Rajesh Dewan IPS and V. Muraleedharan Nair v. State of Kerala and K.C. Venugopal

**'CR'** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 28TH DAY OF JUNE 2018 / 7TH ASHADHA, 1940** **Crl.Rev.Pet.No. 2167 of 2005** **------------------------------ORDER IN CMP 587/2007 of J.M.F.C.-I, ALAPPUZHA DATED 13-07-2005 C.C.No.854/2005 of J.M.F.C.-I, ALAPPUZHA ------------------** ## **PETITIONERS :-** ## **------------** **1. RAJESH DEWAN IPS, I.G.OF POLICE, VIGILANCE OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM.** **2. V.MURALEEDHARAN NAIR, DY.S.P. VACB, ERNAKULAM RANGE, MANATH HOUSE, THRIKKAKARA.P.O., MYTHRIPURAM, KAKKANADU.** **BY ADV.SRI.S.SREEKUMAR** ## **RESPONDENT(S) :-** - **---------------** **1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. K.C.VENUGOPAL, S/O.KUNJUKRISHNAN, REJEEVAM, PAZHAVEEDU.P.O, ALAPPUZHA.** **R1 BY PUBLIC PROSECUTOR SRI.C.K.PRASAD R2 BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **'CR'** ## **P.UBAID, J.** **-----------------------------------------Crl.R.P. No.2167 of 2005 --------------------------------------------------Dated this the 28[th] day of June 2018** ## **O R D E R** The order of the Judicial First Class Magistrate Court-I, Alappuzha dated 13.07.2005 taking cognizance against the petitioners and others, and issuing summons to them as accused, on a complaint made by the 2[nd] respondent herein, is under challenge in this revision brought under Section 397 Cr.P.C. The 2[nd] respondent was a member of the Kerala State Legislative Assembly at that time, and these petitioners are police officers of high rank. The other respondents arraigned in the complaint are their subordinate officers. The 2[nd] respondent brought the complaint alleging police atrocity at the premises of the Alappuzha Police Station, and also police assault against the complainant and others. It appears that the complainant reached there in connection with the arrest of some traders, and the complainant's grievance is that when he intervened in the police action against the traders, and asked the Sub Inspector to produce the accused in Court, the police force including the petitioners turned against him and the traders, and at the police Crl.R.P. No.2167 of 2005 -: 2 :- station premises they were brutally assaulted. The crime registered by the police on the complaint made by the 2[nd] respondent was referred by the police. Then he made a complaint directly to the learned Magistrate. On this, the learned Magistrate conducted necessary enquiry, and after necessary enquiry, the learned Magistrate found that there is prima facie case to proceed against the accused. Accordingly on 13.07.2005, the learned Magistrate took cognizance under Sections 341, 342, 323 and 324 IPC read with Section 34 IPC against the petitioners and others, and ordered summons to them. 2. The petitioners have brought this revision on two grounds. One is factual and the other is legal. The factual objection is that, without any material for a prosecution against the police officers, the learned Magistrate wrongly took cognizance on the complaint, and passed orders against them. The legal objection is that the petitioners and the others being Police Officers in service, the learned Magistrate should have examined the necessity of prosecution sanction under Section 197 Cr.P.C. before taking cognizance and issuing process. 3. When this revision petition came up for hearing, the learned Senior Counsel for the 2[nd] respondent raised a legal Crl.R.P. No.2167 of 2005 -: 3 :- objection that the impugned order is not amenable to revision under Section 397 Cr.P.C. The learned Senior Counsel referred to so many decisions on the point. On the other hand, the learned Senior Counsel for the petitioners submitted that there are so many decisions otherwise, that the impugned order in this case will come under the category of intermediate orders, and that such an order is amenable to revisional jurisdiction under Section 397 Cr.P.C. 4. Let me first consider the legal issue raised by the 2[nd] respondent. Right from **Madhu Limaye** v. **State of Maharashtra** [AIR 1978 SC 47], there have been various decisions of the Hon'ble Supreme Court, explaining what is meant by interlocutory order, and when an order which is not final in character is amenable to revisional jurisdiction under Section 397 Cr.P.C. In **Madhu Limaye's case** , the Hon'ble Supreme Court held that intermediatory orders that come in between interlocutory orders and final orders are amenable to revisional jurisdiction under Section 397 Cr.P.C. In paragraph 10 of the judgment, the Hon'ble Supreme Court observed thus, “even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing Crl.R.P. No.2167 of 2005 -: 4 :- processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end”. The decision of the Hon'ble Supreme Court in **Madhu Limaye's case** was followed in so many later decisions. The learned Senior Counsel for the 2[nd] respondent cited the decision in **Nupur Talwar** v. **Central Bureau of Investigation and Another** [2012 KHC 4335 = AIR 2012 SC 1921]. What is decided in the said case is only that, a mere procedural order issuing summons to the accused is not revisable under Section 397 Cr.P.C. The learned Senior Counsel also referred to **State of Kerala** v. **T.P.Nandakumar and another** [2005 (2) KLD (Cri) 285]. That is a case, where an order under Section 94 Cr.P.C. was challenged in revision. So, that decision need not be discussed. In **Urmila Devi** v. **Yudhvir Singh** [2013 KHC 4889 = 2013 (15) SCC 624], the Hon'ble Supreme Court decided exactly on the issue, whether an order taking cognizance and issuing process under Section 204 Cr.P.C. is amenable to revision under Section 397 Cr.P.C. After considering so many decisions on the point, the Hon'ble Supreme Court held thus in paragraph 41 of the judgment :- Crl.R.P. No.2167 of 2005 -: 5 :- “41. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande (supra), as well as the decision in K. K. Patel (supra), it will be in order to state and declare the legal position as under : (i) The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 CrPC would be an order of intermediatory or quasi-final in nature and not interlocutory in nature. (ii) Since the said position viz., such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party. (iii) Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Section 200 to 204 CrPC, can always be subject matter of challenge under the inherent jurisdiction of the High Court under Section 482 CrPC.” The gist of the above decision is that an order of the Magistrate taking cognizance on a complaint, after enquiry under Section 200 Cr.P.C., and issuing process against the accused is amenable to revisional jurisdiction under Section 397 Cr.P.C., it being an intermediatory, or quasi-final order. Crl.R.P. No.2167 of 2005 -: 6 :- 5. In **Girish Kumar Suneja** v. **C.B.I.** [AIR 2017 SC 3620], the Hon'ble Supreme Court held thus in paragraph 21 of the judgment : “21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551 : (AIR 1978 SC 47)] by contra distinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind – an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.” In that case also, the Hon'ble Supreme Court held that an order taking cognizance and issuing process against the accused is revisable under Section 397 Cr.P.C. Regarding the test to decide, Crl.R.P. No.2167 of 2005 -: 7 :- whether an order is merely interlocutory, or otherwise amenable to revision, the Hon'ble Supreme Court held, that if the proceeding would be terminated, if it is reversed by the court in revision, it can definitely be said to be an intermediate order amenable to revision under Section 397 Cr.P.C. 6. What is under challenge in this revision is a cognizance order of the court below. If the order under challenge is set aside by this Court in revision, it will have the effect of terminating the whole proceedings against the petitioners. If so, the impugned order can be said to be an intermediate order, as held by the Hon'ble Supreme Court in the above decisions. In **Asian Resurfacing of Road Agency Pvt. Ltd. and Another** v. **Central Bureau of Investigation** [2018 (2) KHC 380 (SC)], the principles laid down by the Hon'ble Supreme Court earlier were reiterated. Thus, it stands well settled that intermediate orders are amenable to revisional jurisdiction under Section 397 Cr.P.C., and that an order taking cognizance, and issuing process against the accused under Section 204 Cr.P.C. is well amenable to revision under Section 397 Cr.P.C. The legal objection raised by the respondent is answered accordingly. Crl.R.P. No.2167 of 2005 -: 8 :- 7. Now, let me come to the other legal aspect as to whether sanction under Section 197 Cr.P.C. is necessary in this case. Admittedly, the alleged incident happened at the premises of the police station, and the 2[nd] respondent's own complaint is that the alleged act of police atrocity occurred, when he came at the police station, and intervened in a case involving some traders. A reading of paragraphs 5 to 9 of the complaint filed by the complainant itself would indicate the circumstance in which the alleged incident happened at the police station premises. These paragraphs will give an indication that the police officers were compelled to proceed against the complainant and others at the premises of the police station, when some interference came from the complainant and others in the case initiated against some traders by the police. Whether the police officers had exceeded the limits, or whether the officers had used more force than what was required at that time, cannot be now examined by this Court under Section 397 Cr.P.C. The learned Magistrate should have examined these aspects before taking cognizance, the respondents being admittedly police officers. The complaint itself shows that the incident happened at the premises of the police station, and it appears that the alleged atrocity occurred as Crl.R.P. No.2167 of 2005 -: 9 :- part of maintenance of some law and order situation, or for the prevention of breach of peace at the police station premises, when the complainant and others intervened in the police action against the traders. Whether it was actually an instance of police excess or atrocity, or whether such police action was absolutely necessary to prevent breach of peace, or for maintenance of law and order situation, etc. will have to be examined by the learned Magistrate appropriately. Without and before examining those aspects, or without examining the necessity of prosecution sanction under Section 197 Cr.P.C., the court below should not have proceeded under Section 204 Cr.P.C. I find that the said issue requires examination by the court below. After considering the various aspects, including the necessity of sanction under Section 197 Cr.P.C., fresh orders will have to be passed by the court below. The court can examine the whole materials, and see whether sanction is required to prosecute the petitioners and the others. In the result, this revision petition is allowed. The impugned order passed by the court below taking cognizance on the complaint made by the 2[nd] respondent is set aside, and the complaint is ordered to be revived in the trial court. The trial Crl.R.P. No.2167 of 2005 **==> picture [35 x 9] intentionally omitted <==** court is directed to examine all the relevant aspects, including the necessity of prosecution sanction under Section 197 Cr.P.C., and take decision appropriately on the question of cognizance. The court below will take care to see that decision afresh is taken within three months from this date. **Sd/P.UBAID JUDGE** //True copy// P.A. To Judge rkj/Jvt/29.6.2018