Subash v. State of Kerala & Devassy (S.I. of Police), Crl.Rev.Pet.No. 1880 of 2011; Crl.Rev.Pet.No. 1881 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933** **Crl.Rev.Pet.No. 1880 of 2011()** **--------------------------------------------** **MP.1772/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM** **....................** ## **PETITIONER/DEFACT COMPLAINANT** **-------------------------------------------------------** **SUBASH, S/O.MOHANAN, PAKKATH HOUSE, PORKKALANGAD P.O., ANAYIKKAL DESOM, KANNIPPAYYUR VILLAGE.** **BY ADV. SRI.RAJIT** ## **RESPONDENT/STATE AND ACCUSED** **-------------------------------------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. DEVASSY (S.I. OF POLICE), KUNNAMKULAM POLICE STATION, THRISSUR DISTRICT- 680 503.** ## **R1 BY PUBLIC PROSECUTOR SMT.SEENA R.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/10/2011, ALONG WITH CRRP NO. 1881 OF 2011, THE COURT ON 02/12/2011 DAY PASSED THE FOLLOWING:** **rs** ## **Crl.Rev.Pet.No. 1880 of 2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A: COPY OF THE ORDER DATED 27/03/2010 IN MP.1772/2008 OF THE LEARNED JFCM COURT, KUNNAMKULAM.** **RESPONDENT'S ANNEXURES:- NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** **S.S.SATHEESACHANDRAN, J. ----------------------------------------------Crl.R.P.No.1880 & 1881 of 2011 ----------------------------------------------Dated this the 2[nd] day of December, 2011** ## **O R D E R** These two revisions arise from two separate orders, passed by the Judicial Magistrate of the First Class, Kunnamkulam, by which two proceedings taken against the common 2[nd] respondent, a Sub Inspector of Police, were found not entertainable for want of sanction under Section 197 of the Code of Criminal Procedure {for short “the Code”}. Though the orders arise from two proceedings, as against the 2[nd] respondent, a police officer, it was in respect of the same occurrence alleged, in which, the two complainants, both of them, alleged of assault against them, at a public place and also later at the police station, after ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 2 ::** they were taken into custody by police, flouting and violating the rule of law. The issue arising for consideration in the two revisions is common whether the orders of the learned magistrate that the complaints are not entertainable without sanction calls for any interference by this court. 2. Common case of the complainants is that on 2.5.2008 while they were together with some friends at a public place, a police jeep came and stopped beside them. Without provocation or reason, the petitioners and those who were with them, were brutally assaulted by the 2[nd] respondent, Sub Inspector of Police, Kunnamkulam Police Station and also the police constables with him, and, thereafter the complainants were taken to the police station in the jeep. At the police station also they were ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 3 ::** subjected to custodial torture brutally assaulting them. To cover up the illegal and atrocious acts committed, a case was falsely registered against them as Crime No.464/08 for offences punishable under Sections 427 and 452 read with Section 34 of the Indian Penal Code, alleging that they trespassed into a shop room of the de facto complainant and committed mischief causing destruction of the articles stored in the shop. When the petitioners were produced before the magistrate they complained of the assault against their person by the 2[nd] respondent and other police constables, and the magistrate, recording their statement registered separate Crl.M.Ps over the complaint of the respective petitioner and ordered that they be taken to hospital for examination by the doctor and providing treatment. In the enquiry ## **Crl.R.P.No.1880 & 1881of 2011** **:: 4 ::** on the aforesaid Crl.M.Ps, apart from the petitioners two more witnesses were examined. After recording the evidence in the enquiry under Section 202 of the Code, the magistrate passed the impugned orders in the revisions holding that cognizance can be taken of the offences imputed against the 2[nd] respondent only after getting previous sanction from the State Government, as the offences allegedly committed by him, and the police constables, arose from acts performed while discharging their official duties. Propriety, legality and correctness of the orders so passed by the magistrate is impeached in this revision. 3. I heard the learned counsel for the revision petitioners and also the counsel for the 2[nd] respondent. ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 5 ::** 4. In fact, in the given facts of the case, where the magistrate has dismissed the complaints taken under the respective Crl.M.Ps, which were proceeded with on the basis of the complaints of the petitioners when they were produced before him, as the accused in Crime No.464/08, after enquiry under Section 202 of the Code, the 2[nd] respondent, the accused, who was proposed to be proceeded against, has no right to be heard in these revisions. However, as notice has been issued to him in the revisions, and as the question involved is whether further proceedings on the complaints after issuing process to the accused is called for in the given facts of the case, and, whatever be the order to be passed thereof would not preclude him from setting up a challenge as to want of sanction at a later stage, if it so arises, the counsel for the 2[nd] respondent was also heard. ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 6 ::** 5. At the outset, the broad principles and parameters to be taken for consideration when a question emerges whether sanction under Section 197 of the Code is applicable or not, in the case of an accused, a public servant proceeded against for any offence imputed against him which, in one or the other, has some nexus or connection with the duties to be performed as a public servant by him, are spelt out in Centre for Public Interest Litigation and another v. Union of India and another {2005 (8) SCC 202}. The Apex Court in the aforesaid decision has stated thus: “The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 7 ::** adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and 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. If in doing his official duty, he acted in excess of his duty, but there is a 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 from the protection. 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 ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 8 ::** discharge of his official capacity. 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 duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. 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. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 9 ::** dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. Use of the expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.” 6. On the facts involved in the case, and that alone is material, to determine whether ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 10 ::** prosecution of the 2[nd] respondent for the offences imputed is allowable without sanction under Section 197 of the Code, I find analysing the case of the complainants with reference to the evidence let in the enquiry under Section 202 of the Code is not warranted. Occurrence involved in the case was on a day when a 'harthal' was organised by a political party. The 2[nd] respondent and the police constables were maintaining public order, taking care of the law and order situation on that day. The petitioners with some others are alleged to have committed mischief, after committing trespass into a shop since it was opened on the harthal day, and they were taken into custody and a crime case was registered against them. Even according to the allegations made by the petitioners, the complainants, the 2[nd] respondent and the ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 11 ::** policemen proceeding in a police jeep stopped beside them when they were found with others beside a pump, and some of them were caught by the police party and the rest chased away striking them with lathees. The fact situation narrated by the petitioners would prima facie indicate that the 2[nd] respondent and the policemen were then discharging their official duties as public servants, and even if there was any excess, they are protected from prosecution by the shield under Section 197 of the Code without sanction from the appropriate Government. Then the only question is, when the petitioners after taken into custody were subjected to custodial torture. Though some witnesses have been examined by the petitioners to advance such a case, I find, the imputations made thereof to examine the question whether ## **Crl.R.P.No.1880 & 1881of 2011** ## **:: 12 ::** sanction is required or not is not warranted in the present case. Petitioners have, in fact, moved the Government to prosecute the 2[nd] respondent. Copies of the petitions have been produced by them as relevant documents for consideration by the magistrate. The petitioners have specifically stated in such petitions to the Chief Secretary, that sanction to prosecute the 2[nd] respondent, though cases were registered by the magistrate suo motu, is essential. 7. When petitioners have conceded in unequivocal terms that sanction to prosecute the 2[nd] respondent to take cognizance of the offences imputed against him from the appropriate Government is necessary, and they have also approached the Government seeking such sanction, necessarily, whether sanction is ## **Crl.R.P.No.1880 & 1881of 2011** **:: 13 ::** to be given or not has to be decided by the appropriate Government having regard to the facts involved in the case. When that be so, I find, the challenge raised by them against the orders of the magistrate dismissing the proceedings suo motu taken against the 2[nd] respondent on the complaints of the petitioners while they were produced before him in Crime NO.464/08, does not call for interference in exercise of the revisional jurisdiction. The magistrate has also made it clear that dropping of the proceedings suo motu taken by the court will not preclude the petitioners from filing a complaint, after getting proper sanction from the appropriate Government under Section 197 of the Code. That being so, if sanction is obtained, it is open to the petitioners to file complaints for prosecuting the 2[nd] respondent for the offences imputed against him. ## **Crl.R.P.No.1880 & 1881of 2011** **:: 14 ::** Revisions lack merit, and they are dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.