P.K. Madhu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** ## **THURSDAY, THE 20TH DAY OF MARCH 2014/29TH PHALGUNA, 1935** ## **Crl.MC.No. 3840 of 2010** **---------------------------CC NO.1376/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, ALUVA ..........** **PETITIONER(S):ACCUSED 4: ---------------------------------------------** **P.K.MADHU,C.I.OF POLICE, PUTHUKAD POLICE STATION, THRISSUR, PRESENTLY WORKING AS DYSP, CBCID, EOW II, PALAKKAD.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENTS/COMPLAINANTS/STATE:** **-------------------------------------------------------------** ## **1. PRADEEP,** **S/O.PANKAJAKSHN, MANGALATHU VEEDU, KIDANGOOR KARA, THURAVOOR VILLAGE, ANGAMALY - 683 572.** ## **2. STATE OF KERALA,** **REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.LIJU. M.P. R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.3840/2010** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEX.1: COPY OF THE FIR IN CRIME NO.650/2005 OF PUTHUKKAD POLICE STATION.** - **ANNEX.2: ARREST MEMO DTD.18/09/2005. ANNEX.3: COPY OF THE REMAND REPORT SUBMITTED IN CRIME NO.650/2005.** - **ANNEX.4: COPY OF THE FINAL REPORT SUBMITTED IN CRIME NO. 650/2005.** - **ANNEX.5: COPY OF THE PRIVATE COMPLAINANT BY THE 1ST RESPONDENT DTD. 20/10/2005.** ## **RESPONDENT'S ANNEXURES: N I L** ## **/TRUE COPY/** ## **P.S.TO JUDGE** **Kss** ## **P.UBAID, J. ~~~~~~~~~~ Crl.M.C No.3840 of 2010 ~~~~~~~~~~~ Dated this the 20[th] March, 2014** ## **O R D E R** The petitioner herein is the 4[th] accused in C.C No.1376 of 2008 before the Judicial First Class Magistrate Court -II, Aluva. Cognizance in the said case was taken by the learned Magistrate under Section 342, 323 324, 294 (b) and 506 (i) read with 34 of Indian Penal Code, on a complaint made by the 1[st] respondent herein alleging assault and custodial torture by some police officers. The petitioner herein was the Circle Inspector of Police, Puthukkad on the date of the alleged incident. The case of the 1[st] respondent in his complaint is that on 12.9.2005, the accused Nos. 1 to 3 assaulted him, took him into custody, brought in the police station, where also, he was brutally manhandled in police lock-up and later he was handed over to the custody of the petitioner on 18.9.2005. 2. On seeing that there was swelling on the complainant's leg on the next day, the petitioner herein procured some medicines and thus helped him. But on the **Crl.M.C No.3840 of 2010** **2** next day, he was threatened not to make any complaint before the learned Magistrate, on production as accused in the case, wherein he is involved. Acting on the complaint, and the materials brought out under Section 202 of the Code of Criminal Procedure. Cognizance was taken by the learned Magistrate. Accused No.1 arraigned in the complaint was the Circle Inspector of Police, Angamaly at that time. The second accused arraigned in the complaint was the Sub Inspector of Police Angamaly and the 3[rd] accused in the complaint was a Police Constable attached to the Angamaly Police Station. Some identifiable Police Constable were also mentioned as accused in the complaint. Of course, it is not known who they are. On getting summons in the proceedings, the 4[th] accused approached this Court with this petition under Section 482 of the Code of Criminal Procedure with a prayer to quash the prosecution as against him on the ground that there is no material allegation against him in the complaint, and also on the legal ground that he cannot be prosecuted without sanction as required under Section 197 of the Code of Criminal **Crl.M.C No.3840 of 2010** **3** Procedure. 3. On a perusal of the complaint, this Court finds that there is no definite allegation of assault as against the petitioner herein. The whole allegation of assault and custodial torture is seen made against Nos.1 to 3 arraigned in the complaint. The only allegation as against the petitioner herein is that after 5 days the other accused handed over the complainant to the custody of the petitioner herein, and on the next day, the petitioner herein even procured some medicine for him. It is not known how the petitioner herein will be liable for the assault or custodial torture allegedly made by accused Nos.1 to 3 in the police station. The complaint does not specify what exactly is the offence for which the petitioner herein is liable. There is no doubt at all that the petitioner herein cannot be directed to answer a charge under Sections, 342, 323, 324 and 294 of Indian Penal Code because there is absolutely no allegation of assault or torture as against him in the complaint. 4. The other allegation is only a casual allegation that the petitioner threatened the complainant not to make **Crl.M.C No.3840 of 2010** **4** any complaint before the learned Magistrate on his production as accused in the case where he is involved. 5. It is submitted that the de facto complaint in this case is involved as accused in so many cases and the number is definitely above 20. Those cases include three murder cases. There is reason to believe that the de facto complainant was taken into custody by the accused Nos.1 to 3, in connection with some crime against him. It was submitted that the de facto complainant is a proclaimed offender included in the rowdy list prepared in the police station. If at all the accused Nos.1 to 3 arraigned in the complaint had assaulted him or tortured him in custody in connection with the case, where he is involved, the petitioner herein, who had not been there at the time of the alleged incident, cannot be made liable for the alleged assault or torture. 6. It was submitted by the learned counsel for the 1[st] respondent that the acts of assault committed by the accused cannot find any excuse as official acts, and so sanction under Section 197 of the Code of Criminal **Crl.M.C No.3840 of 2010** **5** Procedure is not required. Of course, it is settled that to get the protection under Section 197 of the Code of Criminal Procedure, there must be some nexus between the alleged act of offence and the official function discharged by the public servant. Atrocious acts or custodial torture made by Police Officers even during discharge of official duties cannot find any excuse, and they cannot claim protection under Section 197 of the Code of Criminal Procedure. However, in **Om Prakash v. State of Jharkhand [ 2012 (4) KLT SN 29 ( C. No.20) SC],** the Hon'ble Supreme Court held that even in cases where the public servant discharging his official duty acted in excess of his duty, he will get the protection under Section 197 of the Code of Criminal Procedure, if there is some reasonable connection between the alleged act and the performance of the official duty. Of course, as against the petitioner herein, there is no allegation of assault as such and there is no allegation of custodial torture also. In the particular nature of the allegations against the petitioner herein, made in the complaint, this Court finds that the petitioner had not, in **Crl.M.C No.3840 of 2010** **6** fact, committed any excess or exceeded his limits as a public servant. If at all the other accused had tortured him in custody, the petitioner can be made liable for that. When there is absolutely nothing to show that the petitioner herein had exceeded his limits to make a case as the public servant. If at all the other accused had tortured him in custody, the petitioner can be made liable for that. When there is absolutely nothing to show that the petitioner herein had exceeded his limits to make a case of culpable excess, or atrocious custodial torture, the petitioner will definitely get the protection under Section 197 of the Code of Criminal Procedure. He cannot be prosecuted without sanction as required under Section 197 of the Code of Criminal Procedure. In such a circumstance, the prosecution against the petitioner is liable to be quashed. 7. In the result, this petition is allowed. The prosecution as against the petitioner herein as the 4[th] accused in C.C. No.1376 of 2008 before the Judicial First Class Magistrate Court-II, Aluva is hereby quashed under Section 482 of the Code of Criminal Procedure. He will **7** ## **Crl.M.C No.3840 of 2010** stand released from prosecution, and the bail bond, if any, executed by him will stand discharged. **Sd/P.UBAID JUDGE** ma /True copy/ P.S to Judge ## **Crl.M.C No.3840 of 2010** **8**