P.D.MOHANAN and VIJAYAKUMAR v. THE STATE OF KERALA represented by PUBLIC PROSECUTOR and ANTONY F.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936** ## **Crl.MC.No. 1257 of 2010 ( )** **---------------------------CMP.NO. 4098/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT ,KATTAPPANA** **-------------------------------** ## **PETITIONER(S)/ACCUSED:-** **--------------------------------------------** **1. P.D.MOHANAN, SUB INSPECTOR OF POLICE, UPPUTHARA POLICE STATION, IDUKKI, NOW RESIDING AT MAZHUVANCHEIRL HOUSE,** **CHAKKUPALLAM P.O., 7TH MILE, KUMALI.** ## **2. VIJAYAKUMAR, ASSISTANT SUB INSPECTOR, UPPUTHARA POLICE STATION, IDUKKI.** ## **BY ADV. SRI.JOICE GEORGE** ## **RESPONDENT(S)/PETITIONER :** **------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. ANTONY.F.S., S/O.FRANCIS,** - **GOSS GIFT, JANKEEYA NAGAR-153, PATTATHANAM, KOLLAM.** **R1 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB R2 BY ADV. SMT.CHINCY GOPAKUMAR SRI.ANWIN GOPAKUMAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.1257/2010** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A1 CERTIFIED COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT AS CMP.NO.4098/2007 WITH THE SWORN STATEMENT. ANNEX A2 CERTIFIED COPY OF THE SWORN STATEMENT OF THE WITNESS** **ANNEX A3 CERTIFIED COPIES OF THE DISCHAGE CARD AND OP TICKET ISSUED FROM THE DISTRICT HOSPITAL, KOLLAM.** **ANNEX A4 COPY OF THE ORDER SHEET IN CMP.NO.4098/2007 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA** **ANNEX A4(A) CERTIFIED COPY OF THE ORDER DATED 18/01/2010 IN CMP.NO.4098/2007 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA** ## **RESPONDENT'S ANNEXURES:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.D. RAJAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1257 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of June, 2014** ## **O R D E R** This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure A4(a) order of the Judicial First Class Magistrate, Kattappana by invoking inherent powers. The second respondent filed a complaint against the petitioners for offences punishable under Sections 323, 294(b) r/w. 34 IPC, which is pending as C.C. No.45/2010. The petitioners contend that the second respondent is an accused in Crime No.144/2007 of Upputhara Police Station, in which, he was arrested on 16.06.2007 and produced before the court. After taking bail, he was admitted in the District Hospital, Kottayam and subsequently he foisted a false complaint before the Judicial First Class Magistrate Court, Kattappana. The petitioners contend that the alleged offence in Annexure A1 was committed while discharging official duty and they are protected under Section 197 Cr.P.C. and that without prior Crl.M.C.No.1257 of 2010 **-2-** sanction from the competent Government the trial of the case is a mere abuse of the process of court. Hence, they pray to invoke the inherent jurisdiction. 2. The allegation of the second respondent is that on 10.10.2005 he married one Sumol from Upputhara as per Christian religious rites and now they are living separately. The second respondent filed a petition before the Family Court, Ernakulam for restitution of conjugal rights. But at the same time his wife Sumol filed another petition before the Judicial First Class Magistrate Court, Kattapana, which was forwarded to Upputhara Police Station and in pursuance of the same, a crime was registered as Crime No.144/2007. In the above case, on 16.06.2007 he was arrested from his house at 4.30 a.m. and taken to Upputhara Police Station at 10.30 a.m. where he was assaulted by the petitioners. In the circumstance, after taking bail from the court he was admitted in a hospital and thereafter filed Annexure A1 complaint before the Judicial First Class Magistrate Court, Kattappana. Crl.M.C.No.1257 of 2010 **-3-** 3. The learned counsel for the petitioners contended that they are entitled to get protection under Section 197 Cr.P.C. and without obtaining prior sanction Annexure A4(a) order of taking cognisance and issuing summons against the petitioners are mere abuse of the process of court. 4. In this context, I have considered the averment and materials produced before me for considering the above pleadings. According to Section 197 Cr.P.C., the benefit is not extended to all police officers as public servants. This was explained by the Apex Court in **K.Satwant Singh V. State of Pubjab** (AIR 1960 SC 266) and **Puk Raj V. State of Rajasthan** (1973 SCC crl 944) ibid (11308) and in the verdict of the Constitution Bench of the Apex Court in **Matajog Dobey V. HC Bhari** (AIR 1956 SC 44). 5. The first leading decision of the Apex Court on this point was held in **Shree Kantiah Ramayya Munipalli** v. **State of Bombay** (1955 (1) SCR 1177: AIR 1955 SC 287) in Crl.M.C.No.1257 of 2010 **-4-** which the Apex Court relied on the decision of the Privy Council in **H.H.B.Gill** v. **King** (AIR 1948 PC 128) (six Judges Bench). Applying the parameters held by the Apex Court in the aforesaid decision it could be seen that under Section 197 (1) of the Code, protection is given to a person who is or was a Judge, or Magistrate or a public servant not removable from his office save by or with sanction of government, accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Therefore, the government employees (both State and Central) mentioned under section 197(1)(a)(b) of the Code, if their employment is in connection with the affairs of Union or State governments while alleged to have committed any offence are entitled to get this protection. The members of Armed Forces are protected under Section 197(2) of the Code and this protection has been extended under Section 197(3) of the Code to the members of the force charged with the maintenance of public order wherever they may be serving. Crl.M.C.No.1257 of 2010 **-5-** The State government may by issuing a notification, specify such class or category as mentioned u/s 197(3) of the Code. 6. The Apex Court in **Romesh Lal Jain** v. **Nagindar Singh Rana** [AIR 2006 SC 336] held that Sub Inspector of Police is not an officer removable from his office with the sanction of the Government and he is not entitled to get the protection under Section 197 (1). If that be the position, the petitioners are not entitled to get the protection given under Section 197 (1) of Cr.P.C. 7. Now the question is whether the petitioners are entitled to get protection under Section 197 (2) of the Cr.P.C. As per Section 197 (2) of the Cr.P.C., no court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. This benefit granted under Section 197 (2) was extended to members of the Armed Forces of the State Government also. According to Section 197(3), Crl.M.C.No.1257 of 2010 **-6-** the State Government may, by notification, direct that the provisions of sub-section (2) applies to such class or category of the members of the Forces charged with the maintenance of public order, as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. In this context a notification was issued by the Government of Kerala 06.12.1977, which reads as follows: “ In exercise of the powers conferred by Sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala - hereby direct that the provisions of sub section (2) of the said section shall apply to all members of the Kerala State Police, charged with the maintenance of public order”. “ ## **Explanatory Note** “S.197 of the Criminal Procedure Code affords protection from false, vexatious or malafide prosecutions to some categories of public servants in the shape of requirement of previous sanction of the Government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in the discharge of their official duties. The members of the Armed Forces of the Union are also protected. Government consider that members of the Kerala Police Force who are charged with the maintenance of public Crl.M.C.No.1257 of 2010 **-7-** order are also in need of similar protection. The notification is issued to achieve this objective”. Admittedly members of the Kerala Police force who are charged with maintenance of public order alone are protected by the above notification. The petitioners have no case that the above criminal act was committed by them while discharging any public order. The Constitution Bench of the apex court in **Ram Manohar Lohia v. The State of Bihar and another** (AIR 1966 SC 740) discussed public order and held as follows in para 48: “Reliance is first placed upon a decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar, (AIR 1950 FC 59). Reference is also made to Romesh Thapar v. State of Madras, 1950 SCR 594 at p. 598: (AIR 1950 SC 124 at p. 127), where this Court dealing with the same subject matter also observed: "........"Public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established.....it must be taken that "public safety is used as a part of the wider concept of public order....." and referring to Entry in List III (Concurrent List) of the 7th Schedule of the Constitution which Crl.M.C.No.1257 of 2010 **-8-** includes the "security of a State" and "maintenance of public order" as distinct topics of legislation, observed"........The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are circulated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind." 49."....."Public order" is synonymous with public safety and tranquillity: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State..." 51. ...................... Does the expression "public order" take in every kind of disorders or only some of them ? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Crl.M.C.No.1257 of 2010 **-9-** Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community of the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under R. 30 (1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances”. Therefore, available records did not disclose any aspect with regard to getting protection under Section 197 (3) of the Cr.P.C also. The petitioners are police officers and they can produce any document before the trial court with regard to the above contention. The mere fact that they raised a contention that they are public servants and that the offence was committed while in execution of such duty, and that they are protected under Section 197 of the Cr.P.C itself is not sufficient to throw out a case filed by a complainant. But during the course of the enquiry or evidence they are at liberty to produce any document for getting the benefit of Section 197 (3) of the Cr.P.C. to show Crl.M.C.No.1257 of 2010 **-10-** that they had acted according to the public order. If such documents are produced before the learned magistrate, he shall consider those documents and dispose the matter according to law. Hence there is no merit in the petition and accordingly it is dismissed. Sd/- **P.D. RAJAN, JUDGE** //True copy// P.A. TO JUDGE shg/