such benefit, unless he produce some documents in support of his contention. This view was expressed by the Full Bench decision in _**Center for P.I.L's case (supra)**_ , which reads as follows: “ This aspect makes it clear that the concept of S.197 does not get immediately attracted on institution of the complaint case.” 10. I have considered all the decisions relied on by both counsel. The contention put forward by the petitioner is a matter of evidence. When petitioner is not a police officer protected u/s.197(1) Cr.P.C., the next ground is that whether he is entitled to get the benefit of notification issued u/s.197(3) of the Code, which is a matter of evidence. Therefore, this is not a fit case to invoke the inherent jurisdiction. The facts and circumstances of this case show that prima facie case is made out against the petitioner. When prima facie case is made out, the inherent jurisdiction u/s.482 Cr.P.C. to quash Annexure-A1 complaint is not maintainable. The Apex Court in _**State of Haryana**_ V. _**Bhajanlal**_ [1992 SCC (Crl) 426] laid down the parameters for invoking the inherent jurisdiction, which reads as follows: Crl.M.C.No.4045/12 12 “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”. In the result, I am of the opinion that there is no merit in this petition and it is dismissed accordingly. However, the petitioner is at liberty to produce all documents and defence in the trial court in support of his contentions. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.4045/12 13