K. Abdul Saleem v. Sajesh Vazhavallappil and others (State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** **Crl.Rev.Pet.No. 1935 of 2013 ()** **--------------------------------** **AGAINST THE ORDER IN CMP 938/2012 of J.M.F.C., KUTHUPARAMBA DATED 18-06-2013** **REVISION PETITIONER(S)/COMPLAINANT:** **-----------------------------------** **K.ABDUL SALEEM, S/O.MUHAMMED, 'BAITHUL NOOR', MUNDALOOR PO, KANNUR DISTRICT.** **BY ADV. SRI.P.U.SHAILAJAN** **RESPODENTS/ACCUSED & STATE:-** **---------------------------** **1. SAJESH VAZHAVALAPPIL, FORMER CIRCLE INSPECTOR OF POLICE, KUTHUPARAMBA PO, KUTHUPARAMBA, KANNUR DISTRICT 670 643.** **2. RAVEENDRAN, FORMER ADDITIONAL SUB INSPECTOR OF POLICE, KUTHUPARAMBA PO, KUTHUPARAMBA, KANNUR DISTRICT 670 643.** **3. K.C.BASHEER, S/O.KADER, MEETHALE VEEDU, KATHIRUR PO, KANNUR DISTRICT 670 642.** **4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.** **R1 & 3 BY ADV. SRI.V.V.RAJA R1 & 3 BY ADV. SRI.M.T.SURESHKUMAR R4 BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Crl.R.P. No.1935 of 2013** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 8[th] day of January, 2014 ## **O R D E R** The revision petitioner is the complainant in C.M.P.No.938/2012 on the files of the Judicial First Class Magistrate's Court, Kuthuparamba. The above complaint was filed by the revision petitioner against the respondent Nos.1 to 3 under Section 190A and 200 of the Cr.P.C. alleging offences punishable under Section 109, 114, 342, 347 and 506(i) r/w 34 of the IPC. 2. The case of the complainant is as follows: He is the owner of landed property comprised in Re-Sy.No.145/3A of Ambiladu, Kuthuparamba village. He brought one JCB in his property for smoothening the property with an intention to sell the same. While using the JCB, it came into contact with the adjacent property belongs to the 3[rd] respondent. The revision petitioner was not aware of the said fact. Thereafter, on _Crl.R.P.1935/13_ **:2:** 27.3.2010, the respondent No.2 called the revision petitioner to the police station on the allegation that the 3[rd] respondent had lodged a complaint before the said police station with respect to the damage said to have been caused by the revision petitioner to the property of the 3[rd] respondent. On 28.3.2010, the revision petitioner reached at the police station. At that time, the 3[rd] respondent and another person were in the police station. The 2[nd] respondent informed him that he was called on the instruction of the 1[st] respondent, the Circle Inspector of Police, on the basis of the complaint filed by the 3[rd] respondent. Even though the revision petitioner submitted the actual incident happened while using the JCB, the respondent Nos.1 and 2 compelled him to restore the Kayyala of the property of the 3[rd] respondent. Since no damage was caused by the act of the revision petitioner, he was not ready and willing to obey the direction of the respondent Nos.1 and 2. 3. Thereupon, the respondent Nos.1 and 2 got provoked and wrongfully confined him for a period of six hours in front of the lock-up room of the police station. The 1[st] respondent threatened him to put him inside the lock-up room and the 2[nd] respondent did not allow him to move from that position. The _Crl.R.P.1935/13_ **:3:** 2[nd] respondent told him that he was confined as per the direction of the 1[st] respondent. At last, by 8.45 p.m. the revision petitioner was permitted to leave the station. On enquiry, the revision petitioner came to know that when he was detained in police custody for six hours, there was no written complaint from the part of the 3[rd] respondent. The mala fide intention of the respondent Nos.1 and 2 was to compel the revision petitioner to construct a compound wall on the property of the 3[rd] respondent so as to satisfy him. 4. The learned Magistrate, on receipt of the complaint, conducted an enquiry under Section 202 of the Cr.P.C. The revision petitioner and his brother, who witnessed the alleged illegal detention of the revision petitioner, were examined. After the enquiry under Section 202 of the Cr.P.C., the learned Magistrate found that in the absence of sanction to proceed against the respondent Nos.1 and 2, no cognizance can be taken for the offence alleged to have been committed by the respondent Nos.1 and 2, who are public servants. On the above finding, the revision petitioner was directed to produce sanction under Section 197 of the Cr.P.C. The legality, propriety and correctness of the said order requiring sanction under Section _Crl.R.P.1935/13_ **:4:** 197 of the Cr.P.C. are under challenge in this Revision Petition. 5. The learned counsel for the revision petitioner advanced arguments challenging the requirement of sanction under Section 197 of the Cr.P.C. According to him, the alleged commission of the offence cannot be taken as an act in discharge of the official duty or purported to be done in discharge of official duty. 6. Per contra, the learned counsel for the respondent Nos.1 and 2 advanced arguments to justify the impugned order under challenge. The sum and substance of the arguments advanced by the learned counsel is that even if the allegation in the complaint is taken at its face value, the offences alleged to have been committed by the respondents would be an act while acting or purporting to act in discharge of their official duty. Therefore, sanction under Section 197 of the Cr.P.C. is required for taking cognizance of the offence alleged against them. 7. In view of the rival contentions, the question that arises for consideration is, whether there is any illegality or impropriety in the impugned finding that sanction under Section 197 of the Cr.P.C. is required for taking cognizance of the offence alleged against the respondents? Put it differently, the _Crl.R.P.1935/13_ **:5:** question is, whether the act alleged to have been committed by the respondents would be an act committed while acting or purporting to act in discharge of official duty? Admittedly, the respondent Nos.1 and 2 are public servants. But, according to the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, sanction by or with Government is not required for removing them from their office. 8. Then the question is whether the respondents 1 and 2 would come under the scope of Notification dated 6/12/1977 issued by the Government of Kerala under Sec.197 of the Cr.P.C. Going by the Notification, it is seen that all members of the Kerala State Police would get the benefit of the Notification if they are charged with maintenance of public order. The question, whether an act of a Police Officer would come under the scope of the act charged with maintenance of public order, was considered by the Apex Court in **Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and others** (2001 (5) SCC 7) and held that whether an act done by the Police Officer was charged with maintenance of public order can be determined by asking a question whether the act alleged to be an offence was done or purported to have been done in the _Crl.R.P.1935/13_ **:6:** discharge of the official duty of the accused. If the answer is 'yes', certainly, sanction under Sec.197 of the Cr.P.C. is required for prosecuting the public servant. When applying the above test in the instant case, the question is whether the act alleged to be an offence done by the respondents 1 and 2 was done or purported to have been done in the discharge of their official duty. 9. Coming to the allegations in the complaint, the specific averment in the complaint is that the revision petitioner was called to the Police Station under the instruction of the respondents 1 and 2 and detained in the Police Station under illegal custody for a period of six hours without a complaint from the 3[rd] respondent. It is seen that P.W.1 was examined prima facie to prove that the revision petitioner was detained illegally in the Police Station and he has witnessed the same. So, the question is had there been any complaint from the 3[rd] respondent at the time when the revision petitioner was called to the Police Station and confined in custody. According to the complainant, he was detained in illegal custody on 28/3/2010 from 12.30 p.m. to 8.45 p.m. and on the very next day he issued a lawyer's notice questioning the alleged illegal detaining and _Crl.R.P.1935/13_ **:7:** also claiming damages. On the very same day itself, the 1[st] respondent received notice and on receipt of the notice, immediately he registered a crime against the revision petitioner. 10. Per contra, the learned counsel for the 1[st] respondent submits that the crime was registered before receiving the notice. In the above context, the learned Public Prosecutor was directed to produce copy of the F.I.R. along with the First Information Statement. Going by the First Information Statement and the F.I.R., it is seen that the First Information Statement was taken on 29/3/2010 and the crime was registered on 29/3/2010 at 2 p.m. Thus, the documents produced by the learned Public Prosecutor shows that the crime was registered on 29/3/2010, the next day after the alleged incident said to have been committed. In the above circumstances, I find that the act alleged to have been committed by him on 28/3/2010 was not an act while acting or purporting to act in discharge of his official duty. The official duty as per the records commences on 29/03/2010 at 2 p.m only. But, in the complaint, the alleged act said to have been committed on 28/03/2010 at 12.15 p.m. Therefore, I find that _Crl.R.P.1935/13_ **:8:** the sanction under Section 197 of the Cr.P.C is not required for prosecuting the respondents 1 and 2 for the alleged offence. Consequently, the impugned order requiring sanction under Section 197 of the Cr.P.C. is set aside and the learned Magistrate is directed to proceed further without requiring sanction. This Revision Petition is allowed. **(K.HARILAL, JUDGE)** ## **okb/Nan**