M. Dileepkhan v. Resmi and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942** ## **Crl.MC.No.3901 OF 2019(G)** **CC 1144/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA** ## **PETITIONER/SOLE ACCUSED:** **M.DILEEPKHAN AGED 47 YEARS S/O. MOUDHANNA RAWTHAR, PRESENTLY WORKING AS CIRCLE INSPECTOR OF POLICE, ERUMELI POLICE STATION, ERUMELY-686 509** **BY ADV. SRI.K.R.SUNIL** ## **RESPONDENTS/COMPLAINANT:** **1 RESMI AGED 30 YEARS D/O. RAVENDRAN, MAKKICHIRAYIL, POLLETHAI P.O, KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA-688 522. 2 THE STATE OF KERALA, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031** **BY ADVS. SRI.UMASANKAR FOR R1 SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 3901 of 2019 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 3901 of 2019 -----------------------------------Dated this the 16[th] day of December, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.P.C. is as follows: _“…. to call for the records pursuant to Anx.A1 and quash the same in the interest or justice.”_ 2. Heard Sri.K.R.Sunil, learned counsel appearing for the petitioner (sole accused), Sri.Umasankar, learned counsel appearing for the 1[st] respondent (lady _de-facto_ complainant) and Sri.Santhosh Peter, learned Public Prosecutor appearing for the 2[nd] respondentState of Kerala. 3. The petitioner has been arrayed as the sole accused in Annexure A1 private criminal complaint dated 04.11.2011 filed by contesting respondent No.1, in which the Judicial First Class Magistrate Court-I, Alappuzha, has taken cognizance, which in turn has led to the pendency of Calendar Case, C.C. No.1144/2012 for offences punishable under Secs.294(b), 323 & 354 of the Indian Penal Code (IPC). It is this private criminal complaint proceedings at C.C. No.1144/2012 on the file of the Judicial First Class Magistrate Crl.M.C No. 3901 of 2019 3 Court-I, Alappuzha, that is under challenge in this petition filed under Sec.482 of Cr.P.C. 4. The petitioner is a serving police officer of the rank of Sub Inspector of Police in the Police Department of the State Government. On the basis of the information received that the parents of the 1[st] respondent were illegally selling Indian made foreign liquor in their residence, the petitioner on the basis of the lawful authority had proceeded to the residential premises of the parents of the 1[st] respondent on 30.10.2011 at about 4.30 p.m. and when the parents of the 1[st] respondent were selling the liquor kept in bottles inside the car parked inside their residential premises, the peittioner had seized 5.3 litres of Indian made foreign liquor from the said car on the same day (30.10.2011) at about 4.30 p.m. and thereafter had ensured the registration of Annexure A4 FIR in crime No.568/2011 of Mannanchery Police Station, Alappuzha Dstrict, in which the parents of the 1[st] respondent have been arrayed as accused 1 & 2, among the two accused therein for offences punishable under Secs.55(a)(i) of the Abkari Act. After completion of the investigation in Annexure A4 crime, the final report/charge sheet as per Annexure A5 has also been duly filed in Annexure A4 crime No.568/2011 of Crl.M.C No. 3901 of 2019 4 Mannanchery Police Station on 29.11.2011, in which the parents of the 1[st] respondent have been arrayed as 2 accused therein for the offence punishable under Sec.55 (a)& (i) of the Abkari Act. 5. It appears that about 4 days after the registration of Annexure A4 crime, the 1[st] respondent has filed Annexure A1 private criminal complaint dated 04.11.2011 before the Judicial First Class Magistrate Court-I, Alappuzha, alleging that, on 30.10.2011 the petitioner had gone to the residence of her parents at about 1 p.m. and at that time, she was washing clothes and that then she could hear some commotion and sounds from the room, in which her parents were there and when it was found that the petitioner was trying to apprehend her parents, she blocked it and that enraged to that, the petitioner had pulled her nighty and pressed her left breast and when she cried out, the police constable, who had accompanied the petitioner had revealed the identity of the petitioner as the Sub Inspector of Mannanchery and that the petitioner had thereafter taken away about Rs.15,000/- from the car, which was parked inside the residential premises of her parents and that he had abused her in filthy and abusive language, etc. and thereby the petitioner has committed the abovesaid offences. Crl.M.C No. 3901 of 2019 5 6. It appears that the learned Magistrate has taken cognizance of the abovesaid offences alleged in Annexure A1 private criminal complaint, without statutory sanction as conceived under Sec.197 of the Cr.P.C. The petitioner had filed application before the learned Magistrate contending that the act on the part of the learned Magistrate in having taken cognizance without prior sanction in terms of Sec.197 of the Cr.P.C. is a grave illegality, etc. and the said plea has been rejected by the learned Magistrate as per Annexure A3 order dated 07.09.2018 on Crl.M.P.No.195/2016 in C.C. No.1144/ 2012. 7. The learned counsel appearing for the petitioner would point out that the abovesaid allegations raised in Annexure A1 are absolutely false and frivolous and have been made only as a counterblast to the official act done by the petitioner in his official capacity as the serving Sub Inspector, in having registered crime against the parents of the 1[st] respondent under Sec.55(a) & (i) of the Abkari Act, which has also led to Annexure A5 Final Report/Charge Sheet, etc, and as a means to put pressure on the petitioner in order to get unlawful exoneration of the parents of the 1[st] respondent, who are arrayed as accused in Annexures A4 & A5, etc. Crl.M.C No. 3901 of 2019 6 8. After considering the matter and going through the pleadings and materials on record, it is beyond any dispute that the petitioner in his official capacity as the serving Sub Inspector of the area, had taken steps to register Annexure A4 FIR in crime No.568/ 2011 of Mannanchery Police Station, Alappuzha District, as against the parents of the 1[st] respondent for offences punishable under Sec. 55(a) & (i) of the Abkari Act. Annexure A4 FIR has been registered on 30.10.2011 at about 8.30 hrs. The time of occurrence of the abovesaid offences is shown as 30.10.2011 at about 4.30 p.m. 9. A reading of Annexure A1 complaint would make it clear like the daylight that, the 1[st] respondent is a married lady aged 30 years and she was living elsewhere with her husband & child and that she had come to the residence of her parents on the day in question, etc. Further, a reading of Annexure A1 would also make it clear that the 1[st] respondent has not even the remotest case, anywhere in Annexure A1 that the petitioner had any prior animosity or acquaintance either with the 1[st] respondent or her parents. The fact of the matter is that, even going by the case of the 1[st] respondent, she is a married lady aged 30 years and who was living elsewhere with her husband & child and that on the day in question she happened to Crl.M.C No. 3901 of 2019 7 be in the residence of her parents. 10. A reading of Annexure A1 on the one hand and Annexures A4 & A5 would lead to the irresistible conclusion that the petitioner had secured some information regarding the alleged illegal possession and sale of liquor in the residential premises of the parents of the 1[st] respondent and he had proceeded to their residence, on 30.10.2011 at about 4.30 p.m. 11. Even going by the case set up by the 1[st] respondent there was no motive or reason for the 1[st] respondent to be otherwise present in the residence of the parents of the 1[st] respondent. If, as a matter of fact, the petitioner had reached the residence of the parents of the 1[st] respondent on 30.10.2011 at 1 p.m. as alleged in Annexure A1, then it could have been only on the basis of some information regarding the alleged illegal possession and sale of the liquor. 12. If, as a matter of fact, the petitioner had so arrived at the adjacent premises at 1 p.m. on that day, then there could be two possibilities; one is that he could have detected the alleged illegal possession and sale of the liquor or on ascertaining that the said information is incorrect, he would have left the place. If latter aspect of the case is true, that then there is no question of the petitioner Crl.M.C No. 3901 of 2019 8 again coming to the residential premises of the 1[st] respondent at 4.30 p.m. on that day. Any sensible police officer would know that if he could not detect the offence of illegal possession and sale of liquor on the same day at the prior occasion, then there is no point in going there again subsequently on the same day as in all likelihood, the suspect persons could have smartly removed any such articles of illegal possession and sale of liquor. Therefore, going by the preponderance of probabilities and in view of the indisputable position that the petitioner had no prior animosity or acquaintance with the 1[st] respondent or her parents, prior to the day he had visited the said place, even going by the case of the 1[st] respondent, it is only more probable that the petitioner would have reached the premises of the parents of the 1[st] respondent only at 4.30 p.m. on 30.10.2011. This crucial aspect of the matter would clearly pinpoint that the allegation made by the 1[st] respondent in Annexure A1 complaint as if the petitioner had gone to the residence of the parents of the 1[st] respondent on the same day, i.e., on 30.10.2011 at 1 p.m. appears to be a fabricated story and invented only for the sake of projecting the case that the petitioner had gone there at 1 p.m., which is more than 3 ½ hours before the time of the occurrence of the offence shown in Crl.M.C No. 3901 of 2019 9 Annexure A4, in order to remove the possibility of the petitioner developing a case that he had been there to the scene in question only in purported discharge of his duties. Probably, this could have been only on the part of advice obtained by the 1[st] respondent that such an allegation would take away the efficacy of any plea of the petitioner that he may put up on the basis of Sec.197 of the Cr.P.C. or Sec.113 of the Kerala Police Act, 2011, which came into force on 31.01.2011. Therefore, going by the over all probabilities of the situation and going by the case set up by the 1[st] respondent in Annexure A1 on the one hand vis-a-vis the official version of the police department as made out in Annexures A4 & A5 on the other hand, the preponderance of probabilities would clearly suggest that the case set up by the 1[st] respondent in Annexure A3 as if the petitioner had visited the premises in question on 30.10.2011 at 1 p.m., is a fabricated story invented for the sake of building up a case against the petitioner to pressurise him not to press the prosecution measures envisaged in Annexure A4, etc. 13. Moreover, a close reading of Annexure A1 private criminal complaint would also indicate that even going by the case of the 1[st] respondent, the petitioner had not gone there to visit the 1[st] Crl.M.C No. 3901 of 2019 10 respondent, who were known to each other, but that he was seen trying to apprehend her parents and some commotion occurred, etc. Therefore, those aspects would also clearly suggest that the petitioner would have been present in the premises of the residence of the parents of the 1[st] respondent only as part of crime detection or for exercise of some duties and functions as part of his responsibility as a police officer. This is all the more so, as the 1[st] respondent does not have any case that the petitioner has any prior animosity or acquaintance either with her or with her parents. It does not sound to plain common sense and logic that a serving police officer like the petitioner, would have gone to the residence of the parents of the 1[st] respondent along with another police constable, merely for the sake of taking Rs.15,000/from his car, etc. as is seen projected in Annexure A1. 14. Very interestingly, there is yet another allegation in paragraph No.4 of Annexure A1 private criminal complaint made by the 1[st] respondent that, apart from taking Rs.15,000/- from the car parked there, the petitioner had also taken away two sacks containing high priced empty foreign liquor bottles with caps, etc. The said allegation made by the 1[st] respondent in paragraph No.4 of Annexure A1 would also clearly show that “ _the cat is out of the bag_ ”, inasmuch as the attempt is to take steps to exonerate and explicate the parents of the 1[st] Crl.M.C No. 3901 of 2019 11 respondent, who are implicated in Annexure A4 crime for violation of the provisions of the Abkari Act for the alleged illegal act and sale of Indian made foreign liquor. It is indisputable that in the crime registered by the police, the liquor bottles have been seized from the residence of the complainant's parents which is corroborated by seizure mahazar signed by independent witnesses. 15. Since the overall probabilities would also clearly suggest that the petitioner would have been there in the premises only in purported exercise of his official duties, it goes without saying that the sanction under Sec.197 Cr.P.C. would be required in a case like this, more particularly, in a case where it is a private criminal complaint and not a police charge sheeted case, as the latter has inbuilt filtration process for effectuating investigation and its completion by filing of final report/charge sheet, etc. 16. The dictum in that regard regarding the mandatory effect of Sec.197 of the Cr.P.C. for sanction for prosecution of such governmental officers has been dealt with in a series of rulings of this Court as in _**Sarojini v. Prasannan**_ [1996 (2) KLT 859 (DB)], _**Balakrishna Pillai & Ors v. State of Kerala**_ [2020 (3) KLT 661], _**Akbar v. Anil and anr.**_ [2015 (3) KHC 394], etc. 17. Further, Sec.113 of the Kerala Police Act, 2011, which Crl.M.C No. 3901 of 2019 12 came into force on 31.01.2011, (which is long prior to the alleged incident on 30.10.2011), reads as follows:- _“Sec.113. Protection of action taken in good faith.—(1) No suit, prosecution or other legal proceedings shall lie against the Government or any Police officer or any public servant duly appointed or authorized under this Act for anything done or intended to be done in good faith in the due discharge of official duties under the provisions of this Act._ _(2) No court shall take cognizance of any offence under this Act and alleged against police officer except with the prior permission of the Government.”_ 18. In the facts and circumstances of this case, this Court is also constrained to take the view that in a case like this a serving police officer like the petitioner is certainly entitled for the protection of the benefit of beneficial provisions contained in Sec.113 of the Police Act, as otherwise, it may be rather impossible for Police officers and Investigating Officers to perform their duties and in many a case they might face such false allegations in order to enable the accused persons concerned to extricate themselves from the criminal proceedings initiated by such Police officers and put pressure on the police officers in that manner, etc. Therefore, going by the totality of the facts and circumstances of this case, this Court is of the considered view that the impugned criminal proceedings at Annexure A1 is a grave abuse of the process of the court, which would Crl.M.C No. 3901 of 2019 13 require interdiction at the hands of this court. 19. Further, it has been fairly brought to the notice of this Court that the case at Annexure A5 final report/charge sheet, which led to the institution of Sessions Case, S.C. No.254/2012 on the file of the II Additional Sessions Court, Alappuzha, has culminated in the acquittal of the accused persons therein (parents of the 1[st] respondent). The fact that the accused in the said case, who are the parents of the 1[st] respondent, have been acquitted cannot have any serious implication on the abovesaid aspects held by this Court, hereinabove. 20. The learned Magistrate has also egregiously erred in having taken cognizance in such a case without prior sanction as envisaged in Sec.197 of the Cr.P.C. and overlooking the statutory provision contained in Sec.113 of the Kerala Police Act. The least, the learned Magistrate should have done was at least to have gone to the stage of Sec.202 (1) of the Cr.P.C. and could have ordered the conduct of an investigation as envisaged in the proviso to Sec.202 (1) of the Cr.P.C. The act on the part of the learned Magistrate in having immediately taken cognizance, appears to be rather arbitrary and mechanical and is thus, illegal and ultra vires, for the aforestated Crl.M.C No. 3901 of 2019 14 reasons. 21. In that view of the matter, it is ordered that, the impugned Annexure A1 private criminal complaint, which led to the institution of Calendar Case, C.C.No.1144/2012 as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused therein will stand quashed and set aside. 22. The petitioner will produce a certified copy of this order before the Judicial First Class Magistrate Court-I, Alapuzha, who is dealing with C.C. No.1144/2012, for necessary information and further action. With these observations and directions, the above Criminal Appeal will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 3901 of 2019 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF THE COMPLAINT ATTESTED BY THE 1ST RESPONDENT'S COUNSEL GIVEN TO THE PETITIONER.** **ANNEXURE A2 THE TRUE COPY OF THE CMP NO. 195/2016. ANNEXURE A3 THE CERTIFIED COPY OF THE ORDER DATED 07.09.2018. ANNEXURE A4 THE TRUE COPY OF THE FIR REGISTERERD BY THE PETITIONER. ANNEXURE A5 THE TRUE COPY OF THE FINAL REPORT SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALAPPUZHA.** **RESPONDENT'S/S EXHIBITS: NIL**