Sivan Chodath v. State of Kerala and Joshi

**'C.R.'** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** **CRL.MC NO. 2522 OF 2019** **CC.NO.1003/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **TALIPARAMBA** ## **PETITIONER/ACCUSED:** **SIVAN CHODATH, AGED 32 YEARS S/O RAMAKRISHNAN, SUB INSPECTOR OF POLICE, MEENANGADI POLICE STATION, WAYANAD, PIN-560037.** **BY ADVS. G.S.KRISHNAN KARTHA SRI.LIJIN THAMBAN SRI.M.RETHEESHKUMAR** ## **RESPONDENTS/DE FACTO COMPLAINANT & STATE:** - **1 JOSHI, S/O.MICHLE THULUVANANICKAL HOUSE, CHANDANAKKAMPARA, PAYYAVOOR, KANNUR-670633.** - **2 STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031.** **BY ADV.SRI.NANDAGOPAL S.KURUP, BY ADV.SRI.ARAVIND V.MATHEW, P.P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.12.2021, THE COURT ON 07.01.2022 PASSED THE FOLLOWING:** Crl.M.C.No.2522 of 2019 2 **==> picture [48 x 11] intentionally omitted <==** **==> picture [124 x 13] intentionally omitted <==** **------------------------------------------------Crl.M.C.No.2522 of 2019** **-------------------------------------------------** Dated this the 7[th] day of January, 2022 **==> picture [70 x 10] intentionally omitted <==** The petitioner, who is the sole accused in C.C.No.1003 of 2017 on the file of Judicial First Class Magistrate Court, Thaliparamba, has approached this Court to quash the impugned order taking cognizance and all consequential proceedings thereto initiated against the petitioner, invoking inherent powers of this Court under Section 482 of Cr.P.C. 2. The 1[st] respondent/de facto complainant filed Annexure-A3 complaint against the petitioner, alleging offences punishable under Sections 166, 352, 294(b), 506(i) and 500 of IPC. According to him, on 25.04.2016 at 4.55. p.m., while he was returning from his agricultural land riding his motorcycle bearing Crl.M.C.No.2522 of 2019 3 registration No.KL-59-A/8658 through ChandanakkamparaPadankavala road, the petitioner, who was Sub Inspector of Police, Payyavoor Police Station, asked him to stop the vehicle and since he could stop the vehicle only at a distance, as it was in a steep and curvy road, the petitioner abused him in filthy language and tried to assault him in front of the public. The de facto complainant, who was a reputed social worker and politician in that locality, was defamed by the petitioner, in front of the public and hence, he filed the complaint. 3. Learned JFCM-I, Thaliparamba, after conducting enquiry, took cognizance of offences punishable under Sections 294 (b) and 352 of IPC and issued summons against the petitioner/accused. Challenging that order, the petitioner has approached this Court. 4. The petitioner was Sub Inspector of Police, Payyavoor Police Station, on the date of the incident. According to him, along with other civil Police Crl.M.C.No.2522 of 2019 4 Officers, he was on patrol duty at ChandanakkamparaPadankavala road, engaged in vehicle checking. The 1[st] respondent/ de facto complainant came through that road riding his motorcycle without wearing a helmet. So, as part of his official duty, he asked him to stop the vehicle and to show the documents of the vehicle including his driving licence. He failed to show the documents or to pay the fine. Suddenly, the de facto complaint threw the key of his vehicle towards the petitioner, and shouted at him saying that he was an affluent political leader and former Panchayath President who could teach him a lesson. The vehicle was taken to the Police Station as no documents were produced by the de facto complainant for verification. So notice was issued by the petitioner asking the de facto complainant to produce the documents. Meanwhile, the de facto complainant got interim custody of the vehicle as per orders of JFCM-I, Thaliparamba. 5. According to the petitioner, the alleged Crl.M.C.No.2522 of 2019 5 offence occurred while discharging his official duty as the Sub Inspector of Police Payyavoor. The learned Magistrate took cognizance of the offence and issued process against him, without the required sanction under Section 197 of Cr.P.C. and so the proceedings are bad in law. 6. The de facto complainant would say that he was a reputed social worker, politician, former Panchayath President, etc., etc., and the petitioner shouted at him with abusive words and attempted to assault him defaming him in public which cannot be termed as part of his official duty, so as to claim protection of Section 197 (2) of Cr.P.C. 7. Heard learned counsel for the petitioner, 1[st] respondent/ de facto complainant, and also learned Public Prosecutor. 8. Government of Kerala issued a notification dated 06.12.1977 as S.R.O.No.1211/77 under Section 197(3) Cr.P.C, by which the provisions of sub-section Crl.M.C.No.2522 of 2019 6 (2) of the said section was directed to apply to all members of the Kerala State Police, charged with the maintenance of public order. 9. The Explanatory Note to the notification, S.R.O.No.1211/77 reads thus: Section 197 of Criminal Procedure Code affords protection from false vexatious or malafide prosecution to some categories of public servants in the shape of a requirement of previous sanction of the Government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in discharge of their official duties. The members of the armed forces of the union are so protected. Government consider that members of the Kerala Police Force protected. Government consider that members of the Kerala Police Force who are charged with the maintenance of public order are also in need of similar protection. The notification is issued to achieve this objective. 10. Thus if a member of the Kerala Police has committed an offence while acting or purporting to act in discharge of his official duty, the Court is precluded from taking cognizance of such offence except with the previous sanction of the State Government as Crl.M.C.No.2522 of 2019 7 enjoined by Section 197 (2) of Cr.P.C., and by virtue of Section 197(3) of Cr.P.C, the words, 'Central Government' occurring in Section 197(2) of Cr.P.C stand substituted 'State Government' 11. There is no dispute with regard to the fact that the petitioner was serving as Sub Inspector of Police, Payyavoor on the date of the incident. There is no dispute or rather it is admitted that the petitioner was engaged in vehicle checking duty at Chandanakkampara-Padankavala road at the time of the incident. It is also admitted by the de facto complainant that while he was riding his motorcycle through that road, the petitioner asked him to stop the vehicle. The witnesses examined from the part of the de facto complainant also stated before the Magistrate during enquiry, that the petitioner who was the Sub Inspector of Police, Payyavoor during vehicle checking asked the de facto complainant to stop his motorcycle. So, obviously, the petitioner, who was the Sub Inspector Crl.M.C.No.2522 of 2019 8 of Police, Payyavoor, was discharging his official duty of vehicle checking, on the relevant date and time. 12. Since the alleged incident occurred while the petitioner was discharging his official duty as Sub Inspector of Police, Payyavoor, the learned Magistrate could not have taken cognizance of the offence without sanction under Section 197 (1) of Cr.P.C. The bar on the exercise of power of the court to take cognizance of any offence under Section 197 (1) Cr.P.C without previous sanction is absolute and complete. The learned magistrate was precluded from entertaining the complaint or taking cognizance of the offences alleged, as it was in respect of a public servant regarding an offence alleged to have been committed during the discharge of his official duty. In such circumstances, continuance of such proceedings would be an abuse of the process of the court. {Reliance placed on **Varghese K.J. v. Shyam Kumar and Another [2015 (4) KHC 47]** } 13. When the allegation levelled against the Crl.M.C.No.2522 of 2019 9 Police Officer is in respect of an act which constitutes an offence while acting or purporting to act in the discharge of his official duty sanction is required under Section 197 of Cr.P.C for taking cognizance as it was held by this Court in **Krishna Kumar B. v. State of Kerala and Another [2017 (5) KHC 556]** . 14. We could read the essential conditions to be satisfied for the application of Section 197 in the Code of Criminal Procedure authored by Ratanlal and Dhirajlal (19[th] edition) as follows: - (1) The offence mentioned therein must be committed by a public servant. - (2) The public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government as the case may be. - (3) The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. - (4) If in doing his official duty, he acted in excess of his duty, but there is reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to Crl.M.C.No.2522 of 2019 10 deprive the public servant of protection. - (5) The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. - (6) Before Section 197 can be invoked it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. - (7) The act can be performed in discharge of his official duty as well as in dereliction thereof. 15. The 4[th] condition says that in doing his official duty, even if he acted in excess of his duty, but there is reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. So the bar created by Section 197 is Crl.M.C.No.2522 of 2019 11 absolute. In the absence of sanction where section 197 applies, cognizance of the offence is barred. 16. In the case in hand, the petitioner was discharging his official duty of vehicle checking. If a member of the Kerala Police has committed an offence while acting or purporting to act in discharge of his official duty, the Court is precluded from taking cognizance of such offence except with the previous sanction of the State Government as enjoined by Section 197 (2) of Cr.P.C. So the petitioner being a Policeman in service will be protected by Section 197(2) of Cr.P.C as the alleged offending act was committed by him while acting or purporting to act in the discharge of his official duty. Since learned Magistrate took cognizance of the offence without obtaining necessary sanction contemplated under Section 197 Cr.P.C., the impugned order taking cognizance of offence and issuing summons against the petitioner is liable to be quashed. In the result, this Crl.M.C is allowed and the Crl.M.C.No.2522 of 2019 12 impugned order and all consequential proceedings thereto stand quashed under Section 482 of Cr.P.C. The petitioner is discharged and he is set at liberty. Sd/- **SOPHY THOMAS, JUDGE** AS Crl.M.C.No.2522 of 2019 13 ## **APPENDIX OF CRL.MC 2522/2019** **PETITIONER'S ANNEXURES:** **ANNEXURE A1 A TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 01.05.2016.** **ANNEXURE A2** **A TRUE COPY OF THE ORDER IN C.M.P.NO.4381/16 OF JFCM COURT, TALIPARAMBA DATED 03.05.2016.** **ANNEXURE A3** - **A CERTIFIED COPY OF THE COMPLAINANT FILED BY THE 1ST RESPONDENT DATED 29.04.2016 BEFORE THE LEARNED JFCM COURT, TALIPARAMBA.** **ANNEXURE A4 A CERTIFIED COPY OF THE DEPOSITION OF WITNESS CW1 IN CMP NO.4379/16 OF JFCM COURT, TALIPARAMBA DATED 30.07.2016.** - **ANNEXURE A5 A CERTIFIED COPY OF THE DEPOSITION OF WITNESS CW2 IN CMP NO.4379/16 OF JFCM COURT, TALIPARAMBA DATED 17.12.2016.** **ANNEXURE A6 A CERTIFIED COPY OF THE DEPOSITION OF WITNESS CW3 IN CMP NO.4379/16 OF JFCM COURT, TALIPARAMBA DATED 17.12.2016.**