Balakrishna Pillai and Others v. State of Kerala

Crl.R.P.55/2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** **Crl.Rev.Pet.No.55 OF 2010** **CC 126/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR** ## **REVISION PETITIONER/ACCUSED 2 TO 4** - **1 BALAKRISHNA PILLAI & OTHERS S/O.PARAMESWARAN PILLAI,, KIZHAKKUMKARA PUTHENVEEDU, VAYALAMURI, KOVOOR, ETTIVA VILLAGE.** - **2 ANILKUMAR SO.ANANDAN SUDASANA VILASOM VEEDU,, KUTTIKKADU MURI, KADAKKAL VILLAGE.** - **3 SALIM SO.ABDUL AZEEZ CHARUVILA PUTHEN VEEDU,, PERUMKUNNAM, PAZHAYAKUNNINMEL VILLAGE.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.THOMAS J.ANAKKALLUNKAL** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI. M.S. BREEZ - SR.PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 4.6.2020, THE COURT ON 12.06.2020 PASSED THE FOLLOWING:** Crl.R.P.55/2010 2 ## **ORDER** **Dated : 12[th] June, 2020** **CR”** 1. This Revision Petition has been filed against the order dated 31.8.2009 in C.C.126/1998 on the file of the Judicial First Class Magistrate-I, Punalur, refusing to give the protection under Sec.197(1) Cr.P.C to the revision petitioners/accused 2 to 4. 2. The case against the revision petitioners/accused 2 to 4 along with the first accused has been charge-sheeted by the Circle Inspector of police, Anchal in crime No.67/1997 of Anchal police station. 3. Prosecution case is that on 31.3.2007 at about 8.30 pm, first accused who is the festival committee convener of Arackal Devi temple came with the revision petitioners/accused 2 to 4 who were police constables, attached to Anchal police station in a jeep bearing registration No.KL-7/N-2433 to the place where CW1 to 4 were preparing kettuvilakku as part of the Crl.R.P.55/2010 3 festival at Arackal Devi temple and assaulted CW1 to 6 with lathi resulting in injuries to CW1 to 3, 5 and 6. CW4 fell into a well and sustained grievous injury. It is alleged that accused acted in furtherance of their common intention. 4. Earlier Crl.M.C.685/2006 was filed by the revision petitioners/accused 2 to 4 which was disposed of by this Court as per the order dated 17.3.2009 directing the learned Magistrate to consider whether sanction of the state Government as envisaged under Sec.197(1) Cr.P.C is necessary for prosecuting the revision petitioners and thereafter to proceed with the case in accordance with law. On the basis of the said direction, both sides were heard and the impugned order has been passed. 5. Notice was issued to the respondent. Respondent appeared through Public Prosecutor. Lower court records were called for and perused. Heard both sides. Crl.R.P.55/2010 4 6. The main contention of the learned counsel for the revision petitioners is that it has been found by the learned magistrate that accused 2 to 4 were deputed to do law and order duty in connection with the conduct of festival at Arackal Devi temple and the only reason for refusing the benefit under Sec.197(1) Cr.P.C was that they were not deployed for maintenance of public order but only of law and order duty which, according to the learned counsel, is illegal and improper and is liable to be interfered with. 7. On going through the impugned order passed by the court below it is seen that there is a definite finding by the learned magistrate that the revision petitioners were deputed to law and order duty in connection with the conduct of festival at Arackal Devi temple. But that according to the learned magistrate cannot be held to be deployed for maintenance of public order. The learned magistrate relies upon **Sarojini v.** Crl.R.P.55/2010 5 **Prasannan (1996 (2) KLT 859)** to distinguish the deployment for maintenance of public order and also law and order duty. In other words, the court below was of the view that the protection under Sec.197 is available to all members of the Kerala Police Charged with the maintenance of public order and the same is not available to the members of police charged with law and order duty alone. It is also found that in order to claim the benefit u/s 197 Cr.P.C the revision petitioners have to establish that they are public servants not removable from the office save by or with the sanction of the government and that the offence alleged to have been committed by acting or purporting to act in discharge of their official duty. It is also found that the revision petitioners were police constables as on the date of the alleged occurrence and as such they were removable from their office without the sanction of the government. It is further found that the power to dismiss or remove them from the service has been conferred upon the D.G.P, I.G, D.I.G, S.P etc. Hence it has been found that they Crl.R.P.55/2010 6 are not entitled to the general protection as contemplated under Sec.197 Cr.P.C. It is further found that the acts alleged against them cannot be termed as part of the discharge of the official duties as it is alleged that they unleashed violence against the general public without any provocation. So on the above grounds the court below found that the revision petitioners/accused 2 to 4 are not entitled to the protection as provided under Sec.197 Cr.P.C. 8. With regard to the ground that the revision petitioners are only police constables and are removable from the office without the sanction of the government and that the power to dismiss or remove them from service has been conferred upon the D.G.P, I.G, D.I.G, S.P and hence they are not entitled to the general protection contemplated under Sec.197 Cr.P.C, the learned counsel for the revision petitioners took my attention to the notification issued by the Government of Kerala that is notification No.61155/A2/Home dated 6.12.1977. As per the Crl.R.P.55/2010 7 said notification in exercise of powers conferred by sub section (2) of Sec.197 of Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala directed that the provisions of sub section (2) of the said section shall apply to all members of Kerala State Police force charged with the maintenance of public order. The Explanatory note to the said notification specifically provides that the sanction is necessary for launching prosecution against not only sub inspectors, but even a constable of Kerala State police charged with maintenance of public order. The learned counsel also took my attention to Circular No.60/98 dated 24.11.1998 issued with respect to discharge of official duties and protection to members of Kerala police charged with the maintenance of public order from false vexatious or mala fide prosecution in which, the notification dated 6.12.1977 of the Government of Kerala giving protection to all members of Kerala police charged with maintenance of public order has also been referred. It also provides that Government of Kerala has Crl.R.P.55/2010 8 informed that when an officer of Kerala police is accused of an offence alleged to have been committed by acting or purporting to act in the discharge of his official duties, the provisions of law applicable and the notification No.61155/A2/Home dated 6.12.1977 has to be brought to the notice of the court and the prosecuting agencies. The above notification dated 6.12.1977 has been issued by the State Government as per Sec.197(3) of Cr.P.C by which the state Government is empowered to direct by notification that the provisions of sub section (2) shall apply to such class or category of the members of the forces charged with maintenance of public order etc. etc. So the above notification would extent the protection under Sec.197(2) Cr.P.C to all the members of Kerala state police force including a constable of the Kerala state police in charge of the maintenance of public order. ## 9. It is relevant in this context to quote **Viswambharan P. v. State** Crl.R.P.55/2010 9 **of Kerala (2010 KHC 6281)** wherein while dealing with Sec.197(2) and Explanatory note to SRO No.6211/1977, it has been held that notification provides that the provisions of subs.(2) of Sec.197 shall apply to all members of the Kerala Police Force charged with maintenance order. The protection so provided is for all members of Kerala State Police so as to exclude members of Kerala Subordinate service but all members of Kerala State police. So the Sub Inspector of police being a member of the Kerala State police is held to be entitled for the protection under Sec.197 (2) Cr.P.C. 10. **Sarojini v. Prasannan (1996 (2) KLT 859** ) quoted by the court below also throw some light in this regard. It is stated in paragraph No.8 of the said decision that the contrary view held in 1985 KLT 404 does not seems to have laid down the correct law. 11. The view taken in 1985 KLT 404 was that in order to Crl.R.P.55/2010 10 invoke the provision of Sec.197(1) Cr.P.C it is necessary that two ingredients must co-exist. In the first place, the person must be a public servant not removable from the office save by or with the sanction of the Government and the second condition is that, that must have been committed by such a person acting or purporting to act in discharge of his official duty. It is also held that prohibition against taking cognizance without the sanction will operate only if these two conditions are there. It is also further held in that case that the accused persons are only police constables, one constable and another Head constable and they are not public servants removable from office save or with the sanction of the Government and hence sanction under Sec.197(2) is not required to prosecute them, even if the acts were done while acting or purporting to act in discharge of their official duties.Though that position was found to be not good law, the head note of **Sarojini's** case has been wrongly quoted by stating that sub inspector of police and constable do not come under Sec.197(1) and its benefit cannot Crl.R.P.55/2010 11 be claimed by them and they are not public servants not removable from office save with the previous sanction of the Government. Being taken away by the head notes it appears that the court below has missed the ratio decidendi of **Sarojini's** case. 12. The Apex Court in **Rizvan Ahmed v. Jammal Patel (2001 KHC 636)** considered the scope of notification under Sec.197(3) Cr.P.C and the Apex court considered the dictum laid down in Bhikhaji Vaghaji (1981) 22 Guj LR 956 and also the view taken by the Division Bench of Bombay High court in the impugned order under appeal of the Bombay High court in that case and it has been held that a person on whom a protection is sought to be conferred by the State Government notification is to be determined by reading the notification and once it is found that State Government notification applies to a member of the force the scope purview or compass of the protection has to be determined by reading sub section 2 of Crl.R.P.55/2010 12 Sec.197 of the Code by considering the question whether the act alleged to be an offence was done or purported to have been done in the discharge of official duty of the accused. So when the state of Kerala as per the notification dated 6.12.1977 extent the protection conferred under Sec.197 (1) to all the members of kerala state police and the Explanatory note to the notification expressly provides that the sanction for launching prosecution is necessary not only against sub inspectors but even constable of the Kerala state police in charge of the maintenance of the public order, the finding made by the court below that the revision petitioners being police constables and were not removable from the office without the sanction of the government and the power to dismiss or remove them from service have been conferred upon D.G.P, I.G, D.I.G, S.P etc, and hence they are not entitled to the general protection as contemplated under Sec.197 is not at all sustainable in law. 13. The next reason for denying the benefit under Sec.197 to Crl.R.P.55/2010 13 the revision petitioners by the learned magistrate was that they are only deployed for law and order and not for public order and hence the benefit under Sec.197 Cr.P.C cannot be resorted to. But for arriving at that conclusion, the learned magistrate has quoted **Anjani Kumar v. State of Bihar and Another (2008 SAR (Crl)** and **Sarojini v. Prasannan (1996 (2) KLT 859)** etc. 14. In **Sarojini's** case a detailed discussion has been made by the Division Bench of this Court with regard to the sanction under Sec.197 in the light of the notification issued by the Government of Kerala, 61155/A2/Home dated 6.12.1977, and Circular No.60/98 dated 24.11.1998. From paragraph 3 onwards there is a detailed discussion with regard to the distinction between the maintenance of public order and law order with respect to Chapter X of Cr.P.C (maintenance of public order), Chapter XII (maintenance of law and order). Section 130 and 131 of Cr.P.C etc have been extracted and it Crl.R.P.55/2010 14 ## has been discussed as follows : “It seems obvious that in view of the above provision, it may not be correct to say that maintenance of pubic order is quite outside the functions of officers charged with the maintenance of law and order. As held in Babul Mitra v. State of West Bengal , AIR 1973 SC 197 - “the true distinction between “law and order” and “public order” is one of the degree and extent of the reach of the act in question upon society. The act by itself is not determinate of its own gravity. In the quality it may not differ but in its potentiality it may be very different.” Indeed there can be over-lapping and as held in Ashok Kumar v. Delhi Administration, AIR 1982, SC 1143, acts : “Similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore, touch the problem of law and order, while in another it might affect public order. The act by itself therefore, is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the Crl.R.P.55/2010 15 metropolitan city result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act or violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. Some offences primarily injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of the survival of the society and the problem is the method of control”. What would have begun as a routine law and order problem might escalate into one of public order and to cope with the situation the services of the armed forces could be requisitioned by the competent authority. They, as also those charged with maintenance of law and order, could work at tandem to bring disturbed situations under control and maintain public peace and tranquility. By the notification above mentioned, the provisions of sub-s.(2) have been made applicable to members of Kerala Police charged with 'maintenance of public order' who form a class of the police force. As we have already said, 'maintenance of public order'. ## 15. So the definite finding of this court in **Sarojini's** case referred by the learned magistrate is categoric that the Crl.R.P.55/2010 16 maintenance of public order is not quite outside the functions of officers charged with maintenance of law and order. On the other hand, there is specific finding that the provisions of Sub.s. (2) have been made applicable to members of Kerala Police charged with maintenance of public order. It is also held that maintenance of public order can fall within the definition of law and order, the former being the extension of the latter. It is further categorically found that though conceptually distinct they are perhaps two sides of the same coin and it is unnecessary that there should be anything specific to show that those charged with maintenance of law and order have also been entrusted with the maintenance of public order, which is not so different or unrelated to require a specific investigation but is implicit in the former function. 16. So without any further discussion it can safely be concluded that the police constables deployed for law and order duty cannot be said to be unrelated to maintenance of Crl.R.P.55/2010 17 public order since as has been held in the above decision they are the two sides of the same coin. It is true that in that decision ultimately this court denied the protection to the revision petitioners therein but it was only for the reason that the offence alleged have not been committed while acting or purporting to act in discharge of their official duty and there is no reasonable nexus between the same act/offence and the discharge of official duty. 17. In **Rizvan's** case referred above also while dealing with protection under Sec.197 Cr.P.C to public officers, in para 9 of the said judgment it has been stated that the person on whom the protection is sought to be conferred by the state Government notification is to be determined by reading the notification and once it is found that the state government notification applies to a member of the force the scope, purview or compass of the protection has to be determined by reading sub section 2 of Sec.197 of Code. That is by asking a Crl.R.P.55/2010 18 question whether the act alleged to be an offence was done or purported to have been done in the discharge of official duty of the accused. It is also stated that such official duty need not necessarily be one related to the maintenance to the public order. Paragraph 15 of the said judgment is also relevant in this context to extract which reads as follows, “The real test to be applied to attract the applicability of S.197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected.” 18. In this case there is specific finding by the learned magistrate that accused 2 to 4 were deputed to do law and Crl.R.P.55/2010 19 order duty in connection with the festival of temple. The main contention of the learned counsel for the revision petitioners is that CW1 to 6 were engaged in the game of cards and revision petitioners disbursed them swirling, resulting in minor injuries to them and one among them fell into the well and sustained grievous injury and due to the public protest crime was registered against the revision petitioners. Since there is a specific finding by the court below that they were deputed for law and order duty and if at all there was any excess on their part it has been well settled that, that by itself will not take away the protection under Sec.197(2) Cr.P.C. In this context it is relevant to quote **Virupakshappa D.T. v. C.Subash (2015 KHC 4330)** in which the question arose, where a police officer alleged of committing police excess in connection with investigation of a criminal case, whether sanction for prosecution is required and it was held that since the offensive act being reasonably connected with performance of official duty, magistrate could not have taken cognizance of the case Crl.R.P.55/2010 20 without the previous sanction of State Government. 19. In this case also there is specific finding by the learned magistrate that the revision petitioners have been deputed to do law and order duty in connection with the conduct of festival at Arackal Devi temple. While engaged in the law and order duty, this incident resulting in injuries to CW1 to 6 alleged to have taken place. So the act of revision petitioners would definitely come under the discharge of official duty and if at all there was any excesses, protection under Sec.197 Cr.P.C cannot be refused and sanction has to be obtained prior to prosecution. So finding to the contrary made by the court below is not sustainable in law and hence is liable to be interfered with. 20. In view of the findings made above, I am of the considered view that the revision petitioners/accused 2 to 4 are entitled for protection under Sec.197(1) Cr.P.C and their Crl.R.P.55/2010 21 prosecution without sanction is not sustainable in law. 21. In the result, the impugned order passed by the court below is set aside and revision petition allowed. The revision petitioners/accused 2 to 4 in C.C.126/1998 of the Judicial First Class Magistrate Court-I, Punalur, are discharged. It is also hereby made clear that on getting sanction under S.197(1) Cr.P.C, they can be prosecuted in accordance with law. Sd/- ## **M.R.ANITHA** **Judge** Mrcs/8.6.