High Court of KeralaSingle Judge2017-09-20Quashed taking cognizance

Earnest C. Johnson, Job Solomen and P.K. Vijayan v. M.M. Santosh and State of Kerala

Case / Petition Number:Crl.M.C.No. 5919 of 2013 (with connected Nos. 5920 & 5921 of 2013)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2017-09-20
Court Decision / Holding: Petitions allowed; taking cognizance in CC Nos. 240, 242 and 243 of 2013 on the file of the Judicial First Class Magistrate, Idukki is quashed.
Final Disposition: Quashed taking cognizance

Parties to the Case

Appellants / Petitioners

Earnest C. Johnson
Job Solomen
P.K. Vijayan

Respondents

M.M. Santosh S/o Sugathan
State of Kerala rep. by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Rajeev
• Sri K.K. Dheerendrakrishnan

Counsels for Respondents

• Sri P.P. Thajudeen
• Smt. C. Seena
• Sri P.P. Ramesh Chand

Case Synopsis & Summary

This batch of three Criminal Miscellaneous Cases challenges the order taking cognizance in CC Nos. 240/2013, 242/2013 and 243/2013 of the Judicial First Class Magistrate, Idukki, arising from Crime No. 113/2011 at Kanjikuzhi Police Station. The petitioners are three police officers: Earnest C. Johnson (Head Constable), Job Solomen (Constable) and P.K. Vijayan (ASI). The first respondent, M.M. Santosh, filed private complaints alleging that on 16.06.2011, during a cashew sapling distribution at the Kanjikuzhi Grama Panchayath, authorities discriminated in distribution and the petitioners assaulted complainants inside the Panchayath office, forcing them into a police jeep and abusing them. The complaints seek offences under IPC sections 307, 341, 323 and 294(b), with the private complainants contending that the cognizance was taken without sanction under Section 197 CrPC for public servants. The petitioners press that no cognizance could be taken without prior government sanction, citing statutory provisions and several precedents, including Moosa Vallikkadan; Amal Kumar Jha; Balachandran; Virupakshappa and related authorities. The respondents’ counsel contends that any such issues can be addressed at trial. The High Court, upon consideration of the statutory requirement and precedents, holds that taking cognizance without Section 197 sanction is bad in law and thus quashes the cognizance, allowing the petitions.

Provisions of Law Cited

IPC Sec. 307IPC Sec. 341IPC Sec. 323IPC Sec. 294(b)CrPC Sec. 197(1)(b)CrPC Sec. 197(2)IPC Sec. 332 read with Sec. 34

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that cognizance of the alleged offences without prior sanction under Section 197 CrPC is void. They point to the incident on 16.06.2011 at the Kanjikuzhi Grama Panchayath, where police were called to maintain public order and were allegedly assaulted; they challenge the validity of cognizance in CC Nos. 240, 242, 243 of 2013 on grounds of absence of sanction and delay in filing the private complaints. They rely on Moosa Vallikkadan v. State of Kerala and Another, and other precedents (Virupakshappa D. T. v. C. Subhash; Amal Kumar Jha v. State of Chhattisgarh; Balachandran) to argue that Section 197 sanction is mandatory for cognizance against public servants.

Contentions of Respondents

The respondents’ counsel submit that issues concerning Section 197 can be considered at trial; the complainant argues these questions may be addressed during trial. The central dispute is whether cognizance was properly taken in the absence of statutory sanction; the court is guided by precedents that require sanction for cognizance against public servants and police officers performing official duties.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Moosa Vallikkadan v. State of Kerala and Another	2010 KHC 658	Positive	Cited to support the proposition that Section 197 sanction is required for cognizance against public servants.
Virupakshappa D. T. v. C. Subhash	AIR 2015 SC 2022	Positive	Cited for principle that cognizance without Section 197 sanction can be bad in law.
Amal Kumar Jha v. State of Chhatisgarh	2016 (6) SCC 734	Positive	Cited as authority that Section 197 sanction is required for cognizance against public servants.
Balachandran and Others v. State of Kerala and Others	2012 (3) KHC 328	Positive	Cited to reinforce mandatory nature of Section 197 sanction for cognizance.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 1939** **Crl.MC.No. 5919 of 2013 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 242/2013 of J.M.F.C. - I, IDUKKI DATED 22.04.2013** **CRIME NO. 113/2011 OF KANJIKUZHI POLICE STATION , IDUKKI** **PETITIONERS/ ACCUSED:** **---------------------** **1. EARNEST C. JOHNSON, NO. 3409, HEAD CONSTABLE, KANJIKUZHI POLICE STATION, IDUKKI DISTRICT.** **2. JOB SOLOMEN, NO. 2760, CONSTABLE, KANJIKUZHI POLICE STATION, IDUKKI DISTRICT.** **3. P.K. VIJAYAN,** - **NO. 1525, ASI, KANJIKUZHI POLICE STATION, IDUKKI DISTRICT.** **BY ADVS.SRI.S.RAJEEV &** ## **SRI.K.K.DHEERENDRAKRISHNAN** ## **RESPONDENTS/ COMPLAINANT/ STATE:** **--------------------------------** **1. M.M. SANTHOSH S/O. SUGATHAN, MALAYIL VEEDU, KOODAKKALLU BHAGAM, PAZHAYARIKKANDOM, KANJIKUZHI VILLAGE, IDUKKI DISTRICT. PIN-686046.** **...2...** ## **Crl.MC.No. 5919 of 2013 ()** **-2-** **2. STATE OF KERALA REP. BY PUBIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADVS. SRI.P.P.THAJUDEEN & SMT.C.SEENA R2 BY PUBLIC PROSECUTOR SRI. P.P.RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-09-2017, ALONG WITH CRMC. 5920/2013 & CRMC. 5921/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RKM** **-3-** ## **Crl.MC.No. 5919 of 2013 () ---------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** ## **-----------------------** - **ANX. I. COPY OF THE COMPLAINT FILED BY THE FIRST RESPONDENT AGAINST THE PETITIONERS.** - **ANX. II. COPY OF THE ORDER TAKING COGNIZANCE IN CC NO. 242/2013.** **ANX. III. COPY OF THE FINAL REPORT IN CRIME NO. 113/2011.** **ANX. IV. COPY OF THE MEDICAL CERTIFICATE ISSUED FROM THE PRIMARY HEALTH CENTRE, KANJIKUZHI, IDUKKI IN FAVOUR OF THE FIRST PETITIONER DATED 17-6-2011.** - **ANX.V. COPY OF THE MEDICAL CERTIFICATE IN FAVOUR OF THE SECOND PETITIONER DATED 16-6-2011.** - **ANX.VI. COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 113/2011 OF KANJIKUZHI POLICE STATION.** ## **RESPONDENTS' ANNEXURES : NIL** **TRUE COPY** **PA TO JUDGE** ## **RKM** **A. HARIPRASAD , J ---------------------------------Crl. M.C. Nos.5919, 5920 & 5921 of 2013 ------------------------------------------------------Dated this the 20[th] day of September, 2017** ## **O R D E R** Heard the learned counsel for the petitioners and the learned counsel appearing for the 1[st] respondent in all these cases. Heard the learned Public Prosecutor also. 2. Petitioners are police officers seeking quashment of the order taking cognizance in the respective cases. 3. The 1[st] respondent in each cases preferred a private complaint before the Judicial First Class Magistrate Court, Idukki, alleging offences punishable under Sections 307, 341, 323 and 294(b) of the Indian Penal Code (in short, 'the IPC'). Gist of the allegations, in common, in all the three complaints is as follows :- 4. On 16.06.2011, there was distribution of cashew saplings in Kanjikuzhi Grama Panchayath. People assembled there for collecting the saplings. Further allegation in the complaint is that the Panchayath authorities started distributing saplings to a selected few persons instead of giving them to all the persons assembled there. 2 ## **Crl. M.C. No.5919 and connected cases** When this discrimination was pointed out by the complainant (1[st] respondent in each cases), the Panchayath authorities called for police help and the petitioners came to the Panchayath office. Without any provocation, the accused persons physically assaulted the complainants in the premises of the Panchayath. Thereafter, the complainants were put in police jeep and they were forcefully taken to the police station. From police station also, petitioners/ accused assaulted them and abused them. Therefore, the petitioners are liable to be punished, is the allegation in all the complaints. 5. Learned counsel for the petitioners contended that the alleged incident occurred on 16.06.2011. Annexure - III would show that the police, on 16.06.2011, had registered Crime No.113 of 2011 of Kanjikuzhi Police Station against the first respondent in each case, alleging offences punishable under Section 332 read with 34 IPC. From Annexure - III, it can be seen that on the said date, the complainants attacked the police officers and prevented them from discharging their official duties. This contention is stoutly denied by the learned counsel appearing for the complainants. 3 ## **Crl. M.C. No.5919 and connected cases** 6. It is the submission of the learned counsel for the petitioners that the prosecution was launched by way of a private complaint only on 23.08.2011 and there is no explanation mentioned in the complaint regarding the reason for delay. That itself is a reason to discard the complaint, according to the learned counsel. 7. It is further contended that taking cognizance of the complaints by the learned Magistrate without sanction under section 197 of the Code of the Criminal Procedure, 1973 (in short, 'the Code') is bad in law. 8. Section 197 (1) (b) of the Code reads as follows :- ## **197. Prosecution of Judges and public servants** - (1) 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 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]- **Crl. M.C. No.5919 and connected cases** 4 (a) xxxxxxxxxxxxxxx (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. ## 9. Relying on **Moosa Vallikkadan v. State of** **Kerala and Another [2010 KHC 658]** , it is contended that the petitioners who were on maintenance of public order is entitled for the protection provided under section 197 as per the following notification :- “GOVERNMENT OF KERALA Home (A) Department NOTIFICATION No.61135/A2/77/Home Dated, Trivandrum 6[th] December, 1977 SRO. No.1211/77 - in exercise of the powers conferred by sub-section (3) of S. 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of sub-section (2) of the said section shall apply to all members of the Kerala State Police, charged with the maintenance of public order. By order of the Governor, S. Narayanaswamy, Special Secretary” **Crl. M.C. No.5919 and connected cases** 5 10. This has been considered by a learned Single Judge in the above case and held that if a member of the Kerala Police has committed an offence, while acting or purporting to act in discharge of his official duty, the court will be precluded from taking cognizance of such offence except with previous sanction of the State Government under section 197 (2) of the Code. 11. Relying on **Virupakshappa D. T. v. C. Subhash** [ **AIR 2015 SC 2022], Amal Kumar Jha v. State of Chhatisgarh [2016 (6) SCC 734] and Balachandran and Others v. State of Kerala and Others [2012 (3) KHC 328]** it is contended that taking cognizance of a case against the petitioners in violation of Section 197 of the Code is bad in law. 12. Learned counsel for the complainant submitted that all these questions could be considered at the time of trial. In this case it is an admitted fact that the police officers were called to maintain law and order in the premises of Grama Panchayath and therefore, they were on law and order duty. Considering the principles in the binding precedents cited above, I am of the view that the learned Magistrate failed to ## **Crl. M.C. No.5919 and connected cases** **==> picture [6 x 9] intentionally omitted <==** consider this aspect before taking cognizance of these cases without a sanction under Section 197 of the Code. In the result, the petitions are allowed. Taking cognizance in C.C.Nos.240, 242 and 243 of 2013 on the file of the Judicial First Class Magistrate Court, Idukki is hereby quashed. Sd/- **A. HARIPRASAD JUDGE** RKM