Crl.Rev.Pet.No. 1857 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** ## **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** ## **Crl.Rev.Pet.No. 1857 of 2009** ## **----------------------------** ## **CC 248/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KANJIRAPPALLY ----------** ## **PETITIONERS/ACCUSED 1 TO 4:** **--------------------------** **1. PURUSHOTHAMAN.V.K,FORESTER,VANDANPATHAL FOREST STATION,VANDANPATHAL,MUNDAKAYAM.** **2. BABU.P.B,FOREST GUARD,VANDANPATHAL FOREST STATION,VANDANPATHAL.** **3. ARUNKUMAR.P.T,FOREST GUARD,VANDANPATHAL FOREST STATION,VANDANPATHAL.** **4. SHAJIMON.K.K,FOREST GUARD,VANDANPATHAL FOREST STATION,VANDANPATHAL.** ## **BY ADV. SRI.C.S.MANILAL** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **----------------------------------** **1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **2. BINU.K.C,S/O.CHACKO, KOCHUVEETTIL, KARINILAM.PO,MUNDAKAYAM.** - **R1 BY PUBLIC PROSECUTOR SMT.S.HYMA R2 BY ADV. SRI.ARUN VALENCHERY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.Rev.Pet.No. 1857 of 2009** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S) ANNEXURES -----------------------** |**ANNEXURE 1:**|**TRUE COPY OF THE JMAHAZAR DATED 10/12/2006 PREPARED**| |---|---| ||**BY FOREST GUARD, VANDANPATHAL FOREST STATION**| |**ANNEXURE II:**|**TRUE COPY OF THE RECOVERY MAHAAZAR DATED**| ||**17/1/2007 PREPARED BY 1ST ACCUSED.**| |**ANNEXURE III:**|**TRUE COPY OF THE MAHAZAR DATED 6/2/2007 PREPARED BY**| ||**STAFF OF VANDANPATHAL FOREST STATION**| |**ANNEXURE IV:**|**TRUE COPY OF THE CONFESSION STATEMENT OF THE**| ||**COMPLAINANT**| |**ANNEXURE V:**|**TRUE COPY OF THE REMAND REPORT DATED 6/2/2007**| ||**SUBMITTED BY THE 1ST ACCUSED**| |**ANNEXURE VI:**|**TRUE COPY OF THE COMPLAINANT FILED BY THE**| ||**COMPLAINANT BEFODR THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT-II, KANJIRAPPALLY**| |**ANNEXURE VII:**|**TRUE COPY OF THE ORDER DATED 2/5/09 IN CC.248/07.**| |**RESPONDENTS' ANNEXURES**|| |**---------------------**|| ||**NIL.**| ||**/ TRUE COPY /**| ||**P.S. TO JUDGE**| **PJ** ## **K. ABRAHAM MATHEW, J.** ................................................................ Crl.R.P. No.1857 of 2009 ............................................................... Dated this the 23[rd] day of August, 2016 ## ORDER The petitioners are officers of the Forest Department. On 10.12.2006, O.R. 14 of 2016 was registered for certain Forest offences. The allegation was that a teak tree was cut down from the reserve forest. The 2[nd] respondent in this writ petition was the 1[st] accused. On 06.02.2007 the 2[nd] respondent was arrested and taken to Placherry Forest Station. He was later produced before the Magistrate concerned, who remanded him to judicial custody. He was released on bail later. On 29.03.2007 he filed Annexure 6 complaint alleging that the petitioners assaulted him at Placherry Forest Station in the course of his interrogation and thus they committed the offences under Sections 294(B) 323 and 324 of IPC. The learned Magistrate took cognizance of the offences and conducted an enquiry under Section 202 of Code of Criminal Procedure. He issued process to the petitioners for their appearance. On their appearance enquiry under Section 244 of the Criminal Procedure was conducted. The petitioners pleaded Crl.R.P. 1857 of 2009 -2- for discharge. By the impugned order the learned Magistrate rejected the plea and decided to frame charge. This is challenged in this revision petitioner. 2. Heard the learned Counsel for the petitioners and the learned Public Prosecutor. 3. The learned Counsel for the petitioners Shri. C.S. Manilal submits that the alleged assault was in the course of interrogation of the 2[nd] respondent and the petitioners are entitled to the protection under Section 197 of Code of Criminal Procedure, which reads as follows:- “ - **Prosecution of Judges and public Servants** 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:” 4. Every illegal act done in the course of investigation of a case is not protected by Section 197 of Code of Criminal Crl.R.P. 1857 of 2009 -3- Procedure. The first question is whether it was a permissive act. If there was only excess exercise of a permissive act, petitioners are entitled to claim protection under Section 197 of the Code of Criminal Procedure. 5. The learned Counsel relies on the decision of this Court in **Sunil Kumar v State of Kerala** [2007 (4) KLT 359]. That was a case in which the police allegedly acted in excess of their authority in arresting the accused. Section 46 (2) of Code of Criminal Procedure empowers an officer to use force in case the person who is sought to be arrested resists arrest. But in this case the specific allegation of the 2[nd] respondent is that he was assaulted in the course of his interrogation at the forest station. So the decision in **Sunil Kumar's Case** is not applicable to the facts of the case. 6. Reliance is also placed on the decision of the learned Single Judge of this Court in **Unni Rajan v State of Kerala** [2012 (3) KLT SN 27]. The learned Judge has observed that even if it is assumed that there was some assault, it cannot be said that it was not done while discharging official duties because the very allegation is that the assault was while interrogating the 2[nd] respondent. To put it in other words, it is a case of interrogation Crl.R.P. 1857 of 2009 -4- with torture. This decision is no authority to hold that if police officers or other officers or officers of other departments assault an arrested person while in custody they are entitled to the protection under Section 197 of Code of Criminal Procedure. 7. Another decision relied on by the learned Counsel in **Ravada A Chandrasekhar v State of Kerala** [2012 3 KLT (SN 108)]. This decision speaks of acts in excess of the power given to officers of the Government. But in this case, the allegation is not doing any act in excess of the authority given to the petitioners. The foundation of the complainant is assault during detention. So this decision is also of no assistance to the petitioners. 8. The decision in **Sankaran Moitra v Sadhana Das & Anr** .[AIR 2006 SC 1599] also was pressed into service by the learned Counsel for the petitioners. This also was a case in which there was an allegation of use of excessive force. The present case can be distinguished on facts. 9. The last decision on which reliance is placed by the petitioners is the decision of the Supreme Court in **Virupakshappa v Subash** [2015 (2) KLT SN 89]. The Supreme Court has observed that going by the factual matrix so this Crl.R.P. 1857 of 2009 -5- decision also speaks of use of excessive force”. This decision also does not help the petitioners to claim discharge. 10. The learned Counsel Shri. C.S. Manilal submits that in the complaint it is admitted that force was used by the petitioners in arresting the 2[nd] respondent which itself shows that the 2[nd] respondent's case is that it was in the course of his apprehension he sustained injuries. I cannot accept it. He has no case that though force was used while he was arrested he sustained any injuries. On the contrary his definite case is that he was taken to the forest station and there he was assaulted. It is also brought to my notice that the nature of the injuries sustained by the 2[nd] respondent does not justify the allegation that he was assaulted in the manner in which it is mentioned in the complaint or the evidence of the complainant who was examined as DW1.It is specifically argued that the 2[nd] respondent has no case that the petitioners or any of them assaulted him on the neck, but the doctor noticed an injury on the neck, which according to the learned counsel, shows that the story narrated by the complaint is not the true version. But it is a matter which cannot be taken notice of at this stage. 11. The 2[nd] respondent, who was examined as PW1, has Crl.R.P. 1857 of 2009 -6- testified that each of the petitioners assaulted him at the forest station. He was not cross examined. So as of now, the only material before the court is the unchallenged testimony of PW1. There is nothing in his testimony which makes the complainant's version an improbable one or unbelievable one. 12. In the light of the above discussion, I hold that the learned Magistrate was right in rejecting the plea of the petitioners that they are entitled to be discharged. In the result this Criminal Revision petition is dismissed. Sd/- **K. ABRAHAM MATHEW, JUDGE** SKV