CRL.R.P. No.63/2019

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ``` CRL.REV.PET NO. 63 OF 2019 ``` ``` [AGAINST THE ORDER/JUDGMENT DATED 25.06.2018 IN C.M.P. NO.1414/2017 IN CC 854/2018 OF JUDICIAL FIRST CLASS MAGISTRATE ``` ``` COURT, TRIPUNITHURA] ``` ## `REVISION PETITIONERS/ACCUSED NOS.1 TO 3` ``` 1K.V.RAJU AGED 57 YEARS S/O.VARGHESE,KANJIRAMKUZHIYIL HOUSE, RAMAMANGALAM(P.O),MUVATTUPUZHA, ERNAKULAM DISTRICT, (RETIRED EXCISE INSPECTOR). 2K.R.RAMA PRASAD AGED 33 YEARS S/O.RADHAKRISHNA PILLAI,KALAYIL HOUSE, KEECHERY,KULAYITTIKARA(P.O),ERNAKULAM DISTRICT, (PREVENTIVE OFFICER IN EXCISE DEPARTMENT). 3T.N.SREERAJ AGED 35 YEARS S/O.NARAYANAN.T.K,THANDEL PUTHENPURA, EAST KADATHY,MARKET(PO),MUVATTUPUZHA, ERNAKULAM DISTRICT, (CIVIL EXCISE OFFICER IN EXCISE DEPARTMENT). BY ADVS. NIREESH MATHEW N.P.PRAJEESH ``` ## `RESPONDENTS /STATE AND COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,KOCHI-682031. 2SAJU AGED 49 YEARS S/O.VARGHESE,KANJIRATHUMMOOTTIL HOUSE, VALAYANCHIRANGARA DESOM,RAYAMANGALAM VILLAGE,KUNNATHUNADU TALUK,ERNAKULAM DISTRICT,PIN- 682021. BY ADVS. R1 BY SMT.SEENA C, PUBLIC PROSECUTOR R2 BY ADV.V.BIJU JOSEPH ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2023, THE COURT ON 13.10.2023 PASSED THE FOLLOWING: ``` CRL.R.P. No.63 /2019 2 ## `O R D E R` The petitioners are accused Nos.1 to 3 in C.C.No.854/2018 on the file of the Judicial First Class Magistrate Curt, Thripunithura. The cognizance of the said case was taken based on a complaint submitted by the 2[nd] respondent in this Revision Petition, and the offences alleged are punishable under Sections 341,324,506(ii),357,385,326 r/w.34 of the Indian Penal Code (IPC). 2. The facts which led to the filing of this Crl.RP are as follows: C.M.P.No.1414/2017 was taken up by the Judicial First Class Magistrate Court, Thripunithura, based on a complaint submitted by the 2[nd] respondent. Initially, the said complaint was forwarded by the 2[nd] respondent as a prison petition to the District Court, Ernakulam, which was forwarded to the Judicial First Class Magistrate Court, Chottanikkara, for necessary action. The allegations raised therein were against the petitioners, who are the Excise Inspector, Preventive Officer and Civil Excise Officer in the Excise Department, respectively. Thereafter, the petition was forwarded to the Judicial First Class Magistrate Court, Thripunithura, as it was found that the said court was having territorial jurisdiction. Accordingly, as part of the inquiry, the 2[nd] respondent appeared before the court, and his sworn CRL.R.P. No.63 /2019 3 statement was recorded, and a witness was examined. Thereupon, cognizance was taken by the learned Magistrate as per the order dated 25.06.2018 for the offences referred to above. 3. According to the 2[nd] respondent, on 05.03.2016 at about 4.15 p.m., when he went to a Bar restaurant at Thripunithura to meet one of his friends Eldho, four persons who came in a civil dress forcibly took him to a car and brought him to Excise Office and thereafter he was brutally manhandled by the petitioners/respondents alleging that he is a seller of ganja. Later, they realized that the 2[nd] respondent was taken into custody on a mistaken identity, and thereupon, they registered a false case against the 2[nd] respondent for the offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), to cover up their lapses. Accordingly, he was arrested based on the same. 4. The complaint submitted by the 2[nd] respondent, as referred to above, was forwarded by the learned District Judge on 19.03.2016 while he was undergoing detention in connection with the said case. This Crl.RP is filed by the petitioners challenging the order passed by the learned Magistrate taking cognizance of the offences and also challenging the further proceedings pursuant to the same, which is pending as C.C.No.854/2018 before the learned Magistrate. 5. Heard Sri. Nireesh Mathew, the learned counsel for the CRL.R.P. No.63 /2019 4 petitioners and Smt. Seena C., the learned Public Prosecutor for the State and Sri. V.Biju Joseph, the learned counsel for the 2[nd] respondent. 6. The specific contention put forward by the learned counsel for the petitioners is that the order passed by the learned Magistrate taking cognizance of the offences is vitiated as the cognizance was taken without obtaining sanction under Section 197 of the Code of Criminal Procedure (Cr.PC). The learned counsel places reliance upon the decisions rendered by the Hon’ble Supreme Court in **K. Kalimuthu v. State by DSP [2005 (4) SCC 512], Krishnendu Narayan Chowdhury v. State of West Bengal and Others [2008 CriLJ 1691]** and another decision rendered by this Court in **Krishna** **Kumar B. v. State of Kerala and Another [2017 (5) KHC 556].** 7. The contentions were opposed by the respondents. 8. The question that arises in this case is as to whether the order taking cognizance is liable to be interfered with for want of sanction under section 197 of Cr.PC. The circumstances under which sanction required under Section 197 is required in respect of a public servant has been a subject matter of a large number of decisions rendered by the Hon’ble Supreme Court and the High Courts. In **P. Arulswami v. State of Madras [AIR 1967 SC 776],** it was observed by the Hon’ble Supreme Court as follows: CRL.R.P. No.63 /2019 5 "It is not therefore every offence committed by a public servant that requires sanction for prosecution under S.197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by S.197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable." ## In **Kalimuthu’s** case (supra), it was observed by the Hon’ble Supreme Court in paragraph 7 as follows: “The protection given under S.197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before S.197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge CRL.R.P. No.63 /2019 6 of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of S.197 does not get immediately attracted on institution of the complaint case.” Similarly, after referring to a large number of decisions, this Court, in ## **Krishna Kumar’s** case (supra), has observed in paragraph 12 as follows: “12. On an evaluation of the binding precedents on the point, it can be seen that protection under S.197 of the Code can be claimed by a public servant only when the alleged act was committed by him while acting or purporting to act in the discharge of his official duty. To illustrate this point, take a case where a public servant while acting or purporting to act in the discharge of his official duty allegedly commits an offence, which can never be recognized as part of his official duty, even then he is entitled to protection of S.197(1) of the Code. On the contrary, if a public servant commits an offence as a private citizen, that too in the exercise of his private right, he cannot claim protection under S.197(1) of the Code. The act complained of must have happened while a public servant acting or purporting to act in the discharge of his official duty. If the alleged act is completely unconnected with the discharge of any official duty, a public servant cannot claim the protective cover of S.197(1) of the Code.” Thus, in the light of the aforesaid principles laid down in the aforesaid decisions, the conclusion possible is that if the offence is allegedly committed by the Public Servant while acting or purporting to act in the discharge of his official duty, certainly the sanction under Section 197 Cr.PC is required. 9. When considering the facts of this case to find out whether the offences allegedly committed by the petitioners were while acting or purporting to act in the discharge of his official duty, the case advanced by the petitioners is also relevant, which is as follows; CRL.R.P. No.63 /2019 7 On 05.03.2016, while the petitioners were working as Excise Inspector, Preventive Officer and Civil Excise Officer respectively, at Mamala Excise Range office, the 2[nd] respondent, who was driving a motorbike, was intercepted by them as part of their official duties and seized 250 grams of ganja and 70 numbers of Nitrozepam capsules. When the 2[nd] respondent tried to escape from the scene, he fell down by hitting his face on the ground. Thereafter, when he attempted to run away from the place of occurrence, the petitioners were compelled to use necessary force to prevent him, thereby, he was over powered and arrested. Crime No.4/2016 of Mamala Excise Range was registered against the 2[nd] respondent for the offences punishable under Sections 20(b)(ii)(A),22(b) and 25 of the NDPS Act. 10. To substantiate the said contention, the crime occurrence report was produced as Annexure-B along with this Crl.Revision Petition and the complaint submitted under Section 36(a)(i)(b) of the NDPS Act by the Excise Circle Inspector, Kunnathunadu, against the 2[nd] respondent in the said crime, was also relied on. 11. The aforesaid documents indicate that the 2[nd] respondent was arrested at 4.15 p.m. on 05.03.2016. The complaint based on which the present proceedings are initiated against the petitioners is dated 19.03.2016, which was forwarded by the 2[nd] respondent from Prison. The date of occurrence mentioned in the complaint was on 5.3.2016 at 1 p.m. Even in the complaint, it is stated by the 2[nd] CRL.R.P. No.63 /2019 8 respondent that he was apprehended by the four officers in civil dress under the suspicion that he was a seller of ganja. According to him, later, they realized that they had arrested the wrong person and he was not the person intended to be arrested. By the time the 2[nd] respondent was brutally attacked and to cover up the same, a false case had been registered against him for various offences under the provisions of the NDPS Act. 12. Thus, when carefully going through the contents of the complaint itself, it can be seen that, the acts allegedly committed by the petitioners were reasonably connected with the discharge of their duty or purporting to be in the discharge of their official duty. This is mainly because, even according to the 2[nd] respondent, the 2[nd] respondent was initially apprehended by them, suspecting him to be a drug peddler. Therefore, the finding of the learned Magistrate that they were not in discharge of their official duty at the relevant time is not legally sustainable. Moreover, it is also a well settled position of law that, even if excess force was used by an officer concerned while discharging his duty, the requirement of sanction under section 197 of Cr.PC cannot be dispensed with. In this case, even going by the contents of the complaint submitted by the 2[nd] respondent, the materials indicating the discharge of their duty are evident. Therefore, this matter could not have been taken cognizance of without sanction. CRL.R.P. No.63 /2019 9 13. There is yet another aspect which fortifies the contentions put forward by the petitioners. The petitioners have produced details of the cases in which the 2[nd] respondent was involved, and it indicates that he is accused of 23 cases, mainly involving the offences under Sections 457,380,379, etc of the Indian Penal Code. In three cases, he was convicted as well. The documents relating to the registration of Crime No.4/2016 would indicate that the 2[nd] respondent was arrested on 05.03.2016 at 4:30 p.m. for having in possession of narcotic drugs. The complaint was submitted only on 19.03.2016. There is no case for the 2[nd] respondent that the fact that he was brutally manhandled by the petitioners was reported to the learned Magistrate when he was produced after the arrest in the said case. 14. Thus, when considering the entire materials placed on record, I am of the view that the order of the learned Magistrate taking cognizance without sanction under Section 197 Cr.PC was not at all proper. Section 197 Cr.PC provides special protection to the public servants from unnecessary and unwarranted litigations to which they are exposed to while discharging their duties. In this case, I have already found that they were in discharge of their official duty at the relevant time and therefore, even if they have used excess force while discharging the said duties, the prosecution could not have been continued without sanction under Section 197 Cr. PC. In such circumstances, this Crl. R.P is allowed, and the order CRL.R.P. No.63 /2019 10 dated 25.06.2018 in C.M.P.No.1414/2017 on the file of the Judicial First Class Magistrate Court, Thripunithura, taking cognizance of the offences referred to in the complaint, is hereby set aside. As a natural consequence of such finding, further proceedings pursuant to the said order, including the proceedings in C.C No 854/2018 pending before the said court, are also to be set aside and ordered accordingly. However, it is clarified that, this order will not preclude the 2[nd] respondent or the authorities concerned from taking necessary steps for obtaining sanction to prosecute the petitioners herein for the offences alleged. Sd/- **ZIYAD RAHMAN A.A. JUDGE** pkk CRL.R.P. No.63 /2019 11 ## `APPENDIX OF CRL.REV.PET 63/2019` |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE A`|`CERTIFIED COPY OF THE COMPLAINT FILED BY`| ||`THE 2ND RESOPNDENT BEFORE THE PRL.SESSIONS`| ||`COURT,ERNAKULAM,DATED 19.03.2016.`| |`ANNEXURE B`|`TRUE PHOTOCOPY OF THE CRIME AND OCCURRENCE`| ||`REPORT DATED 05.03.2016`| |`ANNEXURE C`|`PHOTOCOPY OF THE DECISION,K.KALIMUTHU`| ||`VS.STATE BY DSP REPORTED IN 2005 KHC 825.`| |`ANNEXURE D`|`PHOTOCOPY OF THE DECISION,KRISHANENDU`| ||`NARAYANAN CHOWDHURY VS.STATE OF WEST BENGAL`| ||`AND OTHERS REPORTED IN 2008 KHC 5594.`| |`ANNEXURE E`|`PHOTOCOPY OF THE DECISION,KRISHNA KUMAR`| ||`B.VS.STATE OF KERALA REPORTED IN 2017(5)KHC`| ||`556.`|