Muhammed Haneefa v. State of Kerala and Anwar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936** ## **Crl.MC.No. 3999 of 2012** **----------------------------------** ## **CC 62/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MANJERI** **--------------** **PETITIONER(S)/ACCUSED:-: -------------------------------------** **MUHAMMED HANEEFA, SUB INSPECTOR OF POLICE, KONDOTTY POLICE STATION, MALAPPURAM DISTRICT.** **BY ADVS.SRI.BABU S. NAIR SRI.K.RAKESH** ## **RESPONDENT(S)/STATE AND COMPLAINANT:-:** **-----------------------------------------------------------------** ## **1. THE STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682 031.** ## **2. ANWAR,** **S/O.ABDULLA, THIRUTHIPARAMBIL HOUSE, OORNGATTIRI P.O., AREACODE, MALAPPURAM DISTRICT, PIN - 676 345.** **R1 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 3999 of 2012** **----------------------------------** ## **APPENDIX** **PETITIONER(S) ANNEXURES** **------------------------------------ ----** **ANNEXURE A. TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE J.F.C.M.-I, MANJERI DATED 12.03.2010. RESPONDENTS' ANNEXURES ------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.3999 of 2012** **-----------------------------------------------Dated this the 19[th] day of August, 2014.** ## **O R D E R** Aggrieved by the order passed by the learned Magistrate in taking cognizance of Annexure A complaint involved in C.C No.62/2012, the first accused has come up before this Court with a petition under Section 482 Cr.P.C. 2. Gist of allegations in the complaint is as follows : The complainant/respondent is an employee of a Service Co-operative Bank. He approached the Secretary, Oorngattiri Panchayath for issuing a pass for river sand in connection with his house construction. Since he was not happy with the way in which things relating to issuance of pass worked out in the Panchayath, he insisted that the pass should be issued to him directly. Then the Secretary of Grama Panchayath started dictating terms to the complainant. Thereafter, an altercation happened between the Secretary and the complainant. Immediately, the police party under the leadership of the **Crl.M.C No.3999 of 2012 2** petitioner came there and arrested the complainant as well as other persons. They were taken to Manjeri Police Station instead of Areekode Police Station. Thereafter, the petitioner physically assaulted the complainant and other accused arrested along with him. They were abused in filthy language without any provocation. The petitioner caused hurt to the defacto complainant. Therefore, the petitioner along with the second accused is guilty of the offences under Section 323 and 294 (b) r/w Section 34 I.P.C. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. Learned counsel for the petitioner submitted that the entire allegations in Annexure A complaint would show that the first petitioner as the Sub Inspector of Police, Areekode Police Station was discharging the official duty. Even if it is conceded for the sake of argument that there is some excess committed by ## **Crl.M.C No.3999 of 2012 3** the petitioner, then also a sanction under Section 197 Cr.P.C is required to proceed with the complaint. Grievance of the petitioner is that the learned Magistrate without applying mind mechanically took cognizance of the case. 5. To fortify the submissions, learned counsel for the petitioner relied on a decision rendered by the Supreme Court in _**Rizvan Ahmed v. Jammal Patel (2001 K.H.C 636)**_ . The relevant statement of law is as follows : _“ 14. The question of applicability of Section 197(2) of the Code is not free of difficulty. In S. B. Saha v. K. S. Kochar, AIR 1979 SC 1841 : (1979 Cri LJ 1367) this Court on a review of the case law available on the point held as under :_ _"The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as_ **Crl.M.C No.3999 of 2012 4** _a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is not part of an official duty to commit an offence, and never can be." In the wider sense, these words will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1) an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, K. in Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220_ **Crl.M.C No.3999 of 2012 5** _at P. 222 "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."_ _In sum, the sine qua non for the applicability of this section is that the offence charged be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him._ _While the question whether an offence was committed in the course official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose first deduced by Varadachariar, J. of the Federal Court in Hori Ram v. Emperor, 1939 FCR 159 : (AIR 1939 FC 43 : 40 Cri LJ 468) is generally applied with advantage._ ## **Crl.M.C No.3999 of 2012 6** _After referring with approval to those observations of Varadachariar, J., Lord Simonds in H. B. Gill v. The King, AIR 1948 PC 128 : (49 Cri LJ 503) tersely reiterated that the "test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office."_ _Speaking for the Constitution Bench of this Court, Chandrasekhar Aiyer J., restated the same principle, thus:_ _"......in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do or must be related in some manner, with the discharge of official duty...... there must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a_ **Crl.M.C No.3999 of 2012 7** _pretended or fanciful claim, that he did it in the course of the performance of his duty."_ 6. It is also contended that the Apex court in _**Om Prakash v. State of Jharkhand (2012(4) K.L.T SN 29 (C.No.29) SC)**_ held as follows : _“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. The protection given under S.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_ **Crl.M.C No.3999 of 2012 8** _excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection.”_ 7. It is submitted that even if it is assumed that the petitioner exceeded the limits of his official duty, he is entitled to get the protection under Section 197 Cr.P.C. These factors were not considered by the court below, contended the learned counsel for the petitioner. After hearing the counsel appearing on both sides and perusing the complaint and also on applying the principles of the aforementioned decisions, I find that the learned Magistrate should have applied his mind to find out as to whether sanction under Section 197 Cr.P.C is required in this matter or not. Taking cognizance mechanically cannot be appreciated. Therefore, the petition is allowed in the following terms : **Crl.M.C No.3999 of 2012 9** The order passed by the learned Magistrate taking cognizance of Annexure A complaint is set aside. The matter is remitted back to the learned Magistrate for considering and passing appropriate order as to whether the sanction is required under Section 197 Cr.P.C before taking cognizance. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge