G. JABBAL v. State of Kerala and Detective Inspector, CB CID

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938 Crl.Rev.Pet.No.979 of 2006 ( ) -------------------------------(AGAINST THE ORDER DATED 1.2.2006 IN C.M.P.NO.323/2006 IN C.C.NO.1050/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VARKALA.) ## REVISION PETITIONER/PETITIONER/ACCUSED: ---------------------------------------------------- G.JABBAL, S/O.GANGADHARAN, AATHICKA VILAKOM, KADAKKAVUR VILLAGE, CHIRAYINKEEZHU TALUK. BY ADVS.SRI.R.ANILKUMAR SRI.P.BANI ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,. 2. DETECTIVE INSPECTOR, CB CID, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTOR SRI.P.V.ELIAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.979 Of 2006 --------------------------------- Dated this the 2nd day of June, 2016. ## O R D E R The petitioner herein impugns the legality, correctness, propriety of the order dated 1.2.2006 passed by the Judicial First Class Magistrate's Court, Varkala, on Criminal Miscellaneous Petition No.323/2006 in Calendar Case, C.C.No.1050/2003, whereby the prayer made by the petitioner in that Criminal Miscellaneous Petition to discharge him from that case has been rejected by the court below. The petitioner has been charge-sheeted for offences under Secs.465, 468 and 471 of the I.P.C., in the aforestated Calendar Case, C.C.No.1050/2003, on the file of the court below. The main allegation raised against the petitioner is that he had forged the signature of the defacto complainant in Crime No.356/1989 of Varkala Police Station, and has thus forged the first information statement in that crime. It is not necessary to go into the details of the case, in which the petitioner has been implicated or into the details the crime, in which the signature of the defacto complainant/first informant was alleged to have been forged by the petitioner. The petitioner has raised only two contentions ::2:: Crl.R.P.No.979 Of 2006 before the court below in support of his prayer to discharge him in the case. 2. The first contention is that the taking of cognizance by the learned Magistrate in the instant case is in flagrant violation of the mandatory provisions contained in Sec.195(1)(b)(ii) of the Code of Criminal Procedure inasmuch as the said provision has mandated that no court shall take cognizance of any offence described in Secs.463 or punishable under Secs.471, 475 or 476 of the I.P.C., when such offences alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, etc, except on the complaint in writing by that court or by such officer of the court as that court may authorise in writing in that behalf, or of some other court to which that court is subordinate. 3. The second contention is that even as per the allegations in the crime registered against the petitioner, the case of the prosecution is that the very act of preparation of the allegedly forged FI statement by the petitioner was in discharge of his official capacity as the Sub Inspector of Police, who had to exercise his powers under the Code of Criminal Procedure in the matter of taking action in relation to such first information statement. Accordingly, it is contended by the ::3:: Crl.R.P.No.979 Of 2006 petitioner that the learned Magistrate could have validly taken cognizance of the offences in the instant case relating to alleged forgery of the first information statement in another crime, which was investigated by the petitioner only if prior sanction as envisaged in Sec.197(2) read with Sec.197(3) of the Code of Criminal Procedure had been obtained and that admittedly in the instant case, no such sanction has been obtained for prosecuting the petitioner and hence taking of cognizance by the court below is absolutely illegal and ultra vires. Both these contentions have been overruled by the court below. 4. As regards to the first contention, it is to be noted that the offences alleged against the petitioner in the instant case are those under Secs.465, 468 and 471 of the I.P.C. and therefore, the offences come within those specific offences enumerated in Sec.195(1)(b)(ii) of the Code of Criminal Procedure. The question is as to whether the petitioner is entitled to get the benefit of the said provision. For deciding that issue, it will be profitable to refer to the provisions contained in Sec.195 of the Code of Criminal Procedure, which reads as follows: > “Sec.195. Prosecution for contempt of lawful authority of public servants, for - offences against public Justice and for offences relating to documents given in evidence. (1) No court shall take cognizance- ::4:: Crl.R.P.No.979 Of 2006 (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, attempt to commit, such offence, or - (iii) of any criminal conspiracy to commit such offence. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii). except on the complaint in writing of that Court or by such officer of the Court, as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under Clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In Clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose ::5:: Crl.R.P.No.979 Of 2006 decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: ## Provided that- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” 5. It is to be noted that the very allegation of the prosecution in this case is that the forgery of the first information statement was done by the petitioner accused prior to its production before the criminal court and it is only thereafter that he had forwarded such forged F.I. statement to the jurisdictional Magistrate's Court concerned. The prosecution has no case that the first information statement in question was properly and correctly forwarded to the jurisdictional Magistrate's court concerned initially and that only later, when the said document was in the custody of the court that the accused had subsequently forged the said document. Earlier there were diversity of opinions of the Apex Court as to whether the protection engrafted in Sec.195(1)(b)(ii) of the Code of Criminal Procedure was available in relation to alleged forgery, which was said to be committed prior to the filing of the document before the court concerned or only after its filing. ::6:: Crl.R.P.No.979 Of 2006 Later, a Constitution Bench of the Apex Court in the celebrated case in Iqbal Singh Marwah v. V.Meenakshi Marwah, reported in 2005 (4) SCC 370, has conclusively held in para 33 thereof that the statutory protection engrafted in Sec.195(1)(b)(ii) of the Cr.P.C. would be attracted only when the offences enumerated in the said Section have been committed with respect to a document after it had been produced or given in evidence in a proceeding in any court, that is during the time when the document was in “custodia legis”. It is held therein that if such alleged offence is committed prior to its actual production or giving in evidence in a court, then no complaint by court would be necessary and even a private complaint would be maintainable. The Apex Court in the case K.Vengadachalam v. K.C.Palany Samy and Ors. reported in 2005 SCC (Cri) 1673, has relied on the said Constitution Bench ruling in Iqbal Singh Marwah's case (supra) and held that where the alleged forgery is committed before the document was actually filed in court, then the provisions contained in Sec.195(1)(b)(ii) of the Code of Criminal Procedure are not applicable in such a case and that the High Court was not justified in that case in quashing the impugned prosecution launched for offences under Secs.467, 468, 471, 472 and 477A read with Sec.34 of the I.P.C. on the ground that the complaint ::7:: Crl.R.P.No.979 Of 2006 was barred under Sec.195(1)(b)(ii). In the instant case, even the specific case of the prosecution is that the alleged tampering or forgery of the first information statement was committed prior to the production before the court and it is only after committing such alleged forgery that the document (first information statement) was forwarded to the competent criminal court. The prosecution has no case whatsoever that the alleged forgery was committed only after the document was produced before the court. As the prosecution has no case that the forgery was perpetrated during the time when the document was in custodia legis, there is no question of applicability or invocation of the protective provisions contained in Sec.195(1)(b)(ii) of the Code of Criminal Procedure. So the first contention raised by the petitioner is absolutely bereft of any merit and the learned Magistrate was fully right in rejecting the said contention as per the impugned order. 6. The only other contention raised by the petitioner is that even according to the prosecution, the petitioner was the Sub Inspector of Police, attached to the Police Station concerned and that the alleged forgery of the signature of the first informant was done by him during the course of his exercise of powers and responsibility as the Station ::8:: Crl.R.P.No.979 Of 2006 House Officer, who was to deal with the said petition/information conveyed by the first informant in exercise of the powers in the matter of registration of first information report as per the provisions contained in the Code of Criminal Procedure and therefore, the court below could have validly taken cognizance of such offences only if prior sanction was obtained for prosecuting him as envisaged in Sec.197(2) of the Code of Criminal Procedure read with Sec.197(3) of the Code of Criminal Procedure. The learned counsel for the petitioner would submit that the court below has considered only the impact of Sec.197(1) of the Cr.P.C. by placing reliance on the Division Bench ruling of this Court in Sarojini v. Prasannan reported in 1996 (2) KLT 859 and that the court below has egregiously erred in not examining the applicability of sub sections (2) and (3) of Sec.197 of the Cr.P.C. in the light of the notification issued by the Government of Kerala as per Sec.197(3), which has been clearly dealt with by the Division Bench ruling in Sarojini's case supra reported in 1996 (2) KLT 859, paras 4 to 6 thereof. The learned counsel for the petitioner as well as the learned Prosecutor has placed certain rulings in support of their respective submissions and reference to those aspects will be dealt with in the later part of the judgment. ::9:: Crl.R.P.No.979 Of 2006 7. It may be pertinent to refer to the provisions contained in sub-sections 1, 2 & 3 of Sec.197 of the Code of Criminal Procedure, which read as follows: “Sec.197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate of 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. xx xx xx xx xx (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forced of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for he expression “Central Government” occurring therein, the expression “state Government” were substituted. **==> picture [300 x 26] intentionally omitted <==** It is an admitted fact that the petitioner was an officer of the Police Department of the rank of Sub Inspector of Police at the relevant time. It appears that the power to appoint and dismiss an officer of that rank was conferred on an officer of the rank of District Superintendent of Police and at any rate, the competent appointing/dismissing/disciplinary authority in respect of an official of the rank of Sub Inspector of Police was the designated office of the Police Department, who is subordinate ::10:: Crl.R.P.No.979 Of 2006 to the State Government. Therefore, the petitioner is not a public servant not removable from the office save with the previous sanction of the Government as envisaged in sub-section (1) of Sec.197 of the Cr.PC and in the light of this crucial aspect, he is not entitled to the benefit of Sec.197 (1) of the Cr.P.C and therefore, lack of sanction as envisaged in Sec.197(1) does not in any manner affect the legality of the impugned prosecution. This aspect of the matter has been so particularly held in para 3 of the Division Bench ruling in Sarojini v. Prasannan reported in 1996 (2) KLT 859 p.861 (para 3). Hence the learned Magistrate was fully justified in taking the view in the impugned order that the petitioner is not entitled for the benefit of Sec.197(1) of the Cr.P.C in view of the above said Division Bench ruling in Sarojini's case (supra). 8. However, the learned counsel for the petitioner has contended that the court below has not considered the effect of subsecs.(2) and (3) of Sec.197 in so far as the State Government has issued notification on 16.12.1997 in terms of Sec.197(3) of the Cr.P.C ordering that the provisions of sub-sec.(2) of Sec.197 shall apply to all members of the police force charged with the maintenance or public order. It is pointed out that the specific contention raised in Sarojini's case (supra), which was considered by the Division Bench, was that there is clear ::11:: Crl.R.P.No.979 Of 2006 distinction between “maintenance of public order” and “maintenance of law and order” and that the benefit of the notification so as to claim the applicability of Sec.197(2) of the Cr.P.C will arise only in a case where the police personnel may otherwise come within the ambit of Sec.197 are actually in discharge of their assigned duty of maintenance of public order and not merely that or law and order. The Division Bench in Sarojini's case (supra) however held that a contextual interpretation of the requirements of public order as envisaged in Sec.197 of the Cr.P.C should be resorted to by the court and that it is not correct to say that maintenance of public order is quite outside the functions of officers charged with maintenance of law and order and what would have begun as a routine law and order problem might escalate into one of public order and to cope with the situation the services of the armed forces could be requisitioned by the competent authority and such personnel who are also charged with the maintenance of law and order and could work at tandem to bring varied situations which may subsequently take changed colour of public order so as to bring it under control and to maintain public peace and tranquility. It was held by the Division Bench that by the above notification dated 16.12.1997, the provisions of sub-sec.(2) have been made applicable to Kerala Police ::12:: Crl.R.P.No.979 Of 2006 charged with “maintenance of public order” who form a class of the police force and that “maintenance of public order” can fall within the definition of law and order the former being an extension of law. Though conspicuously distinct, they are perhaps two sides of the same coin. It is unnecessary that there should be anything specific to show that those charged with maintenance of “law and order” have also been entrusted with the maintenance of “public order” which is not so different or unrelated to require a specific investiture but is implicit [para 5 & 6 of Sarojini's case (supra)]. It was also brought to notice that the aforesaid view taken by the Division Bench in Sarojini's case (supra) has been subsequently followed by various judgments of learned Single Judges on this aspect of the matter as can be seen from a reading of reported cases as in Viswambharan v. State of Kerala reported in 2010 (4) KLT 875 para 12, Moosa Vallikkadan v. State of Kerala reported in 2010 (3) KLT 437 paras 8 & 10, Unnikrishnan v. State of Kerala reported in 2014 (1) KLT 903 paras 7 & 8, etc. However, the learned Prosecutor would place reliance on the ruling of this Court in B.Harikumar v. Suresh @ Karupooru Suresh and Anr. reported in 2014 (2) KHC 632 = 2014(2) KLT 1028 = ILR 2014 (3) Ker. 223, wherein it has been stated that police officers' removal by authorities which are subordinate to ::13:: Crl.R.P.No.979 Of 2006 Government are not protected under Sec.197 of the Cr.P.C and that no members of the Kerala Police who are charged with the maintenance of public order alone are protected under Sec.197(3) and that the officers in that law and order cannot be protected, etc. However, learned counsel for the petitioner would submit that the said ruling rendered by the learned Single Judge of this court in Harikumar's case (supra) has been rendered without referring to the aforesaid Division Bench ruling of this Court in Sarojini's case (supra) and the other judgments cited hereinabove. The learned counsel for the petitioner would also place reliance on the judgment of the Apex Court in Sankaran Moitra v. Sadhana Das & anr. reported in AIR 2006 SC 1599. The learned Prosecutor would contend that the matters coming within the domain of investigation are quite distinct and separate from that in the domain of law and order and public order and therefore the petitioner cannot claim the benefit of the above said Government notification dated 16.12.1997 in the facts and circumstances of this case. Per contra, the learned counsel for the petitioner would contend that the above said contention of the Prosecutor is untenable and that the rulings of this Court as in Moosa Vallikkkdan's case (supra) and Unnikrishnan's case (supra) dealt with a situation arising out of the action purportedly done ::14:: Crl.R.P.No.979 Of 2006 in pursuance of crime investigation. In the view that this Court is proposing to take in the disposal of the case, there is no necessity to examine in detail the tenability of these rival contentions, even if it is assumed that the petitioner is entitled for the benefit of the Government notification dated 16.12.1997, certain other aspects of the mater may still stand in the way of the petitioner. 9. In this regard, the learned Prosecutor would contend that even if it is assumed (not admitted) that the petitioner is entitled for the benefit of Government notification dated 16.12.1997 so as to claim protection under Sec.197(2) of the Cr.P.C, it has been held by the Apex Court in many rulings that acts of committing cheating, forgery, etc., cannot be said to be in discharge of duties of a public servant or police officer and therefore the petitioner cannot ultimately claim the benefit of that protective provision in any view of the matter. In this regard, the learned Prosecutor has placed reliance on the rulings of the Apex Court in the case Bholu Ram v. State of Punjab and anr. reported in 2008 KHC 6747 = 2008 (9) SCC 140 = 2008 (3) SCC (Cri) 710, para 68, wherein the Apex Court has held that it is well settled law that offence punishable under Secs.409, 420, 467, 468, 471, etc., can by no stretch of imagination by their very nature be regarded as having been ::15:: Crl.R.P.No.979 Of 2006 committed by a public servant while acting or purporting to act in discharge of official duties and in that aspect of the matter their Lord Ships placed reliance on earlier ruling of the Apex Court in the celebrated case in Prakash Singh Badal v. State of Punjab reported in 2007 (1) SCC 1. The learned Prosecutor has also placed reliance on yet another ruling of the Apex Court in the case Raghunath Anant Govilkar v. State of Maharashtra and ors. reported in 2008 KHC 4199 = (2008) 11 SCC 289 = 2009 (1) SCC (Cri) 130 paras 29 & 30, wherein it has been held that Secs.406 and 409 of the IPC are cognate offences in which common component is criminal breach of trust and that when the Apex Court has already held in regard to offence under Sec.409 of IPC r/w. Sec.120B it is not part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, there is no merit in the contention that the offence under Sec.406 r/w Sec.120B of the IPC would make a difference vis-a-vis Sec.197 of the Cr.P.C and the Apex Court has clearly held therein that the offences of those nature as in Secs.406 and 409 of the IPC will not come under the protective umbrella of Sec.197 of the Cr.P.C, as it cannot be held that actions pertaining to commission of such offences were done in purported discharge of official duties of a public servant. On an anxious ::16:: Crl.R.P.No.979 Of 2006 consideration of the rival pleas in this regard, this Court is of the prima facie opinion that in the light of the rulings of the Apex Court as in Bholu Ram v. State of Punjab and anr. reported in 2008 KHC 6747 = 2008 (9) SCC 140, Prakash Singh Badal v. State of Punjab reported in 2007 (1) SCC 1, Raghunath Anant Govilkar v. State of Maharashtra and ors. reported in 2008 KHC 4199 = (2008) 11 SCC 289, etc., it cannot be said that the impugned decision of the court below refusing the grant of protection under Sec.197 of the Cr.P.C can be said to be perverse improper or illegal, for warranting revisional interference. In this regard, the learned counsel for the petitioner would submit that this Court then may not render any final pronouncement on this aspect of the matter as the Apex Court in the aforestated ruling in Bholu Ram v. State of Punjab and anr. reported in 2008 KHC 6747 = 2008 (9) SCC 140, para 69, has also held that the point as to the necessity or otherwise of sanction can be taken during the conduct of trial or at any stage of the proceedings and that certain aspects of the matter may require crucial evidence of factual issues based on which only decision could be appropriately rendered on the contention that is advanced by the accused. In the light of this submission made on behalf of the petitioner, this Court is not making any final pronouncement on the ::17:: Crl.R.P.No.979 Of 2006 issue now canvassed before this Court and it is made clear that the petitioner will be at liberty to raise such appropriate contentions on those aspects before the court below during trial and the trial court may then appropriately consider the rival pleas of the petitioner/accused and the prosecution on those aspects. In the light of this aspect, there is no necessity to interfere with the impugned order in any manner as indicated above. This Court as per order dated 16.3.2006 had granted interim stay of the further proceedings in the Calendar Case, C.C.No.1050/2003 pending before the court below and later as per order dated 3.7.2006 had extended the interim stay order until further orders. It is made clear that the interim stay will stand vacated and the trial court will proceed with the trial in accordance with law. It is pointed out by the learned counsel for the petitioner that the stay was granted by this Court prior to the framing of charges. In view of the long pendency of this matter for the last more than 10 years, it is ordered that the trial court will grant utmost priority for taking up the case for trial and for its conclusion without any further delay and it is ordered that the trial court should make all reasonable endeavours possible under the circumstances to ensure that the trial is completed as early as possible, at any rate, within an outer time limit of six months ::18:: Crl.R.P.No.979 Of 2006 from the date of production of a certified copy of this order. The Registry will forward the lower court records pertaining to the impugned order to the trial court along with a certified copy of this order. With these observations and directions, this Criminal Revision Petition stands dismissed. ALEXANDER THOMAS, Judge. bkn/-