Crl.M.C.No.4456/2015

Crl.M.C.No.4456/2015 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943_ ## _CRL.MC NO. 4456 OF 2015_ _AGAINST THE ORDER/JUDGMENT IN CC 906/2009 OF JUDICIAL MAGISTRATE OF_ _FIRST CLASS - I, NORTH PARAVUR_ ## _PETITIONER/ACCUSED NO.2:_ _J.KURIAKOSE, AGED 41 YEARS, S/O.JOSEPH, MANGALASSERY HOUSE, THYKATTUSSERY, CHERTALA, ALAPPUZHA DISTRICT._ _BY ADV SRI.MANSOOR.B.H._ ## _RESPONDENT/STATE/COMPLAINANT:_ _1 SUDHEER, S/O.SATHYAPALAN, SATHYABHAVAN, CHENDAMANGALAM VILLAGE, ERNAKULAM DISTRICT - 683 512._ _2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031._ _BY ADV SRI.ANIL K.MOHAMMED_ ## _ADV. SUDHEER GOPALAKRISHANAN – PP_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.4456/2015 2 ## **O R D E R** The petitioner is the 2[nd] accused in C.C.No.906 of 2009 on the files of the Judicial First Class Magistrate Court-I, North Paravur. Cognizance was taken by the learned Magistrate for the offences punishable under Section 323,330,506,294(b) read with section 34 of the Indian Penal Code, based on the Annexure-A private complaint was submitted by the 1[st] respondent. 2. The facts leading to the filing of this Crl.M.C are as follows: The petitioner herein was the Sub Inspector of Police, Vadakkekkara Police Station during the year 2008. The 1[st] accused was the Circle Inspector of Police, Vadakkekkara Police Station at the relevant time. The allegation in Annexure-A complaint is that, on 13.02.2008, the 1[st] respondent was arrested by the petitioner herein and detained in the police station. During the course of such detention, he was subjected to severe manhandling at the instance of the 1[st] accused, the then Circle Inspector of Crl.M.C.No.4456/2015 3 Police. The 1[st] respondent sustained injuries because of the same, and the complaint was submitted in such circumstances. The learned Magistrate has taken cognizance thereof, and the same is now pending before the court. The prayer sought in this Crl.M.C. is to quash all further proceedings pursuant to Annexure-A complaint against the petitioner herein. 3. Heard Sri.B.H.Mansoor, learned counsel for the petitioner and Sri.Anil Mohammed, learned counsel for the 1[st] respondent and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 4. The main contention put forward by the learned counsel for the petitioner is regarding the lack of sanction as contemplated under Section 197 Cr.P.C., since the petitioner is a public servant. It was also pointed out that, even going by the specific averments contained in Annexure-A complaint the involvement of the petitioner in the act of assault made against the 1[st] respondent herein is not seen mentioned. The only role assigned to him is that, while the 1[st] accused was manhandling the Crl.M.C.No.4456/2015 4 1[st] respondent, the petitioner herein stood as a mere spectator. It is also an admitted fact in the complaint that at the relevant time, he was arrested by the 2[nd] accused and was under custody. In such circumstances, it was contended that the proceedings initiated pursuant to Anneuxre-A are liable to be quashed. On the other hand, the learned counsel appearing for the 1[st] respondent would contend that the sanction, in this case, is not at all required because the act of assault committed by the accused is not an act which comes within the duties of the accused persons. In such circumstances, interference cannot be made in the proceedings for want of sanction. It is also asserted by the learned counsel for the 1[st] respondent that averments contained in Annexure-A are sufficient to implicate the petitioner herein also in the commission of the offence. 5. The first question that has to be considered is the requirement of sanction under Section 197 Cr.P.C. and the impact of not obtaining such sanction. The learned counsel for the petitioner places reliance upon the judgment in **D.Devaraja v.** Crl.M.C.No.4456/2015 5 **Owais Sabeer Hussain [(2020) 7 SCC 695].** The necessity to obtain sanction before taking cognizance was specifically considered in the said judgment of the Honourable Supreme Court and after referring to a large number of decisions rendered on the point it was observed as follows: “69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. 70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a Crl.M.C.No.4456/2015 6 recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him. 72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.” 6. From the observations made by the Honourable Supreme court as above, it is evident that if the allegation, which is the subject matter of the offence, is reasonably connected with the official duty of the accused, sanction is a pre-requisite for taking cognizance. It was also observed that even in the case of Crl.M.C.No.4456/2015 7 the police excess, the sanction is necessary, as the stipulation in section 197 is intended to protect the public servant to ward off any unwarranted vindictive prosecution against him. When the principles laid down by the Honourable Supreme Court as above are made applicable to the facts of this case, various aspects can be seen. On going through the averments contained in AnnexureA complaint, it is an admitted fact that the 1[st] respondent was arrested by the petitioner herein and was in his custody. It is also a fact that the only allegation against him is that while the complainant was subjected to assault at the hands of the 1[st] accused, the petitioner herein did not intervene. When considering all these aspects, under no stretch of imagination it can be concluded that the allegation as against the petitioner herein was not reasonably connected with the official duty. Admittedly, the petitioner was on duty at the relevant time, and the incident occurred while he was discharging his duty. The arrest of the 1[st] respondent was also made by the petitioner herein. In such circumstances, this is a case in which the sanction was a pre- Crl.M.C.No.4456/2015 8 requisite for taking cognizance as against the petitioner herein, which is lacking. It is a well settled position of law that in the absence of a sanction, the cognizance taken by the Magistrate is vitiated. In this case, cognizance is taken without such sanction and therefore, the proceedings as against the petitioner herein are vitiated. Hence, I am of the view that this is a fit case in which powers of this Court under Section 482 Cr.P.C can be invoked. In the result, this Crl.M.C is allowed and the proceedings in C.C.No.906 of 2009 on the file of the Judicial First Class Magistrate Court-I, North Paravur, as against the petitioner are hereby quashed. However, this shall not preclude the complainant, from approaching the authorities concerned for obtaining sanction for prosecution against the petitioner. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG/14.3.22 Crl.M.C.No.4456/2015 9 ## _APPENDIX OF CRL.MC 4456/2015_ _PETITIONER EXHIBITS_ _A - A COPY OF THE COMPLAINT IN CC NO. 906/2009 PENDING TRIAL BEFORETHE JUDICIAL FIRST CLASS MAGISTRATES COURT I.N PARAVOOR._ _B - A COPY OF THE FIR IN CRIME NO. 824/2008 OF VADAKKEKARA POLICE STATION._ _C - A COPY OF THE REMAND REPORT OF THE SECOND ACCUSED IN CRIME NO. 824/2008 OF VADAKKEKARA POLICE STATION DT. 14.12.08._