Crl.M.C.No.3967 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940 Crl.MC.No. 3967 of 2013 IN CC 781/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM PETITIONERS/ACCUSED: 1. UNNIKRISHNAN, POLICE DRIVER, PERAMANGALAM POLICE STATION, THRISSUR DISTRICT. 2. UNNIKRISHNAN, ASSISTANT SUB INSPECTOR OF POLICE, PERAMANGALAM POLICE STATION, PERAMANGALAM, THRISSUR DISTRICT. 3. SAJITH KUMAR, POLICE CONSTABLE, PERAMANGALAM POLICE STATION, PERAMANGALAM, THRISSUR DISTRICT. BY ADV.SRI.RAJIT RESPONDENTS/STATE: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. JITHESH, AGED 31 YEARS, S/O.SEKHARAN, KULANGARA PARAMBIL HOUSE, PERAMANGALAM VILLAGE, DESOM, THRISSUR TALUK - 680 545. R1 BY PUBLIC PROSECUTOR SMT.MAYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3967 of 2013 () ## APPENDIX ## PETITIONER(S)' EXHIBITS - ANNEXURE A: COPY OF THE PRIVATE COMPLAINT DATED 28-04-2010 FILED BY THE 2ND RESPONDENT BEFORE THE LEARNED JFCM COURT, - KUNNAMKULAM - ANNEXURE B: COPY OF THE ENQUIRY OF THE 1ST WITNESS SUJEESH RECORDED BY THE MAGISTRATE UNDER SEC.202 OF CR.P.C DATED.29.6.2010 ANNEXURE C: COPY OF THE ENQUIRY OF THE 2ND WITNESS SINEESH RECORDED BY THE MAGISTRATE UNDER SEC.202 OF CR.P.C DATED 29.6.2010. ANNEXURE D: COPY OF THE FIR 71/2010 ANNEXURE E: COPY OF THE WOUND CERTIFICATE DTD.25.1.2010 RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE ab ## **MARY JOSEPH, J --------------------------------------------------Crl.M.C.No.3967 of 2013 --------------------------------------------------Dated this the 12[th] day of June, 2018** ## **O R D E R** This proceedings is preferred by the petitioners, who are the accused in C.C.No.781/2010 on the files of the Judicial First Class Magistrate Court, Kunnamkulam, Thrissur District. The above case is registered based on a private complaint filed by the 2[nd] respondent. In the private complaint the Judicial First Class Magistrate Court, Kunnamkulam has recorded the statement of the 2[nd] respondent under Section 200 Cr.P.C and the statements of the two witnesses under Section 202 Cr.P.C during enquiry. Based on the statements so recorded of the complainant and the witnesses the learned Magistrate took cognizance of the offences punishable under Sections 323, 324, 342 and 326 r/w 34 of the Indian Penal Code. It is at that juncture that the petitioners have approached this Court seeking to quash C.C.No.781/2010 on the allegation that the prosecution initiated against the petitioners is false and permitting trial to be held, will only be an abuse of the process of the court. Crl.M.C.No.3967 of 2013 2 2. Sri.Rejit, the learned counsel advanced arguments for the petitioner and Smt.Maya, the learned Public Prosecutor advanced arguments for the 1[st] respondent in the proceedings. The 2[nd] respondent though was served with notice, none represented him on this day. 3. The argument of the learned counsel for the petitioners was mainly based on two points. The first argument of the learned counsel was centred on the falsity involved in the case. The second argument advanced was based on the lack of sanction for prosecution as contemplated under Section 197(3) Cr.P.C, the petitioners being police officers. According to the learned counsel, on the twin contentions as advanced by him, the proceedings can be treated as an abuse of the process of the court and are liable to be quashed. The learned Public Prosecutor has also placed a report of the investigating officer for perusal wherein it has been stated that the case which has been taken cognizance of by the learned Judicial First Class Magistrate Court, Kunnamkulam is devoid of any basis. 4. It is seen from the records of the case that the Judicial First Class Magistrate Court, Kunnamkulam, has taken cognizance of a private complaint and numbered the same as C.C.No.781/2010. The private complaint was moved by the 2[nd] respondent before the court. The Magistrate has examined the Crl.M.C.No.3967 of 2013 3 defacto complainant under Section 200 Cr.P.C and as part of enquiry had also examined two witnesses of the complainant. Based on the statement so recorded, the learned Magistrate has taken cognizance of the case for the offences as aforesaid. 5 **.** It is the contention of the learned counsel that the cognizance was taken without any justifiable grounds. According to the learned counsel an FIR as Annexure D was registered at the Peramangalam Police Station against the 2[nd] respondent and others based on the FIS lodged by one Mr.Limesh. According to the counsel it is to wreak vengeance against the police at Peramangalam Police for registering a crime against the 2[nd] respondent that he had preferred the private complaint falsely. Cognizance was taken by the Judicial First Class Magistrate Court, Kunnamkulam on the private complaint and a case registered against him on its file as C.C.No.781/2010. According to him the incident that formed basis for the registration of Annexure D was occurred at 23 hrs. on 24.1.2010. The counsel has also invited my attention to Annexure E, the accident register-cum-wound certificate of Mr.Limesh, the defacto complainant in the crime registered as Annexure D to contend that the said Limesh had sustained injuries in the incident occurred on 24.1.2010 and was hospitalised at 8.30 am. on 25.1.2010. The learned counsel has Crl.M.C.No.3967 of 2013 4 also invited me to the allegations levelled in Annexure D which is extracted hereunder: “1 മതൽ 3 കടടയ പതടകൾ 24.01.2010 തടയതട 23.00 മണടകക ആവലലതടകലരൻ: വഴടയയ ൽ നടനന മലറടയടരടകലൻ പറഞതടല:ള വടരരലധതലൽ ആവലലതടകലരനന രദരഹലപദവന ഏൽപടകണനമനള ഉരദശതക തകതന കരതനലലതന കടട 1- പതട തടകട നടർതട ഇടടകട നകലണക നനറടയടലട ടടചന 2- പതട ആവലലതടകലരനന രറ ഡടൽ ചവടട വയഴക തട 3- പതട കക നകലണക മഖതന പറതന അടടചന ആവലലതടകലരനക കടകലരൻ ഷടബവടരന യന 2 ഉന 3 ഉന പതടകൾ കക നകലണടടചന 1- പതട വയണന നനറടയടൽ ഇടടകട നകലണക ഇടടചതടൽ ടടയലൻ ഒഴടട മലറടയടലല നയങടൽ നനറകയടൽ നകലണക മരണന വനര സനഭവടകമലയടരന എന കലരരക " 6. According to the learned counsel the allegations would disclose that the 1[st] accused, the 2[nd] respondent herein had restrained Mr.Limesh and hit him with a hitting block on his forehead twice and that if Mr.Limesh had not evaded the further blow, it would have caused his death. Therefore, as per the allegations a hitting block was in use by the 2[nd] respondent and with that he hit on the forehead of the defacto complainant therein. The learned counsel has invited my attention to the allegations in the private complaint appended as Annexure A Crl.M.C.No.3967 of 2013 5 wherein it has been stated by the 2[nd] respondent that he had sustained a fracture on his right little finger caused in the blow by the petitioner with a batten. It is submitted by the learned counsel that since it is disclosed from the allegation that he had sustained fracture on his little finger, and since an incident was also occurred on 24.1.2010 wherein he had hit the defacto complainant therein with a hitting block, the only possibility is that the injury alleged to have sustained by him on his right finger might have been caused in the incident occurred on 24.1.2010 itself. The learned counsel has also invited my attention to the alleged date of occurrence which led to the filing of the private complaint. It was on 24.1.2010 and the time was at 11.30 p.m. Going by Annexures A and D it could be seen that both the incident was alleged as occurred on the very same date in a gap of half an hour. It was after obtaining bail in the case registered as Annexure D and after a period of three months and four days that Annexure A private complaint was preferred by the 2[nd] respondent. The submissions made by the learned counsel when viewed in the backdrop of the allegations in the private complaint there is every reason to accept the arguments advanced by the learned counsel that the case which has been taken cognizance of by the Magistrate as C.C.No.781/2010 on the basis of the complaint filed as Annexure Crl.M.C.No.3967 of 2013 6 A is tainted with falsity. 7. With regard to the second argument regarding lack of sanction for prosecuting the petitioners under Section 197(3) of Cr.P.C the learned counsel has placed before me several decisions both of this Court as well as of the Apex Court. The learned counsel has also invited my attention to Section 197 of Cr.P.C to contend that prior sanction is necessary to prosecute the petitioners, who are public servants and for want of that in the case on hand is vitiated. 8. Section 197 of the Code of Criminal Procedure is extracted hereunder which reads thus: ## **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:[ 1] 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. (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 Crl.M.C.No.3967 of 2013 7 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) 1 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, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 9. Section 197(3) is relevant in the context. Under Subsection (3) of Section 197 of Code of Criminal Procedure, it is provided that the State Government by notification direct the provisions of sub-Section (2) of Section 197 to apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, whereever 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 Crl.M.C.No.3967 of 2013 8 Government” were substituted. By virtue of the power conferred by sub-section (3) of Section 197 of Cr.P.C a notification dated 16.12.1977 has been issued by the State Government. By virtue of the notification, the provisions of sub-section (2) was made applicable to all members of Kerala State Police Force charged with maintenance of public order. 10. The learned counsel has drawn my attention to **Sarojini v. Prasannan (1996(2) KLT 859)** wherein a Division Bench of this Court had held that the provisions of sub-section (2) have been made applicable to members of Kerala Police charged with 'maintenance of public order' who form a class of police force. The court had also held that the 'maintenance of public order' can fall within the definition of 'law and order', the former being an extension of the latter. The Court observed that though conceptually distinct the maintenance of public order and law and order are perhaps two sides of the same coin. 11. Yet another decision to which my attention was drawn is **Sunil Kumar v. State of Kerala (2007(4) KLT 359).** In the cited decision, the Court has held that the crucial question to be considered is whether the act alleged against the police officer can be said to be committed in the discharge of his official duty or in the purported discharge of his official duty. The court held in the following words: Crl.M.C.No.3967 of 2013 9 “The width and amplitude of the words “while acting or purporting to act in the discharge of official duty” have been the subject matter of consideration in many cases. If a very restricted interpretation were accepted, it would render the provisions of S.197 of the Crpc sterile as it cannot be held to be the part of the official duty of any public servant to commit any offence. At the same time if too wide an interpretation in force of the public official were accepted, the private citizen will remain without efficacious remedy when his rights are trammelled by officials exercising their functions”. 12. In the case cited, the accused police officer had tighten a towel around the neck of the accused while apprehending him. In the said circumstances, the court held that it is not the official duty of the public servant to use the towel around the neck of the accused person to be apprehended and tighten the same. But, it may not be proper to come to a conclusion that the alleged act is totally outside the official duty or purported official duty of the official concerned so as to lead the Court to a conclusion that he is not entitled to the benefit of protection under Section 197 Cr.P.C. Therefore, the court had extended the ambit of the words 'acting' or 'purporting to act' in discharge of the official duty to a wide extent. In the decision cited by the learned counsel i.e., **Rizwan Ahmed Javed Shaikh** Crl.M.C.No.3967 of 2013 10 **v. Jammal Patel [(SC) 2001 5 26]** the Apex Court had occasioned to consider a similar case and it was held by the court that : “15. 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 while 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, of 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 purports to be performed, the public officer would be protected.” 13. In the said case the defacto complainant have been beaten mercilessly by one of the accused persons while in custody. During the course of examination one among the complainants had stated that one of the police officers had assaulted him and for the reason that the statement given was too vague to be acted upon, cognizance was not taken by the Magistrate against the police officer. But, cognizable and nonbailable offences have been registered against the police officers for the reason that they failed to produce the accused before the Magistrate within 24 hours of arrest. The Crl.M.C.No.3967 of 2013 11 complainants (accused) were in the custody of the police officers at the police station. Therefore, the court observed that the custody though legal has become illegal lateron and even then, the act of non-production alleged against them, will come within the course of exercise of official duty and therefore the accused were held to have entitlement for benefit of protection under Section 197(3) Cr.P.C. Accordingly, the Magistrate and the High Court were held to have not erred in extending the benefit to the accused under Section 197(2) Cr.P.C police officers. 14. The allegations in the complaint also did not provide a space to view that the acts alleged against the petitioners were committed by them during the course of their official duty. The petitioners being arrayed in their official capacity and the incident was alleged as occurred at the Police Station, prima facie impression possibly be created is also that the acts alleged had been committed by them while on official duty. This Court is also convinced from the report filed by the prosecutor that sanction has not been obtained as contemplated under Section 197(3) of Cr.P.C, to prosecute the accused. Therefore, it appears that the learned Magistrate had taken cognizance of the private complaint alleging commission of the offences against the petitioners and numbered it as C.C.No.781/2010 without sanction being obtained to prosecute the petitioners under Crl.M.C.No.3967 of 2013 12 Section 197(3) Cr.P.C. Undoubtedly, the act of the Magistrate is illegal in view of the mandate under Section 197(3) Cr.P.C. In the result, all further proceedings initiated pursuant to C.C.No.781/2010 on the file of the Judicial First Class Magistrate Court, Kunnamkulam, Thrissur district, stands quashed forthwith. Sd/- **MARY JOSEPH Judge** ab