Crl.Rev.Pet.No. 1551 of 2013

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE 27TH DAY OF SEPTEMBER 2013/5TH ASWINA, 1935 Crl.Rev.Pet.No. 1551 of 2013 () -------------------------------------------- AGAINST THE ORDER IN CMP 1290/2012 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-1, PERUMBAVOOR DATED 10-05-2013 ## REVISION PETITIONER : --------------------------------- ADV.M.P.CHOTHY, AGED 63 YEARS, S/O.PAINKAN, MACHERIKKUDY HOUSE, PATTAL - PANKULAM ROAD, PERUMBAVOOR VILLAGE, IRINGOLE P.O., PIN - 683545. BY ADV. SRI. M.P.CHOTHY(PARTY-IN-PERSON) RESPONDENT : --------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031. BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1551 of 2013 () ## APPENDIX REVISION PETITIONER’S ANNEXURES : ANX-1 COPY OF C.M.P.NO.558 OF 2012. ANX-2 COPY OF ORDER DATED 06.06.2012 ON C.M.P.NO.558 OF 2012. ANX-3 COPY OF C.M.P.NO.1290 OF 2012. ANX-4 COPY OF ORDER SHEET OF C.M.P. OF C.M.P.NO.1290 OF 2012 ISSUED BY HON’BLE J.F.C.M.C-1, PERUMBAVOOR. ANX-5 COPY OF THE ORDER DATED 10.05.2013. RESPONDENT’S ANNEXURES : NIL // True Copy // P.A. To Judge DSV/06/11 K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1551 of 2013 -----------------------------------------------------Dated this the 27[th] day of September, 2013 ## ORDER The revision petitioner is the petitioner in C.M.P.No.1290/2012 on the files of the Judicial First Class Magistrate’s Court, Perumbavoor. He is the complainant in C.M.P.No.18/2012 of the same court alleging the offence punishable under Section 3(i)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’) against three persons. The said complaint was forwarded for investigation by the court on 04.01.2012 under Section 156 (3) of the Code of Criminal Procedure (for short ‘the Cr.P.C.’). The accused herein is the Deputy Superintendent of Police, Perumbavoor. Since the allegations are punishable under the provisions of the Act, the Deputy Superintendent of Police was liable to conduct the investigation. But on 23.01.2012, the accused/Deputy Superintendent of Police along with one Grade Assistant Sub Crl.R.P. No. 1551 of 2013 -: 2 :- Inspector of Police C.K.Revi and one Civil Police Officer came to the place of occurrence. It is the case of the complainant that the competent officer, Deputy Superintendent of Police, had not conducted any investigation and he remained there as a spectator. The Grade Assistant Sub Inspector of Police C.K.Revi conducted the investigation and he prepared the scene mahazar. AS per the provisions of the Act, the accused/Deputy Superintendent of Police alone is competent to conduct the investigation. But he had not conducted the investigation and the failure on his part to conduct the investigation amounts to wilful neglect of duty and therefore punishable under Section 4 of the Act. 2. After recording the sworn statement of the complainant, the complaint was posted for enquiry under Section 202 of the Cr.P.C. and one witness was examined. After considering the evidence on record, the learned Magistrate dismissed the above complaint on the ground that sanction under Section 197 of the Cr.P.C. has not been Crl.R.P. No. 1551 of 2013 -: 3 :- produced so as to take cognizance against the accused,who is a public servant. This order is under challenge in this Revision. 3. The learned counsel for the revision petitioner submits that the learned Magistrate had failed to consider Section 197 of the Cr.P.C. in its correct perspective. According to him, though the accused is a public servant, sanction is not required under Section 197(1) of the Cr.P.C. as the allegation is that the accused omitted to perform his duty. To fortify the above argument, the learned counsel cited a decision of this Court in Prakash v. State of Kerala [2011 (2) KLT 158] and submits that 197(1) sanction is required only if the alleged offence was committed in the course of discharge of official duty. But in the instant case, the alleged offence was not committed in the course of discharge of official duty. 4. The learned counsel further submits that the statutory requirement under Rule 7 of the Scheduled Castes Crl.R.P. No. 1551 of 2013 -: 4 :- and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short ‘the Rules’) is that the offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. According to the revision petitioner, the competent officer himself should complete the investigation and any part of the investigation cannot be allotted to any of his subordinate officer. Therefore, the court below went wrong in considering Rule 7 of the Rules. 5. Going by the impugned order, it could be seen that the complaint filed by the revision petitioner was dismissed on two grounds: “ i) lack of sanction under Section 197 (1) of the Cr.P.C. ii) the investigation was conducted by a competent officer himself and nothing wrong in employing the subordinate officers to complete the investigation under the supervision of the competent officer.” 6. Going by Section 197 (a) and (b) of the Cr.P.C., the Crl.R.P. No. 1551 of 2013 -: 5 :- statutory mandate is that no court shall take cognizance of such offence except with the previous sanction, in the case of a person who is employed under the State Government or the Central Government, as the case may be. In the instant case indisputably, the accused DySP is a public servant under the State Government who is having protection under Section 197 (b) of the Cr.P.C. In short, no court shall take cognizance of any offence if that offence was committed by the accused while acting or purporting to act in discharge of his official duty except with the previous sanction of the competent Authority. Therefore, the question to be considered is whether the accused/DySP has committed the alleged offence while acting or purporting to act in the discharge of his official duty. 7. Going by the complaint, it is seen that the investigation was ordered on 04.01.2012 under Section 156 (3) of the Cr.P.C. and the accused/DySP, after getting the order of the court, inspected the place of occurrence on Crl.R.P. No. 1551 of 2013 -: 6 :- 23.01.2012 itself. Thus it could be seen that the investigation was commenced within a period of one month itself. Then the allegation is that, the investigation was not completed within one month. Even if the investigation was not completed within one month, I am of the opinion that the conduct of the DySP does not amount to an omission to do his duty. As rightly held by the learned Magistrate, it can be said that the Investigating Officer has not conducted the investigation properly within the time, not omitted to his duty. Thus, I find that the alleged offence was committed while acting in discharge of official duty. Therefore, sanction of the State Government under Section 197 of the Cr.P.C., which is lacking in the instant case, is a pre-requisite for taking cognizance of offence against the accused. 8. Going by the decision in Prakash v. State of Kerala reported in [2011 (2) KLT 158] (Supra), this Court held that what is to be looked into is not whether the alleged offence was committed in the ‘course of investigation’ or in Crl.R.P. No. 1551 of 2013 -: 7 :- the ‘course of discharge’ of official duty but whether the act was done in the ‘discharge’ of official duty. I find that the alleged act was done in discharge of his official duty after starting the investigation on 23.01.2012 and there is nexus between the act done and the duty assigned to him. Therefore, I find that the decision in Prakash v. State of Kerala reported in [2011 (2) KLT 158] (Supra) will not render any assistance or aid to fortify the argument advanced by the learned revision petitioner. 9. The 2[nd] point to be considered is whether the competent officer can depute any part of the investigation to his subordinates. In the complaint itself, he has admitted that the accused himself inspected the place of occurrence on 23.01.2012 along with his subordinate officers. 10. Going by the decision in Yannam Satyanarayan v. State of A.P. reported in [2006 Crl. L. J. 2320] and the decision in Balan U.K. & another v. State reported in [2004 (1) ILR 604], it could be seen that the procedure irregularity Crl.R.P. No. 1551 of 2013 -: 8 :- in investigation shall not be fatal unless it causes miscarriage of Justice or prejudice to the complainant. 11. Admittedly the investigation was started by the competent officer himself. Even if a further part of the investigation was conducted by a subordinate officer under the supervision of a competent officer that cannot be treated as an irregularity, if the report was filed by the competent officer himself after scrutiny. Pertinently, there is no allegation in the complaint that the delay in filing final report caused prejudice or miscarriage of Justice to him. Therefore, I find that above contention is also devoid of merit. Thus, I find that there is no illegality or impropriety in the impugned judgment under challenge. Hence the Revision Petition is dismissed. ## Sd/- ## (K. HARILAL, JUDGE) // True Copy // P.A. To Judge DSV/- Crl.R.P. No. 1551 of 2013 -: 9 :- Crl.R.P. No. 1551 of 2013 -: 10 :-