K. L. Joseph v. State of Kerala and Anoob (Sub Inspector of Police, DRCB, Ernakulam)

WP(C) No.4306/2013 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 ``` ## **`WP(C) NO. 4306 OF 2013`** ## **`PETITIONER/S:`** ``` K.L.JOSEPH LAWYER, S/O.LONACHAN, KURUPPASSERRY HOUSE, KUMBALANGHI P.O., KOCHI - 682 007. ``` ``` BY ADV GEORGE SEBASTIAN ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REP. BY SECRETARY TO DEPARTMENT OF HOME AFFAIRS, THIRUVANANTHAPURAM-695001. 2ANOOB SUB INSPECTOR OF POLICE, DRCB, ERNAKULAM-682015. BY ADVS. MATHEW JOHN (THARAMUTTOM)FOR R2 M.SHYJU SR.GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH FOR R1 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.7.2023, THE COURT ON 14.08.2023 DELIVERED THE FOLLOWING: ``` WP(C) No.4306/2013 2 ## **MOHAMMED NIAS C.P., J** **.................................................…...** ## **W.P(C) No.4306 of 2013** ........................................................... Dated this the 14[th] day of August, 2023 ## **JUDGMENT** The petitioner, an Advocate, challenges Ext.P12 order passed by the Additional Secretary, Department of Home Affairs, rejecting his request for granting sanction under Section 113 of the Kerala Police Act, 2007, read with Section 197 of the Code of Criminal Procedure to prosecute the second respondent. 2. The second respondent arrested the petitioner on 30.6.2011, alleging that he drove his car under the influence of alcohol. The petitioner was released on bail on the same day after the breath analyzer test and taking the blood samples. On 01.7.2011, the second respondent registered Ext.P1 FIR bearing Crime No. 1309/2011 before the Judicial First Class Magistrate’s Court-II, Kochi, alleging commission of offences under Section 279 IPC and Section 185 of the Motor Vehicles Act. Petitioner alleges that Ext.P2 certificate issued by the Doctor only states “smell of alcohol,” which forced the petitioner to make Ext.P3 complaint to the District Medical Officer, Ernakulam, which was rejected. The petitioner, on 11.7.2007, WP(C) No.4306/2013 3 issued notices to the Doctor and the Secretary Department of Health about deleting the false entry in the certificate stating that there was a smell of alcohol. It is also alleged that on 18.02.2010, the Sub Inspector of Police also misbehaved with the petitioner while he was standing in the Zebra crossing line for crossing the road. The petitioner submits that he had also filed O.S. No.615/2010 for damages against the Sub Inspector as well as the State of Kerala before the Sub Court, Ernakulam, which was dismissed, and an appeal against the same is pending before this Court. He also preferred Ext.P10 petition seeking sanction on 23.9.2011 contending that the second respondent had made a false entry in the First Information Statement and that he had intentionally fabricated false evidence for the purpose of using the same, and all the offences alleged are in furtherance of his intention to wreak vengeance against the petitioner and therefore, the second respondent had commuted offences punishable under Sections 4, 29, 31(3), 114, 116, 121 and 125 of the Kerala Police Act, 2011 and sought sanction under Section 197 of the Cr.P.C. for prosecuting the respondents under Sections 192 and 193 of IPC. Since the Government Secretary did not take any action on Ext.P10, he approached this Court wherein there was a direction to the Government in W.P(C) No.11799/2012 (Ext.P11). Accordingly, Ext.P12 order was passed, rejecting his request to grant sanction, which this writ petition challenges. 3. The State and the second respondent have filed counter affidavits opposing the writ petition. WP(C) No.4306/2013 4 4. I have heard Sri. George Sebastian, the learned counsel for the petitioner, Smt. Mary Beena Joseph, the learned Senior Government Pleader appearing for the first respondent and Sri. Mathew John (Tharamuttom), the learned counsel appearing for the second respondent. 5. The learned counsel for the petitioner reiterated the contentions in the writ petition and submitted that the second respondent did not take the blood sample for examination purposefully as he knew well that the test result would be negative. The second respondent also took the petitioner in the police jeep to the hospital for medical examination but has not produced the result of the blood test or the breath test. The Director General of Police in Circular No.44/2009 dated 22.10.2009 had directed to conduct a breath analyzer test properly and to record the statutory requirement in such cases, and the second respondent had presumably failed to comply with the said circular, which was based on the statutory requirements. He also argued that the petitioner's arrest was against the provisions under Section 125 of the Police Act. Since the action of the second respondent was not done or intended to be done in good faith in due discharge of his official duties, either under the provision of the Police Act or under the Cr.P.C. or any other law, his request for granting sanction for prosecution ought to have been allowed. 6. The learned counsel appearing for the official respondents submitted that the petitioner was driving the car under the influence of WP(C) No.4306/2013 5 alcohol, and the second respondent arrested him as he drove the car rashly and negligently, and the doctor had also certified the smell of alcohol. 7. The learned counsel appearing for the second respondent argues that the second respondent, while discharging his official duties, having found the petitioner driving the car in a rash and negligent manner and on realising that the petitioner had consumed alcohol, steps were taken which was sanctioned under law. It is also the contention of the second respondent that the alcometer available in the police station was defective, and the drunkenness certificate from the Medical Officer was not obtained as the hospital authorities did not send the blood samples to the Chemical Examiner. He also denied the charges that he had committed the offences alleged by the writ petitioner. He also contended that the suit filed by the petitioner was dismissed by judgment dated 31.8.2015 and that the arrest of the petitioner was lawful. 8. Ext.P12 order that rejected the application for sanction reads as follows:- “Government have examined the matter in detail and found that there is no prima facie disclosure of commission of an offence by the second respondent. There is no ground to prove any police atrocity alleged against the Police Officer. Therefore, Government found that the request of the petitioner to give sanction to prosecute the second respondent does not merit consideration and hence it is dismissed.” WP(C) No.4306/2013 6 9. It is clear that the Government has not considered all the relevant materials required for considering the grant of sanction. The order of this Court in Crl. M.C. No.2326/2014, which held the action of the second respondent as bad, was not considered possibly because the same happened to be passed after Ext.P12. However, it is a relevant material that should go into consideration for considering the question of sanction to prosecute. It is also seen from Ext.P12 that the three documents referred to were also not considered, or at least the same was not reflected in the impugned order. ## 10. The principles that are germane for consideration of the grant of sanction are as follows:- (a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR disclosure statements, statements of witnesses. recovery memos, draft charge - sheet and all other relevant material. The record so sent should also contain the material/ document, if any, which may tit the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. (b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. (c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. WP(C) No.4306/2013 7 (d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. (e) In every individual case, the prosecution has to establish and satisfy the Court leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law. [ **CBI** v. **Ashok Kumar Aggarwal** (2013 KHC 4983)]. 11. Thus, the sanctioning authority is obliged to peruse all the relevant materials and make complete and conscious scrutiny of the same by applying an independent mind and to satisfy as to whether there is a prima facie case against the accused or not and, accordingly, decide to grant or refuse sanction sought for against the public servant. Such an order should reveal that the sanctioning authority had been aware of the facts and circumstances of the case, had perused and scrutinised the relevant materials, and applied its independent mind to arrive at the conclusion. The mind of the sanctioning authority cannot be under pressure from any quarter, nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. WP(C) No.4306/2013 8 12. Doubtless, the details of the crime registered against the petitioner, the FIS, and the FIR, none of them have been referred to in the order impugned. True, the Ext.P15 order came after the Ext.P12 order, but the same is certainly relevant. Though the impugned order refers to Exts.P10 and P11, there is no discussion about the same in the order impugned. The third document mentioned is an intra-departmental communication, which is also not seen considered. The contentions in Ext.P10 petition preferred by the petitioner have not been looked into. Under such circumstances, no other decision is possible except to quash Ext.P12, and I do so. Accordingly, there will be a direction to the first respondent to consider Ext.P10 afresh, in the light of the observations made above, in accordance with law, within an outer time limit of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- **MOHAMMED NIAS C.P., JUDGE** okb/ WP(C) No.4306/2013 9 ## **`APPENDIX OF WP(C) 4306/2013`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF THE FIR IN CRIME NO. 1309/2011 OF KOCHI CUSBA POLICE STATION` - `Exhibit P2 TRUE COPY OF THE CERTIFICATE OF DRUNKENNESS ISSUED FROM THE MAHARAJAS HOSPITAL KARUVELIPADY` - `Exhibit P3 TRUE COPY OF THE COMPLAINT DATED 15-12-2011 ISSUED TO THE DISTRICT MEDICAL OFFICER ERNAKULAM` - `Exhibit P4 TRUE COPY OF THE NOTICE UNDER SECTION 80 OF CPC DATED 11-07-2012 ISSUED BY THE PETITIONER` - `TO THE DOCTOR AND THE SECRETARY DEPARTMENT OF HEALTH.` - `Exhibit P5 TRUE COPY OF THE REPLY NOTICE DATED 31-10-2012 ISSUED BY THE DISTRICT MEDICAL OFFICER ERNAKULAM` - `Exhibit P6 TRUE COPY OF THE JUDGEMENT DATED 23-07-2011 IN O.S. 615/2010 BEFORE SUB COURT ERNAKULAM` - `Exhibit P7 TRUE COPY OF THE NOTICE DATED 16-05-2012 ADDRESSED TO THE RESPONDENTS.` - `Exhibit P8 TRUE COPY OF THE REPLY NOTICE DATED 10-06-2012 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P9 TRUE COPY OF THE REPLY NOTICE DATED 07-12-2012` - `ISSUED BY THE 1ST RESPONDENT` ``` Exhibit P10 TRUE COPY OF THE PETITION FOR PROSECUTION ``` - `DATED 23-09-2011 ADDRESSED TO THE SECRETARY DEPARTMENT OF HOME AFFAIRS.` - `Exhibit P11 TRUE COPY OF THE JUDGEMENT DATED 13-07-2012 IN` ``` WP(C) 11799/2012 BEFORE THE HIGH COURT OF KERALA ERNAKULAM ``` - `Exhibit P12 TRUE COPY OF THE ORDER DATED 12-12-2012 ISSUED` - `BY THE ADDITIONAL SECRETARY DEPARTMENT OF HOME AFFAIRS` WP(C) No.4306/2013 10 ``` Exhibit P13 TRUE COPY OF THE MEDIATION AGREEMENT IN ``` ``` O.S.NO. 615/2010 OF THE SUB COURT ERNAKULAM DATED 18-08-2014 ``` ``` Exhibit P14 TRUE COPY OF THE CHARGE SHEET IN CRIME NO. 1309/2011 OF KOCHI KASABA POLICE STATION. ``` ``` Exhibit P15 TRUE COPY OF THE ORDER DATED 06-07-2018 IN CRL.MC NO. 2326/2014 ``` ``` Exhibit P16 TRUE COPY OF THE STATEMENT FILED BY THE ``` ``` INSPECTOR OF POLICE, PALLURUTHY CIRCLE IN CRL.MC. 2326/2014 ``` ``` Exhibit P17 TRUE COPY OF THE REPLY STATEMENT FILED ``` ``` BY THE PETITIONER HEREIN DATED 29-07-2015 ``` ``` IN CRL.MC 2326/2014 ``` ``` Exhibit P18 TRUE COPY OF THE CIRCULAR DATED 22-10-2009 ``` ``` ISSUED BY THE DIRECTOR GENERAL OF POLICE. ``` ``` Exhibit P19 TRUE COPY OF THE MEMORANDUM OF RFA 174/2016 ``` ``` PENDING BEFORE THIS COURT. ``` ## RESPONDENTS’ EXHIBITS: EXT.R2(A):- TRUE COPY OF JUDGMENT DT.31.8.2015 IN OS 269/2014 OF SUB COURT ERNAKULAM EXT.R2(B0:- TRUE COPY OF DECREE DT.31.8.2015 IN OS 269/2014 OF SUB COURT, ERNAKULAM