Mary Jose v. Saju Paul and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **TUESDAY, THE 30TH DAY OF JULY 2013/8TH SRAVANA, 1935** ## **Crl.Rev.Pet.No. 1183 of 2013 ()** ## **-----------------------------------------CMP.NO.94 OF 2013 IN CC.NO.316 OF 2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MOOVATTUPUZHA** **--------------** ## **REVISION PETITIONER(S)/RESPONDENT:** **----------------------------------------------------------** **MARY JOSE, W/O. JOSE, KUNNAMPURATHU VEEDU, MARIKA KARA, PALAKKUZHA.** ## **BY ADV. SRI.SANU.S.PANICKER** ## **RESPONDENTS/PETITIONERS:** **--------------------------------------------** ## **1. SAJU PAUL,** **ASI, KOOTHATUKULAM POLICE STATION - 686 662.** ## **2. SOMAN,** - **POLICE CONSTABLE, KOOTHATTUKULAM POLICE STATION - 686 662.** ## **3. K.J. THOMAS,** **SUB INSPECTOR OF POLICE, KOOTHATTUKULAM - 686 662.** ## **4. STATE OF KERALA,** - **REPRESENTED BY ITS PUBLIC PROSECUTOR, ERNAKULAM.** **R1-R3 BY ADV. SRI.PHILIP T.VARGHESE** **SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM R4 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.Rev.Pet.No. 1183 of 2013 () ------------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** - **A1: COPY OF THE COMPLAINT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE, MOOVATTUPUZHA.** - **A2: COPY OF THE STATEMENT GIVEN BY THE WITNESS BEFORE THE LEARNED MAGISTRATE ON ENQUIRY UNDER SECTION 202 CR.P.C.** - **A3: COPY OF THE STATEMENT GIVEN BY THE WITNESS BEFORE THE LEARNED MAGISTRATE ON ENQUIRY UNDER SECTION 202 CR.P.C.** - **A4: COPY OF THE PETITION CMP.NO.94 OF 2013 FILED BY THE RESPONDENTS FOR DISCHARGING THEM.** ## **RESPONDENTS' ANNEXURES** ## **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **K.HARILAL, J.** = = = = = = = = = = = = **Crl.R.P.No.1183 of 2013** = = = = = = = = = = = = = = = Dated this the 30[th] day of July, 2013 ## **O R D E R** The Revision petitioner is the respondent in CMP No.94/2013 in CC No.316/2011 on the files of the Judicial First Class Magistrate's Court, Muvattupuzha, as well as the complainant in the above Calendar Case. The respondents 1 to 3 are the accused in the above case filed under Sec.190 and 200 of the Cr.P.C. The complaint was filed alleging offences punishable under Sections 323, 324, 354, 392 read with 34 IPC against the respondents 1 to 3 who are Police Officers having different ranks of Koothattukulam Police station. The above petition was filed by the respondents/accused seeking discharge from prosecution under Sec.245(2) of the Cr.P.C, on the sole ground that the respondents are public servants and the offence is alleged to have been committed while acting in discharge of their official duty; but, the complaint was filed, **Crl.R.P.No.1183 of 2013** 2 without sanction of the Government. No court shall take cognizance of such offence without sanction of the Government. Hence, they are liable to be discharged from prosecution. After hearing both sides, the learned Magistrate discharged the accused/respondents 1 to 3 from prosecution. This order is under challenge in this revision petition. 2. The allegation in the complaint levelled against the respondents is that on 23/03/2011 at about 11 a.m when the revision petitioner and one Mr.Jose appeared before the Koothattukulam Police Station, as per the direction of the Police, for giving statement in connection with the petition filed by the Revision petitioner against one Mr.Thankachan @ George and 10 others for causing mischief and damage to the revision petitioner's house, the respondents abused and attacked the revision petitioner and the witness Jose by which caused not only injury and pain to the revision petitioner and the said Jose, but also caused to outrage the **Crl.R.P.No.1183 of 2013** 3 modesty of the revision petitioner by nearing the revision petitioner's body towards the 1[st] accused. Further, the third accused has robbed an amount of 2,500/- from the pocket₹ of the said Jose. 3. The learned Magistrate took cognizance of the offence, after examining the de facto complainant and two witnesses. According to the Revision petitioner, on enquiry, the witnesses have deposed in tune with the averments in the complaint as well as her statement as CW1 before the Court. While so, the respondents filed the petition under Sec.245(2) of the Cr.P.C and prayed for discharging the respondents for want of sanction under Sec.197 of the Cr.P.C. After considering the rival contentions, the learned Magistrate allowed the petition and discharged the respondents from prosecution. 4. The learned counsel for the Revision petitioner submits that the learned Magistrate went wrong by discharging the respondents without considering the ## **Crl.R.P.No.1183 of 2013** 4 mandate under Sec.197 of the Cr.P.C in its correct perspective. The statements given by the Revision petitioner and the witnesses under Sec.202 Cr.P.C sufficiently proved that the accused had not only abused and assaulted the witnesses but also outraged the modesty of the complainant/revision petitioner. The above acts do not get protection as the alleged act will not come under the purview of the act or purporting to act in discharge of official duty. The learned counsel drew my attention to the status of the revision petitioner as complainant. Further, the learned counsel submits that going by Sec. 197 of the Cr.P.C, there is no statutory requirement of exercising coercive steps to elicit facts from a complainant under Sec.161 of the Cr.P.C. The respondents were required an oral examination of the complainant and also the witnesses supposed to be acquainted with the facts and circumstances of the case and reduce into writing any statement made to him in the course of examination under the Section. **Crl.R.P.No.1183 of 2013** **==> picture [7 x 10] intentionally omitted <==** According to him, the allegation is that the Revision petitioner was physically assaulted under the influence of the accused in the complaint. 5. The learned counsel further submits that the Court below went wrong by placing reliance on the decision reported in **Unni Rajan v. State of Kerala** [2012(2) KHC 707]. The facts of the said case are entirely different. There, the complainant was an accused who were examined in the course of investigation. But in the instant case, the complainant is the complainant in a private complaint. The learned counsel for the Revision petitioner in support of his arguments placed reliance on the decision in **Prakash v. State of Kerala** [2011(2) KLT 158]; **Trilochan Barik vs. Raghunath Bal** [1991 CRL. L. J. 2259] and **Pukhraj v. State of Rajasthan** [1973 (2) SCC 701]. 6. Per contra, the learned counsel for the respondents submits that the alleged act will squarely come under the act “while acting or purporting to act in the discharge of **Crl.R.P.No.1183 of 2013** 6 their official duty contemplated under Sec.197 of the Code of Criminal Procedure. According to the learned counsel for the respondents the mandate under Sec.197 of Cr.P.C is contemplated to give protection to public servants for their act done in good faith and even if the allegations are taken at its face value, it cannot be said that the alleged act goes out of the purview of act in discharge of their official duty. Further, the learned counsel contended that the statement of CW1 is totally unbelievable and not supported by the statement of other witnesses and allegations in the complaint. In support of the above argument, the learned counsel for the respondents placed reliance on the decision in **Rakesh Kumar Mishra v. State of Bihar** [2006(1) SCC 557] and **Unni Rajan v. State of Kerala** [2012(2) KHC 707]. That apart, the learned counsel advanced arguments to justify the impugned order in view of **Unni Rajan's** case (supra). 7. I have given anxious considerations to the rival **Crl.R.P.No.1183 of 2013** 7 submissions made at the Bar. In the light of the above decisions, having regard to the rival contentions, the question to be considered in this revision petition is whether the allegations in the complaint filed by the Revision petitioner would come within the purview of act done or purported to be done in discharge of the official duty of the respondents. Admittedly, the Revision petitioner is the complainant. The scope and ambit of the enquiry on a complaint filed before the Police coming under Sec. 161 of the Cr.P.C are well delineated in the decision in **Prakash v. State of Kerala** [2011(2) KLT 158], which reads as follows: “What act or acts are to be done by the public servant to perform and complete such particular duty? 39. I have already found, in the light of the allegations made in the complaint that the particular duty which was purportedly being discharged by the petitioner, at the relevant time of alleged commission of the offences, on 11[th] and 12[th] , may fall under Sec.161 f the Code. The act or acts which petitioner can perform to execute his duty under Sec.161 of the Code are referred to in the said section itself. **Crl.R.P.No.1183 of 2013** 8 40. As per Sec.161 of the Code the acts to be done by the public servant to preform and complete his particular official duty under Sec.161 are: i) make an “oral” examination of the person any person supposed to be acquainted with the facts and circumstances of the case; ii) reduce into writing any statement made to him in the course of an examination under this section; and iii) make a separate and true record of the statement of each such person whose statement he records. 41. Thus, the acts to be done by petitioner to preform and complete his official duty under Sec.161 of the Code are: i) orally examine complainant; ii) write down his statement; and iii) make a true record of such statement. Thus, second question is also answered accordingly.” 8. Going by Sec.161 of the Cr.P.C, in view of the above decision, it could be seen that no kind of coercive measures can be exercised on the complainant while taking statement under Sec. 161 of the Cr.P.C. An oral examination of the complainant and any person supposed to be acquainted with the facts and circumstances of the case and reducing that statement into writing is necessary. The learned counsel for the Revision petitioner submits that the court below went wrong by placing reliance on the decision **Crl.R.P.No.1183 of 2013** 9 reported in **Unni Rajan's case** (supra). Going by the above decision, it could be seen that the facts in that case is entirely different from the facts of the instant case and no reliance can be placed on the above said decision, where an accused was taken in custody and the allegation was that he was assaulted by the police officer during interrogation. In the above factual matrix, the court held that even assuming that the police officer assaulted the accused at the time of interrogation, such assault is said to have caused while discharging his official duty. 9. I am of the opinion that the said decision cannot be made applicable to the facts and circumstances of the present case. The learned counsel for the respondents drew my attention to paragraphs 5 and 6 of the decision in **Rakesh Kumar Mishra's case** (Supra). In the above said decision, it is held that the facts and circumstances of each case, protection of public officers and public servants functioning in discharge of their official duties and **Crl.R.P.No.1183 of 2013** 10 protection of private citizens have to be balanced by finding of as to what extent and how far is a public servant working in discharge of his duties or purported to discharge of his official duties and whether the public servant has exceeded his limit. Therefore, going by the decisions, I am of the opinion that to find out whether the act said to have been done would come under the act done or purported to be done in discharge of the official duty can be determined on the basis of another question. That is, whether he has done an act which ought not have been done, in view of the duty assigned to him under law. As far as a complainant is concerned, the scope of enquiry to him under Sec. 161 of the Cr.P.C is limited and different unlike an accused under interrogation in the course of investigation. If the allegations in the complaint are true, no doubt, the respondents have done an act, which ought not have been done, while taking the statement of a complainant and his witnesses. But, it is a fact to be proved by the process of **Crl.R.P.No.1183 of 2013** 11 trial only. As far as complaint under Sec. 197 of the Cr.P.C is concerned, in the preliminary stage, the only question to be considered is whether the allegations in the complaint disclose the offence; whether it will end in conviction or acquittal or whether the allegations are true or false are the issues which are to be determined after trial. As laid down in the above decision, what is contemplated under Sec.197 of the Cr.P.C is a balancing between the protection given to public servant and the personal liberty of a citizen. As held in these decisions there cannot be a universal formula for determining the question whether the act said to have been done by the public servant would come under the discharge of official duty. It depends upon the facts and circumstances of each case only. 10. Considering the allegations in the complaint, I am of the opinion that the act done will not come under the act or purporting to act in discharge of official duty. Therefore, I am inclined to set aside the impugned order and I do so. **Crl.R.P.No.1183 of 2013** 12 The learned Magistrate is directed to restore the complaint on the files and proceed in accordance with law. It is also made clear that this is only a permission to go with trial and shall not be interpreted to mean that this Court is under the impression that the allegations in the complaint are true and correct. Needless to say, the respondents have rights to invoke all remedies including rights under Secs. 244 and 245(1) Cr.P.C to challenge the allegations in the complaint. This revision petition is allowed and the parties are directed to appear before the trial court on 29[th] August, 2013. **K.HARILAL, JUDGE.** ## **Stu** **//True copy//** **P.A to Judge.**