RadhaKrishna Pillai v. State of Kerala and Anant Sawant

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943** **CRL.MC NO. 1188 OF 2013** **c.c.694/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V,** **THIRUVANANTHAPURAM (SPECIAL COURT-MARKLIST CASES)** ## **PETITIONER/3RD ACCUSED:** **RADHAKRISHNA PILLAI** **SON OF P.BHASKARAN PILLAI, DEPUTY SUPERINTENDENT OF POLICE(DY.SP) C.B.C.ID (EOW-1) THIRUVANANTHAPURAM RESIDING AT PALLIVILAKIZHAKATHIL PUTHEN VEEDU,PUNTHALATHAZHAM KOLLAM 691 004** **BY ADVS. SRI.ALAN PAPALI SMT.O.V.BINDU SRI.J.VIMAL** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.** - **2 ANANT SAWANT** **SON OF HARI BABU, MAHESWARI JEWELLERY, CHALAI, THIRUVANANTHAPURAM 695 036.** **BY ADV SRI.GOPAKUMAR R.THALIYAL** **PP -SMT. C.SEENA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL HEARING ON** **10.11.2021, THE COURT ON 11.01.2022 PASSED THE FOLLOWING:** Crl.M.C.1188/13 2 ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to quash Annexure-I complaint and cognizance taken thereon and all proceedings in C.C.694/2008 on the file of the Judicial First Class Magistrate-V (Special Court for Mark List Cases), Thiruvananthapuram and also to set aside the findings in Annexure-XI order regarding sanction and the prayer to discharge the petitioner, who is the 3[rd] accused in C.C. 694/2008. 2. Annexure-I complaint was laid by the 2[nd] respondent before the Judicial First Class Magistrate-II, Thiruvananthapuram alleging offence under Sections 420, 506 read with 34 of the IPC. The substance of the complaint filed on 05.03.2003 can be summarised as follow: On 26.02.2003 at 11.00 a.m. the petitioner who is the 3[rd] accused in the complaint, reached Maheshwari Jewellery at Chalai, Thiruvananthapuram, which is owned by Baji Rao. The complainant is an employee of the said jewellery for the previous seven years. The said Baji Rao is presently at his native place in Maharashtra. On 26.02.2003 at 11 a.m. accused persons reached the jewellery with a thief. At that time complainant and another employee Gopal alone were in the jewellery. The accused persons were on Crl.M.C.1188/13 3 inimical terms with Baji Rao on account of O.P. No.31656 of 2002 filed by Baji Rao before the High Court. The accused removed the complainant to the police station in their jeep. Then Gnaneswaran, the brother-in-law of Baji Rao contacted the 3[rd] accused, the petitioner, and then he offered that if gold ornaments weighing 23 sovereigns are handed over, he would be released from police custody. Then Narayanan Namboodiri, another employee of the jewellery purchased so much quantity of gold ornaments from different jewelleries and handed it over to the Sub Inspector at 6.25 p.m. on 27.02.2003 in the presence of Adv. S. Venugopal. After verifying the gold ornaments at Shivasakthi jewellery at Kaithamukku the complainant was released from police custody. According to him, those gold ornaments were purchased from three jewelleries in Thiruvananthapuram paying a total amount of Rs.98,277/-. Even though he had demanded receipt for the gold ornaments, that was not given. The complainant was working as an employee in the shop of the brother of Baji Rao and was doing work of polishing gold ornaments. The complainant was threatened that if so much quantity of gold ornaments was not given, he would be made a co-accused with the notorious criminal 'Mathi' Raju and it was under such a threat that 23 sovereigns were entrusted to the accused persons and thus they have committed offence under Sections 420 Crl.M.C.1188/13 4 and 506 read with 34 IPC. 3. The case was taken on file and accused persons were summoned. They appeared before Court and some of the witnesses were examined. Thereafter they moved a petition under Section 245 Cr.P.C. for discharging them under Section 245 of the Cr.P.C. and by Annexure-XI order that application was dismissed stating that the petitioner is not entitled to get the protection under Section 197 Cr.P.C. According to the learned Magistrate, demanding of gold ornaments under the authority in odd circumstances has no connection with the discharge of official duty and therefore he is not entitled to get protection under Section 197 of the Cr.P.C. Thus the application stood dismissed. The petitioner moved this Crl.M.C. in the above said circumstances. 4. I heard the learned counsel for the petitioner, the learned Public Prosecutor and also learned counsel for the 2[nd] respondent/complainant. 5. According to the learned counsel for the petitioner, he did not conduct any investigation in this case. Crime No.66/2003 of Vanchiyoor police station was registered by him on 01.03.2003 in his capacity as the Station House Officer. While he was engaged in law and order patrol duty, at a place by name Kaithamukku, a person by name Raju @ Mathi Raju was found in suspicious circumstances and on search he was found Crl.M.C.1188/13 5 carrying some gold ornaments and could not give satisfactory explanation about possession of so much quantity of gold; thus he was taken to the police station and crime No.66/2003 under Sections 41(1)(d) and 102 of Cr.P.C. was registered. According to the learned counsel, by virtue of the order passed by the Director General of Police, from 01.03.2003 onwards a two-tier policing system was in force in Thiruvananthapuram city, on experimental basis. In other words, duties of the police officials were bifurcated as crime investigation and law and order. As the Station House Officer, the petitioner was in charge of maintaining law and order and investigation of crimes was the duty of another Sub Inspector by name Shaji S. Immediately after handing over the gold ornaments and registering the crime he did not have occasion to deal with the case against Raju and everything was done by the Sub Inspector in charge of crime investigation, Sri. Shaji. Referring to Annexures-II to VIII mahazars the learned counsel pointed out that the arrest of the said Raju revealed commission of large number of crimes and thus he was taken to different jewelleries and also financial institutions where he had disposed the gold ornaments stolen by him. Referring to Annexures-II to IV mahazars the learned counsel submitted that some of the gold ornaments were seized from Maheshwari jewellery where the petitioner was found at the time of Crl.M.C.1188/13 6 visit of the Sub Inspector. Such visit was done as led by the accused, the thief, and recoveries were effected under Section 27 of the Evidence Act. According to the learned counsel, the said Baji Rao, employer of the complainant, had reason to be at loggerheads with the petitioner. He as a representative of Maharashtra Silver Refinery Workers Association had moved this Court seeking a direction complaining that they are being harassed by the police. But in Annexure-XII judgment a Division Bench of this Court held that if the presence of the petitioners, that is Rajaram and Baji Rao was necessary in connection with investigation of any case, that shall be done only after serving notice as provided under the Cr.P.C. and thus by Annexure-XII judgment their writ petition was closed. Referring to Annexure-XIV judgment dtd. 14.06.2007 the learned counsel submitted that the petitioner had moved this Court seeking a writ of mandamus directing the Director General of Police to order investigation on Ext.P6 representation by the Crime Branch after registering crime against them. But the Court, observing that they can approach the Government or pursue remedies under the provisions of the Cr.P.C., disposed of the Original Petition. 6. When heard, the learned counsel for the petitioner was harping more on want of sanction from the part of the complainant. According to Crl.M.C.1188/13 7 him, the Court should not have taken cognizance of the offence without obtaining sanction as provided under Section 197(3) of the Cr.P.C. According to the learned counsel, the said Raju @ Mathi Raju was arrested by the petitioner but he was immediately handed over to the Sub Inspector in charge of crime investigation and everything was done by the said Shaji. Then the petitioner had filed an application under Section 451 of the Cr.P.C., which was dismissed by the Court stating that the case was transferred to some other court but thereafter he did not move any such application. The petitioner no role in the seizure of the gold ornaments from the possession of the petitioner or the said Baji Rao; he has been unnecessarily troubled by initiating criminal prosecution. Therefore he asserts that he is entitled to get protection under Section 197(3) of the Cr.P.C. Various authorities were also relied on by the learned counsel. 7. The learned Public Prosecutor also endorsed the version of the petitioner and said that the prosecution is bad for want of sanction. On the other hand, the learned counsel for the 2[nd] respondent said that there is nothing for the petitioner to get protection under Section 197(3) of the Cr.P.C. According to him, it is a case where the petitioner was compelled to purchase and produce 23 sovereigns of gold overnight from three different jewelleries. The witnesses examined on his side under Section Crl.M.C.1188/13 8 242 of the Cr.P.C. also clearly indicate that it was the petitioner who had seized the items. He had also produced various invoices showing purchase of gold ornaments from different jewelleries which was necessary for releasing the petitioner from police custody. So, according to the learned counsel, the acts of the petitioner does not have any reasonable connection with the discharge of official functions and therefore the petitioner is not entitled to get the protection under Section 197(3) of the Cr.P.C. He also pointed out that the application for discharge moved by the petitioner stands dismissed and therefore the remedy is to file a revision against that order and that a criminal miscellaneous case will not sustain. 8. In reply, the learned counsel for the petitioner reiterated the arguments and referring to the decision in **Sarojini v. Prasannan [1996 (2) KLT 859]** said that alternate remedy is no bar for filing a miscellaneous case under Section 482 of the Cr.P.C. 9. Admittedly, at the time when crime 66 of 2003 of Vanchiyoor police station was registered, the petitioner was the Sub Inspector and the Station House Officer of the police station. On the other aspects, contentions of the parties are cutting each other. The defacto complainant contended that he was removed from Maheshwari jewellery, where he was an employee, to the police station by the petitioner and was released on Crl.M.C.1188/13 9 27.02.2003 only when 23 sovereigns of gold ornaments were produced by Narayanan Namboodiri, another employee of the jewellery. On the other hand, the petitioner contended that even though he had arrested the said accused, he did not investigate the case, the investigation was done by Sub Inspector Shaji. In order to prove the same, he has relied on various mahazars prepared by Sub Inspector Shaji as Annexures II to VIII. 10. It has come out from materials that Raju @ Mathi Raju is a notorious criminal. He had large number of house breaking and theft cases to his credit. Materials indicate that he was arrested in suspicious circumstances by the petitioner on 01.03.2003 with some gold ornaments and thereafter nine crimes were registered against him as crime Nos.68 to 76 of Vanchiyoor police station. Moreover, he had also involved in crime Nos.548 of 2002 and 559 of 2002 of Fort police station. Annexures II to VIII mahazars indicate that investigation of crimes in Vanchiyoor police station was conducted by Sub Inspector Shaji, even though crime No.66 was registered by the petitioner. Moreover, Annexure XIX report indicates that apart from these crimes he had large number of crimes in Nemom, Vizhinjam, Poojappura, Vanchiyoor, Vattiyoorkavu police station limits and he was convict in different cases. Apart from the above, Annexure XX report of the Assistant Commissioner of Police, Sanghumukham sub Crl.M.C.1188/13 10 division suggests that the said Raju is involved in various other crimes for theft of sandalwood from Kollam East police station and that recoveries in various crimes in Vanchiyoor police station were not effected by the petitioner. Whatever it be, we are concerned only whether the petitioner is entitled to get protection under Section 197(3) of the Cr.P.C. 11. In order to attract Section 197(3) of the Cr.P.C., it is necessary to fulfill two essential conditions: that the offence has been committed by the public servant and that the public servant was employed in connection with the affairs of the Union or the State and is not removable from office save by or with the sanction of the Central Government or the State Government, as the case may be. If the above conditions are fulfilled, then further enquiry would be whether the act has been committed by the public servant while acting or purporting to act in discharge of his official duties. 12. There is no dispute that on the date of the alleged removal of the 2[nd] respondent from Maheshwari jewellery and tendering the gold ornaments the petitioner was working as the Sub Inspector of Vanchiyoor police station. The most important question is whether the alleged act was committed as part of his discharge of official duties. It is the settled proposition of law that the purpose of Section 197 of the Cr.P.C. is to Crl.M.C.1188/13 11 afford the public servant protection, subject to the grant of sanction by the Government against unnecessary indictment by persons on whose feet he may have to tread while discharging his official duty. If there is reasonable connection between the alleged act and the discharge of official functions, necessarily he is entitled to get protection under Section 197 of the Cr.P.C. 13. In the decision reported in **Riswan Ahmed Javed Shaikh and others v. Jammal Patel and others [AIR 2001 SC 2198]** the Supreme Court held as follow: “15. The real test to be applied to attract the applicability of Section 197 (3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected.” This test has been approved by the majority decisions in **Sankaran Moitra** ## **v. Sadhna Das and another [AIR 2006 SC 1599]** also. So the relevant question is whether there is any reasonable connection between the Crl.M.C.1188/13 12 discharge of official functions and the alleged act which constituted the offence. As indicated earlier, even though the petitioner has disowned that he had effected any recovery from the 2[nd] respondent, everything was done in his capacity as the Sub Inspector. It is the specific case of the petitioner that the 2[nd] respondent and his employer had the habit of purchasing stolen items from thieves and various instances have been pointed out to say that the police had recovered stolen gold ornaments from the shop owned by Baji Rao. It is also evident that the said Baji Rao and another office bearer of Maharashtra Silver Refinery Workers Association had moved this Court seeking direction against illegal harassment by police. The petitioner also had moved this Court but favourable orders could not be obtained. Whatever it be, even if it is assumed that it was the petitioner who had seized gold ornaments or that he had made the 2[nd] respondent to produce gold ornaments which were stolen articles, that was done in discharge of his official functions and therefore he is entitled to get protection under Section 197(3) of the Cr.P.C. I am of the definite opinion that the alleged conduct of the petitioner is not something alien from discharge of his official functions and therefore he is entitled to be protected from unnecessary indictment. The argument that since his application for discharge stands dismissed, he should have filed a revision petition also Crl.M.C.1188/13 13 cannot be accepted since the question of sanction goes to the root of the matter. 14. On these considerations the Crl.M.C. is liable to be allowed. The petitioner is entitled to get protection under Section 197(3) of the Cr.P.C. and the criminal proceedings were initiated without obtaining sanction. Resultantly, entire proceedings in C.C. 694 of 2008 pending before the Judicial First Class Magistrate's Court-V (Special Court for Mark List Cases), Thiruvananthapuram as against the petitioner are quashed and the petitioner shall stand exonerated. The Crl. M.C. is allowed as above. **Sd/-** **K.HARIPAL JUDGE** okb/10.1.22 //True copy// P.S. to Judge Crl.M.C.1188/13 14 ## **APPENDIX OF CRL.MC 1188/2013** |PETITIONER ANNEXURES|| |---|---| |ANNEXURE I|CERTIFIED COPY OF THE COMPLAINT DATED| ||05.03.2003 FILED BY THE 2ND RESPONDENT BEFORE| ||THE JUDICIAL FIRST CLASS MAGISTRATE COURT-| ||II,THIRUVANANTHAPURAM.| |ANNEXURE II|TRUE COPY OF THE MAHAZAR DATED 08.03.2003| ||PREPARED BY THE SUB INSPECTOR OF POLICE,CRIME| ||BUREAU,VANCHIYOOR POLICE STATION IN CRIME| ||NO.73/CB-38/03.| |ANNEXURE III|TRUE COPY OF THE MAHAZAR DATED 08.03.2003| ||PREPARED BY THE SUB INSPECTOR OF POLICE,CRIME| ||BUREAU,VANCHIYOOR POLICE STATION IN FORT| ||P.S.CRIME NO.559/02| |ANNEXURE IV|TRUE COPY OF THE MAHAZAR DATED 08.03.2003| ||PREPARED BY THE SUB INSPECTOR OF POLICE,CRIME| ||BUREAU,VANCHIYOOR POLICE STATION IN FORT| ||P.S.CRIME NO.548/02| |ANNEXURE V|TRUE COPY OF THE MAHAZAR DATED 14.03.2003| ||PREPARED BY THE SUB INSPECTOR OF POLCE,CRIME| ||BUREAU,VANCHIYOOR POLICE STATION IN FORT| ||P.S.CRIME NO.559/02| |ANNEXURE VI|TRUE COPY OF THE MAHAZAR DATED 11.03.2003| ||PREPARED BY THE SUB INSPECTOR OF POLICE,CRIME| ||NO.76/CB-41/03.| |ANNEXURE VII|TRUE COPY OF THE MAHAZAR DATED 10.03.2003| ||PREPARED BY THE SUB INSPECTOR OF POLIE,CRIME| ||BUREAU,VANCHIYOOR POLICE STATION IN CRIME| ||NO.75/CB-40/03.| |ANNEXURE VIII|TRUE COPY OF THE MAHAZAR DATED 10.03.2003| ||PREPARED BY THE SUB INSPECTOR OF POLIE,CRIME| ||BUREAU,VANCHIYOOR POLICE STATION IN CRIME| ||NO.74/CB-39/03.| |ANNEXURE IX|TRUE COPY OF THE REPORT DATED NIL SUBMITTED| ||BY THE SUB INSPECTOR OF POLICE,VANCHIYOOR| ||POLICE STATION IN CMP.1710/2003 BEFORE THE| Crl.M.C.1188/13 15 ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,THIRUVANANTHAPURAM. ANNEXURE X TRUE COPY OF THE ORDER DATED 18.05.2006 IN C.M.P.1710/2003 IN VANCHIYOOR POLICE STATION CRIME 66/EB/32/03,PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,THIRUVANANTHAPURAM ANNEXURE XI TRUE COPY OF THE ORDER DATED 02.01.2013 IN C.M.P.4376/2012 IN C.C.694/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTV,THIRUVANANTHAPURAM ANNEXURE XII TRUE COPY OF THE JUDGMENT DATED 29.10.2O02 IN O.P.31656 OF 2002 OF THIS HON'BLE COURT ANNEXURE XIII TRUE COPY OF THE STATEMENT DATED 19.05.2003 SUBMITTED BY THE PETITIONER IN O.P.11123 OF 2003 BEFORE THIS HON'BLE COURT ANNEXURE XIV TRUE COPY OF THE JUDGMENT DATED 14.06.2007 IN O.P.11123 OF 2003 OF THIS HONOURABLE COURT. Annexure XV CERTIFIED COPY OF THE PETITION FILED BY ACCUSED 1 TO 3 IN C.C. NO. 694 OF 2008 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, THIRUVANANTHAPURAM DATED 12.09.2012. Annexure XVI CERTIFIED COPY OF THE DEPOSITION OF PW1 IN C.C. NO. 694 OF 2008 DATED 23.03.2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM Annexure XVI (A) CERTIFIED COPY OF THE DEPOSITION OF PW2 IN C.C. NO. 694 OF 2008 DATED 27.06.2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM Annexure XVI(B) CERTIFIED COPY OF THE DEPOSITION OF PW3 IN C.C. NO. 694 OF 2008 DATED 27.06.2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM. Crl.M.C.1188/13 16 Annexure XVI (C) CERTIFIED COPY OF THE DEPOSITION OF PW4 IN C.C. NO. 694 OF 2008 DATED 7.12.2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM Annexure XVI (D) CERTIFIED COPY OF THE DEPOSITION OF PW5 IN C.C. NO. 694 OF 2008 DATED 1.02.2012 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM Annexure XVI(E) CERTIFIED COPY OF THE DEPOSITION OF PW6 IN C.C. NO. 694 OF 2008 DATED 31.03.2012 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM Annexure XVI (F) CERTIFIED COPY OF THE DEPOSITION OF PW7 IN C.C. NO. 694 OF 2008 DATED 30.03.2012 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM . Annexure XVI (G) CERTIFIED COPY OF THE DEPOSITION OF PW6 IN C.C. NO. 694 OF 2008 DATED 30.03.2012 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM Annexure XVI (H) CERTIFIED COPY OF THE DEPOSITION OF PW9 IN C.C. NO. 694 OF 2008 DATED 26.05.2012 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM . Annexure XVI (I) CERTIFIED COPY OF THE DEPOSITION OF PW10 IN C.C. NO. 694 OF 2008 DATED 04.07.2012 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM . Annexure XVII CERTIFIED COPY OF THE COURT PROCEEDINGS FOR THE PERIOD FROM 05.03.2003 TO 20.09.2019 IN C.C. NO. 694/2008 OF JUDICIAL FIRST CLASS Crl.M.C.1188/13 17 MAGISTRATE COURT-V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM . (EARLIER C.C. NO. 466/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V, THIRUVANANTHAPURAM. Annexure XVIII TRUE COPY OF SALES BILL DATED 7.02.2003 OF FASHION JEWELLERS, TRIVANDRUM. Annexure XVIII(A) TRUE COPY OF SALES CUM ISSUE VOUCHER DATED 27.02.2003 OF SURAJ JEWELLERY, TRIVANDRUM. Annexure XVIII(B) TRUE COPY OF SALES BILL DATED 27.02.2003 OF AMALUS JEWELLERY, TRIVANDRUM. Annexure XIX TRUE COPY OF THE REPORT FILED BY THE SUB INSPECTOR OF POLICE, VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM DATED 12,03.2003 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. Annexure XX CERTIFIED COPY OF THE REPORT FILED BY THE ASSISTANT COMMISSIONER OF POLICE, SHANGHUMUKHAM SUB DIVISION DATED 31.03.2012 BEFORE THE JUDICIAL FIST CLASS MAGISTRATE COURT-V, THIRUVANANTHAPURAM.