Common Order in CRL.M.C Nos. 2248 & 2249 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE K.R.UDAYABHANU** **THURSDAY, THE 15TH FEBRUARY 2007 / 26TH MAGHA 1928** **Crl.MC.No. 2248 of 2004(A)** **--------------------------** ## **CP.13/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM** **....................** ## **PETITIONER: 4TH ACCUSED** **-----------------------** **MR.ARUNKUMAR SINHA, I.P.S., COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, KERALA STATE, NOW WORKING AS D.I.G. OF POLICE, TRIVANDRUM RANGE.** **BY ADV. SRI.M.K.DAMODARAN (SR.)** ## **RESPONDENTS: STATE/COMPLAINANT** **------------------------------** **1. THE STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. G.S.BABY PRIYA, 'DHANYA',** **MARANVILAKOM, KARUMAM P.O., THIRUVANANTHAPURAM, KERALA - 695 002.** **3. M.SUSEELA, RESIDING AT DHANYA, MARANVILAKOM, KARUMAM P.O., THIRUVANANTHAPURAM, KERALA - 695 002.** **BY ADV. SMT.K.KUSUMAM SRI.SHAMMI VIJAYAN** **R1 BY PUBLIC PROSECUTOR MR. P.M. HABEEB** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD** **ON 20-09-2006, ,ALONG WITH CRMC NO. 2249 OF 2004 THE COURT ON T15-2-2007 PASSED THE FOLLOWING:** ## **K.R. UDAYABHANU, J.** ## **COMMON ORDER IN** ## **CRL.M.C.NOS.2248 & 2249 OF 2004** ## **DATED THIS THE 15[th] DAY OF FEBRUARY 2007** ## **ORDER** ## **CRL.M.C.NO. 2248/2004** The petitioner is the 4[th] accused in C.P.No.13/2004 pending before the Judicial First Class Magistrate Court-III, Thiruvananthapuram with respect to the offences under Sections 323,324,326,342,344,346,352,354,5099 read with Section 34 of the Indian Penal Code and Section 3(1)(iii), 3(1)(x), 3(1)(ii) and 3(2) (vi)(vii) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 filed against seven police officials including the petitioner herein. The allegation in the complaint filed by respondents 2 and 3, daughter and mother, is that the petitioner herein while monitoring investigation into the crime of suspected murder of one Rajendran Kani committed the above offences. The investigation related to the incident of noticing a floating dead body in Veli lake near Boat Club, Veli, Thiruvananthapuram on 13-6-1998. The petitioner was working CRMC.2248& 2249/2004 -2- as Commissioner of Police, Thiruvananthapuram at the time. The Assistant Sub Inspector, Thumba registered a crime under Section 174 Cr.P.C. On postmortem it was found that the death was caused due to constriction force on the neck. There was no water inside the body. Hence, the death appeared suspicious. The investigation by the Circle Inspector of Police, Medical College Police station started on 14-6-1998. From the preliminary investigation it appeared that it is a case of murder and the section of offence was altered to Section 302 I.P.C. The matter became very sensational with the media highlighting the allegations raised by the members of the Kani community. There was adverse publicity in the media against the police alleging that the investigation is not proceeding on proper lines. It was alleged that respondents 2 and 3, the wife and mother-inlaw of the deceased connived at the murder in order to get rid of the deceased as he happened to be a nuisance to their allegedly lose moral way of life. The petitioner constituted a special investigation team headed by the Assistant Commissioner of Police,Shanmmugham and consisting of Assistant Commissioner, Fort, the Deputy Superintendent of Police, CRMC.2248& 2249/2004 -3- Neyyattinkara, the Circle Inspector of Police, Varkala, the Circle Inspector of Police, Medical College and others. The Special Investigation Team took over the investigation on 9-7-1998. Several persons including the 2[nd] and 3[rd] respondents were questioned. The respondents were strongly suspected to be the persons behind the murder of Rajendran Kani. The investigation revealed the moral status of 2nd and 3[rd] respondent is questionable. There was an incident prior to the death, i.e. on 11-6-1998 (incident on 13-6-1998) a person by name Gopalakrishnan Nair @ Gopan said to be the paramour of the 2[nd] respondent was caught red handed from her house and assaulted by neighbours. It was alleged that the illicit relationship was going on with the blessings of the 3[rd] respondent, the mother. On coming to know of the incident,Rajendran Kani, the husband of the 2[nd] respondent rushed to the house of the respondents in the evening of 12-6-1998 and abused them. The dead body was found floating in the lake on the next day. Investigation also revealed that respondents 2 and 3 were closely associated with a police constable by name Rajendran, a self styled Swami (Godman) CRMC.2248& 2249/2004 -4- and Prasannan who owned and managed a temple at Aralummode. There were several rumours regarding the mystry shrouding the temple. The Special Investigation Team on investigation could not bring out any positive materials to establish the involvement of the 2[nd] and 3[rd] respondents. In the meantime, the local people formed an Action Council and released a number of statements to the media. There was a hue and cry demanding immediate arrest of 2[nd] and 3[rd] respondents. The investigation was transferred to the Crime Branch on 20-7-1998, in view of sensation generated in the matter. The Crime Branch took over the investigation on 20-7-1998. A re-postmortem was conducted at the instance of Crime Branch by a Medical Team and the opinion in the autopsy was that Rajendran Kani died due to drowning and preceding that there was an attempt to commit suicide by hanging. But the local people were not satisfied with the findings of the Crime Branch. Subsequently the investigation was transferred to the C.B.I. who conducted a detailed investigation. The 2[nd] and 3[rd] respondents were interrogated for days together by the C.B.I. and finally the C.B.I. referred the case as suicide and the CRMC.2248& 2249/2004 -5- investigation was closed . 2. The 2[nd] and 3[rd] respondents represented before the Central Government to get sanction under Section 197 Cr.P.C. to prosecute the petitioner vide Annexure-I. The same was forwarded to the Government of Kerala since the petitioner is attached to the Kerala Police Cadre. The Government of Kerala rejected Annexure-I request on 15-12-1999 vide Annexure-II. It is thereafter that respondents 2 and 3 moved the Court. Copy of the sworn statement of the 2[nd] respondent is Annexure-III. It is stressed that in Annexure-III there is no whisper against the petitioner. The complaint was originally taken cognizance of by the Court of Sessions as S.C.No.546/19999. The same was challenged by the petitioner vide Crl.M.C.No.4986/1999 before this Court and this Court was pleased to allow the same with direction to the Sessions Court to return the complaint to the Judicial First Class Magistrate concerned. 3. It is pointed out that when the representation for sanction under Section 197 Cr.P.C. was rejected, the same ought to have been challenged before a court of law. It was not done and hence the same has become final. It is further pointed CRMC.2248& 2249/2004 -6- out that the complaint was filed vide Crl.M.P.No.1156/1999 before the Sessions Court on 12-5-1999 making allegations as to the torture etc. that took place in the month of July 1998 and hence the same is barred under Section 64(3) of the Kerala Police Act as the complaint is filed subsequent to six months of the incident. It is further alleged that the petitioner was born and brought up in Bihar and that he is not conversant with the caste prevalent in Kerala and he was not aware that the respondents belonged to the scheduled caste. There is no averments in the petition that the petitioner was aware that respondents 2 and 3 belonged to Kani community, which is a scheduled caste community. Hence, the allegations of infraction of Scheduled Castes & Scheduled Tribes(Prevention of Atrocities) Act cannot be sustained. It is further stated that during the period of questioning of the respondents, the local people had declared Ooruvilakku (made them outcaste) and in fact the police afforded protection to the respondents. The respondents requested that they may be allowed to stay in the Vanitha (Women) police station for one or two days and the same was allowed. It is contended that the Magistrate before taking CRMC.2248& 2249/2004 -7- cognizance of the matter ought to have considered the question of sanction under Section 174 Cr.P.C. The complaint is filed only as a vindicative measure as the respondents were continuously questioned by the police. The only allegation against the petitioner is that the police officers inflicted torture on them at the assistance, guidance and directions of the petitioner. According to the them, the petitioner was personally present in the office of the Assistant Commissioner on 6-7-1998 7 p.m. to 11 p.m. and on 8-7-98 till night though he occasionally went out for some other purposes as is evident from the representation to the Central Government. It is contended that the allegations related to the incidents that is intrinsically connected with the official duties of the petitioner and that while he was discharging his statutory power of investigation into the crime. The statute empowered him to supervise investigation into serious crimes. It is further pointed out that the petitioner was selected to the I.P.S.in 1987 and that he had worked as Superintendent of Police and D.I.G. and got President's medal for meritorious services and that so far there was no complaint against the petitioner. Hence, he has sought for getting the criminal proceedings CRMC.2248& 2249/2004 -8- initiated quashed. ## **CRL.MC.2249/2004** 4. The petitioner is the 4[th] accused in C.P.No.10/2004 in the file of the Judicial First Class Magistrate Court-III, Thiruvananthapuram with respect to the offences as the same in C.P.No.13/2004. The complaint is lodged by the 2[nd] respondent, the mother who is the 3[rd] respondent in Crl.M.C.No.2248/2005 against seven police officers including the petitioner who was working in his capacity as Commissioner of Police, Thiruvananthapuram City. The allegations in detail are the same as in C.P.No.13/2004 and the contentions of the petitioner are the same as in Crl.M.C.No.2248/2004. 5. What has been highlighted by counsel for the petitioner is the fact that there is no allegation against the petitioner that he manhandled the respondents. The allegation is that some of the incidents of torture were perpetuated in his presence and that he shouted at the respondents. It is further stressed that there is no case that the petitioner uttered any particular words that amounted to the offences under the Scheduled Castes & CRMC.2248& 2249/2004 -9- Scheduled Tribes (Prevention of Atrocities) Act and that there was no allegation that he knew the details of the community of the respondents. 6. I find that the details in the complaint virtually admits that the case with respect to the death of Rajendran Kani, the husband of the 2[nd] respondent in Crl.M.C.No.2248/2004 was really sensational. In the words of the petitioners in C.P.NO.13/2004 “wide publicity was given to the above propaganda [that the alleged murder was committed by the respondents] by giving colourful stories in the media. It is alleged that the petitioner directed to arrest the respondents and detain them and further torture and harass them in a most inhuman manner and as a consequence they were taken and kept in police custody from 16-6-1998 to 5-8-1998. It is alleged that on 16-6-1998 as per the direction given by the petitioner, the Circle Inspector of Police, Medical College Police station made them appear before him and while questioning the respondents he received constant telephone messages and directions from a particular member of the Action Council and they were beaten up repeatedly, their modesty was outraged CRMC.2248& 2249/2004 -10- and abused by calling their caste name and the 3[rd] respondent was kicked in the abdomen. It is also alleged that the minor daughter of the 2[nd] respondent was forcibly taken into custody and entrust with a distant relative of the deceased. 7. The petitioners have alleged that on 20-6-1998, 30-61998, 1-7-1998, 6-7-1998, 7-7-1998 and on 8-7-1998, 9-7-98, 10-7-98, 11-7-1998 and from 12-7-98 to 17-7-98, the respondents were brutally tortured by the police officials. The presence of 4[th] accused, the petitioner herein, is mentioned on 30-6-98, 7-7-98 and on 8-7-98. It is their case that it is in pursuance of the direction of the petitioner herein that the above inhuman cruelties were perpetuated on them. 8. It is the case of the petitioner that the above allegations would not constitute an offence outside the contours of Section 197 Cr.P.C., i.e. committed while acting or purporting to act in the discharge of official duties for which sanction is required. The very fact that the petitioner had sought for sanction and the same was rejected itself is indicative of the fact that respondents 2 and 3 were very much aware that sanction is required. Really both sides have relied on the same decisions of this Court and CRMC.2248& 2249/2004 -11- that of the Supreme court to contend that cruelties perpetuated while in custody are sheer offences and cannot be treated as offences committed while acting or purporting to act in discharging of official duties and vice versa in support of their respective contentions. ## 9. In **P.K.Pradhan v. State of Sikkim, (2001)6 SCC 704** it was held that there should be a reasonable connection between the act complained of and the discharge of official duties and that the acts should be such that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duties. The above was a case with respect to acts committed while conducting search. The three Judge Bench of the Supreme Court vide majority in **Sankaran Moitra v. Sadhna Das, 2006(4)SCC 584** has considered the entire gamut of the ample attitude of Section 197 and has considered the preceding case law. The Supreme Court therein has cited with approval its own earlier decision in **Sreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287** that if Section 197 is construed too narrowly it can never be applied, for of course it is not part CRMC.2248& 2249/2004 -12- of an official's duty to commit an offence and it can never be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it. The word offence has been explained in the above decision. “Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused, are, first, that there was an `entrustment' and/or `dominion'; second, that the entrustment and/or dominion was `in his capacity as a public servant'; third that there was a disposal; and fourth, that the disposal was `dishonest'. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or CRMC.2248& 2249/2004 -13- purporting to be done in an official capacity. Therefore, the act complained of, namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done; in the CRMC.2248& 2249/2004 -14- one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.”(emphasis in original) This Court therefore held in that case that Section 197 of the Code of Criminal Procedure applied and sanction was necessary and since there was none, the trial was vitiated from the start.” 10. The Court has also relied on its own decision in **Amrik** **Singh v. State of Pepsu, AIR 1955 SC 309** that if the act complained of is directly concerned with his official duties that if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary irrespective of whether it was, in fact a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial. On the other hand, if there was no necessary connection between the acts and the performance of duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required. The court has also relied on the decision in **Matajog** CRMC.2248& 2249/2004 -15- **Dobey v. H.C.Bhari, AIR 1956 SC 44** that if there was a reasonable connection between the act and the official duty, it does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. The court has also quoted with the approval the observation in **Rakesh Kumar** **Mishra v. Sate of Bihar, (2006) 1 SCC 557** that once any act or omission was found to have been committed by a public servant in the discharge of his official duty then it must be given a liberal and wide construction so far its official nature is concerned. The court has also relied on the observations in the decision in **Rizwan Ahmed Javed Shaikh v. Jammal Patel, (2001) 5 SCC 7** that : “ The real test to be applied to attract the applicability of Section 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 CRMC.2248& 2249/2004 -16- 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.” It was also held in the decision of this Court in **Shoukkathali v. State of Kerala, 2005(3)KLT 634** that protection afforded by Section 197 is illusory if the word offence alleged to have been committed by him while acting or purporting to act on the discharge of official duty is given a narrow meaning. 11. In Sankaran Moitra's case (op.cit) the Supreme Court has further disagreed with the observation of the High Court that killing of a person by use of excessive force would never be performance of duty. The top court observed that it may be correct so far as it goes but the question is whether that 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 of the Code of Criminal CRMC.2248& 2249/2004 -17- Procedure cannot be bye-passed by reason that killing a man could never be done in an official capacity and Section 197(1) of the Code could not be attracted. 12. I find that in view of the above state of law the alleged acts of the petitioner in the instant case would be squarely attracted by Section 197 Cr.P.C. As noted earlier, it is also the case of the complainants that the case in which they were involved was a very sensational one and that their direct involvement was suspected not only by the police but also by the local people. There was an Action Council and furore in the media. It was in pursuance of the same and in the middle of the same that the petitioner being the Commissioner of Police of the area constituted a special investigation team and questioned the complainants. Then how can it be said that the act of the petitioner is not in the exercise of official duties, not to say in the purported exercise of official duty? It has to be further noted that there is no allegation that the petitioner himself manhandled the complainants and there is no allegation that the petitioner uttered any particular word or words so that the same would constitute infraction of the provisions of the Scheduled CRMC.2248& 2249/2004 -18- Castes & Scheduled Tribes(Prevention of Atrocities) Act. It is pointed out that in the sworn statement of the petitioner, there is no allegation in particular against the petitioner herein. There is no allegation that the petitioner who belonged to Sate of Bihar is aware of the fact that the community to which the complainants belonged is scheduled caste. It cannot be held that questioning of the suspected accused cannot be said to be a part of official duty. There was delay also for a period of nine months in filing the complaint. Of course, the complainants have made an attempt to explain the delay stating that they were afraid that some harm would be caused to the 2[nd] respondent's minor daughter. But I find that the circumstances alleged that their daughter was placed in custody of a relative of the deceased husband of the 2[nd] respondent does not justify the apprehension that some harm would be caused to the child or that the 2[nd] respondent would not be able to retrieve the child. 13. The contention that Section 64(3) of the Kerala Police Act debarred entertainment of complaint after six months as such would depend on the nature the actions, i.e, whether it is in exercise of official duties or in purport of exercise of official CRMC.2248& 2249/2004 -19- duties as held by the Supreme Court in **Unnikrishnan v. Alikutty, 2000(3)KLT 483(SC).** This Court has held in **Balan v. State of Kerala, 2004(1)KLT 122** that in order to attract the offence under Section 3(1)(xi) of the S.C.& S.T.(Prevention of Atrocities) Act, it must be shown that at the time of the act, the person who did that act was aware of the fact that the victim of the offence was a member of scheduled caste or scheduled tribe. 14. In the circumstances, in view of the allegations in the complaint filed and in view of the law laid down by the Supreme Court, I find that in order to prosecute the petitioner, sanction is required under Section 197 Cr.P.C. Hence, in the absence of sanction, taking cognizance of the offences against the petitioner herein, who is the 4[th] accused in C.P.Nos.13/2004 and 10/2004 cannot be sustained. In the result, the proceedings against the petitioner,4[th] accused in the above C.Ps. are herewith quashed. ## **K.R.UDAYABHANU, JUDGE** ## **ks.** CRMC.2248& 2249/2004 -20-