Muhammed Sameer M v Union Territory of Lakshadweep

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 1[ST] DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 CRL.MC NO. 182 OF 2016** **AGAINST THE ORDER/JUDGMENTCC 25/2015 OF JUDICIAL MAGISTRTE OF** **1ST CLASS,ANDROTH** ## **PETITIONER/ACCUSED:** MUHAMNMED SAMEER M, AGED 39 YEARS S/O.M.C.KIDAVU (LATE), CIRCLE INSPECTOR OF POLICE, KAVARATHI, RESIDING AT MARAL HOUSE, KALPENI ISLANDS, UT OF LAKSHADWEEP. BY ADV SRI.BABU S. NAIR ## **RESPONDENT/COMPLAINANT:** 1 THE UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 MUHAMMED SHAFEEQUE,, S/O MUJEEB RAHMAN,THEKKILA ILLAM HOUSE,KAVARATHI,U.T.OF LAKSHADWEEP,PIN 682555(ADDITIONAL R2 IMPLEADED AS PER ORDER DATED 05/09/2016 IN CRL. M.A. NO.9074/2016) BY ADVS. SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA SRI.S.RADHAKRISHNANSCLAKSHADWEEP ADMN SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP ADMINISTRATION ADV C S HRITHWIK -SR PP ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **01.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 182 of 2016 2 ## **ORDER** The petitioner was the Inspector of Police at Kavaratti, and this Crl.M.C if filed by the petitioner being aggrieved by the criminal prosecution initiated against him, as C.C No. 25/2015, which is now pending before the Judicial First Class Magistrate Court, Andrott. The offences alleged against the petitioner is under Section 324 of Indian Penal Code. 2. The facts which led to the filing of this Crl.M.C are as follows. On 24.04.2015, two cases of house trespass were reported to the police. In one of the cases, an attempt to smother a lady while attempting to resist the attack was also reported. In connection with the said incidents, Crime No.7/2015 and Crime No. 8/2015 were registered by the Kavaratti Police Station. In both crimes, the _modus operandi was_ similar, i.e the crossbars in the windows were broke open, and the person entered the houses. The offence alleged in Crime No.7/2015 was punishable under Sections 453, 457 and 307 of the Indian Penal Code, whereas in Crime No.8/2015, the offences alleged were under Sections 453 and 457 of the Indian Penal Code. Crl.M.C No. 182 of 2016 3 3. During the course of the investigation, it was revealed that it was the 2[nd] respondent herein who had committed the aforesaid offences, and accordingly he was arrested on 09.03.2015. Thereafter, he was produced before the Chief Judicial Magistrate, Amini, on 10.03.2015. When he was produced before the court, he made a statement before the learned Magistrate to the effect that, while he was in custody on 09.03.2015 at about 2.00 a.m, the petitioner, who was the Inspector of Police at the relevant time, assaulted him by using lathi. Based on the said statement, the learned Chief Judicial Magistrate initiated a suo motu proceeding as Crl.M.P No. 205/2015. As part of the inquiry, two other witnesses, CWs 2 and 3, who were the Officer-in-charge of the Amini Police Station and the Head Constable of Amini Police Station, were examined, and their statements were recorded. Based on the materials revealed in the inquiry, the learned Magistrate took cognizance of the offence under Section 324 of the Indian Penal Code as C.C No.25/2015, which is now pending before Judicial First Class Magistrate Court, Andrott. This Crl.M.C is filed by the petitioner to quash the aforesaid proceedings, Crl.M.C No. 182 of 2016 4 mainly raising the contention that the cognizance was taken by the learned Magistrate without obtaining sanction as contemplated under Section 197 of Cr.P.C. 4. Heard, Sri.Babu S Nair, the learned counsel appearing for the petitioner and Sri. E Sajith Kumar, the learned Standing Counsel for the respondent. Even though notice was served upon the 2[nd] respondent, there was no appearance for him. 5. One of the crucial contentions raised by the learned counsel for the petitioner is that, since the cognizance in this case was taken without sanction as contemplated under Section 197 of Cr. P.C, the entire proceeding are vitiated and hence interference by this Court invoking the powers under Section 482 of Cr.P.C is necessary. The learned Standing Counsel appearing for the respondent submits that, no sanction as mentioned above, has been obtained while taking cognizance. 6. From the materials placed on record, it is evident that the proceedings were initiated solely on the basis of the statement given by the 3[rd] respondent/defacto complainant while he was produced before the Court. From the contents of the aforesaid Crl.M.C No. 182 of 2016 5 statement, it is evident that, the defacto complainant was in custody of the police consequent to the arrest made in Crime Nos.7/2015 and 8/2015 registered by the Kavaratti Police. Annexures E and D are the sworn statements of the Cws2 and 3, and both of them have clearly stated that no incident as alleged in the statement of the defacto complainant, has taken place. The learned counsel for the petitioner places reliance upon the decisions reported in **S.B Saha and others v.M.S Kochar AIR 1979 SCC 1841** and **Moosa Vallikkadan v.State of Kerala 2010 (3) KLT 447** . It is a well settled position of law that when a public servant is being prosecuted for an offence allegedly committed by him in connection with the duty assigned to him, he is entitled for special protection and the stipulations contained in Section 197 Cr.P.C is providing the same. Therefore, if the proceedings are initiated without the sanction as contemplated in the said provision, it has to be interfered with, as the lack of sanction vitiates the entire proceedings. Thus, for the purpose of interfering in such proceedings, the only question to be considered is whether the act allegedly committed by the petitioner was in Crl.M.C No. 182 of 2016 6 relation to any official act to be performed by the accused. In this case, it is evident that, at the relevant time, the 3[rd] respondent was in the custody of police consequent to his arrest in the crime referred above. 7. In **S.B Saha** 's case (supra), the Honourable Supreme Court was pleased to observe about the protection available to a public servant under Section 197 of Cr.P.C and the relevant observations relating to the same, read as follows: “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 a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is no 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 these 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 Crl.M.C No. 182 of 2016 7 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 J. in Baijnath v. State of Madhya Pradesh AIR 1966 SC 220 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 (1) of the Criminal Procedure Code will be attracted." In **Moosa Vallikkadan** 's case also this Court followed the aforesaid principles by reiterating that if a member of Kerala Police as committed an offence by acting or purporting to act in discharge of his official duty, the Court is precluded from taking cognizance of such offence except with the previous sanction of the State Government under Section 197 of Cr.P.C. Similarly, it is also well settled position of law that, even in the cases of police excess, the sanction under section 197 of Cr.P.C is mandatory. In this case, admittedly, the victim was in the custody of the petitioner at the relevant time, consequent to his arrest. Therefore, even as per the allegation, the petitioner assaulted him while the 3[rd] respondent was in legal custody. Thus, there are Crl.M.C No. 182 of 2016 8 materials to conclude that the allegations were pertaining to an act or purporting to an act in the discharge of his official duty. Hence, the cognizance could have been taken only with prior sanction from the Lakshadweep Administration, and since no sanction is admittedly obtained in this case, the entire proceedings are vitiated. In such circumstances, I find merits in this case. In such circumstances, this Crl.M.C is allowed, and all further proceedings in C.C No. 25/2015 on the files of Judicial First Class Magistrate Court, Andrott are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk Crl.M.C No. 182 of 2016 9 ## **APPENDIX OF CRL.MC 182/2016** PETITIONER ANNEXURES ANNEXURE A : TRUE COPY OF THE FIR & FIS IN CRIME NO.7/2015 OF THE KAVARATHI POLICE STATION DT 24-2-2015. ANNEXURE B : TRUE COPY OF THE FIR & FIS IN CRIME NO.8/2015 OF THE KAVARATHI POLICE STATION, DT 24-2-2015. ANNEXURE C : TRUE COPY OF THE STATEMENT GIVEN BY THE ACCUSED IN CRIME NO.7/2015 DT 10-3-2015. ANNEXURE D : TRUE COPY OF THE STATEMENTS GIVEN BY THE CIRCLE INSPECTOR/CW2 DT 27-22015. ANNEXURE E : TRUE COPY OF THE STATEMENTS GIVEN BY THE HEAD CONSTABLE/CW3 DT 28-72015.