BOBY SUGUNAN S/O SUGUNAN v. SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, TRIVANDRUM; THIRUVANANTHAPURAM (RURAL) DISTRICT POLICE CHIEF; THE SUB INSPECTOR OF POLICE, VARKALA POLICE STATION, VARKALA, THIRUVANANTHAPURAM DISTRICT

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** **OP(Crl.).No.131 of 2014** **AGAINST THE ORDER/JUDGMENT IN CC 382/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA** ## **PETITIONER/S:** **BOBY SUGUNAN S/O.SUGUNAN, LAVANYA, VARKALA, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.BABU S. NAIR SMT.SMITHA BABU** ## **RESPONDENT/S:** |**1**|**THE SECRETARY TO THE GOVERNMENT**| |---|---| ||**DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT,**| ||**TRIVANDRUM, PIN: 695 001.**| |**2**|**THE DISTRICT POLICE CHIEF**| ||**THIRUVANANTHAPURAM (RURAL), PIN: 695 001.**| |**3**|**THE SUB INSPECTOR OF POLICE**| ||**VARKALA POLICE STATION, VARKALA, THIRUVANANTHAPURAM**| ||**DISTRICT, PIN: 695 141.**| **BY ADV. B.R.MURALEEDHARAN,GOVERNMENT PLEADER** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12.07.2019, THE COURT ON 19.7.2019 PASSED THE FOLLOWING:** 2 OP(Crl.).No.131 of 2014 ## **JUDGMENT** ## The original petition is filed seeking the following reliefs: (i) Call for the entire records leading up to Ext P6 and quash the same by the issuance of a writ of certiorari or any other writs, orders or directions; (ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the first respondent to re-consider and pass orders on Ext P2 application submitted by the petitioner under Sec.197 Cr.P.C., forthwith, without any further delay; (iii) Issue any direction commanding the J.F.C.M-I, Varkala, not to proceed further in C.P No.113/2012 and C.C No.382/2010, pending on its files; (iv) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case. 2. Facts are simple and go as under: An incident occurred on 23.9.2007 at Varkala while a music concert was going on. A case was registered against the petitioner and a few others. Charge-sheet was filed against them. The offences alleged against them were those punishable under Secs 143, 147, 148, 149, 308, 332 and 427 of the Indian Penal Code (IPC for short) and under Sec.3 of the Prevention of Destruction of Public Properties Act. The case was taken on file as CP 113/2012 by the judicial magistrate-I, first class, Varkala. Alleging violence and atrocities against the police, the petitioner filed Ext P1 complaint under Sec.190 of the Code of Criminal Procedure (Cr.P.C for short) before the learned magistrate against eight police personnel. The complaint was filed alleging commission of offences under Secs 143, 144, 147, 148, 149, 3 OP(Crl.).No.131 of 2014 167, 323, 324, 334, 355, 427 and 466 of IPC and Sec.42 (g) and (h) of the Kerala Police Act. The learned magistrate took cognizance of the complaint and numbered it CC 382/2010. The petitioner moved Ext P2 application before the first respondent for obtaining sanction under Sec.197 of Cr.P.C to prosecute the police officers. Ext P4 application was filed by the petitioner before the learned magistrate requesting to commit CC 382/2010 to the court of session under Sec.323 of Cr.P.C as a counter-case to the case taken on file as CP 113/2012. Thereafter the petitioner approached this court by filing OP(Crl) 32/2014 requesting to issue a direction to the first respondent to consider and pass orders on Ext P2 application. The first respondent contended in the said original petition that Ext P2 application was missing. It was also stated therein that a copy of the application was received from the learned advocate general. The first respondent requested for a period of one month to dispose of Ext P2 application for sanction. This court as per Ext P5 order directed the first respondent to dispose of Ext P2 application within one month from the date of receipt of a copy of the said order. Thereafter the first respondent passed Ext P6 order refusing to accord sanction under Sec.197 of Cr.P.C. The said order is assailed in the present original petition. 3. Heard Sri.Babu S.Nair, the learned counsel for the 4 OP(Crl.).No.131 of 2014 petitioner and Sri.B.R.Muraleedharan, the learned government pleader. 4. Let me first refer to the judicial pronouncements referred to by the learned counsel for the petitioner. The apex court holds in **State of Bihar vs P.P.Sharma (AIR 1991 SC** ## **1260)** as follows: The sanction under Sec.197 Cr.P.C is not an empty formality. It is essential that the provisions therein are to be observed with complete strictness. The object of obtaining sanction is that the authority concerned should be able to consider for itself the material before the investigating officer, before it comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. This court in **People's Council for Civil Rights vs State of** **Kerala (2009 (1) KLT 831)** has held that an order of sanction is an administrative act and therefore it need not contain detailed reasons, but it should contain some reasons so as to show that there is application of mind. In **P.L.Tatwal vs State** ## **of M.P (AIR 2014 SC 2369)** it is held as under: The grant of sanction is only an administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be appraised of all the relevant materials and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court. 5. Ext P6 is the order impugned in the original petition. 5 OP(Crl.).No.131 of 2014 It is an order refusing to grant sanction under Sec.197 of Cr.P.C. Ext P6 refers to the report filed by the second respondent, namely, the district police chief, Thiruvananthapuram (rural). Ext P6 states that the second respondent has reported that the investigation revealed that the accused persons have committed offences and that the case is under consideration of the court of session, Thiruvananthapuram. The question whether the petitioner and others committed any offence is not relevant for considering the question whether the petitioner should be given sanction under Sec.197 of Cr.P.C to prosecute the police officers. It is also stated in Ext P6 that the second respondent has reported that the allegations levelled against the police personnel were baseless and that since they had committed no negligence or offence while discharging their duty, there is no ground to issue sanction to prosecute them. The operative portion of Ext P6 reads as under: Government examined the matter in detail. The investigation conducted in this case revealed that the allegations levelled against the police personnel were baseless and no offence has been committed by the police officers in performance of their official duty. In this case, the incident occurred on 23.9.2007 and therefore, a re-inquiry, after a lapse of six and half years would be a futile effort. There is no other alternative, but to accept the report of the investigating officer. Hence the request of the petitioner to prosecute the police personnel is rejected. The operative part of Ext P6 order, extracted above, is an expression of inability. Ext P6 suggests that the only paper 6 OP(Crl.).No.131 of 2014 considered by the authority concerned is the report of the second respondent. Ext P6 does not suggest that any other paper was brought to the notice of the said authority. It is clear from Ext P6 that what was done was to blindly accept the report of the second respondent to reject the sanction requested for. Ext P6 itself suggests that there has been no application of mind. It is stated that a re-enquiry after a lapse of 6 ½ years would be a futile effort. That much period elapsed only because Ext P4 application was not considered till a direction from this court was issued. It is stated in Ext P6 that there is no other alternative, but to accept the report of the investigating officer. It is clear that there has been no application of mind. It is also clear that the report of the second respondent was accepted because there was no other alternative. It is further clear from Ext P6 that no paper other than the said report was considered by the first respondent. Ext P6 is liable to be quashed. The question of granting sanction is liable to be considered afresh with seriousness. I therefore allow the original petition. 6. The petitioner seeks to issue a direction to the learned magistrate to hold CP 113/2012. A report was called for from the learned magistrate to know whether the case in CP 113/2012 was committed to the court of session or not. The report of the learned magistrate shows that the case has been 7 OP(Crl.).No.131 of 2014 committed to the court of session on 21.12.2013. Therefore the 3[rd] relief sought for by the petitioner has become infructuous. 7. The original petition is allowed as follows: Ext P6 order is quashed. The first respondent is directed to reconsider Ext P2 application and pass appropriate orders after considering the relevant materials and on application of mind. A decision should be taken within two months from today. ## **Sd/-** **A.M.BABU** SKS/15.7.2019 **JUDGE** 8 OP(Crl.).No.131 of 2014 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **EXT.P1: TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE J.F.C.M -I, VARKALA AS CRL.M.P.NO.5734/2007 IN C.C.NO.382/2010.** **EXHIBIT P2 EXT.P2: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 8/3/2008.** **EXHIBIT P3 EXT.P3: TRUE COPY OF THE POSTAL RECEIPT SHOWING THE DISPATCH OF THE EXT.P2 APPLICATION.** ## **EXHIBIT P4** **EXT.P4: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN C.C.NO.382/2010 BEFORE THE J.F.C.M.I, VARKALA DATED 31/10/2013.** ## **EXHIBIT P5** **EXT.P5: TRUE COPY OF THE JUDGMENT DATED 24/3/2014 IN O.P(CRL.)NO.32/2014 OF THIS HON'BLE COURT.** ## **EXHIBIT P6** **EXT.P6: TRUE COPY OF THE ORDER DATED 10/6/2014 ISSUED BY THE FIRST RESPONDENT AS G.O.(RT) NO.1610/2014/HOME.**