R. Nishanthini; Prameela; Yamuna; K.V. Muraleedharan Nair v. State of Kerala and Percy Joseph Desmond

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935 Crl.MC.No. 1185 of 2013 () --------------------------CMP NO.7202/2011 IN CC 973/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THODUPUZHA PETITIONER(S)/ACCUSED 1 TO 4: ---------------------------- 1. R.NISHANTHINI AGED 30 YEARS W/O RAJAMANICKAM, A 30/14, VRN-A SUBLANE -1, VIDYADIRAJA NAGAR, POOJAPURA THIRUVANANTHAPURAM ASSISTANT SUPERINTENDENT OF POLICE, THODUPUZHA. 2. PRAMEELA AGED 40 YEARS, W/O. BIJU, ARUKALIL HOUSE KOOTHATTUKULAM, CIVIL POLICE OFFICER, THODUPUZHA. 3. YAMUNA AGED 39 YEAR, W/O. PRABHAKARAN, VALIYACHIRAYIL KOLANI, THODUPUZHA, CIVIL POLICE OFFICER THODUPUZHA. 4. K.V. MURALEEDHARAN NAIR, AGED 53 YEARS, S/O. VASUDEVAN NAIR ADDITIONAL SUB INSPECTOR OF POLICE, THODUPUZHA NOW WORKING AS SUB INPSECTOR OF POLICE MUVATTUPUZHA. BY ADVS.SRI.P.N.SUKUMARAN SRI.P.S.APPU RESPONDENT(S)/COMPLAINANT: --------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ## 2. PERCY JOSEPH DESMOND SREYAS HOUSE, LANE NO. 6, AMBELIPADAM ROAD ERNAKULAM, WORKING AS THE MANAGER, UNION BANK THODUPUZHA BRANCH, THODUPUZHA-685584. R2 BY ADV. SRI.C.M.TOMY R2 BY ADV. SRI.MATHEW SKARIA R2 BY ADV. SRI.MANU TOM R1 BY PUBLIC PROSECUTOR MS.BINDU GOPINATH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO.1185/2013 ## APPENDIX PETITIONERS' EXHIBITS: ANNEXURE 1 TRUE COPY OF THE COMPLAINT IN CC NO.973/2012 FILED BEFORE JFCM -1 THODUPUZHA BY THE 2ND RESPONDENT ANNEXURE 2 TRUE COPY OF THE ORDER DATED 03.11.2012 PASSED BY THE JFCM -I THODUPUZHA IN CMP NO.7202/2011 ANNEXURE 3 TRUE COPY OF THE FIR REGISTERED AS CRIME NO.1074/2011 OF THODUPUZHA POLICE STATION ANNEXURE 4 TRUE COPY OF THE CHARGE SHEET SUBMITTED IN CC NO.856/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, THODUPUZHA RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.1185 of 2013** **-------------------------------------Dated this the 15[th] day of January, 2014.** ## **ORDER** Petition filed under Section 482 of the Criminal Procedure Code (for short, “Cr.P.C.) 1. Petitioners are accused in C.C.No.973 of 2012 before the Judicial First Class Magistrate Court-I, Thodupuzha. A private complaint was filed against the petitioner which is Annexure 1. It shows the following allegations: Complainant/2[nd] respondent was the Senior Manager of the Union Bank of India, Thodupuzha Branch. 1[st] petitioner was the Assistant Superintendent of Police, Thodupuzha. 4[th] accused was the Additional Sub Inspector of Police, Thodupuzha. Accused 2 and 3 were the Women Police Officers attached to Thodupuzha Police Station. Complainant was called to the police station on 26.07.2011 at about 1.30 p.m., On reaching the Police Station, he introduced himself. He was asked to wait outside the room of the 1[st] petitioner. While the complainant was making a call on mobile phone, an unidentified Police Officer snatched his mobile phone, caught hold of his collar and pushed him to the room of the 1[st] petitioner. At that time, other accused were also present in the room. 1[st] petitioner 2 Crl.MC No.1185/2013 questioned the complainant why he caught hold of the hand of a lady Police Officer. Without any provocation, she beat him on cheek. Accused 2 and 3 also came to the room. Male Police Officers present there fisted and kicked the complainant. He was physically assaulted for no reason. Complainant experienced excruciating pain. He was taken to a hospital. Thereafter, at about 9 p.m. he was produced before a Magistrate at his house and he was released on bail. According to the averments in the complaint, the accused are committed offences punishable under Sections 166, 323, 324, 330, 193, 342, 506(ii) and 120B read with Section 34 of the Indian Penal Code (for short, “IPC”) and further under Section 114(a) and 116(b) to (d) of the Kerala Police Act, 2011 (for short, “Act”). In the complaint itself, it has been mentioned that the 1[st] accused is entitled to protection under Section 197 Cr.P.C.. 3. Learned Magistrate as per Annexure 2 order took cognizance of the matter. In Annexure 2 order, a single sentence has been mentioned by the learned Magistrate that she was prima facie satisfied that the acts alleged did not come within the purview of the official duty of the accused. There is no discussion regarding consideration of the requirement of sanction under Section 197 Cr.P.C.. Learned counsel for the petitioners contended that sanction under Section 113 of the Act was also not obtained. 3 Crl.MC No.1185/2013 4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the complainant/2[nd] respondent. 5. Admittedly, petitioners 1 and 4 are officers in the Police Department removable from their office only with the sanction of the Government. Therefore, Section 197 Cr.P.C. will be applicable if they were discharging duty. Section 197 Cr.P.C. will come into play, if the alleged acts were done or purported to be done in discharge of their official duty. Learned counsel for the complainant would contend that the allegations in the complaint do not show any reason to infer that they physically assaulted the complainant as part of their official duty. However, that is the question to be resolved in this matter at the hands of the trial court. 6. It is seen that the complainant is involved in Crime No.1074 of 2011 registered by the Thodupuzha Police under Section 354 IPC and 119 (1)(a) of the Act. Allegation against him is that on 25.07.2011 at about 2.30 p.m., he tried to outrage modesty of a woman (who happened to be a Woman Police Constable) from his cabin when she approached him for a loan to purchase a scooter. However, learned counsel for the complainant stoutly denied such an allegation. It is seen from the complaint that the Police called the complainant to the Police Station in connection with investigation in that crime. It is alleged that then the physical assault and 4 Crl.MC No.1185/2013 other crimes were committed from within the Police Station. 7. Section 113 of the Act also shows the necessity of sanction for prosecution, if the alleged act was done or intended to be done in good faith in discharge of official duties under the provisions of the Act. It is evident from the order passed by the learned Magistrate that this provision was not at all considered by the court below. 8. Catena of decisions were cited at the Bar by the learned counsel appearing on both sides. Learned counsel for the petitioners relied on **Sankaran Moitra v. Sadhna Das and another ((2006) 4 SCC 584)** . Following quotation is relevant for our purpose: _“........... Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of the Supreme Court, clearly indicate that a prosecution hit by that provision cannot be launched without the contemplated sanction. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. ........”_ Attention of this Court was drawn to a decision rendered by the Apex Court in **State through the CBI v. B.L.Verma and another (1997 KHC 1508)** wherein also, the necessity of getting sanction under Section 197 5 Crl.MC No.1185/2013 Cr.P.C. was reiterated. Decisions of this Court, rendered by learned Single Judges, in **Sunil Kumar v. State of Kerala and another (2007 (4) KLT 359), Moosa Vallikkadan v. State of Kerala (2010 (3) KLT 437), Viswambharan v. State of Kerala (2010 (4) KLT 875)** and **Arun Kumar S. and another v. Abdubaker Sidhique and another (2012 (3) KHC 724)** were also cited to emphasis the necessity of getting sanction under Section 197 Cr.P.C. before taking cognizance. 9. Learned counsel for the complainant would contend that sanction under Section 197 Cr.P.C. is required only if the act said to have been committed by a public officer in discharge of his official duty and the act must have reasonable connection with the duty sought to be discharged by the public officer. Relying on the decision of the Supreme Court in **General Officer Commanding v. C.B.I. (2012 (2) KLT SN 117 (Case No.116)** , it was contended that the protection under Section 197 Cr.P.C. does not extend to every act or omission done by a public servant in service, but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. Therefore, the point to be decided by the trial court before taking cognizance and issuing process is whether the complaint and all the evidence taken at the time of enquiry reveal any lawful exercise of official power, which falls within the protective umbrella of Section 197 Cr.P.C. I 6 Crl.MC No.1185/2013 find that the learned Magistrate has not applied her mind to the facts of the case and has not stated any reason to find that no sanction under Section 197 Cr.P.C. was required. 10. Further more, Section 113 of the Act was not at all considered by the learned Magistrate as is evident from the impugned Annexure 2 order. 11. Learned counsel for the complainant contended that a petition under Section 482 Cr.P.C. is not maintainable as taking cognizance and issue of process cannot be said to be an interlocutory order. This Court in **Paul v. State (2013 (2) KLT 937)** held, considering earlier decisions on the point, that taking cognizance and issuance of process cannot be treated as an interlocutory order as it affected the rights of the accused. If the correctness, legality or propriety of the order taking cognizance is challenged, then certainly a revision under Section 397 Cr.P.C. will be the proper remedy. However, the prayer in the petition appears to be to drop all further proceedings against the petitioners in C.C.No.973 of 2012 before the trial court. There is a marked difference between the invocation of powers of this Court under Section 397 Cr.P.C. and those under Section 482 Cr.P.C. Powers under Section 482 Cr.P.C. are meant to do justice to the parties even beyond the powers provided in the Code. However, the contention regarding non-maintainability of a petition under Section 482 7 Crl.MC No.1185/2013 Cr.P.C. cannot be sustained as the prayers are not akin to those raisable under Section 397 Cr.P.C. 12. I find that Annexure 2 order is not legally sustainable for want of any reason dispensing with the requirement of sanction under Section 197 Cr.P.C. Therefore, in the interest of justice that order has to be set aside. In the result, the petition is allowed. Annexure 2 order is set aside. Learned Judicial First Class Magistrate-I, Thodupuzha shall reconsider the matter in the light of the averments in the complaint and the sworn statements of the witnesses and find out as to whether any sanction under Section 197 Cr.P.C. is required in the case of accused 1 and 4 and also whether any case is made out against all the accused in this case. Learned Magistrate shall take up the matter on 03.02.2014. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks** Crl.MC No.1185/2013 8