Baiju v. State of Kerala and Rajani

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943 CRL.REV.PET NO. 257 OF 2019** **CC 141/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKKADA** ## **REVISION PETITIONER/ACCUSED** BAIJU, AGED 37 YEARS SUB INSPECTOR OF POLICE, S/O.APPU CHETTIYAR, KUNNUVILA VEEDU, CHERUNNIYUR P.O., THIRUVANANTHAPURAM. BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) ## **RESPONDENTS/STATE/COMPLAINANT** 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM-682031. 2 RAJANI W/O.SUKU KUMAR, PARAVATHI, VITTIYAM, THURUTHUMMOOLA MURI, VILAPPIL VILLAGE, THIRUVANANTHAPURAM-695573 BY ADVS. SRI.R.SYLESHWAREN NAIR SMT.M.VISHNUPRIYA SMT.C.B.ABHINAVA SMT.K.CAROLINE IGNATIUS PP SANGEETHARAJ N.R THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 3.12.2021, THE COURT ON 14.12.2021 DELIVERED THE FOLLOWING: Crl.R.P.257/2019 2 ## ORDER Dated : 14[th] December, 2021 1. This Revision Petition has been filed against the order in C.M.P.1840/2016 in C.C.No.141/2014 filed under Section 258 Cr.P.C to discharge the petitioner/accused. 2. According to the learned counsel for the petitioner, C.C.141/2014 arose out of a private complaint filed by the 2[nd] respondent before the Judicial First Class Magistrate Court, Kattakkada against the petitioner, the then Sub Inspector of Police, Vilappilsala police station. 3. Husband of the complainant/2[nd] respondent (hereinafter referred as the 2[nd] respondent) was taken into custody by the police on 16.1.2013. On getting information regarding the same, 2[nd] respondent rushed to the police station and she heard a cry and saw police officer by name Sri.Jayakumar manhandling her husband. Then she begged before the accused, and accused shouted at her, abused her and thereby insulted her modesty. Thereafter, on 28.1.2013, she filed private complaint alleging offence punishable under Section 509 IPC. 4. According to the petitioner, the complaint was filed as a counter Crl.R.P.257/2019 3 blast to the allegations levelled against the husband of the petitioner who is an accused in Vilappilsala police station, crime No.40/2013 which was registered for the offence punishable under Sections 294(b), 224, 332 IPC. Crime No.40/2013 was registered as per the statement recorded from the then Assistant Sub Inspector of Police, Pushkaran Nair and the crime was registered at 5.15 pm. Prosecution allegation in that case was that, the de facto complainant along with the Sub Inspector of Police, went for patrolling duty on getting information that a car had collided with a bike. When they went to the place of occurrence, it was found that there were two vehicles and the rider of the bike sustained injury in the accident. One of the persons informed the police that he will remove the injured. That was permitted by the Sub Inspector of Police. But instead of taking the injured, he quarreled with the car driver and abused the driver in public. Then the Sub Inspector interfered and directed the person to reach the police station if they have complaint. There upon the husband of the petitioner became violent and assaulted the police party. Hence he was taken into custody and removed to the police station and Crime No.40/2013 was registered. The petitioner was in discharge of his official duty, Crl.R.P.257/2019 4 when he reached the place of occurrence and when the duty was obstructed, the person was taken into custody and produced in the police station. Subsequently, final report has also been filed against the husband of 2[nd] respondent and that case is pending as C.C.279/2014 on the file of Judicial First Class Magistrate Court, Kattakkada. As an offshoot of that case, wife of the accused/2[nd] respondent filed complaint before several authorities including Womens Commission. An enquiry was conducted with respect to the complaint filed before the Womens Commission and it was reported as fake. 5. The petitioner is entitled for the protection under Section 197(1) Cr.P.C, since the police Officers involved in law and order duty will come under Section 197 Cr.P.C. After filing the final report with respect to the complaint filed by the 2[nd] respondent, petitioner submitted a petition under Section 258 Cr.P.C to discharge the accused. By the impugned order that was rejected. Against which the petitioner approached this Court. 6. Admittedly, cognizance was taken by the Magistrate against the petitioner under Section 509 IPC based on a private complaint filed by the 2[nd] respondent. The allegation in the complaint is that on 16.1.2013, when the husband of the 2[nd] respondent was Crl.R.P.257/2019 5 - arrested by the petitioner and at 7.30 pm on the same day, when she reached the police station, on hearing the loud cry of her husband and police officer by name Jayakumar assaulting the husband, she begged before the police. There upon petitioner alleged to have uttered abusive words insulting the modesty of woman in front of persons present there. 7. The only contention advanced by the learned counsel is that since the petitioner has been discharging his official duties during the relevant time, sanction as contemplated under Section 197 Cr.P.C is necessary prior to prosecute him in a criminal offence. 8. The learned counsel for the 2[nd] respondent on the other hand, filed counter affidavit and produced copy of the complaint and also copy of orders of Human Rights Commission passed against the revision petitioner dated 27.2.2013 and 23.5.2014. According to her, she has been working in Government Homeopathic Medical College as Clerk in Thiruvananthapuram and the revision petitioner intruded upon the privacy of her using filthy and abusive words in public in front of many persons at Vilappilsala police station and thereby outraged her modesty. She is not involved in any case and she is a law abiding citizen and has two daughters who are pursuing their studies. According to the 2[nd] Crl.R.P.257/2019 6 respondent, there is no nexus between the act and the official duty of the petitioner and hence petitioner is not entitled for the protection under Section 197 Cr.P.C, learned counsel vehemently contends. 9. Section 197 Cr.P.C, 1973 (in short the Code) reads as follows :- 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 apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted. (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. Crl.R.P.257/2019 7 (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. (3A) 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. (3B) 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 20th 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 the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held.” Crl.R.P.257/2019 8 10. Though the learned counsel for 2[nd] respondent would contend that as per Explanation to Section 197, Section 509 IPC is excluded from application of the said section, as rightly pointed out by the learned counsel for petitioner, Explanation was introduced to the proviso to sub-section (1)(b) of Section 197, as per the Criminal Law (Amendment ) Act, 2013, which came into effect from 3.2.2013. As rightly contended by the learned counsel for the petitioner, the alleged incident was on 16.1.2013. So obviously it is prior to the commencement of the amendment Act, introducing Explanation to Section 197(1) (b) proviso. 11. The learned counsel for the petitioner brought to my attention the judgment of Gauhati High Court in **Surjeet Singh Panesar v. Renu Probha Brahma (2019 KHC 4740)** wherein while dealing with the cognizance of offence under Section 354 IPC, in a case of taking cognizance under Section 354 IPC against a police officer, it has been held that the allegations of the respondents in that case was that the petitioner, police officer, entered the house during night and arrested her husband for false recovery of arms and ammunitions, outraged her modesty by Crl.R.P.257/2019 9 tearing her clothes. Sanction under Section 197 Cr.P.C. is necessary because none of the witnesses ever implicated the petitioner police officer that he intended to outrage the modesty of the respondent and it was made out that the respondent herself has obstructed the petitioner while discharging his duty. More over, at the time of commission of the alleged offence, Explanation to the proviso to Section 197 (1)(b) was also not introduced. 12. The learned counsel for the petitioner placed reliance on **Krishna Kumar B. State of Kerala and Another (2017 (5) KHC 556)** wherein the allegations against the police officer was that he stamped the accused while accused was brought to the station and in that context it was held that, when the allegation leveled against the Police can be said to be in respect of an act, which constitutes an offence, while acting or purporting to act in discharge of his official duty, sanction is required for taking cognizance. In paragraph 12 of the said judgment it is also held that if the act complained of must have happened while a public servant acting or purporting to act in discharge of his official duty, sanction is required and it is also held that if the alleged act is completely unconnected with the discharge of his official duty a Crl.R.P.257/2019 10 public servant cannot claim the protective cover of Section 197(1) of Cr.P.C. 13. The learned counsel further brought to my attention **Devaraja D v. Owais Sabeer Hussain (AIR 2020 SC 3292 = 2020 CrilJ 3745 = 2020 (7) SCC 695 = 2020 KHC 6425)** wherein it has been held that sanction of Government to prosecute a police officer for any act related to discharge of an official duty is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. 14. To the same point, the learned counsel also placed reliance on **Balakrishna Pillai and Others v. State of Kerala (2020 (3) KHC 472).** More over, the learned counsel further brought to my attention a notification issued by the Circular No.19/90 issued by the Government of Kerala which reads as follows :- “Section 197 of Cr.P.C affords protection from false, vexatious or mala fide prosecutions to some categories of public servants in the form of requirement of previous sanction of the Govt. concerned when such public servants at accused of an offence alleged to have been committed while acting or purporting to act in the discharge of their official duties. Govt. in the Notification No.61156/A2/Home dated 06.12.77 have directed that the provisions of sub section (2) of the said section shall apply to all members of the Kerala State Police Force charged with Crl.R.P.257/2019 11 maintenance of Public Order (copy enclosed). Govt. in the letter cited have also informed that when an officer is accused of an offence alleged to have been committed while acting or purporting to act in the discharge in their official duties the provision of the law applicable and the SRO issued in Govt. notification No.61155/82/Home dated 06.12.77 may be brought to the notice of the court and the prosecuting agency. The above instructions may be kept in mind and put to use when private complaints are filed against Police officers. Notification – SRO – In exercise of the powers conferred by sub-s. (3) of S.197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of sub-s.(2) of the said section shall apply to all members of the Kerala State Police Force. Charged with maintenance of public order” 15. So the above Circular and Notification would go to show that State of Kerala by invoking the powers under sub-section (3) of Section 197 extended the protection under Section 197 Cr.P.C. to all members of the police charged with the maintenance of public order. 16. Section 197 (1) sanction is to protect responsible officers from frivolous litigations at the instance of unscrupulous litigants out of personal vendetta. In this case, 2[nd] respondent is none other than the wife of an accused in Crime No.40 of 2013 who was just arrested and brought to the police station and has been under the custody of police. Crl.R.P.257/2019 12 17. It is true that the learned counsel for the respondent relied on **Inspector of Police and Another v. Battenapatla Venkata Ratnam and Another ((2015) 13 SCC 87)** wherein it has been held that the protection under Section 197 cannot be treated as a shield to protect corrupt officials. That was a case in which the Sub Registrars conspired with stamp vendors and others and resorted to manipulation of registers and got the registration of documents with old value of properties resulting in wrongful gain to themselves and loss to Government – High Court quashed criminal proceedings on the sole ground that there was no sanction under Section 197 Cr.P.C. In the said context, it was held that official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. So decisions so cited have no application in the present case. 18. The allegation against the petitioner is that while the petitioner was attending his duties in the police station, the de facto complainant who is the wife of accused in Crime No.40/2013 of Vilappilsala police station which has been registered under Sections 294(b), 323, 224, 332 came in search of him and on seeing another police official manhandling her husband, sought for the mercy of the petitioner and there upon the petitioner Crl.R.P.257/2019 13 alleged to have uttered abusive words insulting her modesty. So the said allegation prima facie is closely associated with the discharge of his official duty in view of the settled position of law above discussed. Hence, sanction under Section 197(1) Cr.P.C is necessary for prosecuting the petitioner. 19. In the result, revision petition allowed, the impugned order passed in C.M.P.1840/2016 in C.C.No.141/2014 is hereby set aside and petitioner/accused is discharged. It is open for the 2[nd] respondent to initiate fresh proceedings against the petitioner in compliance of Section 197(1) Cr.P.C, in accordance with law. Sd/- M.R.Anitha, Judge Mrcs/6.12. Crl.R.P.257/2019 14 ## **APPENDIX OF CRL.REV.PET 257/2019** PETITIONER ANNEXURES ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT AND FIRST INFORMATION STATEMENT IN CRIME NO.40/2013 OF VILAPPILSALA POLICE STATION. ANNEXURE II TRUE COPY OF THE FINAL REPORT IN CC.NO.279/2014 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAKKADA. ANNEXURE III TRUE COPY OF THE PETITION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE WOMEN'S COMMISSION. ANNEXURE IV TRUE COPY OF THE REPORT SUBMITTED TO THE WOMEN'S COMMISSION. ANNEXURE V TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVT. OF KERALA AS CIRCULAR NO.19/1990.