Crl.M.C.No.3342/07

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE B.P.RAY** ## **FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933** ## **Crl.MC.No. 3342 of 2006()** **------------------------------------** ## **CC.564/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY** **....................** ## **PETITIONER(S): ACCUSED: NO.1 & 2** **-----------------------------------------------------** ## **1. ALEX K. JOHN, AGED ABOUT 45,** **S.I. OF POLICE ERUMELY NOW WORKING AS DY.SP., CRIME DETACHMENT, KAZARAGODE.** **2. P.V. GEORGE, AGED 57, PCK 3645, ERUMELY POLICE STATION.** **BY ADV. SRI.C.P.UDAYABHANU** ## **RESPONDENT(S):** **--------------------------** **1. JACOB JOSEPH, NIRAPPEL HOUSE, PANAPILAVU, ERUMELY.** **2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HGIH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA ADV. SRI.KASHA K.MALAYAN.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **R.BASANT, J.** **----------------------** Crl.M.C.No.3342 of 2007 ---------------------------------------Dated this the 9[th] day of April 2007 ## **O R D E R** Aggrieved by the order passed by the learned Magistrate directing that charges be framed against them, the petitioners, the police officials have come before this court with the prayer to invoke the inherent jurisdiction of this court under Section 482 Cr.P.C. 2. The vitally relevant facts can be stated thus. On the evening of 14/02/1994, police men appear to have gone to the shop of the complainant. They had allegedly detected an offence under the provisions of the Kerala Abkari Act. The occupants of the shop allegedly took to their heals. No one including the complainant could be apprehended. A crime was registered. On 15/2/1994 at about 2.30 a.m, the complainant was allegedly arrested from his house. He was taken to the police station. He was allegedly tortured at the police station. He allegedly suffered injuries. He was enlarged on bail on the next morning. He proceeded to the doctor who examined him and issued a wound certificate. He was referred to the medical college hospital. He allegedly suffered a fracture of the vertebral Crl.M.C.No.3342/07 2 process. His father filed a complaint before the Superintendent of police. A crime was registered at the Erumely police station. Investigation was conducted. The police submitted Annexure IV report referring the case as one of mistake of fact. Aggrieved by the action of the police, the complainant filed a complaint before the learned Magistrate. Annexure I is the copy of the complaint. As many as five accused persons were arrayed as accused - petitioners 1 and 2 as accused 1 and 2 in that complaint. The learned Magistrate, after observing the procedure prescribed by law chose to take cognizance and issue process against the first petitioner/accused alone. Aggrieved by that order - of not taking cognizance against accused 2 to 5, the respondent/complainant came before this court. By Annexure V order, another bench of this court modified the order passed by the learned Magistrate. It was found that accused 1 and 2 are liable to be proceeded against. The operative portion of that order, copy of which is produced as Annexure V reads as follows: “Therefore Magistrate is directed to frame charge against the second respondent/accused also along with the first respondent/accused”. Crl.M.C.No.3342/07 3 3. Thereupon the learned Magistrate after securing the presence of both petitioners proceeded to conduct enquiry under Section 244 Cr.P.C. The petitioners herein (accused 1 and 2) filed an application for discharge under Section 245 Cr.P.C. The learned Magistrate, by Annexure 7 order, took the view that charges are liable to be framed against the petitioners. Accordingly, the learned Magistrate proceeded to pass Annexure VII, the impugned order. 4. The petitioners claimed to be aggrieved by the impugned order. According to them, they are entitled to the protection of Section 197(3) Cr.P.C. The learned Magistrate has unfortunately ignored the notification dated 6/12/1977 which affords the petitioners, police officials, protection under Section 197(3) Cr.P.C. The learned Magistrate erred grossly in thinking that the petitioners are not entitled for protection of Section 197 Cr.P.C. They may not be entitled for protection under Section 197(1) Cr.P.C. But certainly they must be held to be entitled to the protection under Section 197(3) Cr.P.C in the light of the notification dated 6/12/1977. This is the first contention. Crl.M.C.No.3342/07 4 5. I have no hesitation to agree with the learned counsel for the petitioners on this aspect. Under Section 197(3) Cr.P.C, members of the forces charged with maintenance of public order as may be specified under notification are entitled to the protection under Section 197(3) Cr.P.C if other pre-requisites are satisfied. The learned counsel for the petitioners rightly points out that the decision of the Single Bench in Muhammed v. Sasi [1985 KLT 404 (SB)] has been considered and disapproved by a Division Bench of this Court in Sarojini v. Prasannan [1996(2) KLT 859]. The learned counsel for the petitioners further points out that the decision in Rizwan Ahmed Javed Shaikh v. Jammal Patel [2001 SC 2198] squarely covers the issue and protects officials like the petitioners who are members of the Kerala Police Force which force is charged with the duty of maintenance of public order. They are hence entitled to the protection under Section 197(3) Cr.P.C, though they being officials who can be removed without the sanction of the Government, the protection under Section 197(1) Cr.P.C is not applicable to them. I agree with the learned counsel for the petitioner completely on this aspect and hold that the notification dated 6/12/1977 affords Crl.M.C.No.3342/07 5 protection to the petitioners provided other requirements are satisfied. 6. The learned Magistrate further appears to have taken the view that in the light of the order passed by this court earlier in Annexure V that - “Magistrate is directed to frame charge” against the first and the second petitioners herein, the learned Magistrate is obliged to frame charges against the petitioners. This approach, obviously is incorrect. A careful reading of Annexure V order must reveal that the only issue that the court was called upon to consider was whether the process ought to have been issued under Section 204 Cr.P.C to the petitioners herein. That question alone was answered against the petitioners. The question of sanction under Section 197 was not considered at all. Though this court used the expression “Magistrate is directed to frame charge” against both the accused, it is very clear that the court had intended only that the learned Magistrate must issue process not only against the first accused but against the second accused also. That sentence - which I have already extracted above which appears in the operative portion of Annexure V order will not, at any rate, Crl.M.C.No.3342/07 6 disentitle the petitioner to claim the protection of Section 197 Cr.P.C. That view taken by the learned Magistrate also does not appear to be correct. 7. Though Section 197(3) Cr.P.C is applicable to members of the police force like the petitioners, they can claim protection under Section 197 Cr.P.C only if they can show that there is a reasonable nexus between the alleged overt act and the official duty performed by them. Such officers must be acting in the discharge of their official duty or purporting to act in the discharge of their official duty. Then and then alone the protection under Section 197 will enure to their benefit. The crucial question hence is whether the petitioners were acting or purporting to act in the due discharge of their official duty. That is the crucial question which had to be considered. The learned Magistrate considered the same and came to the conclusion that the petitioners are not entitled to such protection. 8. The question whether protection under Section 197 Cr.P.C must be made available to the indictees or not is essentially a question of fact to be decided on the basis of the allegations raised and the stand taken by the accused persons. Crl.M.C.No.3342/07 7 In this case, it is evident that the alleged offence under the Kerala Abkari Act was detected on 14/2/1994 by about 6.15 p.m. The investigation of that crime was later transferred to the Excise officials also. On 15/2/1994 at 2.30 a.m the accused persons had gone to the house of the complainant to effect arrest. At 2.30 a.m, the arrest was allegedly effected. He was taken into custody and when he was released on bail, he had injuries which are described in the wound certificate. The burden certainly is on the accused persons/police officials, in these circumstances, at this stage, to explain the manner in which the injuries were suffered. Except to contend that at the time of the arrest, the accused attempted to escape and force had to be employed to arrest and detain him, no other explanation whatsoever is offered. That explanation appears at a belated stage. If the petitioner had suffered injuries in the course of such attempt to escape while being arrested, certainly he must have been taken to and got examined by the doctor by the police officials who effected the arrest. That has obviously not been done in this case. The convenient explanation belatedly offered that the accused was released on bail even when he had Crl.M.C.No.3342/07 8 such serious injuries - fracture of the vertebral process suffered by him - does not convey conviction at this stage at least. He was not produced before any Magistrate. He was not taken to any doctor. All these are crucial and vital circumstances while making an assessment whether plea for protection under Section 197 Cr.P.C can be conceded to the accused or not. 9. It is, by now trite that too liberal an interpretation of Section 197 Cr.P.C will leave the citizens who are left to suffer at the hands of the police without any effective remedy. At the same time too strict an interpretation under Section 197 Cr.P.C will make it sterile and illusory. A reasonable view has to be taken considering all the circumstances of this case. If the status as an official only offered the excuse and the opportunity to commit the offence, of course Section 197 cannot offer any protection. An excess committed while performing official duty will certainly attract the protection of Section 197 Cr.P.C. 10. I am, in the circumstances of the case, satisfied that the learned Magistrate was eminently justified on the basis of the materials presently available that the accused persons are not entitled for the protection of Section 197 Cr.P.C. Crl.M.C.No.3342/07 9 Notwithstanding the fact that the learned Magistrate has erred in coming to the conclusion that the notification dated 6/2/1977 will not be available to the petitioners and in coming to the conclusion that Annexure V order obliges the learned Magistrate to frame charges against the petitioners herein, I am satisfied that on the crucial question, the learned Magistrate has not committed any error and hence the impugned order does not warrant any interference. I have gone through the records of the court below. I note that the charges have already been framed against the petitioners by the learned Magistrate on 10/11/2006. 11. I do not, in these circumstances, find any reason to invoke the powers under Section 482 Cr.P.C to prematurely terminate the proceedings against the petitioners. 12. This Criminal Miscellaneous Case is, in these circumstances, dismissed. I may hasten to observe that I have not intended to express any final opinion on any disputed questions of fact. The learned Magistrate will have to consider all contentions at the end of the trial and take an appropriate decision on the question of culpability. Crl.M.C.No.3342/07 10 13. The learned counsel for the respondent/complainant submits that the matter has been pending for a long period of time, the alleged incident having taken place on 15/2/1994. Needless to say, the learned Magistrate must make every endeavour to complete the proceedings and dispose of the case finally as expeditiously as possible, at any rate, within a period of three months from the next date of posting. Parties shall appear before the learned Magistrate on that date. 14. Communicate copy of the order forthwith to the learned Magistrate. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.3342/07 11 Crl.M.C.No.3342/07 12 ## **R.BASANT, J** C.R.R.P.No. ORDER 21ST DAY OF JULY 2006