E.P. Siby and P.E. Hamsa v. State of Kerala and Shajumon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935** ## **Crl.Rev.Pet.No. 588 of 2013 ()** **------------------------------AGAINST THE ORDER IN CMP NO. 3495/2010 IN CC NO. 1505/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, PARAPPANANGADI** ## **-------------------** ## **REVISION PETITIONER / ACCUSED :** **------------------------------------------------------** ## **1. E.P.SIBY** **EXCISE INSPECTOR, PARAPPANANGADI EXCISE RANGE NOW WORKING AS EXCISE INSPECTOR EXCISE INTELLIGENT AND INVESTIGATION BUREAU, KOTTAYAM, RESIDING AT EDAPARAMBIL HOUSE, POOZHIKOL P.O., KADUTHURUTHY** ## **2. P.E.HAMSA** **EXCISE GUARD, PARAPPANANGADI EXCISE RANGE NOW WORKING AS EXCISE GUARD IN EXCISE CIRCLE OFFICE MANJERI RESIDING AT KURUPPATTU HOUSE KONDOTTY P.O., MALAPPURAM.** **BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** ## **RESPONDENTS/STATE/COMPLAINANT :** **----------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.** ## **2. SHAJUMON,** **S/O.INDHUJAN PILLAI, AGED 32 YEARS KOTTEKKATU HOUSE, KODAPPALLI CHETTIPADI, THIRURANGADI THALUK - 676 306** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN R2 BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.Rev.Pet.No. 588 of 2013 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE 1 : COPY OF THE FINAL REPORT IN CRIME NO. 111/2008 WITH THE FIS OF THE 2ND RESPONDENT. ANNEXURE 2 COPY OF THE CMP NO. 1279/2008. ANNEXURE 3 COPY OF THE ORDER OF HUMAN RIGHT COMMISSION AS HRMP NO. 1538/2008. ANNEXURE 4 COPY OF THE JUDGEMENT IN CRL.M.C. NO. 964/2010 DATED 21.5.2010. ANNEXURE 5 COPY OF THE PETITION FILED BY THE PETITIONERS CLAIMING DISCHARGE CMP NO. 3495/2010. ANNEXURE 6 COPY OF THE ORDER DATED 23.2.2012 IN CMP NO. 3495/2010.** ## **RESPONDENT'S ANNEXURES : NIL** **//TRUE COPY//** **P.A. TO JUDGE** ## **Mn** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.588 of 2013** = = = = = = = = = = = = = = = Dated this the 24[th] day of October, 2013 ## **O R D E R** The revision petitioners are the petitioners in C.M.P.No.3495 of 2010 in C.C.No.1505 of 2009 on the files of the Judicial First Class Magistrate-I, Parappanangadi. The above Calender Case was filed under Sec.190A read with Sec.200 of the Code of Criminal Procedure against the revision petitioners herein as accused Nos.1 and 2. After enquiry under 202 of the Cr.P.C, the learned Magistrate took cognizance of the offence alleged against the accused and issued process to the accused. The accused entered appearance. Thereafter, they had preferred Crl.M.C.No.964 of 2010 before this Court under Sec. 482 of the Cr.P.C for quashing the complaint against them. That Crl.M.C was dismissed holding that the petitioner can raise the contention, as regards the lack of sanction under Sec.197 of the Cr.P.C before the trial court. Presently, the revision Crl.R.P.No.588 of 2013 2 petitioners filed the above C.M.P for discharging them from prosecution for want of sanction under Sec. 197 of the Cr.P.C. After considering the contentions raised by both parties, the learned Magistrate dismissed the petition filed by the revision petitioners on a finding that no sanction under Sec. 197 of the Cr.P.C is required for prosecuting the revision petitioners. The legality and correctness of the order dismissing petition for discharge is under challenge in this revision. 2. First of all, I shall deal with the allegations in the private complaint. The respondent is an accused in a crime registered for the offence punishable under Sec. 55(a) of the Abkari Act and he was released on bail under the order passed by the High Court on the application filed by the respondent. He was released on bail on condition that he should appear before the Excise Officials on every Sunday and Friday in between 10 am and 12 am. On 25/02/2008, in compliance with the direction in the bail order, he reached Crl.R.P.No.588 of 2013 3 at the office of the revision petitioners at 9.50 a.m. At that time the Excise Range Officer was out of station. Therefore, he could not mark his presence before the officials. Thereafter 2.15 p.m, the 1[st] revision petitioner arrived at the office. When he approached the 1[st] revision petitioner to report his presence he assaulted him asking him that why he filed an affidavit before the High Court that the Excise Officials suppressed the seizure of 21,000/-₹ from him. He replied that he was not aware of the averments in the petition filed before the High Court. Then he retorted in a way commenting on the authority of the court which passed the bail order. Thereafter, he threatened him stating that if he is able to register one crime, he can register so many cases also against him, and he will not allow him to live peacefully. He was not allowed to mark his presence. So he went out of the room and rang to his brother over mobile phone. This act provoked the second revision petitioner. He caught hold of him, took Crl.R.P.No.588 of 2013 4 away the mobile phone by force and dragged him to the room of the first revision petitioner and the first revision petitioner stamped on his abdomen. When he fell down, the second revision petitioner put a blow on his back. When he tried to rise by holding his hand on the table, another Excise guard reached there and beat him and pushed him out. These are the alleged acts said to have been committed by the revision petitioners herein. 3. The learned counsel for the revision petitioners advanced arguments assailing the impugned order under challenge. The revision petitioners are public servants working as Excise Inspector and Excise Guard respectively. The respondent is the accused in three cases registered against him under the Abkari Act. He drew my attention to the mandate under Sec. 197 of the Cr.P.C. The argument advanced by the learned counsel for the revision petitioners is that the allegations in the complaint are absolutely false and the complaint was filed in retaliation vindictively due to Crl.R.P.No.588 of 2013 5 the enmity caused by the registration of first crime against the respondent under the Abkari Act. Even if the allegations are taken at its face value and admitted at its entirety, the alleged act said to have been committed by the revision petitioners would come under the protection under Sec. 197 of the Cr.P.C as the same shall be deemed to have been committed in discharge of official duty or purporting to act in discharge of their official duty. The learned counsel further cited the decisions laid down in **Om Prakash and Others v. State of Jharkhand** [2012 KHC 4532], **Venkitachalam K.R. And Others v. State and Another** [2011 KHC 681], **Ravada A. Chandrasekhar v. State of Kerala** [2012 (3) KLT SN 108], **Choudhury Parveen Sultana v. State of West Bengal and Another** [2009 (2) KLT Suppl.1307 (SC)] and **Unni Rajan v. State of Kerala and Another** [2012 (2) KHC 707]. 4. Per contra, the learned counsel for the respondent Crl.R.P.No.588 of 2013 6 advanced arguments to justify the finding in the impugned order under challenge. The learned counsel further submits that the act committed by the respondent in the private complaint would not come under the protection of Sec.197 of the Cr.P.C as the said act was not done in discharge of or purporting to act in discharge of official duty. Therefore, at any point of view, the impugned order under challenge is justifiable. It is also submitted that the act alleged by the respondent has no connection with the official duty assigned to the revision petitioners under law. According to the respondent, the act of assault by the accused when he went to their office for complying the direction in the bail order cannot be treated as an act in discharge of the official duty or an act in connection with their official duty and hence no sanction under Sec. 197 of the Cr.P.C is required in this case. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his duty. To substantiate Crl.R.P.No.588 of 2013 7 the above points, the learned counsel cited the decision laid down in **Zutshi v. Bimal Debnath** [2004(3) KLT 505 (SC)]. 5. In view of the above rival submissions, the question to be considered in this revision petition is whether there is any illegality or impropriety in the impugned order dismissing the petition on a finding that sanction under Sec. 197 of the Cr.P.C is not required for the prosecution of the revision petitioners for the act alleged in the private complaint. Put it differently, the question to be examined is whether the alleged act said to have been committed by the revision petitioners on the respondents can be said to be an act committed by them while acting or purporting to act in discharge of their official duty. 6. Before considering the factual aspect of the factual finding on this question, let us consider the law on the point. The statutory mandate under Section 197 of the Cr.P.C. is that no court shall take cognizance of an offence against a public servant while acting or purporting to act in Crl.R.P.No.588 of 2013 8 discharge of his official duty. The scope and extent of Section 197 of the Cr.P.C. has been elaborately considered by the Apex Court at times and reiterated again and again. I have considered all the decisions referred above and placed by both parties. Going by the above decisions, the principle that can be culled out from all the decisions is one and the same; Nothing more, nothing less or nothing divergent. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duty or it was done in the discharge of his official duty or it was so integrally connected with or attached to his office as to be inseparable from it. The protection given under Section 197 of the Code 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 Crl.R.P.No.588 of 2013 9 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 sum and substance of the above principle is that, even if the alleged act is in excess of official duty, that also will come under the protection provided under Section 197 of the Cr.P.C. In all the above decisions, the Apex Court as well as this Court held that each case has to be considered in its own facts in order to arrive at a finding as to whether the protection of Section 197 of Cr.P.C. could be given to public servants. 7. The learned counsel for the revision petitioners pointed out that the private complaint itself is a false case foisted against the accused as the complaint was booked for offences under Abkari cases. So also, he is a habitual offender of Abkari offences. As rightly held by the courts below, the indictment against the complainant cannot be looked into while considering this question. Put it in a 10 Crl.R.P.No.588 of 2013 different way, the veracity and genuineness of the allegations cannot be weighed at this time while considering the question of sanction under Section 197 of the Code. It is a case wherein the learned Magistrate conducted 202 enquiry and took cognizance and issued a process against the revision petitioners. It has to be presumed that a prima facie case was made out under Section 202 enquiry. Otherwise, the learned Magistrate would not have issued process under Section 204 of the Cr.P.C. Going by the allegations, at this stage, it is not proper to make a comment on the allegations in the complaint, as the trial is yet to be commenced. But, the question is, whether the allegations will come under an act done while in discharge of duty or purporting to act in discharge of duty. It may be true that he is the accused in several Abkari cases; but his presence in the office of the respondents was wanted in compliance with the direction of this Court. The revision petitioners have no case that they Crl.R.P.No.588 of 2013 11 interrogated him in connection with any investigation. The revision petitioners also have no case that they have done any act in connection with the crime in which the respondent was made an accused. The limited duty, which was expected to be performed by them, is to ensure his presence before the concerned officials. In such a situation, I am of the opinion that the allegations of assault on the 1[st] respondent can never be considered as an act done in discharge of their official duty. The act allegedly done by the respondent has no nexus with their official duty; nor was it expected to be done or performed in discharge of their assigned duty. It is true that Section 197 of the Cr.P.C. enjoins a protection to the public servants. But, that does not mean that the public servants are absolutely privileged and protected for any act they may commit while they were on duty in their office during the duty hours. There should be a nexus between the alleged act and the act which is expected to be done or performed in discharge Crl.R.P.No.588 of 2013 12 of their assigned duty. If there is no connection between the assigned duty and the act done by them, the public servants will not get the protection under Section 197 of the Cr.P.C. 8. Hence I find that there is no illegality or impropriety in the finding that the offence alleged against the revision petitioners has no connection at all with the discharge of their official duty. The court below rightly held that sanction under Section 197 of the Code is not required for prosecuting the revision petitioners. The Revision Petition is dismissed. **(K.HARILAL, JUDGE)** stu/okb. //True copy// P.A to Judge