R. Madhu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 Crl.MC.No. 555 of 2006 -----------------------CC.53/2006 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... PETITIONER: R.MADHU, AGED 33 YEARS, S/O.RADHAKRISHNAN NAIR, ARAVINDA MANDIRAM, THALAYOLAPPARAMBU P.O. THALAYOLAPPARAMBU, KOTTAYAM. BY ADV. SRI.S.RAJEEV RESPONDENTS: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,(CRIME NO. 391/2005 OF KOTTAYAM WEST POLICE STATION). BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON 18-7-2008 PASSED THE FOLLOWING: ## M.C. HARI RANI, J. =========================== ## CRL.M.C.NO. 555 of 2006 ============================ Dated this the 18[th] day of July 2008 ## ORDER The petitioner, while working as the Sub Inspector of Police, West Police Station, Kottayam and was on station duty on 24-8-2005, got information that there was some law and order problem within his jurisdiction. On receipt of that information, he reached the spot and found that one person named Ashok Joseph has parked Car No.KL-5-L 4003 on the foot path neglecting the request made by the Police Constable on duty to remove the vehicle from the foot path and there happened some altercation and some push and pull. The petitioner asked Ashok Joseph to report to the station along with the car and registered Crime No.389/2005 on the basis of the statement given by the Police Constable C.J.Paul and asked them to report to the Circle Inspector of Police and the case was handed over to the Circle Inspector of Police, Kottayam. Annexure-I is the copy CRMC.555/2006 -2- of the F.I.R. in Crime No.389/2005. Subsequently, the petitioner came to know that Ashok Joseph against whom Crime No.389/2005 was registered is the son of a sitting M.L.A.and within six hours from the occurrence, the petitioner was suspended from service by the Deputy Inspector General of Police. On 25-8-2005, the accused in Crime No.389/205 filed a statement to the Deputy Superintendent of Police, Administration, Kottayam which was sent to the Circle Inspector of Police, Kottayam West and Crime No.391/2005 was registered against the petitioner and two other Police Constables for the offence punishable under Sections 341, 323 and 34 of the Indian Penal Code. Annexure-II is the copy of the Final Report in Crime No.391/2005. After investigation of Crime No.389/2005, final report was fled before the Judicial First Class Magistrate-III, Kottayam along with a refer charge, copy of which is produced as Annxure-III. Charge sheet was filed in Crime No. 391/2005 after investigation for offences punishable under Sections 341, 323 and 34 of the Indian Penal Code against the petitioner and two other Police Constables. The petitioner was arrayed as third accused in Crime No. 391/2005. The allegation therein is that CRMC.555/2006 -3- the petitioner did not attempt to prevent accused 1 and 2 from their acts and thereby committed offences punishable under Sections 341,323 and 34 of the Indian Penal Code and the learned Magistrate took cognizance of the offences and taken on file as C.C.No.53/2006 as submitted by the learned Public Prosecutor. This petition is filed under Section 482 of the Code of Criminal Procedure with the prayer to quash all proceedings in C.C.No.53/2006. 2. Heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioner that even if the entire allegations are true, the same would not make out ingredients of offence punishable under Sections 341, 323 and 34 of the Indian Penal Code for the reason that the petitioner was doing his official duty and the alleged act referred in C.C.No.53/206 was done by the petitioner within the purview of his official duty. There is absolutely no allegation that he has exceeded his limit of jurisdiction conferred upon him. It is also submitted by the learned counsel for the petitioner that the prosecution has not obtained sanction to prosecute the CRMC.555/2006 -4- petitioner as contemplated under Section 197(3) of the Code of Criminal procedure. So, the petitioner is entitled to get the protection under Section 197(3) of the Code of Criminal procedure and if the prosecution in C.C.No.53/2006 is allowed to proceed, it would be an abuse of process of court and hence it is liable to be quashed, it is submitted. 4. It is submitted by the learned Public Prosecutor that this petition is preferred by the petitioner, who is arrayed as the third accused in C.C.NO.53/2006 and accused Nos.1 and 2 therein are not parties in this petition. 5. On a perusal of the allegations in this petition and Annexure-II, final report in Crime No.391/2005, it is revealed that the allegation against the petitioner herein, who was the Sub Inspector of Police, West Police Station, Kottayam that he did not attempt to prevent accused Nos.1 and 2 from their acts and thereby committed the offences punishable under Sections 341, 323 and 34 of the Indian Penal code. Admittedly, the petitioner was on official duty and the alleged offence was committed by him while discharging his official duty as the Sub Inspector of Police, West Police Station, Kottyam, who was arrayed as the CRMC.555/2006 -5- third accused in Crime No.391/2005 as revealed from Annxure-II. Cognizance was taken on the basis of the complaint made by the complainant Ashok Joseph with the allegation that two Police Constables, who were on duty along with the Sub Inspector of Police have taken the complainant to the police station and registered Crime No.389/2005, which, after investigation, was referred by the police as revealed from Annexure-III, the refer charge. No sanction has been obtained under Section 197 of the Code of Criminal Procedure before registering the crime against the petitioner herein. This petition is filed under Section 482 of the Code of Criminal Procedure to quash all proceedings in C.C.No.53/2006 on the basis of Annexure-II as against the petitioner on the ground that without obtaining sanction under Section 197 of the Code of Criminal Procedure, the petitioner is not liable to be prosecuted as provided under Notification No.61155/821 Home dated 6-12-1977. Section 197 (3) of the Code of Criminal Procedure is squarely applicable in the present case and the petitioner herein, who is a member of the police force and engaged in the maintenance of law and order, is entitled to get the protection. The learned counsel appearing for CRMC.555/2006 -6- the petitioner has relied on a decision in Shoukkathali v. State of Kerala, 2005(3)K.L.T.634, wherein this Court has held that police officer, who committed the offence during discharge of his official duty, is entitled to get protection afforded by Section 197 of Cr.P.C. This Court in the said decision has also relied on the decision of the Apex Court in State of Orissa v. Ganesh Chandra Jew, AIR 2004 SC 2179. Therefore, the petitioner herein, who was acting as the Sub Inspector of Police, West Police Station, Kottayam, is an officer against whom sanction as provided under Section 197(1)of Cr.P.C. is mandatory and cognizance was taken without sanction. In the circumstances, continuation of the proceedings against the petitioner herein, the 3[rd] accused in C.C.No.53/2006 would be an abuse of process of court and is liable to be quashed. In the result, this petition is allowed and the continuation of the proceedings against the petitioner herein, the third accused in C.C.NO.53/206, is quashed by exercising the power under Section 482 of the Code of Criminal Procedure. ks. M.C. HARI RANI JUDGE CRMC.555/2006 -7- ks.