Ravada A. Chandrasekhar v. State of Kerala and K.K. Ramadas @ Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** **MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934** ## **Crl.MC.No. 2146 of 2004 ( )** **--------------------------C.M.P.1327/1995 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA.- (C.P. NO.112/2004).** **....................** **PETITIONER(S):** **------------------------** **RAVADA A. CHANDRASEKHAR, S/O. LATE VENKATA RAO, AGED 38 YEARS, ASSISTANT INSPECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, TRIVANDRUM.** **BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN.** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. SRI. K.K. RAMADAS @ BABU, S/O. ANANDAN, KURUKKANKUNNUMMEL HOUSE,** **PANOOR AMSOM AND DESOM, P.O. PANOOR, KANNUR DISTRICT.** **R1 BY SRI.T. ASAF ALI, DIRECTOR GENERAL OF PROSECUTION. R2 BY ADV. SRI.P.V.SURENDRANATH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-04-2012, ALONG WITH CRMC NO.2147 OF 2004 AND CRMC NO.2148 OF 2004, THE COURT ON 25-06-2012 PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 2146 of 2004** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A COPY OF THE COMPLAINT DATED 24/03/1995 FILED BY THE 2ND RESPONDENT. ANNEXURE B COPY OF THE ORDER DATED 16/07/2004 IN C.M.P.1327/1995 OF THE JUDICIAL FIRST CLASS MAGISTRATE, KUTHUPARAMBA. ANNEXURE C COPY OF THE RELEVANT EXTRACT OF THE ENQUIRY REPORT SPECIFICALLY DEALING WITH THE RESPONSIBILITY OF THE PETITIONER. ANNEXURE D COPY OF THE JUDGMENT DATED 29/02/2000 IN W.A. NO. 200/2000 AND CONNECTED CASES OF THIS HONOURABLE COURT. ANNEXURE E COPY OF THE JUDGMENT DATED 12/07/2001 IN CIVIL APPEAL NO.4066/2001, 690/2001 AND 691/2001 OF THE HONOURABLE SUPREME COURT.** ## **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **B.P. Ray, J.** ==================================== Crl.M.C.Nos. 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 ==================================== Dated this the 25[th] day of June, 2012. ## **ORDER** 1. These petitions were filed by the petitioner for quashing the order in C.M.P.1327/1995 & C.P.No.112/2004, C.M.P.5731/95 & C.P.115/2004 and C.M.P.No.2712/95 & C.P.No.113/2004 and all further proceedings in pursuance to and in furtherance thereof pending before the Judicial Magistrate of the First Class, Kuthuparamba. 2. C.M.P.Nos.1327/95, 5731/95 and 2712/95 are private complaints filed against the petitioner and other accused for offences punishable under Sections 302, 307 & 120B read with Section 34 I.P.C. for the murder of the complainant's son or brother, as the case may be, in the respective complaints. 3. The complainant's case is that on 25.11.1994, the accused persons opened fire with their common intention to commit murder of the Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:2:- victims in the respective complaints without any provocation. On 25.11.1994 at 11 a.m., Sri.M.V.Raghavan, the then Minister for Cooperation, the accused named in the complaint was to inaugurate the evening branch of the Kuthuparamba Co-operative Urban Bank in the Alakandi Shopping Complex at Kuthuparamba at the side of the Kuthuparamba Thalassery Road, near Kuthuparamba junction. A public meeting was also arranged at the Municipal Town Hall in connection with this function. The activists of Democractic Youth Federation of India (DYFI) arranged a black flag demonstration against Sri.M.V.Raghavan while he comes to Kuthuparamba for the above inaugural function, as part of their campaign against and It was a corruption nepotism. thoroughly peaceful demonstration of black flag. All the persons participated in the demonstration were absolutely unarmed. In continuation of the aforesaid merciless and illegal lathicharge on the unarmed people, the petitioner and the other accused resorted to firing with deliberate intention to kill the complainant's kith and kin. Even without any Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:3:- lawful order from a competent magistrate having jurisdiction over the area, they, with deliberate intention to kill innocent people, shot people killing five innocent youngsters and causing serious injuries to a large number of persons. One person who suffered severe gunshot injuries on the neck is now living as a vegetable. 4. In Crl.M.C.Nos.2694, 2696 & 2697/2004, the petitioner, the then Deputy Collector (Housing), Collectorate, Kannur seeks for quashing the order in the very same Civil Miscellaneous Petitions and Complaint Petitions mentioned above and all further proceedings in pursuance to and in furtherance thereof pending before the Judicial Magistrate of the First Class, Kuthuparamba. The complaint in Crl.M.C.Nos. 2694 & 2696/2004 were filed by the brothers of one Rajeev and C.Babu who died in the police firing and the complaint in Crl.M.C. 2697/2004 was filed by the father of one Roshan who also died in the police firing. 5. Crl.M.C.Nos.3640, 3644 & 3645/2004 were filed by the petitioner, the then Deputy Superintendent of Police, Kannur Sub Division, Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:4:- Accused No.1 in C.P.115/2004 and Accused No.2 in C.P.Nos.112 & 113/2004 on the file of the above Magistrate for quashing the orders in C.M.P.2712/95, 5731/95 & 1327/95. The said complaint petitions were filed alleging commission of offences punishable under Sections 302, 307 and 120B read with Section 34 I.P.C. 6. Crl.M.C.2638 of 2004 was filed by the petitioner, who is the fifth accused in C.P.113/2004 on the file of the Judicial Magistrate of the First Class, Kuthuparamba for quashing the order in C.M.P.2712/95. The said complaint petition was filed alleging offences punishable under Sections 302, 307 and 120B read with Section 34 I.P.C. The case was registered against him on the basis of a complaint by the father of one Roshan who died in the police firing at Kuthuparamba. 7. Crl.M.C.2614/2004 was filed by the petitioner, a police constable, who is the fifth accused in C.P.114/2004 on the file of the very same Magistrate for quashing the order in C.M.P.3341/95. The said complaint petition was filed against the petitioner alleging commission of offences punishable under Sections 143, 147, 148, Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:5:- 302 and 120B read with Section 149 I.P.C. The case was registered against him on the basis of a complaint by the father of one Shibulal who died in the police firing at Kuthuparamba. 8. Crl.M.C.2649/2004 was filed by the petitioner, a police constable, who is the fifth accused in C.P.115/2004 of the file of the above Magistrate for quashing the order in C.M.P.5731/95. The said complaint petition was filed alleging commission of offences punishable under Sections 302, 307 and 120B read with Section 34 I.P.C. The complaint was registered by the brother of one Baby who died in the police firing. 9. I have discussed the facts of the case as well as the history of the case - in different courts, including the Honourable Apex Court in Crl.M.C.Nos.2146, 2147 & 2148/2004. Therefore, I do not want to deal with the facts of each case separately. - 10.Learned counsel for the petitioners submits that the prosecution, being vexatious, continuation of the same will be sheer abuse of process of court. There is no material to show that the petitioners Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:6:- had any common intention to commit an offence. Therefore, cognizance taken with the aid of Section 34 I.P.C. is bad. The petitioners were deputed for maintenance of law and order. Since the occurrence took place while the petitioners were discharging their official duty, prosecution is barred without a valid sanction. 11.Learned counsel for the respondents submits that it was a merciless and illegal lathicharge on the unarmed people and the petitioners resorted to firing with deliberate intention to kill the complainant's kith and kin. Even without any lawful order from a competent magistrate having jurisdiction over the area, they, with deliberate intention to kill innocent people, shot people killing five innocent youngsters and causing serious injuries to a large number of persons, namely, Roshan Babu, Madhusoodharan, Rajeevan, Babu and Shibulal. One Pushpan, who suffered severe gunshot injuries on the neck, is now living as a vegetable. Learned counsel further submits that the petitioners and other accused have committed this inhuman and barbaric crime not in discharge of their official duty. and Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:7:- therefore, they should face the trial. He has relied upon certain decisions reported in State of Haryana & others v. Ch.Bhajan Lal & others (A.I.R. 1992 S.C.604), State of Bihar v. Rajendra Agrawalla (1996 SCC Crl.628), State of Karnataka v. M.Devendrappa & another (2002 (3) SCC 89) & Moosa v. Sub Inspector of Police (2006 (1) KLT 552 (FB). - 12.It is contended by the respondents that Section 197 does not affect the jurisdiction of the Court to proceed but it is only one of the defence available to the accused persons which they can raise at the appropriate time. This argument has been repelled by the Honourable Apex Court in the case reported in Sankaran Moitra v. Sadhna Das (A.I.R. 2006 S.C. 1599) by holding that prosecution hit by the provision cannot be launched without the contemplated sanction. 13.The facts in the reported case are almost identical to that of the present case. There, a police officer in the course of his official duty went to the polling booth where voting was going on for the State Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:8:- Assembly. There was breach of law and order. Some miscreants were creating untoward situation in the booth. In order to make the polling free and fair and prevent booth capturing, lathicharge was resorted to. Consequently, a person died. It was contended that the deceased was picked up and chosen for assault. He was beaten up at the instance of the accused. The Honourable Apex Court held that even if it would be held to be an offence, still it was committed during the course of performance of official duty and it would attract sanction. If in all cases one has to establish the necessity of sanction in the trial, the provision would loose its effectiveness and purpose, thereby it would be reduced to mere dead letters. I have already held that there being no sanction, the impugned order taking cognizance of offence is bad in law and is, therefore, liable to be quashed. In that view of the matter, I have no hesitation to quash the proceedings. Accordingly, these Crl.M.Cs. are allowed quashing the complaints, orders and all further proceedings against the petitioners in C.P.Nos.112, 113, 114 and 115/2004 on the file of the Judicial Crl.M.C.Nos.2146, 2147, 2148, 2614, 2638, 2649, 2694, 2696, 2697, 3640, 3644 & 3645/2004 -:9:- Magistrate of the First Class, Kuthuparamba. The observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with. sl. **B.P. Ray, Judge.**