Ramesh Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **Crl.MC.No. 1498 of 2015** **AGAINST THE ORDER/JUDGMENT IN CC 255/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS -III,NEYYATTINKARA** ## **CRIME NO. 458/2007 OF BALARAMAPURAM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/FIRST ACCUSED:** **RAMESH KUMAR** **SUB INSPECTOR OF POLICE, BALARAMAPURAM POLICE STATION, THIRUVANANTHAPURAM PIN 695501** ## **BY ADV. SRI.K.P.SUJESH KUMAR** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA- 682031** - **2 RAJU S/O.ALEX, PALLIVILAKATH HOUSE, RC STREET, BALARAMAPURAM, THIRUVANANTHAPURAM PIN 695501** **3 PRATHAP S/O.SASIDHARAN NAIR, SREEDHARA VILASOM, THAZHAKKARAKONAM, MALAYINKIL VILLAGE, THIRUVANANTHAPURAM PIN 695571 BY ADVS. SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.** ## **OTHER PRESENT:** ## **SRI E.C BINEESH - PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.3.2019 THE COURT ON 20.03.2019 PASSED THE FOLLOWING:** CRL.M.C.No. 1498/2015 2 ## **T.V.ANILKUMAR, J.** **--------------------------------CRL.M.C No. 1498 of 2015 ---------------------------------Dated this the 20[th] day of March, 2019** ## **O R D E R** The first accused in C.C.255/2009, instituted on a private complaint by the second respondent herein before the Judicial First Class Magistrate-III Neyyattinkara seeks to quash the order of cognizance taken by the learned magistrate on Annexure A6 complaint dated 23.6.2008 against him, invoking the inherent jurisdiction of this Court vested under Section 482 of Code Criminal Procedure Code( for short the Code). 2. The second respondent in this proceeding who is the complainant lodged Annexure A6 complaint before the Judicial First Class Magistrate-III, Neyyattinkara on the allegation that on 27.12.2007 at 9 p.m.,while he was standing close to a bunk shop run by his nephew near RC church in Balaramapuram road and talking with his brother, the petitioner herein who was the Sub Inspector of Police, Balaramapuram, 3[rd] respondent and a few police men came in a police jeep and questioned him as to why he was staying in the road at night. The complainant claims to be a collection agent of CRL.M.C.No. 1498/2015 3 Balaramapuram Unit of Kerala State Merchants Association. He replied to the petitioner that the bunk shop belonged to his nephew and he came there for collection of charges due to the Merchants' Association. Further allegation is that the petitioner, without any reason, used obscene words against him and after getting out of the jeep hit on his back with his elbow joint in the presence of public causing pain and contusion. He was later taken to Neyyattinkara Police Station in the jeep and inside the Station House, the 2[nd] accused, who is the 3[rd] respondent beat him with a 'lathi' on his knee joint causing injury. Later, a crime was registered as No. 458/2007 on the file of the Balaramapuram Police Station for offences punishable under Sections143, 147, 148, 149 and 332 IPC and was produced before the Judicial First Class Magistrate -III, Neyyattinkara the next day. He is presently an accused in C.C. 306/2006 being prosecuted before Judicial First Class Magistrate-III, Neyyattinkara for offences punishable under Sections 143, 147, 149 & 332 IPC. 3. Neither the arrest of the second respondent on 27.12.07 nor his production before the Judicial First Class Magistrate-III, Neyyattinkara in Crime No. 458/07 the next day is disputed by the petitioner also. He has however a rival version of the alleged CRL.M.C.No. 1498/2015 4 incident that occurred on 27.12.2007 at 9 p.m at the same place of occurrence. His case is that the police party during the course of the patrolling through the place of occurrence found a crowd of people by the side of the road and when the petitioner insisted the crowd to dispense, it became furious and the second respondent attacked the petitioner, 3[rd] respondent and other police men causing injuries to them. Therefore, he was arrested immediately and a crime as No.458/07 of Balaramapuram Police Station was registered. Wooden stick used for attacking the police party was recovered and after completing investigation, Annexure A5 final report was submitted before the Judicial First Class Magisgtrate-III, Neyyattinkara against 2[nd] respondent and others charging them with offences punishable under Section 143, 147 148, 149, 332 IPC and r/w Section 52 of the Kerala Police Act. 4. The petitioner challenges the order of cognizance taken on Annexure A6 complaint against him on two grounds, (1) Cognizance was taken without sanction of the State Government under Section 197 (1) of the Code of Criminal Procedure (for short the Code) and (2) Annexure A6 complaint is manifestly attended with malafides and malice of the 2[nd] respondent with a view to wreak private vengeance CRL.M.C.No. 1498/2015 5 on the petitioner. 5. I heard the learned counsel for the petitioner, learned Public Prosecutor as well as the counsel for the 2[nd] respondent. 6. It is true that the Annexure A6 private complaint was instituted without previous sanction of the Government. So also there is no dispute that petitioner who was the Sub Inspector of Police, Balaramapuram on the date of occurrence belonged to such category of members of the Forces charged with maintenance of public order as indicated in Section 197(3) of the Code. A decision of this Court in _**Viswarambaran Vs. State of Kerala [(2010) (4) KLT 875]**_ has taken a view that Sub Inspector of Police is a member of Kerala Police Force charged with maintenance of public order and sanction is required for prosecution of him for acts committed during the course of discharge of official duties. The main contention of the learned counsel for the petitioner is that in as much as the alleged acts committed by petitioner were in the course of discharge of his official duties, the prosecution initiated against him is invalid without previous sanction of the Government. 7. It is not a matter in dispute that the purported acts alleged against the petitioner were committed during the course of his CRL.M.C.No. 1498/2015 6 discharging the official duties. Law however does not protect a police official from all acts committed by him during the course of discharge of official duties nor extend immunity to all derelictions of his official duties. In a particular case, an official would be entitled to immunity from prosecution only when the alleged acts committed were reasonably connected with the official duties. This test of reasonableness varies from facts to facts and no hard and fast rules could be laid down in this respect. If an objectionable act committed has no nexus with the official duties discharged by the official, previous sanction for his prosecution under law is quite unwarranted. In essence, the test is whether the impugned acts of the official were necessary for the performance of his duties in good faith. These are the principles of law which one would come across from _**Viswarambaran Vs. State of Kerala [(2010) (4) KLT 875]**_ and also the latest decision of the Hon'ble Supreme Court in _**Devindran Singh**_ . _**and Others vs. State of Punjab [(2016) KHC 6295]**_ 8. Applying the aforesaid test, the question here also is whether the alleged use of obscene words against 2[nd] respondent, complainant and the alleged assault on him in public road by the petitioner and later inside the Station House by the 3[rd] respondent CRL.M.C.No. 1498/2015 7 were reasonably connected with discharge of official duties. In my opinion, on the facts set out before the court, it is very difficult to hold that the alleged objectionable acts were necessary for due performance of the duties of the petitioner and the 3[rd] respondent. In other words, the order of cognizance on Annexure A6 complaint against the petitioner cannot said to be illegal for want of sanction. I am satisfied from the facts and circumstances disclosed that prosecution of petitioner without sanction under Section 197 (1) of the Code is not initiated. 9. It is not possible to hold at this stage of the proceeding as to whether the allegations made against the petitioner in Annexure A6 complaint are true or not. The learned Magistrate found as per the enquiry held by him that there was sufficient ground to proceed against him for the offences alleged. The _prima facie_ satisfaction formed by the learned magistrate cannot be put to legal scrutiny in this proceeding under Section 482 of the Code. 10. The petitioner, on the one hand and the 2[nd] respondent, on the other hand have advanced rival versions of the same incident in this proceeding before me. In Ext.A5 Final report submitted before the learned Magistrate, the petitioner himself is the complainant. In CRL.M.C.No. 1498/2015 8 the nature of facts and circumstances, it is too premature at this stage of the proceeding to consider whether Ext.A6 complaint was brought into existence with private vengeance or malafide intention against the petitioner. As to who in fact is acting malafide is a pure question of fact and a matter of evidence to be enquired into only in the course of trial. When there are rival versions of the same incident presented by both sides, it is not fair as well as legal also, for this court to invoke Section 482 of the Code and exercise the power of quashing the proceedings especially when the private complaint had been taken on file after the learned magistrate having had enquiry under law and found sufficient ground to proceed against the petitioner. 11. It is not clear under which of the offences alleged in Annexure 6 complaint, the cognizance was taken by the learned magistrate. If the learned magistrate is to hold warrant trial, an enquiry under Section 244 of the Code is inevitable and he will have to consider whether any case was made out against the petitioner as being worthy enough to go for trial. Therefore, I would like to make it clear that the all contentions available to the petitioner under law except the objection as to lack of sanction, could be raised before the court below in case the court below proceeds to hold an enquiry under CRL.M.C.No. 1498/2015 9 Section 244 of the Code. If, on the other hand, offences taken cognizance are only summon case, the court below will record the plea of the accused denying guilt and straight away proceed to hold trial and dispose of the case in accordance with law. In the result, Crl.M.C. 1498/ 2015 is dismissed refusing to quash Annexure A6 complaint. It is made clear that if the nature of trial the court below proposes to hold is warrant trial, the petitioner herein would be entitled to raise all contentions available under law except the objection as to lack of sanction and the court below will consider the question as to whether the prosecution has been unable to make out a case for trial in the proposed enquiry under Section 244 of the CRPC. If, on the other hand, the the cognizance taken stands limited only to summons case, it would record the plea of the petitioner denying guilt and proceed with the trial and dispose of C.C. 255/09 in accordance with law. In any view of the matter, the lower court shall dispose of the case within a period of two . months from the date of receipt of a certified copy of this order Sd/- **T.V.ANILKUMAR, JUDGE** **al/-** CRL.M.C.No. 1498/2015 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE 11** **ANNEXURE A1:TRUE COPY OF THE FIR IN CRIME NO. 458/2007 OF BALARAMAPURAM POLICE STATION, DATED 27.12.2007** - **ANNEXURE A2 ANNEXURE A2:TRUE COPIES OF THE ACCIDENT REGISTER CUM WOUND CERTIFICATE ISSUED BY TEH MEDICAL OFFICER, TALUK HOSPITAL, NEYYATTINKARA DATED 27.12.2007** - **ANNEXURE A3 ANNEXURE A3:TRUE COPY OF THE MAHAZAR PREPARED BY THE POLICE IN CRIM NO. 458/2007 OF BALARAMAPURAM POLICE STATION, DATED 27.12.2007** - **ANNEXURE A4 ANNEXURE A4:TRUE COPY OF THE REPORT IN CRIME NO. 458/2007 FORWARDED TO THE MAGISTRATE COURT, DATED 29.02.2008** - **ANNEXURE A5 ANNEXURE A5:TRUE COPY OF THE CHARGE SHEET IN CC.NO.306/2008 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGSITRATE COURT III, NEYYATTINKARA DATED 29.02.20008** - **ANNEXURE A6 ANNEXURE A6:CERTIFIED COPY OF THE CMP.NO.4909/2008 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT III, NEYYATTINKARA, DATED 23.06.2008** RESPONDENTS EXHIBITS : NIL. TRUE COPY AL/- P.S TO JUDGE