Baby V.C. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **WP(C).No.32260 OF 2019(F)** ## **PETITIONER/S:** **BABY V.C. AGED 65 YEARS VELLARINGATTU, CHOCKADU P.O, POOKKOTTUMPADAM, MALAPPURAM.** **BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.JOBY JOSEPH** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **OTHER PRESENT:** **SRI RAMESH CHAND - P P** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2020, THE COURT ON 25-02-2020 DELIVERED THE FOLLOWING:** WP(C) 32260/2019 2 ASHOK MENON, J. -----------------------------------WP(C) No.32260 of 2019 ------------------------------------Dated this the 25[th] day of February, 2020 ## J U D G M E N T The petitioner has approached this Court seeking a writ of certiorari to direct quashing of Ext.P2 order of the Government dated 22.6.2018, wherein sanction sought for by the petitioner to prosecute the Grade SI and two Civil Police Officers (CPOs) attached to Pookottumpadam Police Station under Section 197 Cr.PC was declined. The police officers had allegedly committed offences punishable under Sections 341, 323 and 324 read with Section 34 IPC, as per the private complaint pending before the Judicial First Class Magistrate’s Court, Nilambur awaiting sanction under Section 197 Cr.PC. Vide Ext.P2 order, the Government observed that granting of sanction to prosecute the policemen would result in causing dissatisfaction and would hurt the morale of the police force because they were taking action against the petitioner and others WP(C) 32260/2019 3 for having allegedly committed riot and other offences at the police station premises. 2. Ext.P1 petition for sanction was pending consideration for a fairly long time and ultimately, the petitioner had approached this Court with WP(C) No.34908/2017 and vide judgment dated 28.11.2017, this Court directed the Government to consider the application and dispose it of expeditiously and that is how Ext.P2 order was passed. 3. The allegation of the petitioner is that on or about 11 a.m. on 9.10.2014. the petitioner's son Tony, along with his two friends were travelling in a bike. Two policemen of Pookottumpadam Police Station intercepted them and directed them to the Police Station. On reaching the Police Station, the Grade SI held them up for violation of three persons travelling on the bike. They were asked to pay Rs.3,000/- as fine. They did not have the money and asked the case to be referred to the court. It is alleged that a sum of Rs.3,000/- was actually demanded as a bribe. The Grade SI also abused them. The petitioner's son came WP(C) 32260/2019 4 home to get the money and inform the petitioner, who accompanied his son to the Police Station. On enquiry, the Grade SI abused and assaulted him and also brutally assaulted his son and his friends. Thereafter, they were also assaulted by the CPOs, Manoj and Ajeesh. Later, the policemen of thunderbolt were also joined in beating the petitioner and his neighbours. They were all put in the lock-up. In the middle of the night, they saw someone getting into the room of the SI and breaking the window panes and destroying the furniture, with the intention of create evidence that it was the petitioner and his men who had done it. They were taken to the Doctor and the injuries on their bodies noted in the wound certificates. Thereafter,they were produced before the Magistrate who recorded their sworn statement. No crime was registered, and hence, the private complaints were lodged. It is stated that the highhanded act of the policemen had nothing to do with their official duties and the violence unleashed on the petitioner and others was unwarranted and uncalled for, and therefore, sanction under Section 197 WP(C) 32260/2019 5 Cr.PC which ought to have been granted, was wrongly refused. Hence, this Writ Petition. 4. Heard the learned Senior Counsel Sri.Grashious Kuriakose appearing for the petitioner and the learned Public Prosecutor. 5. The specific allegation of the petitioner is that the policemen were not performing their official duties. The petitioner's son and two others were apprehended for riding the bike with overload and in consequence of the altercation that followed, the petitioner also reached there and all of them were assaulted. The policemen had absolutely no right to assault the petitioner and others, is the argument raised by the learned Senior Counsel. 6. The learned Public Prosecutor would contend that the petitioner and others were involved in rioting and all that was done by the policemen was to protect themselves from the assault of the unruly members of the unlawful assembly. 7. The Government had refused sanction to prosecute as per Ext.P2. WP(C) 32260/2019 6 8. In the instant case, the specific complaint of the petitioner is that he was assaulted by the policemen while he was in the lock-up along with his son and others. The Honourable Supreme Court has in Unnikrishnan v. Alikutty [2000 (3) KLT 483 (SC)] held that if a police officer dealing with law and order duty, uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 Cr.PC as well as Section 64(3) of the Kerala Police Act,1960. 9. The specific case of the prosecution in this case is that after having apprehended the petitioner's son and his friends for riding bike with three persons, they were taken to the Police Station. The petitioner's son went to fetch money for payment of fine, and returned with the petitioner and some neighbours to the Police Station, committed riot, destroyed properties and also assaulted the policemen on duty, which would definitely come within the provisions of Sections 113(1) and (2) of the Kerala Police Act 2011, which WP(C) 32260/2019 7 reads thus: “113.Protection of action taken in good faith. (1) No suit, prosecution or other legal proceedings shall lie against the Government or any Police officer or any public servant duly appointed or authorized under this Act for anything done or intended to be done in good faith in the due discharge of official duties under the provisions of this Act. (2) No Court shall take cognizance of any offence under this Act and alleged against police officer except with the prior permission of the Government.” Section 197 Cr.PC is intended to guard against vexatious proceedings against public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. The object of the protection conferred on public servants by the section is to secure them against vexatious proceedings and unless there are good reasons to support the charges sanction is not generally given. In Matajog Dobey v. H. C. Bhari [AIR 1956 SC 44] the Supreme Court held that public servants have to be protected from harassment in discharging their official duties and the discretionary power is vested in the Government and not in a minor official. It is also held that no question of sanction can arise under WP(C) 32260/2019 8 Section 197 unless the act complained of is an offence. What is to be considered is whether the act is committed in the discharge of official duties. In Kakarla Chinna Chendrayya v. Maddukkuri Subbarayudu [1923 (XXIV) CriLJ 116] it is held that order of sanction under Section 197 Cr.PC is more of the nature of an executive order than a judicial order. In K. Jayarama Iyer In Re [1957 (1) MLJ Crl. 700] it was held that order under Section 197 is purely an executive act and no detailed order need be passed. This view has been upheld by this court in Sajan John v. State of Kerala [2000 KHC 41]. 10. Hence, I find that the petitioner is not entitled to get Ext.P2 order of the Government quashed. The Writ Petition fails and is therefore dismissed. **Sd/-** ## **ASHOK MENON** ## **JUDGE** jg WP(C) 32260/2019 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE REPRESENTATION DATED 13.09.2017 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF ORDER DATED 22.06.2018 OF THE RESPONDENT.**