Crl.R.P. No. 588 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 8[TH] DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945** **CRL.REV.PET NO. 588 OF 2022** **AGAINST THE ORDER DATED 31.05.2022 IN CMP NO.143/2021 IN CC 1473/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **PUNALUR** ## **REVISION PETITIONERS/PETITIONERS/ACCUSED 1 & 2:** - **1 MANOJ, AGED 51 YEARS, SON OF BALAKRISHNA PILLAI, CIRCLE INSPECTOR OF POLICE, ANCHAL POLICE STATION, NOW RESIDING AT POLICE QUARTERS, PALAYAM, THIRUVANANTHAPURAM DISTRICT, PIN – 695033.** **2 SAKARIYA, AGED 61 YEARS, SON OF K. CHACKO, A.S.I. OF POLICE, ANCHAL POLICE STATION, RESIDING AT ALUMMOOTTIL VEEDU, VAYAKKAL P.O., VALAKAM, KOTTARAKKARA, KOLLAM DISTRICT, PIN – 691532.** **BY ADVS. K.B.UDAYAKUMAR C.M.KAMMAPPU** ## **RESPONDENTS/RESPONDENT/STATE & COUNTER PETITIONER:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** - **2 SAJILAL,** **SON OF DEVADASAN, MANI VILASAM, ARCHAL, ANCHAL, NEDIYARA P.O., ANCHAL, KOLLAM DISTRICT, PIN – 691306.** **BY ADVS.** - **R1 BY SMT MAYA MN, PUBLIC PROSECUTOR R2 BY KRISHNKUMAR [CHERTHALA]** 2 Crl.R.P.No.588 of 2022 **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 05.12.2023, THE COURT ON 08.12.2023 DELIVERED THE FOLLOWING:** 3 Crl.R.P.No.588 of 2022 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Crl.R.P.No.588 of 2022** **----------------------------------------------------------Dated this the 8[th] day of December, 2023 O R D E R** The petitioners are the accused in C.C.No. 1473 of 2015 on the files of the Judicial Magistrate of the First Class-I, Punalur. They filed C.M.P.No.143 of 2021 under Section 245(2) of the Code of Criminal Procedure, 1973 (Code) before the learned Magistrate seeking discharge on the ground that no sanction under Section 197(1) of the Code was obtained for their prosecution. As per the order dated 31.05.2022 that petition was dismissed and the said order is under challenge in this revision petition filed under Section 397 read with Section 401 of the Code. 2. The 2nd respondent is the complainant in C.C.No.1473 of 2015. Pursuant to notice he entered appearance through his learned counsel. 3. Heard the learned counsel for the petitioners, the learned Public Prosecutor and the learned counsel for the 2nd respondent. 4 Crl.R.P.No.588 of 2022 4. The 2nd respondent filed the complaint with the following allegations. On 02.05.2015, the 2nd respondent was asked to appear in the Police Station, Anchal. He was asked to appear to enquire about a dispute relating to a case pending against him before the Family Court, Kottarakkara. At the Police Station, his statement was recorded by the policeman. After that, the 1st petitioner, who was the Circle Inspector of Police in that Police Station, abused the 2nd respondent and manhandled him. He was tortured and threatened. The 1st petitioner punched at his stomach causing him to fall down. He was detained in the police station in an unhygienic bathroom till the evening. He was even denied drinking water. 5. After recording the statement of the 2nd respondent and an inquiry under Section 202 of the Code by the court below, summons was issued to the petitioners. They appeared before the court below and filed C.M.P.No.143 of 2001. Their contention was that even admitting the allegations in the complaint to be true, they can be prosecuted against only 5 Crl.R.P.No.588 of 2022 after obtaining sanction from the Government as contemplated in Section 197(1) of the Code and since the court issued summons without obtaining such a sanction, they are entitled for a discharge. The said contention was considered by the court below in the light of the law laid down by the Apex Court in **P.P.Unnikrishnan v. Puttiyottil Alikutty [(2000) 8 SCC 131]** and held that the petitioners were not entitled to claim the protection of Section 197(1) of the Code. The court below took the view that the allegations raised against the petitioners could not be treated as part of their official duty and therefore no sanction under Section 197(1) of the Code was required for their prosecution. 6. The principle laid down by the Apex Court in **Unnikrishnan** (supra) is extracted below: “If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3) of the K.P. Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such 6 Crl.R.P.No.588 of 2022 act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a magistrate or an order of a court it would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority.” 7. The learned counsel for the petitioners would submit that the 2nd respondent was brought to the police station in connection with a crime registered against him, a copy of the F.I.R. of which is Annexure-1 and the allegation that he was manhandled is totally incorrect. It is submitted that from Annexure-2, which is a copy of the Outpatient Registration Card regarding treatment of the 2nd respondent, it is seen only two trivial abrasions and that would improbabilise the allegations in the complaint. The learned counsel relying on the decision of the Apex Court in **Devaraja D. v. Owais** 7 Crl.R.P.No.588 of 2022 **Sabeer Hussain [(2020) 7 SCC 695]** further contended that from the nature of the allegations in the complaint, it could only be said that the alleged act has reasonable nexus with the discharge of their official duty and therefore sanction under Section 197(1) of the Code is required for their prosecution. 8. The learned counsel appearing for the 2nd respondent, on the other hand, would submit that the 2 nd respondent was summoned to the police station even before registration of Crime No.762 of 2015 and without any reason he was detained and manhandled in the police station in the presence of others present in the police station. It is submitted that after assaulting the 2nd respondent, crime No.762 of 2015 was registered in order to circumvent the action at the instance of the 2nd respondent. The further submission of the learned counsel for the 2nd respondent is that as seen from Annexure-2, on the same day the 2 nd respondent took treatment for the assault by the petitioners, and therefore, there cannot be a contention that the 8 Crl.R.P.No.588 of 2022 complaint is falsely instituted by him. The learned counsel defended the impugned order by contending that a public servant is not empowered to commit this kind of a criminal offence and for that reason the petitioners cannot contend that only on getting sanction under Section 197(1) of the Code they could be prosecuted for such a serious criminal offence. 9. Annexure-1 crime was registered on the same day i.e., 02.05.2015. True, the F.I.statement was recorded at 1.30 p.m., whereas the 2nd respondent was brought to the police station in the morning itself. But when the allegation in the complaint itself is that in connection with a dispute concerning a case pending against the 2nd respondent before the Family Court, Kottarakkara, he was asked to be present in the police station and Annexure-1 crime was also registered in relation to the same dispute, it cannot be said that he was asked to appear the police station not concerning a complaint against him. Therefore, the 2nd respondent was summoned to the police station by the petitioners only as part of their official 9 Crl.R.P.No.588 of 2022 duty. The question is whether the acts of offence committed by the petitioners, after bringing the 2nd respondent in the police station, will come within the protective penumbra of Section 197(1) of the Code. 10. The Apex Court in **Devaraja** (supra) observed regarding the purpose of sanction under Section 197(1) of the Code as follows: “68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.” In the said case, a complainant was allegedly ill-treated after his arrest and manhandled during the period from 27.02.2013 10 Crl.R.P.No.588 of 2022 till 04.03.2013. There were criminal cases registered against the complainant. On the complainant filing a private complaint, cognizance of the offences under Sections 120B, 220, 323, 330, 348 and 506 Part II, read with Section 34 of the Indian Penal Code, 1860 was taken against the appellant, who was a police officer of the rank of Superintendent of Police. In the said factual scenario the Apex Court held that every offence committed by a police officer does not attract Section 197(1) of the Code. The protection given under Section 197(1) was available only when the alleged act done by the police officer was reasonably connected with the discharge of his official duty. 11. It was further observed that an offence committed entirely outside the scope of the duty of the police officer would not require sanction. However, if an act is connected with the discharge of official duty of the investigation of a recorded criminal case, the act is certainly under the colour of duty, no matter how illegal the act may be. The further observations are that, to decide whether sanction is 11 Crl.R.P.No.588 of 2022 necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. If the act alleged against the police man is reasonably connected with the discharge of his official duty, it does not matter if the police man has exceeded the scope of power and/or acted beyond the four corners of law. In such a case, it was held that sanction is required for the prosecution. 12. In **Unnikrishnan** (supra) the facts were totally different. The complainant therein was called to the police station on 23.12.1995. He was illegally detained there from 24.12.1995 and kept in custody in the lock-up. Alleging that he committed some acts of theft, he was manhandled and kept in the station overnight. He was kept in the lock-up till 27.12.1995. Thereafter, he was released from confinement with a warning not to divulge the said incident to anyone. There was no case registered against the complainant. It was in the said circumstances, the Apex Court held that sanction was not required to prosecute the police officer. The reason stated are extracted in paragraph No.6 above. 12 Crl.R.P.No.588 of 2022 13. The facts of the case on hand are similar to **Devaraja** (supra). In connection with the complaint, which formed the basis of registration of crime No.762 of 2015, the 2nd respondent was called to the police station. It is true that only bailable offences were alleged in Annexure-1 F.I.R. Asking an accused in a bailable offence to appear in the police station for interrogation cannot be said to be without authority. Therefore, the act of bringing the 2nd respondent in police station on 02.05.2015 was as part of the official duty of the petitioners. After bringing the 2nd respondent to the police station he was said to have been manhandled. 14. Of course, the aforesaid allegations, if true, certainly would amount to criminal offence for which the petitioners are liable to be prosecuted. The law laid down by the Apex Court in **Devaraja** (supra) is applicable applied to the facts of this case. The acts of the petitioners, which amounted to such criminal offence, were under the colour of the duty and have reasonable connection with their discharge of their official duty. Therefore, their prosecution can be had 13 Crl.R.P.No.588 of 2022 only with the sanction under Section 197(1) of the Code of the Code. In that view of the matter, the order of the court below dismissing C.M.P.No.143 of 2021 is incorrect. For want of sanction, the court below ought not have taken cognizance of the offences alleged against the petitioners. For that reason, their plea for discharge is liable to be allowed. 15. Accordingly, the revision petition is allowed. On setting the impugned order aside, C.M.P.No.143 of 2021 is allowed. The petitioners, who are the accused in C.C.No.1473 of 2015 are discharged under Section 245(2) of the Code. It is made clear that this order does not bar prosecution of the petitioners after obtaining leave under Section 197(1) of the Code. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 14 Crl.R.P.No.588 of 2022 ## **APPENDIX OF CRL.REV.PET 588/2022** ## **PETITIONER ANNEXURES** **ANNEXURE1 TRUE COPY OF THE FIR IN CRIME NO. 762/2015 OF ANCHAL POLICE STATION, KOLLAM DISTRICT . ANNEXURE2 TRUE COPY OF THE OUTPATIENT REGISTRATION CARD DATED 2/5/2015 ISSUED FROM TALUK HEAD QUARTERS HOSPITAL, PUNALUR TO THE 2ND RESPONDENT .**