M.K. Rajesh v. Manoharan Nair and The State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943 ``` ## **`CRL.MC NO. 2224 OF 2017`** ``` IN CC 801/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, HARIPAD ``` ## **`PETITIONER/SOLE ACCUSED:`** **==> picture [79 x 93] intentionally omitted <==** ``` M.K. RAJESH SUB INSPECTOR OF POLICE, KAREELAKULANGARA POLICE STATION, KAREELAKULANGARA PRESENTLY WORKING AT SOUTH POLICE STATION, ALAPPUZHA. ``` ``` BY ADV SRI.K.R.SUNIL ``` ## **`RESPONDENT/COMPLAINANT:`** |**`1`**|**`MANOHARAN NAIR`**| |---|---| ||**`S/O.SURENDRAN NAIR, KOYIKKALETH,`**| ||**`RAMAPURAM MURI, KEERIKKAD.`**| |**`2`**|**`THE STATE OF KERALA`**| ||**`THROUGH BY PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA, ERNAKULAM.`**| ||**`BY ADV`**| ||**`SRI.M.R.NANDAKUMAR`**| ||**`PP-SRI.ARAVIND V.MATHEW`**| ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.12.2021, THE COURT ON 04.01.2022 PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2224 OF 2017 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the sole accused in C.C. No.801 of 2015 on the file of Judicial First Class Magistrate Court I, Haripad. The aforesaid case was registered on the basis of Annexure A1 private complaint submitted by the 1[st] respondent herein for the offences punishable under Section 323 of Indian Penal Code. On the basis of the aforesaid complaint, inquiry under Section 202 was conducted by the learned Magistrate and summons was issued thereon. 2. The facts of the said case is as follows: The petitioner herein is a Sub Inspector of Police who was working in that capacity at the relevant time at Kareelakulangara Police Station near Kayamkulam. On 09.10.2013, the 1[st] respondent herein came to the Police Station, for executing a bond as a surety to one of the accused n a crime. After executing the bond, the petitioner left the premises of the Police Station and he smoked cigarette just in front of the Police Station. In connection with the same, the 1[st] respondent was charged with a petty case for smoking in public and on the basis of the same the 1[st] respondent remitted the fine amount of Rs.200/- immediately. ``` CRL.MC NO. 2224 OF 2017 ``` ``` 3 ``` 3. On 10.10.2013, i.e. on the next day, the petitioner got himself admitted in Haripad Government Hospital and obtained a wound certificate by showing the history of injuries as the petitioner slapped him on his face and kicked him on 09.10.2013. Annexure A1 complaint was submitted based on the same. 4. After receiving summons in C.C.No.801/2015 which was registered on the basis of the aforesaid complaint, the petitioner appeared and filed Crl.M.P.No.9860 of 2016 before the Judicial First Class Magistrate Court – I, Haripad seeking for a prayer to drop the proceedings. The basic contention that was raised in the said petition is that no sanction as contemplated under Section 197(1) of Cr.P.C. was taken before taking cognizance and hence the entire proceedings are liable to be dropped. However, as per Annexure A3 order passed on 28.01.2017, the aforesaid petition was dismissed by the learned Magistrate. This Crl.M.C. is filed by the petitioner in such circumstances seeking to quash the entire proceedings in C.C. No.801/2015 pending before the learned Magistrate. ``` CRL.MC NO. 2224 OF 2017 ``` ``` 4 ``` 5. Heard Sri.K.R. Sunil, learned counsel for the petitioner, Sri.M.R.Nandakumar, learned counsel for the 1[st] respondent and Sri.Aravind V. Mathew, learned Public Prosecutor for the State. 6. The learned counsel for the petitioner would contend that, even going by Annexure A1 complaint, it can be taken seen that the incidents which are the subject matter of the said complaint, have occurred within the premises of the Police Station in which the petitioner was discharging his duties. The fact that the 1[st] respondent was charged with a petty case for smoking cigarette in the premises in a public place and he remitted fine for the said offence, clearly indicates that the petitioner was in charge of the duty at the relevant time. The sanction under Section 197(1) was absolutely necessary for taking cognizance of the said offence in such circumstances. 7. On the other hand, the learned counsel appearing for the 1[st] respondent would contend that, no sanction as contemplated under Section 197(1) is necessary in this case. The act committed by the petitioner herein was not part of the duties, but on the other hand, it was a criminal act attracting offence under Section 323. Merely, because of ``` CRL.MC NO. 2224 OF 2017 ``` ``` 5 ``` the reason that the petitioner is a public servant, he cannot escape from the clutches of law by taking the shield of sanction under Section 197 of Cr.P.C. In order to make the sanction absolutely necessary, it must be shown that the act alleged against the petitioner is intrinsically connected with the discharge of duty and the facts of the case would indicate otherwise. In such circumstances, the learned counsel for the 1[st] respondent prays for dismissal of the Crl.M.C. 8. The only question that arises is as to whether the sanction under Section 197(1) of Cr.P.C. is necessary for the purpose of taking cognizance in this case. The counsel from both sides have relied upon large number of decisions in support of their respective contentions, but I am referring to only some decisions which I found as more relevant to the facts and circumstances of the case. 9. While analyzing the legal proposition laid down on this issue, the observations made in the following judgments are very much relevant. ``` CRL.MC NO. 2224 OF 2017 ``` ``` 6 ``` ## 10. In **P.Arulswami v. State of Madras [AIR 1967 SC 776]** , the hon'ble Supreme Court was pleased to observe as follows: _“… It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”_ ## In **Shambhoo Nath Misra v. State of U.P. and others [1997 (5) SCC** ## **326]** it was observed as follows: _“4. …. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a_ ``` CRL.MC NO. 2224 OF 2017 ``` ``` 7 ``` _finding that the crime and the official duty are not integrally connected.”_ ## In **General Officer Commanding, Rashtriya Rifles v. Central Bureau** ## **of Investigation and Another [2012 (6) SCC 228]** it was observed as follows: _“82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparably connected with discharge of his duty, he becomes entitled for protection of sanction._ _83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The legislature has conferred “absolute power” on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority.”_ ``` CRL.MC NO. 2224 OF 2017 ``` ``` 8 ``` In **Varghese K.J. v. Shyam Kumar and Another [2015(4) KHC 47]** , a learned Single Judge of this Court considered the said question in the light of the principles laid down by the hon’ble Supreme Court in various judgments. The aforesaid judgment was rendered in a case where a Police Officer caught hold of the collar of the de facto complainant and abused him. After considering the factual circumstances in that case, in the light of the precedents in this regard, this Court held that, the cognizance taken thereon without obtaining sanction under Section 197 of Cr.P.C. was not proper. In **Varghese K.J.** 's case (supra) it was specifically held that even in the cases where, there is slight excess in action by a public servant while discharging the duties attached to his post, that by itself will not deprive him of immunity available under Section 197(1) of Cr.P.C. 11. The learned counsel for the 1[st] respondent relied upon the judgment in **Choudhury Parveen Sultana v. State of West Bengal and Another [(2009) 3 SCC 398]** . In the said judgment it was held that all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective ``` CRL.MC NO. 2224 OF 2017 ``` ``` 9 ``` umbrella of Section 197 Cr.P.C. On the other hand there can be cases of misuse or abuse of power vested in a public servant which can never said to be part of official duties required to be performed by him. The aforesaid observations were rendered in a case where, the Police Officers who were accused therein, used to come to the house of the complainant under the pretext of conducting investigation and threatened them for obtaining a tutored statement. There was even an allegation that they tried to obtain signature of the husband of the de facto complainant on a blank paper. Another decision relied upon by the learned counsel for the petitioner **is Om Prakash & Others v. State of Jharkhand** [judgment dated 26.09.2012 in Crl.A. 1491 of 2012]. In the said judgment in para 29 it was observed as follows: _“29. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it. (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of_ ``` CRL.MC NO. 2224 OF 2017 ``` ``` 10 ``` _the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood.”_ 12. From the analysis of the observations made by the hon’ble Supreme Court and this Court in the aforesaid decisions, it can be seen that the basic principle with regard to the requirement of sanction under Section 197(1) is that, if the act alleged against the public servant is reasonably connected with the discharge of his duties, a sanction has to be obtained under Section 197 of Cr.P.C. It is also specifically laid down in the said decisions that, even if it is a case of Police excess, while in discharge of the duties, sanction has to be obtained before taking cognizance of the said offence. 13. Now the facts of the case have to be analyzed on the basis of the aforesaid principles. In this case, admittedly the incident occurred within the vicinity of Police Station where the petitioner herein was working as Sub Inspector of Police. It is also an admitted fact that the ``` CRL.MC NO. 2224 OF 2017 ``` ``` 11 ``` petitioner was on duty at the relevant time. The aforesaid act is evident from the fact that the 1[st] respondent himself came to the Police Station for executing a bond for an accused in some other case. It is also an undisputed fact that, on the allegation of smoking cigarette the 1[st] respondent was charged with a petty case and he has remitted fine for the same as well. The aforesaid aspect is evident from the averments in the complaint itself. The averments contained in Annexure A1 complaint indicates that abusive language was used against the respondent herein by the petitioner. Even though it was alleged that the 1[st] respondent was assaulted by the petitioner, on going through the statements of Doctor it can be seen that no serious injuries were suffered by the 1[st] respondent. The aforesaid statements indicate pain on certain parts of the body by the 1[st] respondent. Even going by the averments in the complaint, it can be seen that, there is no dispute on the fact that the petitioner at the relevant time was on duty, and the incident occurred while he was discharging his duties. The place of incident was within the vicinity of the Police Station and the 1[st] respondent himself was implicated in petty offences for which he has remitted fine. These aspects would clearly indicate that the acts ``` CRL.MC NO. 2224 OF 2017 ``` ``` 12 ``` alleged against the petitioner were during the course of his duties and were connected with the official duties of the petitioner herein. If that be so, at the most, the allegations against the petitioner can be treated as a case of Police excess. As observed in the judgments mentioned above, even in a case of Police excess, sanction is a mandatory requirement. The learned counsel for the 1[st] respondent by placing reliance upon, the judgment of this Court in **D. Rajagopal v. Ayyappan [2021 (5) KHC Short Note 13]** contended that in a case where the accused was tortured in prison, this Court held that sanction is not necessary as the act of torture would not come under the purview of discharging of duties. However, factual situation in the said case would reveal that the de facto complainant therein was subjected to several kinds of brutalities including causing of burn injuries on the body of the de facto complainant using cigarette. In this case the factual situation is not similar to the factual circumstance existed in that case. Here, there are no visible injuries for the 1[st] respondent and he got himself admitted in the hospital only on the next day of the incident. In such circumstances, I ``` CRL.MC NO. 2224 OF 2017 ``` ``` 13 ``` am of the view that, the observations made by this Court in the said judgment cannot be made applicable to the facts of this case. 14. Thus, from an overall examination of the factual circumstances existing in this case, I am of the view that the acts alleged against the petitioner herein were reasonably connected with the discharge of his official duties. Section 197 contemplates for a protection to public servants in respect of the acts of such officers which were done in execution of their official duties. The same was intended to provide a shield to them from unwarranted and unwanted prosecutions against them so that they can discharge their duties without any fear of being accused of any allegations in connection with the discharge of duties. In this case, I am satisfied that the petitioner was in discharge of his duties at the relevant time and the acts alleged against him are reasonably connected with the official duties of the petitioner. 15. In such circumstances, the act of taking cognizance by the learned Magistrate without obtaining sanction under Section 197(1) of Cr.P.C. was not proper and the entire proceedings in C.C. No.801/2015 are therefore vitiated. ``` CRL.MC NO. 2224 OF 2017 ``` ``` 14 ``` In the result, this Crl.M.C. is allowed and all further proceedings in C.C.No.801/2015 on the file of the Judicial First Class Magistrate Court – I, Haripad are hereby quashed. However, it is made clear that this will not preclude the 1[st] respondent from initiating appropriate proceedings for obtaining sanction for prosecuting the petitioner by approaching the authorities concerned. Sd/- ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS ``` CRL.MC NO. 2224 OF 2017 ``` ``` 15 ``` ## **`APPENDIX OF CRL.MC 2224/2017`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`ANNEXURE A1`|`CERTIFIED COPY OF THE PRIVATE COMPLAINT`| ||`NUMBERED AS CC NO 801/2015`| |`ANNEXURE A2`|`TRUE COPY OF PETITION NUMBERED AS CRLMP`| ||`NO 9860/2016 FILED BY THE PETITIONER`| |`ANNEXURE A3`|`CERTIFIED COPY OF THE ORDER DTD`| ||`28/1/2017 IN CRL.M.P.NO 9860/2016 IN CC`| ||`NO 801/2015.`|