P. Sukumaran v. State of Kerala and Sumesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936** ## **Crl.MC.No. 2173 of 2013 ()** **--------------------------CC NO. 1132/2012 PENDING OFN THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KANNUR ---------** **PETITIONER/ACCUSED :** **---------------------------------** **P.SUKUMARAN, AGED 50 YEARS,** **DY. SUPERINTENDENT OF POLICE, KANNUR** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN** ## **RESPONDENTS/RESPONDENT/STATE :** **---------------------------------------------- -------** ## **1. STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. SUMESH, S/O.CHANDRAN, AGED 30 YEARS, KIZHAKKEVALAPPIL HOUSE, KANNAPURAM, KANNUR DISTRICT 670 001.** **R1 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN R2 BY ADVS. SRI.P.NARAYANAN** **SRI.NICHOLAS JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 2173 of 2013 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------------------ANNX.1: COPY OF THE ORDER NO.10/CAMP/2012 DATED 16-05-2012 ENTRUSTING THE INVESTIGATION TO THE DEPUTY SUPERINTENDENT OF POLICE, KANNUR. ANNX. II: COPY OF THE ARREST MEMO DATED 01-06-2012. ANNX.III: COPY OF THE REQUEST GIVEN BY CIRCLE INSPECTOR OF POLICE, VALAPATTANAM, FOR THE PURPOSE OF MEDICAL EXAMINATION. ANNX.IV: COPY OF THE MEDICAL CERTIFICATE, DATED 02-06-2012 ISSUED BY DISTRICT HOSPITAL, KANNUR. ANNX.V: COPY OF THE PROCEEDINGS IN CMP NO.3678/2012 RESPONDENT(S)' EXHIBITS : NIL. //TRUE COPY//** **P.A. TO JUDGE** ## **BP** ## **V.K.MOHANAN, J. ------------------------------Crl.M.C.No.2173 of 2013 ------------------------------Dated this the 5[th] day of August, 2014.** ## **O R D E R** The above Crl.M.C. is filed under section 482 of Cr.P.C. at the instance of the petitioner, who at present working as Deputy Superintendent of Police, Kannur, with the prayer to quash all further proceedings in C.C.No.1132/12 against the petitioner pending on the file of the court of Judicial First Class Magistrate-II, Kannur, as it is an abuse of process of court. 2. Thus, when the above Crl.M.C. came up for admission, another learned Judge of this Court admitted the same and issued notice to the party respondents and passed an interim order of staying all further proceedings in the court below. Thereafter, the interim order is extended periodically. Thereafter, the case has been posted before this Court on 10.7.2014, on which date the **Crl.M.C.No.2173 of 2013** 2 counsel sought time and accordingly adjourned and posted on 16.7.2014. On 16.7.2014, this matter was heard in part and the argument was continued on 17.7.2014. On completing the argument of the learned counsel for the petitioner, counsel for the party respondent as well as the learned Public Prosecutor were heard. Considering the rival contentions advanced by the counsel for the petitioner as well the party respondent upon the issue as to whether the petitioner was appointed as the investigating officer in Crime No.136 of 2012 of Kannapuram Police Station, particularly when the counsel for the petitioner failed to highlight any steps taken by the petitioner towards the investigation of the above crime, this Court by a separate order dated 18.7.2014, directed the learned Public Prosecutor to produce the CD file in the above crime before this Court on 21.7.2014. 3. Thus, when the case was taken on 21.7.2014, Advocate Sri.S.Rajeev, the learned counsel who is also holding vakalath for the petitioner, submitted that the **Crl.M.C.No.2173 of 2013** 3 petitioner is not pressing the above Crl.M.C. and to that effect, a petition supported by an affidavit of the petitioner has been filed as Bench Mark. Accordingly, the case was passed over and on perusal of the above petition and affidavit, in the given facts and circumstances of the case, particularly in view of the argument already advanced, I was of the opinion that, instead of a cryptic order, a detailed order is warranted. Accordingly, the above Crl.M.C. as well as Crl.M.A.No.6858 of 2014 were reserved for orders. 4. As the petitioner in the above Crl.M.C. do not want to proceed with the hearing of the Crl.M.C. and sought permission to withdraw the same, according to me, the propriety and fairness demand to consider the above petition and to pass appropriate orders. However, this Court is not pleasant with the approach of the petitioner in filing such a petition after hearing the matter continuously for two days and that too, particularly in the backdrops of the comments and observations made from the Bench **Crl.M.C.No.2173 of 2013** 4 during the course of hearing of the above matter. In order to clarify the same, some more facts are required to be stated here, which are relevant in this context. 5. The brief facts which led to the filing of the present M.C. which are material for proper disposal of the above petition are as follows. A Crime was registered as Crime No.136/12 in the Kannapuram police station alleging offences punishable under sections 143, 147, 148, 447, 364, 324, 307 r/w section 149 IPC and also for the offences punishable under section 302 IPC, which is a crime registered allegedly connected with the murder of one Abdul Sukoor which was investigated by the Circle Inspector of Police, Valapattanam police station. It is the case of the petitioner that since there was no progress in the investigation, as per Annexure-I order bearing No.10/CAMP/2012/C DATE 16.5.2012 issued by the District Police Chief, Kannur, a special investigation team headed by the then Dy.S.P., Kannur, was constituted, and at that point of time, the petitioner was holding that post. During **Crl.M.C.No.2173 of 2013** 5 the course of investigation, connected with the above crime, one Sumesh-the 2[nd] respondent herein, who was then arrayed as accused no.32, was arrested at about 8.45 p.m. on 1.6.2012 from his house as per Annexure-II arrest memo. According to the petitioner, after the arrest of the 2[nd] respondent and prior to his production before the court of Judicial First Class Magistrate-I, Kannur, he was taken to Government Head Quarters Hospital, Kannur, for medical examination with Annexure-III request and after the medical examination undertaken by the Medical consultant, District Hospital, Kannur, Annexure-IV accident register cum wound certificate dated 2.6.2012 was issued and it was noted that there was no complaint of manhandling and the 2[nd] respondent was not having any external injuries. It is the further case of the petitioner that, the 2[nd] respondent raised a complaint that he was tortured when he was produced before the court of Judicial First Class Magistrate-I, Kannur, and the said complaint of the 2[nd] respondent was recorded by the above learned Magistrate **Crl.M.C.No.2173 of 2013** 6 and numbered the same as CMP No.3678/12, and he had forwarded a report to the learned Chief Judicial MagistrateThalasseri, who in turn directed the learned Magistrate of the court of Judicial First Class Magistrate-I, to forward the said complaint to the court of Judicial First Class Magistrate-II, Kannur, wherein the sworn statement of the witnesses were recorded and perused the documents produced, and after due compliance of all the legal formalities, the learned Magistrate took cognizance for the offence punishable under section 324 IPC against accused no.1 and thus the case was taken on file, and instituted C.C.No.1132/12. According to the learned Magistrate, as no materials were brought out, he dismissed the complaint to the extent it is against A2 to A5. It is against the above proceedings in C.C.No.1132/12 on the file of the court of Judicial First Class Magistrate-II, Kannur, the sole accused therein who is the petitioner herein approached this Court filing the above M.C. **Crl.M.C.No.2173 of 2013** 7 6. Initially on behalf of the petitioner, Adv.Sri.K.K.Dheerendra Krishnan, appeared and argued the matter and Adv.Sri.P.Narayanan, the learned counsel appearing for the 2[nd] respondent and Adv.Sri.Rajesh Vijayan, the learned Public Prosecutor for the State, have also addressed the Court. 7. The learned counsel for the petitioner who then appeared and argued on behalf of the petitioner fairly submitted at the bar that the challenge against the proceedings pending against the petitioner in the court below only on the question of sanction under section 197 of Code of Criminal Procedure, 1973 (hereinafter referred to for short as “Cr.P.C.” only) and there is no contention on merit as to whether the ingredients of section 324 IPC are attracted or not against the petitioner. The learned counsel invited my attention to section 197 Cr.P.C. and vehemently submitted that particularly in view of Annexure-I order that the petitioner was the head of the investigation team in Crime No.136/12 of Kannapuram police station and even **Crl.M.C.No.2173 of 2013** 8 according to the 2[nd] respondent, the alleged incident was occurred while the petitioner was acting or purporting to act in discharge of his official duty on his capacity as the head of the investigation team. So, according to the learned counsel, by virtue of section 197 of Cr.P.C., previous sanction from the State Government of Kerala is absolutely necessary, since he could be removed from the service only by the State Government, and the same is a condition precedent for taking cognizance of the said offence against the petitioner. To substantiate the above contention, the learned counsel has also invited my attention to section 113 of Kerala Police Act. To fortify the above contention, the learned counsel for the petitioner heavily relied upon the following decisions : **Shoukkathali Vs. State of Kerala (2005(3) KLT 634) paragraph 2** , **Sankaran Moitra Vs Sadhna Das and another [(2006) 4 Supreme Court Cases 584] paragraphs 12 to 23** , **Viswambharan Vs. State of Kerala (2010(4) KLT 875) paragraphs 9 and 12** , **Unni Rajan Vs. State of Kerala** **Crl.M.C.No.2173 of 2013** 9 **(2012 Crl.L.J. Page 4081) paragraphs 5 and 12** , **Om Prakash v. State of Jharkhand (2012(4) KLT SN 29 (C.No.29) SC)** , **Muralidharan Nair V. vs. Saju M.Antony and another (2013(1) ILR Kerala Series, paragraph 14** , **Anjani Kumar Vs. State of Bihar and another [(2008)5 Supreme Court Cases 248] paragraphs 8 to 12** and **Sunil Kumar v. State of Kerala (2007(4) KLT 359) paragraph 12** . 8. Adv.Sri.P.Narayanan, the learned counsel for the 2[nd] respondent on the contrary it is vehemently submitted that, the act complained of against the petitioner cannot be treated as done while acting or purporting to act in discharge of the official duty of the petitioner. On the strength of Annexure-I order and in the light of the grounds taken by the petitioner in the memorandum of the above petition filed under section 482 Cr.P.C., it is strenuously submitted that the petitioner was not the Investigating Officer in Crime No. 136/12 of Kannapuram police station ; but as disclosed by Annexure I order, his duty was to **Crl.M.C.No.2173 of 2013** 10 supervise the investigation and to make report regarding the progress of the investigation to the higher up. So, no official duty was entrusted with the petitioner to question the accused or even any witness ; but in the absence of any official duty entrusted with the petitioner, he was volunteered to interrogate the 2[nd] respondent, during which, the petitioner brutally manhandled the 2[nd] respondent and he was subjected to third degree torturing. According to the learned counsel for the respondent, particularly in view of the decisions, even if the act complained of against the petitioner was not performed, the same would not amount to dereliction of duty and therefore the act complained of, cannot be treated as part of discharging any official duty or purporting to act in that regard. The learned counsel for the 2[nd] respondent, in support of his contention, has also placed reliance upon the following decisions : **P.P.Unnikrishnan and another vs. Puttiyottil Alikutty and another [(2000)8 Supreme court Cases 131] paragraph 4** , **Arya Samaj Education** **Crl.M.C.No.2173 of 2013** 11 **Trust and others vs. Director of Education, Delhi and others [(2004) 8 Supreme Court Cases 30]** , **Centre for public interest litigation and another Vs. Union of India and another [(2005) 8 Supreme Court Cases 202] paragraph 9** , **Choudhury Parveen Sultana vs. State of West Bengal and another [(2009)3 Supreme Court Cases 398] paragraphs 4 to 9** and **Prakash vs. State of Kerala (2011(2) KLT 158) paragraph 18** . 9. The learned Public Prosecutor for the State, more or less by adopting the contention of the learned counsel for the petitioner, has submitted that as per Annexure-I order, the investigation in Crime No.136/12 of Kannapuram Police Station was entrusted with the special team headed by the petitioner and therefore in the absence of previous sanction from the Government under section 197(2) Cr.P.C., the learned Magistrate is wrong in taking cognizance for the offence under section 324 IPC against the petitioner. **Crl.M.C.No.2173 of 2013** 12 10. As undertaken by the learned Public Prosecutor, in terms of the order dated 18.7.2014 of this Court, he had produced the CD file in the above crime before this Court. It is at this stage, when the case was taken on 21.7.2014, the petitioner came up with the above referred petition, supported by an affidavit. 11. As I indicated earlier Adv.Sri.K.K.Dheerendra Krishnan, the learned counsel who argued the matter before me clearly submitted that the petitioner has no contention on merit on the allegation raised against the petitioner and his only contention is based upon the question of sanction under section 197 of Cr.P.C. I have also observed in the open Court that if the allegations are true, it is highly shocking and the same cannot be considered as part of discharging official duty of the petitioner. Though this Court made such an observation in the open Court, at that stage, no request of withdrawing the petition, as not pressed, was made before this Court. For clarity in the above point, according to me, the act **Crl.M.C.No.2173 of 2013** 13 complained of against the petitioner is relevant. But the sworn statement of the complainant-the 2[nd] respondent is not so eligible for an easy reading. However, true translation of the sworn statement dated 14.6.2012 of the 2[nd] respondent-the complainant is as follows : “On 31.5.2012 at 10 a.m. in the morning, two police constables came to my house. They have taken me along with them saying that there is a case against me. At first I was taken in a car to the office of the Dy.S.P. at Kannur. From there, I was taken in the vehicle of Dy.S.P. to Kannur City Police Station. I was taken by Dy.S.P. to the hall in the upstairs. From where, I was questioned by the Circle Inspector, 3 police constables and the Dy.S.P. They have taken me to the upstairs. I was made to remove all my dresses. I was made to stand in underwear alone and brutally tortured by them under the leadership of Dy.S.P. They tied my two eyes with a rope. Legs also tied. They have tied me on a stick using two benches and hanged. Beaten with an iron rode on the foot of my legs and below the middle part of the body. Dy.S.P. had inserted the iron rode in my anus and beaten me all over my body. When I screamed, they inserted the shirt in my mouth. The iron rode after inserting in my anus taken out and pushed into my mouth forcefully. I was tortured after tying me in the room for an hour. Another police constable and two police in uniform and two without uniform were there. All the police constables kicked me with shoe. Beaten me **Crl.M.C.No.2173 of 2013** 14 compelling me to admit that I stabbed. They said that if I disclose about this torture to any one I will be again hanged and killed. I was again beaten even after I fell tired. At that time Anoop was taken there and the police told him that similar torture will be given against him also. I was not given food. On 1.6.2012 also I was made to lie without food. Dy.S.P. has not allowed me to see anyone. Not informed to my house. I was not allowed to sleep on that night. Food not given. All these were done by the Dy.S.P. and C.I. in the office. On 2nd June police was also there in front of the Doctor. I was threatened not to disclose about the torture to the doctor. I was not permitted to say anything to the doctor. Thereafter again the Dy.S.P. beaten me on my leg finger nails saying that 'do you disclose it to the doctor' (injuries shown to court). Thereafter I was produced before the court. I was not able to do my primary needs for two days. After remand also I was not given treatment. I am not able to walk. I have this ” much to say. 12. However, Adv.Sri.K.K.Dheerendra Krishnan, the learned counsel for the petitioner continued his arguments based upon section 192(2) of Cr.P.C. on the question of sanction. In order to fortify the above contention, relying upon Annexure-I order, it is pointed out that the petitioner is the head of the team constituted as per the above order and therefore he can be treated as a public servant and the **Crl.M.C.No.2173 of 2013** 15 alleged incident can be if at all taken as true, it can be taken as part of his act or purportedly discharging his official duty. The learned counsel for the contesting respondents had taken me through the grounds stated in paragraph 5 of memorandum of Crl.M.C. and submitted that the argument of the learned counsel for the petitioner is against the said contention. Those grounds are as follows : “The petitioner was implicated in the crime only because he happened to be the head of the investigation team. The petitioner had not even arrested the second respondent, but the arrest was effected by the Circle Inspector of Police. The petitioner, as the Supervisory Officer, had only supervised the investigation in the capacity as the head of the Special Investigation Team and he is implicated as an accused in the above proceedings.” 13. According to the learned counsel for the respondent, particularly in view of the decision in **S.K.Zutshi and another Vs. Bimal Debnath and another [(2004)8 Supreme Court Cases 31]** , even if the act complained of against the petitioner was not performed, **Crl.M.C.No.2173 of 2013** 16 the same would not amount to dereliction of duty and therefore the act complained of cannot be treated as part of discharging any official duty or purporting to be an act in that regard. Still then, the learned counsel appeared for the petitioner has sticked on his contention that the petitioner was the Investigating Officer, but he was unable to highlight the part played by the petitioner in the investigation and the counsel for the petitioner was not sure whether the report under section 173(2) of Cr.P.C. in the above crime was filed by the petitioner or by the Circle Inspector of Police Valapattanam. It was in the above circumstances, the perusal of the CD in the above crime was warranted and this Court directed the learned Public Prosecutor to produce the same. 14. Thus it was on the date on which the CD was produced, the present petition to withdraw the M.C. was filed. Being the head of the team, as revealed from Ext.P1, though the petitioner has got access to the above CD, no attempt was made by the petitioner to convince this Court **Crl.M.C.No.2173 of 2013** 17 about the part played by him in the investigation connected with the above crime. That itself shows that the averments taken by the petitioner in the memorandum of Crl.M.C., which I quoted earlier, is correct and therefore probably that is the reason for filing the present petition to withdraw the above M.C. 14. The prayer of the petitioner in the above M.A. reads as follows, “........be pleased to permit the petitioner to withdraw Crl.M.C.No.2173/13, with liberty to raise the contentions at the time of framing the charge.” Resisting the said prayer, the learned counsel for the contesting respondent, on the strength of the decision reported in **Prakash vs. State of Kerala (2011(2) KLT 158) paragraph 18** , has submitted that the above petition is unsustainable and liable to be rejected and the above Crl.M.C. deserved to be disposed of on merit. However, I am of the view that, as the petitioner is not interested in the matter, rather seeks an order dismissing the above Crl.M.C., it is not fair for this Court to proceed to dispose **Crl.M.C.No.2173 of 2013** 18 the same on merit. But in the light of the above referred facts and circumstances, the relief sought in the above petition, cannot be granted as such. 15. It is also relevant to note that as per Annexure-V copy of the proceedings in CMP No.3678/12 of the court of Judicial First Class Magistrate-II, Kannur, which was produced by the petitioner along with the M.C., the learned Magistrate has also considered the objection raised by the petitioner based upon the question of sanction under section 197 of Cr.P.C. The order dated 11.12.2012 of the learned Magistrate which contained in Annexure-V is extracted and quoted hereunder for convenience and the same reads as follows : “Complainant absent. On perusal of sworn statement of complainant and witness it is prima facie brought out that hurt is caused with dangerous weapon. It is true that medical documents by itself not disclose the allegation of intruding iron rod in any - But at this stage that is not a matter of consideration. Infact the 1[st] complaint of assault was made before Magistrate when complaint produced on 2.6.2012. From the documents itself it is clear the complainant was taken in custody even before 2.6.2012. In a **Crl.M.C.No.2173 of 2013** 19 case like this respondent cannot get the protection under section 197 Cr.P.C. as claiming physical hurt will not come within the discharge of official duty. I find sufficient materials to take cognizance of offence u/s 324 IPC against accused No.1. So taken on file as CC 1132/12 issue summons to accused No.1. Against other accused stated in memo no materials brought out. Hence complaint against A2 to A5 dismissed.” But the learned Magistrate as per the above order has categorically found that “In a case like this, respondent cannot get the protection under section 197 of Cr.P.C. as claiming physical hurt will not come within the discharge of official duty.” So, the learned Magistrate rejected the above plea of the petitioner and the challenge against the above order before this Court is not intended to pursue, that too at the stage and the circumstances, which I mentioned above. When the learned counsel for the petitioner submitted, that the petitioner has no contention on merit about the allegation, which was presumably made after perusal of the documents and sworn statement which are the materials taken into account by the learned **Crl.M.C.No.2173 of 2013** 20 Magistrate, while taking cognizance, there is no basis for seeking a permission for the petitioner to take plea before the court below at the time of framing charge on the basis of merit. Same is the position with respect to the question of sanction in view of the forgone discussions and materials referred above. Therefore, according to me, the prayer as such in Crl.M.A.No.6858/14 cannot be allowed. 16. The petitioner is not an ordinary layman. As he was the head of the investigation team as revealed by Ext.P1, he knows what are the part played by him, if any, towards the investigation. It appears that, at his instance the memorandum of the above petition under section 482 of Cr.P.C. was prepared, in which he took a written contention that he was the only head of the investigation and his duty was to supervise the investigation in the capacity as the head of Special Investigating team. Therefore, it cannot be said that the present interlocutory application is filed with any bonafides but only to circumvent the situation which is adverse to him. This **Crl.M.C.No.2173 of 2013** 21 kind of practice should be depreciated. After having realised the out come of the deliberation in the court, it is not proper for the party concerned or his counsel, to file a petition of such nature. However, as I indicated earlier, it is for this Court to ensure the fairness of the proceedings of this Court and therefore it is not proper for this court to dispose this Crl.M.C. on merit but to dismiss the same as not pressed. It is made clear that the above findings and observations are made only for the purpose of disposing Crl.M.A.No.6858 of 2014 and the consequential order in the above Crl.M.C. In the above circumstances, the above interlocutory application is disposed of and consequently, this M.C. is dismissed as not pressed. Sd/- **V.K.MOHANAN, Judge.** ami/ //True copy// P.A. to Judge