Keerthi Babu, ASEEZ, Abdul Majeed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930** **Crl.MC.No. 2470 of 2008()** **--------------------------------------** - **(C.C.NO.246/2006 OF JUDICIAL 1ST CLASS MAGISTRATE COURT IV, KOZHIKODE)** ## **PETITIONER(S): ACCUSED:** - **-----------------------------------------** **1. KEERTHI BABU, S.I. OF POLICE, NADAKKAVE POLICE STATION.** **2. ASEEZ, P.C.5335, A6, POLICE QUARTERS, NADAKKAVE, KOZHIKODE.** **3. ABDUL MAJEED, HEAD CONSTABLE - 5090, (DRIVER), THAZHE MANAPPAD VAYAL, KARUVASSERI, KOZHIKODE.** **BY ADV. SRI.SANTHARAM.P** ## **RESPONDENT(S): STATE & COMPLAINANT:** **-----------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **2. RAGESH K., 26 YEARS, S/O.RAGHAVAN,** - **AR PC.C.7379, KURIYERI HOUSE,** - **P.O.KARANTHUR, KOZHIKODE.** **BY PUBLIC PROSECUTOR SRI. GIKKU JACOB – R1 ADV. SRI. THOMAS ANTONY FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _Kss_ ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2470 of 2008 ---------------------------------------Dated this the 14[th] day of November 2008 ## **O R D E R** The petitioners are the Sub Inspector of Police, Head Constable and Police Constable respectively in a police station. Against them, a private complaint has been filed. The complainant is another police official. Allegations are raised in such complaint against the petitioners. The learned Magistrate took cognizance and issued process against the petitioners. The petitioners entered appearance and raised a contention that the cognizance taken is bad for the reason that the requisite sanction has not been obtained under Section 197 Cr.P.C before cognizance was taken. The learned Magistrate, by the impugned order, rejected the said prayer and directed that proceedings can continue as there is no requirement of sanction under Section 197 Cr.P.C. 2. The petitioners have come to this court to complain that even if the entire allegations were accepted, the alleged culpable conduct must be held to have been done or purported to have been done in the discharge of their official duty. They Crl.M.C.No.2470/08 2 heavily relied on the decision in **Sankaran Moitra v. Sadhna Das [AIR 2006 SC 1599]** . The test enumerated in **Sankaran Moitra** (Supra) if followed, there can be no doubt that cognizance should not have been taken without the requisite sanction under Section 197 Cr.P.C, submits the learned counsel for the petitioner. 3. The learned counsel for the respondent on the other hand contends that by no stretch of imagination can it be held that the three petitioners herein were discharging their official duty or were acting in the purported discharge of their official duty. In these circumstances, the learned Magistrate was eminently correct in taking the view that no sanction under Section 197 Cr.P.C is necessary to take cognizance of the offences allegedly committed by the petitioners, contends the learned counsel for the respondent. 4. A crucial look at the facts appear to be necessary. Up to a certain point, it appears that the petitioners/accused and the respondent/complainant have a common case. There were some disputes between the respondent herein and a cococola vendor who runs his business near the police station. There was Crl.M.C.No.2470/08 3 admittedly, even according to the respondent, some exchange of words. That person had complained against the respondent to the Sub Inspector of Police at the police station. The S.I, the first petitioner had wanted the Head Constable, the third petitioner to bring the person, who allegedly behaved culpably to the cococola vendor, to the police station. The third petitioner realised that it was the respondent/ complainant who committed the offence. He was taken to the police station. Of course, the respondent has a case that he was dragged to the police station under force by the third petitioner. Be that as it may, it is not disputed that the respondent was taken to the police station by the third petitioner as directed by the S.I/the first petitioner for ascertaining the truth or otherwise of the complaint regarding culpable conduct made by the cococola vendor. Of what happened inside the police station, there is serious dispute between the two sides. According to the petitioners, the respondent/complainant did not relish the fact that he was called to the police station. He allegedly unleashed violence at the S.I, who was in his room in the police station. He allegedly attacked the S.I. The police personnel on duty brought the Crl.M.C.No.2470/08 4 respondent/complainant under control and a crime was registered against him. Annexure A2 is the said F.I.R. The crime was registered under Sections 323,353 and 308 I.P.C. Respondent was arrested and produced before the learned Magistrate. Respondent/complainant did not make any complaint before the learned Magistrate. He was released on bail. Later he filed Annexure 1 complaint before the learned Magistrate. Cognizance was taken on that complaint. Respondent, on the other hand, contends that as soon as he reached the police station, notwithstanding his revealing to the petitioners his identity, he was brutally assaulted by all the three petitioners herein. According to him, the allegations raised in Annexure II F.I.R are totally false. 5. In this facts scenario, it has to be ascertained whether sanction is required under Section 197 Cr.P.C to take cognizance of the offences alleged against the petitioners. There has been perennial dispute as to whether a wider interpretation or a restricted interpretation is to be adopted while considering the application under Section 197 Cr.P.C. If too narrow an interpretation were to be accepted, Section 197 Cr.P.C will loose Crl.M.C.No.2470/08 5 all its meaning because it cannot be the duty or purported discharge of duty of any public official to commit an offence. In that view of the matter, it can certainly be held that the office of a public servant does not give protection to any crime committed and no crime can be committed in the discharge or purported discharge of official duty. But that definitely is not the law. When the act complained of is performed in the discharge of the official duty or in the purported discharge of official duty, such public officer becomes entitled for the protection under Section 197 Cr.P.C. The rationale behind the protection is that a public officer may have to perform unpleasant duties which may expose him to mala fide allegations of culpable conduct. It is hence that law insists that in respect of such a prosecution, prior sanction under Section 197 Cr.P.C is necessary. 6. It is equally trite that a too liberal interpretation under Section 197 Cr.P.C would deprive citizens of their protection against high handed action of public officials. Every culpable act done under the colour of the office of the public servant or merely because the public office afforded opportunities to commit the crime, cannot be reckoned as acts Crl.M.C.No.2470/08 6 which require prior sanction under Section 197 Cr.P.C. This aspect has been dealt with in detail in **Sankaran Moitra** (Supra). Coming to the brass tacks it is evident that though there are rival assertions of what happened inside the police station, the version of the petitioners that they had to intervene and restrain the respondent who behaved in an unruly and culpable manner in the police station, does appeal to me to be worthy of serious consideration at the moment and with the available inputs. At least that is the allegation against the respondent. For what was done by the petitioners inside the police station under the circumstances in which the respondent admittedly came to the police station, I am satisfied that the protection under Section 197 Cr.P.C must certainly be extended to the petitioners. 7. I am not persuaded to accept the contention of the learned counsel for the respondent/complainant that in the facts and circumstances of this case no such sanction is necessary at all. I am unable to concur with the conclusions of the court below. In the facts and circumstances of this case, I have no hesitation to agree that sanction under Section 197 Cr.P.C must Crl.M.C.No.2470/08 7 be insisted. 8. In the result, a) This Crl.M.C is allowed. b) Cognizance taken against the petitioners in C.C.No.246/06 is set aside. 8. I may hasten to observe that this order will not in any way stand against the right of the respondent to seek sanction under Section 197 Cr.P.C from the Government and continue the proceedings against the petitioners. Needless to say, such application for sanction, if any must be considered by the authority in accordance with law and expeditiously. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.2470/08 8 Crl.M.C.No.2470/08 9 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008