B. Krishna Kumar v. State of Kerala and Pushpangathan @ Monichen

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939 Crl.MC.No. 1612 of 2009 ( ) ---------------------------- CC 124/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,CHANGANACHERRY PETITIONER/5TH ACCUSED: -------------------------------------------------- B.KRISHNA KUMAR, EARLIER CIRCLE INSPECTOR OF POLICE, CHANGANACHERRY POLICE STATION, NOW WORKING AS ASSISTANT COMMISSIONER OF POLICE, TRIVANDRUM CITY. BY ADV. SRI.BECHU KURIAN THOMAS (SENIOR ADVOCATE) ## RESPONDENTS/COMPLAINANT: ------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PUSHPANGATHAN @ MONICHEN, S/O. SREEDHARAN, PUTHENPARAMBIL, KURICHY OUT POST ITHITHANAM, KURICHY, CHANGANACHERRY. R1 BY PUBLIC PROSECUTOR MS.K.K.SHEEBA R2 BY ADVS. SRI.G.SHRIKUMAR (SENIOR ADVOCATE) SRI.SREEJITH S.NAIR SRI.ANIL VINCENT THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.10.2017, THE COURT ON 08-11-2017 PASSED THE FOLLOWING: CRL.MC NO.1612 OF 2009 ## APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1 TRUE COPY OF THE FIR NO.263/04 DATED 20.7.04 ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CC NO.619/07 (CRIME NO.263/04) ANNEXURE A3 TRUE COPY OF THE CERTIFIED COPY OF THE COMPLAINT DATED 17.4.07 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY ANNEXURE A4 CERTIFIED COPY OF THE ORDER DATED 20.02.08 IN CMP. 614/07 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHANGANACHERRY ANNEXURE A5 TRUE COPY OF THE REMAND REPORT DATED 14.8.04 WHICH CONTAINS THE STATEMENT RECORDED BY THE LEARNED MAGISTRATE RESPONDENTS' ANNEXURES: ANNEXURE-A1 (AS PER CRL.MA NO.10194 OF 2014) - AFFIDAVIT OF ADVOCATE'S CLERK. //TRUE COPY// ## **“C.R.”** **A.HARIPRASAD, J. -------------------------------------Crl.M.C. No.1612 of 2009 -------------------------------------Dated this the 8[th] day of November, 2017** ## **ORDER** Yet another instance where a public servant (this time an Inspector of Police) approaching this Court, challenging the cognizance taken by a Magistrate on a private complaint alleging offences punishable under Sections 323, 324, 326, 346, 454, 308, 294(b) and 506(ii) of the Indian Penal Code, 1860 (in short, “IPC”) on the ground that sanction under Section 197 of the Code of Criminal Procedure, 1973 (in short, “Code”) was not obtained. 2. In this case, the petitioner challenges Annexure-A3 private complaint filed by the 2[nd] respondent and Annexure-A4 order passed by the Judicial First Class Magistrate Court-I, Changanacherry taking cognizance on the complaint. 3. Heard Sri.Bechu Kurian Thomas, learned Senior Counsel appearing for the petitioner and Sri.G.Shrikumar, learned Senior Counsel appearing for the 2[nd] respondent. Ms.K.K.Sheeba, learned Public 2 Crl.MC No.1612/2009 Prosecutor is also heard. 4. Gist of the allegations in the complaint is that on 12.08.2004, while the 2[nd] respondent was dispensing medicines in his medical store in the company of his wife, two police constables came and asked him to accompany them to the police station. As he was engaged in sale, he asked the police officers to wait for a while. Infuriated by his words, without any provocation, the police officers barged into the medical store and pushed him out by neck. 1[st] accused caught hold of his right hand. Accused 1 and 2 dragged him to a jeep parked nearby. They lifted him and literaly threw him into the jeep. Thereafter, on 13.08.2004 at about 11.30 hours in the morning, 6[th] accused beat on his left cheek from the lock up. On the same night at about 11.00 hours, accused 1 to 4 started consuming liquor inside the police station. 2[nd] accused, in an inebriated state, took the 2[nd] respondent to another room. His hands were pulled back and handcuffed. After removing his cloths, a rope was tied around his belly. Thereafter, he was lifted by using a pulley fixed on the ceiling. When the 2[nd] respondent started screaming and yelling due to severe pain, he was muffled by stuffing cloth. Thereafter, he was subjected to inhuman torture. On 14.08.2004, at about 10.00 a.m., the 2[nd] respondent was taken to the office of 5[th] accused (petitioner herein). 2[nd] respondent was asked to sit on the floor. At that time, without any ostensible reason, the petitioner 3 Crl.MC No.1612/2009 forcefully stamped on his right foot and crushed it with boots, which caused excruciating pain. He fainted on account of the unbearable pain. Thereafter, he was taken to the Magistrate having jurisdiction. He narrated all the incidents to the Magistrate. As directed by the Magistrate, he was taken to the District Hospital, Kottayam for medical examination. Although the 2[nd] respondent narrated all the incidents and the physical discomforts experienced by him, due to the influence of the accused persons, medical records were not properly prepared. No case was registered by police on the 2[nd] respondent's complaint in order to shield the accused persons. 2[nd] respondent was falsely implicated in idol thefts occurred in various places in the State. According to him, he is a law abiding citizen and leading a decent life. Illegal detention and custodial torture not only caused severe body pain to him, but also tarnished his reputation. With these allegations he preferred the complaint. 5. Sri.Bechu Kurian Thomas raised three contentions to challenge the impugned order. Firstly, it is contended that no offence against the petitioner is made out from the allegations in the complaint and therefore factually the court below erred in taking cognizance against the petitioner. Secondly, the court below seriously went wrong in taking cognizance without insisting on a sanction under Section 197 Code. Thirdly, it is contended that if at all the allegations in the complaint made 4 Crl.MC No.1612/2009 out any offence, the court below ought to have seen that the complaint is barred by limitation. I shall deal with these contentions separately. 6. Regarding the first contention involving factual issues, following things are worthy to be noticed. The complaint was filed on 17.04.2007. The alleged illegal detention and torture of the complainant/2[nd] respondent was on 12.08.2004 and 13.08.2004. Going by the allegations in Annexure-A3 complaint, the 2[nd] respondent was brutally assaulted during the night on 13.08.2004. Petitioner allegedly stamped on his right foot on 14.08.2004 at about 10.00 a.m. There is no allegation in the complaint that the petitioner tortured the 2[nd] respondent from the lock up or from police station. It is the specific allegation in Annexure-A3 complaint that when the 2[nd] respondent was taken to the office of the petitioner, without any provocation he forcefully stamped and crushed the 2[nd] respondent's right foot. According to the averments in the complaint, this is the only instance were the petitioner physically assaulted the 2[nd] respondent. 7. Sri.Bechu Kurian Thomas would contend that Annexure-A5 remand report submitted by the investigating officer before the Magistrate concerned does not show any allegation made by the 2[nd] respondent against the petitioner at the time of first production before the Magistrate. The endorsement made by the Magistrate shows that the accused persons in Crime No.263 of 2004 of Chingavanam Police Station were produced at 5 Crl.MC No.1612/2009 his residence at 3.15 p.m. on 14.08.2004. 2[nd] respondent informed the Magistrate that he was beaten up by five Police Constables, attached to the squad of the Circle Inspector of Police (petitioner), from Changanacherry Police Station. It is pertinent to note that involvement of the petitioner in the physical assault meted out to the 2[nd] respondent was not mentioned to the Magistrate. It is therefore contended by the learned Senior Counsel that had the petitioner tortured 2[nd] respondent, certainly he would have named him at the first opportunity. Controverting this submission Sri.G.Shrikumar submitted that he might not have been able to distinguish between Police Constables and Circle Inspector and therefore he might have omitted to state the details about the official ranks of his tormentors. This submission is strongly opposed by Sri.Bechu Kurian Thomas on the ground that the 2[nd] respondent was not an illiterate person and he was running a medical shop at the relevant time. That apart, mentioning by the 2[nd] respondent to the Magistrate, that five Police Constables attached to the squad of the Circle Inspector of Police, would clearly indicate that he could identify police officers with reference to their ranks. I find it difficult to accept the contention of Sri.G.Shrikumar that the 2[nd] respondent was unable to identify the police officers who treated him inhumanly. This fact throws considerable doubt on the veracity of factual allegations in the complaint. 6 Crl.MC No.1612/2009 8. I shall deal with the second contention regarding the requirement of sanction under Section 197 of the Code. For clarity of expression I shall quote the provision: _“_ _**197. 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 employed 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 that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will_ 7 Crl.MC No.1612/2009 _apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted._ _Explanation.- For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860)._ _(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 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._ 8 Crl.MC No.1612/2009 _(3-A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government._ _(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20[th] day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon._ _(4) The Central Government or the State Government, as the case may be, may determine_ 9 Crl.MC No.1612/2009 _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.”_ On reading the Section, a clear prohibition can be seen in a court taking cognizance of certain offences without previous sanction from the Central Government or State Government, as the case may be. Phraseology employed in various parts of the Section that “no court shall take cognizance” leaves no room for any doubt. 9. Innumerable decisions interpreting Section 197 of the Code can be seen. However, I deem it apposite to refer to some which are relevant in this context. Sri.Bechu Kurian Thomas relied on **Pukhraj v. State of Rajasthan ((1973) 2 SCC 701)** wherein the learned Judges expressed opinion in the following words: _“The law regarding the circumstances under which sanction under Section 197 of the Code of Criminal Procedure is necessary is by now well settled as a result of the decisions from Hari Ram Singh's case_ _**(1939 FCR 159:AIR 1939 FC 43:40 Cri.LJ 468))** to the latest decision of this Court in Bhagwan Prasad Srivastava v. N.P.Misra_ _**((1971) 1 SCR 317: (1970) 2 SCC 56)** . While the law is well settled the difficulty really arises in applying the law_ 10 Crl.MC No.1612/2009 _to the facts of any particular case. The intention behind the section 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 execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act_ 11 Crl.MC No.1612/2009 _done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the “capacity in which the act is performed”, “cloak of office” and “professed exercise of the office” may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty. ....”_ Another decision relied on by the learned Senior Counsel for the petitioner is a three Judge Bench decision of the Supreme Court in **Sankaran Moitra v. Sadhna Das ((2006) 4 SCC 584)** . The complaint therein was that the deceased, supporter of a political party, was beaten to death by police personnel at the instance of the appellant police officer near a polling booth on an election day. It was revealed that the appellant was on duty to prevent any breach of law and order on that day. He reached at the spot on receiving information regarding some disturbances at the polling booth. After considering the various decisions on the point, the Supreme Court held that the appellant committed the act in question during the course of performance of his duty and therefore sanction under Section 197(1) of the Code was necessary for prosecuting him. Majority view expressed in paragraph 25 reads thus: 12 Crl.MC No.1612/2009 _“The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of_ 13 Crl.MC No.1612/2009 _a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. .........”_ 10. Sri.G.Shrikumar stoutly relied on **Prakash v. State of Kerala (2011 (2) KLT 158** ). According to the decision, certain tests are to be applied to determine if a public servant is entitled to protection under Section 197(1) of the Code. The learned Single Judge posed three questions for considering the necessity of sanction. I quote the questions in paragraph 31: ## _“xxxxxxxxxxxx_ _i) What was the particular official duty which was being discharged or purported to be discharged by the public servant, at the time of alleged commission of offence?_ _ii) What act or acts are to be done by the public servant to perform and complete such particular official duty?_ _iii) Is there any reasonable connection or relationship between the offending act/acts allegedly committed by the public servant and, the act or acts which is/are to be done to perform and complete such particular duty?”_ 14 Crl.MC No.1612/2009 Questions (i) and (ii) were answered with reference to the facts in that case. Learned Single Judge notwithstanding made a passing reference to **Sankaran Moitra** and some other decisions of the apex Court, decided the case on hand without considering and following the ratio in those decisions. In fact, the ultimate decision in **Prakash** 's case goes contrary to the aforementioned legal principles. 11. While answering question (iii), the learned Single Judge observed that benefit of Section 197(1) of the Code is not intended to be extended to a public servant who by himself breaks the law. Further, if a police officer inflicted custodial violence on a person who was called to the police station for questioning, in the course of investigation, he was not entitled to protection under Section 197 of the Code. With respect, I find that these observations by the learned Judge are contradictory to the law declared by the apex Court. It has been candidly observed in **Pukhraj** 's case that in order to have a shield of Section 197(1) of the Code, what is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty and it does not apply to an act done purely in private capacity by a public servant. The statement of law in **Prakash** 's case contradict the ratio in **Sankaran Moitra** as well. From the facts in **Prakash** 's case, it can be seen that a police officer in the course of investigation allegedly inflicted custodial violence. 15 Crl.MC No.1612/2009 In the light of the legal principles in **Pukhraj** and **Sankaran Moitra** , it can only be stated that the declaration of law by the learned Single Judge in **Prakash** 's case is not legally correct and therefore, the decision cannot be taken as a binding precedent. 12. On an evaluation of the binding precedents on the point, it can be seen that protection under Section 197 of the Code can be claimed by a public servant only when the alleged act was committed by him while acting or purporting to act in the discharge of his official duty. To illustrate this point, take a case where a public servant while acting or purporting to act in the discharge of his official duty allegedly commits an offence, which can never be recognized as part of his official duty, even then he is entitled to protection of Section 197(1) of the Code. On the contrary, if a public servant commits an offence as a private citizen, that too in the exercise of his private right, he cannot claim protection under Section 197(1) of the Code. The act complained of must have happened while a public servant acting or purporting to act in the discharge of his official duty. If the alleged act is completely unconnected with the discharge of any official duty, a public servant cannot claim the protective cover of Section 197(1) of the Code. 13. I shall profitably quote a passage from **Ratanlal and Dhirajlal** on the **Code of Criminal Procedure** (19[th] Edition) enunciating the 16 Crl.MC No.1612/2009 principles culled out from various binding precedents. _“The essential conditions to be satisfied for the application of S.197 are-_ _(1) The offence mentioned therein must be committed by a public servant._ _(2) The public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government as the case may be._ _(3) The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act._ _(4) If in doing his official duty, he acted in excess of his duty, but there is reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of protection._ _(5) The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity._ 17 Crl.MC No.1612/2009 _(6) Before S.197 can be invoked it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty._ _(7) The act can be performed in discharge of his official duty as well as in dereliction thereof._ _The bar created by S.197 is absolute, in the absence of sanction where S.197 applies, cognizance of the offence is barred.”_ 14. In this case, the allegation is that the petitioner stamped the 2[nd] respondent while he was brought to the former's office. Admittedly the 2[nd] respondent was in custody as a suspect in a temple theft case. It is also seen from the records that immediately after the alleged incident, he was taken to the Magistrate having jurisdiction. Sri.Bechu Kurian Thomas has a serious contention that there is no material on record, except the averments in the complaint, to show that any complaint was made by the 2[nd] respondent against the petitioner, when he was produced before the 18 Crl.MC No.1612/2009 Magistrate. I have already seen that the 2[nd] respondent has no proper explanation for not making any allegation against the petitioner at the first opportunity. That apart, the allegation now levelled against the petitioner can be said to be in respect of an act, which constitutes an offence, while acting or purporting to act in the discharge of his official duty. Therefore, I am of the definite view that taking cognizance without sanction was legally improper. 15. Third point raised by Sri.Bechu Kurian Thomas is that the complaint is hopelessly barred by limitation. In order raise this argument, reliance is placed on Section 64(3) of the Kerala Police Act, 1960 (in short, “the Act”), which was prevalent at the time of commission of the alleged offence. It reads as follows: ## _“_ _**64. Magistrate or Police Officer not liable for anything done in good faith** .-_ ## _xxxxxxxx_ _(3)_ _**Suit or prosecution not to be entertained if instituted more than six months after the date of the act complained of** .- No court shall take cognizance of any suit or complaint, in respect of any offence or wrong alleged to be committed or done by a Magistrate, Police Officer or other person on account of any act done in pursuance of any duty imposed or authority conferred on him by this Act or any other law for the_ 19 Crl.MC No.1612/2009 _time being in force or of any rule, order or direction lawfully made or given thereunder unless the suit or complaint is filed within six months of the date on which the offence or wrong is alleged to have been committed or done._ ## _xxxxxxxxxxxx”_ On a plain reading of the provision, it will be clear that a complaint filed on 17.04.2007 in respect of an offence said to have been committed on 14.08.2004 is barred by the said provision. 16. Sri.G.Shrikumar relying on **Unnikrishnan v. Alikutty (2000 (3) KLT 483)** , a decision rendered by the Supreme Court, argued that if the principles in the decision were applied, there will be no question of limitation. Per contra, Sri.Bechu Kurian Thomas argued that the fact situations in **Unnikrishnan** 's case are completely different from the facts in this case and therefore, the principles cannot be applied here. In **Unnikrishnan** 's case, a Sub Inspector of Police and a Police Constable faced prosecution for allegedly confining the complainant in police lock up and beating him up without any legal justification. Facts would show that the detenu was released from confinement on the next morning after administering a warning that he would face the consequences, if he divulged the outside world as to what had happened in the lock up. Facts clearly show that the complainant therein was illegally detained in custody 20 Crl.MC No.1612/2009 and that was not as part of any investigation. In other words, he was taken to custody illegally and tortured. As he was not involved in any crime, he was set free on the next day. It is therefore clear that the police officers were not acting or purporting to act in the discharge of their official duty. In this context, the Supreme Court held that they were not entitled to the protection of law; so much so, they were not entitled to get the benefit of Section 64(3) of the Act as well. Facts in this case are completely different. The principle in the above decision therefore cannot be applied to this case. From the above discussion, I am of the definite view that the private complaint filed by the 2[nd] respondent and the order taking cognizance by the Magistrate without sanction are illegal and hence liable to be set aside. In the result, the petition is allowed. Annexures-A3 and A4 are hereby quashed. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** ## **cks**