Shaju v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2013/1ST AGRAHAYANA, 1935** ## **Crl.MC.No. 851 of 2013 ()** **-------------------------(AGAINST THE ORDER IN CMP.NO. 2428/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA DATED 21-12-2012)** **-----------------------------------** ## **PETITIONER/COMPLAINANT :** **------------------------------------------------** **SHAJU, S/O.AUGUSTINE, AGED 48 YEARS, PYNADATH HOUSE, NEAR CHEENI, EDAKKUNNU, PADUVAPURAM P.O, KARUKUTTY, PIN-683 582** **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER** ## **RESPONDENTS/ACCUSED/FORMAL PARTY :** **-------------------------------------------------------------------** ## **1. T.J. JOSEPH,** **GRADE ASSISTANT SUB INSPECTOR OF POLICE, CHENGAMANAD POLICE STATION.** ## **2. BAIJU POULOSE,** **CIRCLE INSPECTOR OF POLICE, TRIPUNITHURA.** **3. STATE OF KERALA TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SRI.P.P.BIJU R2 BY ADV. SRI.P.K.VARGHESE SMT.M.B.SHYNI R3 BY PUBLIC PROSECUTOR SRI.P.P.PADMALAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-10-2013, THE COURT ON 22-11-2013 PASSED THE FOLLOWING:** **sts** **CRMC.NO.851/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX 1 COPY OF THE REFER NOTICE DATED 5/11/2009 ANNEX II COPY OF THE REFER REPORT IN CRIME.NO.2107/09 DATED 5/11/09 ANNEX III COPY OF THE PRIVATE COMPLAINT DATED 20/10/12 ANNEX IV COPY OF THE ORDER DATED 21/12/12 IN CRL.M.P.2428/12 OF JFCM-II, ALUVA ANNEX V COPY OF THE ORDER IN CRL.R.P.NO.1407/2011 DATED 8/6/2011 OF THE HON'BLE HIGH COURT. RESPONDENT'S ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** K.RAMAKRISHNAN, J. ----------------------------------------------------------------Crl. M.C. No.851 of 2013 -----------------------------------------------------------------Dated this the 22[nd] day of November, 2013 ## O R D E R ## K. Ramakrishnan, J Complainant in Crl.M.P.No.2428/2012, on the file of the Judicial First Class Magistrate Court-II, Aluva, is the petitioner herein. He filed this application to quash Annexure-IV order of the learned Magistrate under Section 482 of the Code of Criminal Procedure (hereinafter called the ‘Code’). 2. The case of the complainant in the complaint was that, he was attacked by his four cousin brothers and since the police did not take any action. He filed a private complaint before the Judicial First Class Magistrate Court-II, Aluva, against his four cousin brothers, alleging offences under Section 324, 427, 451 read with Section 34 of Indian Penal Code, for an incident happened on 01.10.2009 at 8.45 a.m. The complaint was forwarded to the Station House Officer, 2 Crl. M.C. No.851 of 2013 Angamaly, for the purpose of investigation by the learned Magistrate, under Section 156(3) of the Code. On the basis of the same, the crime was registered by Angamaly Police Station as Crime No.2107/2009 of that police station and after investigation, second respondent submitted Annexure-II refer report, stating that, no such incident happened and along with that refer report, the respondents have produced Annexure-I refer notice alleged to have been served on the petitioner, alleging that it was signed by the petitioner and that was produced before the Judicial First Class Magistrate Court-II, Aluva. When the petitioner came to know about the illegal act of the respondents, he filed a private complaint and after taking evidence, it was taken on file by the magistrate as C.C.No.1273/2012. 3. When he made enquiries about the refer report, it was revealed that, the first respondent who was working as Assistant Sub Inspector of Police, Angamaly Police Station, at the relevant time had forged the 3 Crl. M.C. No.851 of 2013 signature of the petitioner in the refer notice and that was counter signed by the 2[nd] respondent and produced before the Court as a genuine document, with an intention to help the accused persons in that case. So, the petitioner filed Annexure-III complaint against respondents 1 and 2, alleging offences under Section 217, 465, 468, 471 and 474 read with Section 34 of Indian Penal Code. Sworn statement of the petitioner was taken and thereafter by Annexure-IV impugned order, the learned Magistrate observed that, sanction is required under Section 197(2) read with Section 197(3) of the Code and directed the petitioner, who is the complainant in the lower court to produce the sanction for prosecuting respondents 1 and 2 for the offence alleged. Aggrieved by the same, the petitioner has come before this court to quash the order under Section 482 of the Code. Hence the petition. 4. Earlier, respondents 1 to 3 were represented by the learned Public Prosecutor and the 4 Crl. M.C. No.851 of 2013 anomaly in Public Prosecutor appearing for respondents 1 and 2, who were implicated in the personal capacity was pointed out, respondents 1 and 2 engaged their own lawyer. 5. Heard the learned counsel for the petitioner, respondents 1 and 2 and learned Public Prosecutor. 6. The counsel for the petitioner submitted that, the offences alleged are forgery and using the forged document as genuine document before the court and that was done with an intention to help the accused persons in the complaint filed by the petitioner and seen them from getting punishment, misusing their official position. So, it cannot be said that they have acted in discharge of their official duty and as such, protection under Section 197 of the Code is not available to them and in all to prosecute them in the said offence, no sanction is required. He had relied on the decisions reported in **2009(6) Supreme Court Cases 372 (State** 5 Crl. M.C. No.851 of 2013 **of Uttar Pradesh v. Paras Nath Singh), AIR 1999 S.C. 2405 (State of Kerala v. Padmanabhan Nair) 2004(2) S.C.C. 349 (State of Himachal Pradesh v. M.P. Gupta) and order in Criminal R.P. No.1407/2011 (Nipun Cheriyan Manooran v. Arjunan and another)** in support of this case. 7. On the other hand, counsel for the respondents 1 and 2 submitted that, even if, the entire allegations in the complaint are accepted, it will be seen that, the document alleged to have been forged was produced by the accused, in discharge of his official duty before submitting the refer report before the court, alleging service of notice on the complainant, regarding the refer report. So, it can only be said that, it is purported to have been done in discharge of his official duty and thereby sanction under Section 197 is required. If an action has been done in excess of the power vested in a public servant, while purported to be discharging his duty and if such an act is connected with his performance 6 Crl. M.C. No.851 of 2013 of duty, as part of his duty, even then sanction under above section is required. There is no evidence to show that, the signature seen in Annexure-I was forged by either of the accused persons. There is no specific allegation in the complaint regarding the part played by the 2[nd] accused, in preparing Annexure-1 refer notice and forging the signature of the complainant. So, no offence is made out against the 2[nd] accused and he is not liable to be proceed against. It is further argued that, even assuming that a document has been forged and produced before the court and relied on the person who prepared the same, then he ought to have filed an application under Section 340 of the Code to prosecute that officer and not to file a complaint separately, which is barred under Section 195 of the Code. They have also submitted that, if the court found that production of sanction or sanction at all is not required at this stage, the right of the accused to agitate the same at the appropriate stage 7 Crl. M.C. No.851 of 2013 may not be curtailed at this stage. According to them, the magistrate was perfectly justified in passing Annexure-IV order. 8. The learned Public Prosecutor supported the case of the petitioner. 9. The case of the petitioner was that, earlier he filed a private complaint, against his cousin brothers, alleging certain offences before the Judicial First Class Magistrate Court-II, Aluva, and it was forwarded to the police for investigation and on receipt of the same, the Station House Officer, Angamaly had registered a crime as Crime No.2707/2009 of Angamaly Police Station under Section 341, 323, 452 and 427 read with Section 34 of Indian Penal Code, against the four accused persons. After investigation, the 2[nd] respondent herein, who was the then Sub Inspector of Police submitted Annexure-II refer report, along with Annexure-I refer notice alleged to have been signed by the petitioner. According to the Crl. M.C. No.851 of 2013 8 petitioner, the signature in Annexure-I was not his signature and it was forged by the first respondent, who was entrusted with a duty of serving the notice on the petitioner and without serving the same, he returned the notice by forging the signature of the petitioner to the 2[nd] respondent, who counter signed the same without verification and produced the same before court as a genuine document, so as to make believe the court that, it was properly served and to accept Annexure-II refer report and this was done with an intention to help the accused persons in that case and thereby they have committed the offence punishable under Sections 217, 465, 466, 468, 471 and 474 read with Section 34 of Indian Penal Code. So he filed Annexure-III complaint, against respondents 1 and 2 alleging commission of the above said offences. 10. Learned magistrate after taking sworn statement of the complainant, relying on the decision reported in **1983 KLT 349 (M.J George v. Sub** 9 Crl. M.C. No.851 of 2013 **Inspector of Police, Anthikkad) and 1996(2) KLT 859 (Sarojini v. Prasanna),** observed that sanction under Section 197(2) read with Section 197(3) of the Code is required and directed the complainant to produce sanction. The order of the magistrate is under challenge now. 11. Section 197 Cr.P.C reads as follows: **197. Prosecution of Judges and public servants-** (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expresssion "Central Government" were substituted.] Crl. M.C. No.851 of 2013 10 [Explanation- For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any memeber of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of subsection(2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring threin, the expression "State Government" were substituted. [(3A) Notwithstanding anything contained in sub-section(3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.] [(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20[th] day of August, 1991 and ending with the date immediately preceding the Crl. M.C. No.851 of 2013 11 date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 12. In the decision relied on by the learned counsel for the petitioner, it has been observed that, the offences under Section 406 and 409 read with Section 120(B) of Indian Penal Code and Section 468 of Indian Penal Code etc., are not offences alleged to have been committed by public servants, in discharging their duty. It is not part of the duty of the public servant, to enter into a criminal conspiracy for committing breach of trust or forging a document or mis-appropriating the amounts etc. It is true, Section 197 of the Code is intended to protect public servants from unnecessary criminal 12 Crl. M.C. No.851 of 2013 prosecution for any act purported to be done by them in discharge of their official duty. But at the same time, any act done, which has no reasonable nexus with his official duty, which amounts to an offence, then such act is not protected under Section 197 of the Code. So, the dictum laid down in the decisions cited (supra) **State of Uttar Pradesh v. Paras Nath Singh, State of Kerala v. Padmanabhan Nair, State of Himachal Pradesh v. M.P. Gupta and order in Criminal R.P. No.1407/2011 (Nipun Cheriyan Manooran v. Arjunan and another)** are all relating cases involving independent offences, which can be proceeded against the accused persons individually and separately as well. Section 340 of Criminal Procedure Code is not applicable in this case, as no offence has been committed in respect of a document, which has been produced before the court, after its production in court. So under such circumstances, the remedy of the person aggrieved on account of the act is to file a complaint under Section 200 Crl. M.C. No.851 of 2013 13 of Criminal Procedure Code, if the police is not taking any action in respect of the same or the officers themselves were responsible for commission of such offences. 13. In view of the dictum laid down in the above decisions, it is true that, no sanction under Section 197 is required for prosecuting the offences under Section 465, 468 and 471 of Indian Penal Code against the accused person. But the main offence in this case is offence under Section 217 of Indian Penal Code, which reads as follows: **217. Public Servant disobeying direction of law with intent to save person from punishment or property from forfeiture.** --Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. So, sanction is required under Section 197 of 14 Crl. M.C. No.851 of 2013 the Code, for prosecuting a person for the offence under Section 217 of Indian Penal Code. If the other offences are incidental and interconnected for the purpose of committing the main offence under Section 217 of Indian Penal Code, then, it is not proper for the magistrate to proceed with the complaint for other offence alone, independently as magistrate cannot take cognisance of the case for the offence under Section 217 of Indian Penal Code, which is the main offence, for the commission of which offence, the other act were alleged to have been committed. So in such cases, it is always proper on the part of the court to direct the complainant to produce sanction and then proceed with a case and try the case jointly with all offences alleged. This was so observed in the decisions reported in **AIR 1939 (F.C) 43 (Dr. Hori Ram Singh v. Emperor), AIR 1947 Calcutta 29 (S.B. Hossain v. Emperor), AIR 1956 (S.C.) 44 (Matajog Dobey v. H.C. Bhari), 1978 CRL. L.J. 1005 (N. Brahmeswararao v. Sub-Inspector of** Crl. M.C. No.851 of 2013 15 **Police, Vinukonda), 1983 CRL. L.J. 180 (Pawan Kumar v. Ruldu Ram), 1991 (3) Crimes 76 (Satyendra Kumar Singh alias Sailendra Kumar Singh & Another v. State of Bihar), 1997 (10) S.C.C. 772 ( State Through CBI v. B.L.Verma), 1998 CRL. L.J. 1172 (N.Shiva Kumar v. Ramanna Adyanthaya), 1970 (S.C.) 1661 (Bhagwan Prasad Srivastava v. N.P. Mishra) and AIR 1955 (S.C.) 309 (Amrik Singh v. State of Pepsu)** . The dictum laid down in the decisions relied on by the learned counsel for the petitioner, namely, **AIR 1969 SC 355 (State of Panjab v. Brij Lal (Grover J) and AIR 1967 SC 1590 (Madan Lal v. State of Punjab)** are not applicable to the facts of the case because the offences alleged in those cases are independent offences and not interconnected offences with the main offence. Even, without the main offence, other offences can be proceeded with. But in this case, the main offence alleged itself was that the accused persons, with an intention to save the accused in crime Crl. M.C. No.851 of 2013 16 No.2107/2009 of Angamaly Police Station, have committed the other offences. So under the circumstances, the learned magistrate was perfectly justified in, directing the appellant to produce sanction for proceeding with the case, as in view of the bar under Section 197 of Criminal Procedure Code, the magistrate cannot take cognizance of the case, if a sanction is a precondition for taking cognizance of the case. In this case, since the offences are interconnected with the main offence under Section 217, which requires sanction for prosecuting the persons who committed the offence, the magistrate cannot proceed with the complaint, partially in respect of other offences for which sanction is not required by virtue of the precedents mentioned above. So there is no illegality committed by the magistrate, in passing Annexure-IV order and that is not liable to be quashed invoking the power under Section 482 of Criminal Procedure Code. So the petitioner is not entitled to get the relief claimed by the petitioner and the same is Crl. M.C. No.851 of 2013 17 liable to be dismissed. I do so. In the result, the petition is dismissed. Communicate this order to the concerned magistrate court, immediately. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss