Sunil Jacob v. Assainar and State of Kerala

## **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. 1522 of 2011()** **--------------------------------------------** **C.M.P. NO.2026/2008 IN CC.398/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, PARAPPANANGADI.** **....................** ## **REVN. PETITIONER/ACCUSED** **--------------------------------------------** **SUNIL JACOB, DEPUTY SUPERINTENDENT OF POLICE, NARCOTIC CELL, KOTTAYAM-686 002.** **BY ADV. SRI.ELVIN PETER P.J., SMT.POOJA SURENDRAN.** ## **RESPONDENTS/COMPLAINANT & STATE** **------------------------------------------------------------** **1. ASSAINAR, S/O.BEERAN HAJI, KANDANCHIRA HOUSE, POOKKAYIL, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676 107.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **R1 BY ADV. SRI.T.G.RAJENDRAN. R2 BY PUBLIC PROSECUTOR SMT.SEENA R.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON 02/12/2011 PASSED THE FOLLOWING:** **rs** ## **Crl.Rev.Pet.No. 1522 of 2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1: COPY OF THE CIRCULAR ISSUED BY THE UNION OF INDIA, MINISTRY OF HOME AFFAIRS. ANNEXURE A2: COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI. ANNEXURE A3: COPY OF THE PETITION FILED BY THE PETITIONER IN C.C.398/2007 ON THE FILES OF JFMC, PARAPPANANGADI. ANNEXURE A4: COPY OF THE COUNTER FILED BY THE 1ST RESPONDENT TO THE PETITION FILED BY THE PETITIONER IN C.C.398/2007. ANNEXURE A5: COPY OF THE ORDER DATED 10/05/2011 IN C.M.P.2026/2008 IN C.C. NO.398/2007 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, PARAPPANANGADI.** ## **RESPONDENT'S ANNEXURES:- NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **S.S.SATHEESACHANDRAN, J.** **----------------------------------------------Crl.R.P.No.1522 of 2011 ----------------------------------------------Dated this the 2[nd] day of December, 2011** ## **O R D E R** Revision petitioner is the accused in C.C.No.398/07 on the file of the Judicial Magistrate of the First Class-I, Parappanangadi. He is a police officer. He is being prosecuted in the above case, cognizance being taken of offences under Sections 324, 323, 348, 330, 500 and 506(i) Indian Penal Code, on a complaint filed by the 1[st] respondent {hereinafter referred to as the 'complainant'}, alleging that the petitioner had kept him under illegal custody after his arrest beyond 24 hours, without producing him before the magistrate, and that he was subjected to custodial torture. Petitioner receiving summons in the case, appeared before the court and filed ## **Crl.R.P.No.1522 of 2011** ## **:: 2 ::** Annexure A3 petition contending that cognizance taken of the offences and the prosecution proceedings against him on the complaint, are unsustainable for want of sanction under Section 197 of the Code. He also contended that the complainant is an accused involved in several crimes, that too of inciting communal disharmony, and in connection with one of the crimes, Crime No.246/03 of Thirur Police Station, after arrest, he was produced before the magistrate on 30.1.2004 with remand report. He did not complain of any illegal custody, nor of torture by the police when produced before the magistrate, and, the complaint filed at a later stage imputing that his production after his arrest was after 24 hours and that he was subjected to custodial torture is solely intended to vex and harass the petitioner, the police ## **Crl.R.P.No.1522 of 2011** ## **:: 3 ::** officer, who is insulated from prosecution for acts done in discharge of his duties without sanction from the appropriate Government, was his objection. The learned magistrate, under Annexure A5 order dismissed Annexure A3 petition moved by the petitioner for his discharge holding that he can agitate the question of sanction under Section 197 of the Code, after evidence of the complainant is recorded. Propriety, legality and correctness of that order is impeached in this revision. 2. Annexure A1 is the copy of the complaint filed by the complainant alleging that he was taken into custody at about 10.30 AM on 29.1.2004 and was kept in custody beyond 24 hours without producing him before the magistrate. He was assaulted while in custody since his relatives had sent complaints by fax over his ## **Crl.R.P.No.1522 of 2011** ## **:: 4 ::** illegal custody, and was also threatened by the petitioner that if the assault was disclosed to the magistrate he would be finished off on his return. He did not, therefore, report to the magistrate the assault on his person while he was kept under illegal custody. After his release, when he reported before the petitioner complying with the conditions imposed while enlarging him on bail, he was detained at his office a whole day from 9 AM to 7 PM and that was repeated the next week also when he went over to sign in the register. On the above reasons imputing offences under Sections 342, 323, 348, 330, 500 and 506(i), 166 and 167 Indian Penal Code and Section 42(c), (d) and (e) of the Police Act, the complaint was filed before the magistrate. After conducting an enquiry under Section 202 of the Code, the magistrate took cognizance of the offences under ## **Crl.R.P.No.1522 of 2011** ## **:: 5 ::** Sections 342, 323, 348, 330, 500 and 506(i) Indian Penal Code against the petitioner/accused. Plea of discharge canvassed in Annexure A3 petition by the petitioner, a public servant, for want of sanction under Section 197 of the Code having been turned down, the order of the magistrate there of is assailed in the revision. 3. The learned counsel for the petitioner stressing upon that the complainant did not raise any complaint as and when he was produced before the magistrate with a remand report after his arrest in crime No.366/03 of Thirur Police Station involving an offence under Sections 143, 147, 153A read with Section 149 of the Indian Penal Code. Apart from the aforesaid crime, he is involved in three other crimes, all of them involving offence under Section 153A of the Indian Penal Code, is the submission of the counsel. Complaint was ## **Crl.R.P.No.1522 of 2011** ## **:: 6 ::** filed belatedly i.e., nearly 7 months after the alleged illegal custody of keeping the complainant beyond 24 hours after his arrest and also imputing of police torture where he was kept under such custody to vex and harass the petitioner, the police officer, who was involved in his arrest and prosecution for grave offences, is the submission of the counsel. Even if there was any excess in the duties performed by the petitioner as a police officer in connection with the arrest of the accused, it is submitted that still he is protected from prosecution under the insulation made under Section 197 of the Code mandating sanction from the appropriate Government for taking cognizance of the offence done by him in respect of any act in discharge or purportedly in discharge of his duties as a public servant. ## **Crl.R.P.No.1522 of 2011** ## **:: 7 ::** 4. Per contra, the learned counsel for the complainant, relying on Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and others {2001(5) SCC 7}, Sankaran Moitra v. Sadhna Das {2006 (4) SCC 584} and Anjani Kumar v. State of Bihar {2008 (3) KLT SN 79 (C.No.96)} contended that the act of keeping the suspected offender in police custody even if it was initially legal would become illegal, if he was not produced before a magistrate within 24 hours of his arrest, and that being so, when the evidence tendered in the case disclosed that a prima facie case has been made out by the complainant that he was kept in custody beyond 24 hours without production before the magistrate and also of custodial torture, as rightly held by the magistrate, taking cognizance of the offences against the accused without sanction under ## **Crl.R.P.No.1522 of 2011** ## **:: 8 ::** Section 197 of the Code is not a bar, and, as such, there is no merit in the revision. The magistrate has also held that if at all in the evidence let in at a later stage it is still open to the petitioner/accused to set forth the plea canvassed under Section 197 of the Code if he is so entitled to. That being so, there is no infirmity in the order passed by the magistrate warranting interference in exercise of revisional jurisdiction of this court, is the submission of the counsel. 5. The broad principles and the parameters to be taken for consideration of the question whether sanction under Section 197 of the Code is applicable or not in the case of an accused, a public servant, proceeded against, have been spelt out in paragraph 9 and 10 in Centre for Public Interest Litigation and another ## **Crl.R.P.No.1522 of 2011** ## **:: 9 ::** ## 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 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 ## **Crl.R.P.No.1522 of 2011** ## **:: 10 ::** 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 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. ## **Crl.R.P.No.1522 of 2011** ## **:: 11 ::** 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 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 ## **Crl.R.P.No.1522 of 2011** ## **:: 12 ::** 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. At that stage, where a plea of discharge is canvassed that the prosecution is not entertainable for want of sanction under Section 197 of the Code since the accused proceeded against is a public servant and the alleged acts imputed against him were performed in discharge or purportedly in discharge of his official duty as such, that challenge has to be appreciated with reference to the facts presented in the case. Since it is a matter relating to the jurisdiction of the court to take cognizance of the offence imputed, to sustain the challenge canvassed, for that purpose alone, even at that stage, the accused proceeded can produce materials why he should not be prosecuted ## **Crl.R.P.No.1522 of 2011** **:: 13 ::** without sanction under Section 197 of the Code from the appropriate authority. 7. Going through the order passed by the magistrate in turning down the challenges raised by the petitioner/accused, it is seen, the magistrate has not looked into the facts involved as presented in the complaint, but has relied on the imputations made by the complainant blindly to hold that cognizance taken against the accused for the offences under his complaint does not suffer from want of sanction under Section 197 of the Code. A cursory perusal of the complaint, Annexure A2, would indicate that the complainant had raised imputations against the police officer/public servant, who arrested and produced him in connection with a crime case, over the illegalities in his arrest, keeping him under custody beyond 24 hours, police torture ## **Crl.R.P.No.1522 of 2011** ## **:: 14 ::** etc., more than 7 months after his production before the magistrate in that case. His complaint would also disclose that his further grievance was that there was harassment by the police officer when he reported before him to comply with the conditions imposed for enlarging him on bail. When he was released on bail what were the conditions imposed and if at all there was such harassment, why it was not brought before the court which granted him bail seeking modification of the bail conditions are not even stated in his complaint. He was threatened by the police officer and hence he did not report about the torture when he was produced before the magistrate with the remand report was his version. When such a complaint was presented more than 7 months after the illegal acts imputed against the accused, it should have cautioned the ## **Crl.R.P.No.1522 of 2011** ## **:: 15 ::** magistrate that scrutiny of such allegations at the appropriate level was required in the case for prosecution of the accused. A public servant is given a protective cover shielding him from vexatious prosecution for the acts done in discharge or purportedly in discharge of his official duties. Such insulation from prosecution without sanction from the appropriate Government is vital in public interest so that he should discharge his duties fearlessly and not with a threat of prosecution for any acts done by him, in discharge of his official duties. Where any act or omission is found to have been committed by him as a public servant in discharge of his duty, then it must be given liberal and wide construction so far as its official nature is concerned. If it is shown that the acts are done by the public servant while ## **Crl.R.P.No.1522 of 2011** ## **:: 16 ::** discharging his duty, then the scope of its being official should be construed so far as to advance the objective of Section 197 of the Code in favour of the public servant. The documents produced with the complaint would also indicate that the complainant who alleged of police torture and sustaining of injuries, has no material to be produced whatsoever as to having had any medical treatment, though he alleged that he met a doctor, after his release from jail, and also took medicines as prescribed. The allegations set out in the complaint imputing illegal custody of the complainant, and, of police torture, were belatedly raised, with no complaints thereof made before the magistrate when produced with a remand report, was not taken note of by the magistrate; but, he has proceeded on the assumption that the alleged acts imputed against ## **Crl.R.P.No.1522 of 2011** ## **:: 17 ::** the petitioner, a public servant, would not come within the sweep of official duty. It is not the allegation imputed against the public servant that has to be looked into in examining whether cognizance of the offences against him on a complaint could have been taken without sanction under Section 197 of the Code; but, the facts involved, as presented in the case looking into the broad aspects thereof, even from the materials, if any, presented by the accused to sustain his challenge why he should not be prosecuted without sanction. If the allegations of the complainant are to be given consideration to examine the challenge raised under Section 197 of the Code, then the protection given under that Section to a public servant would become an empty formality. What is to be looked into is whether on the facts presented, which has to be ## **Crl.R.P.No.1522 of 2011** **:: 18 ::** gathered not only from the allegations raised in the complaint, but from the objections raised by the public servant proceeded against, with reference to the materials tendered, whether the acts were done by the public servant in discharge or purportedly in discharge of his official duties, and if so, whether he is entitled to claim protection from prosecution under Section 197 of the Code. The complainant has not stated of any harassment by the police when he was produced before the magistrate with the remand report, and his complaint to the contrary that too without producing any materials other than the copies of the complaints made by his relatives, his remand report etc., would clearly demonstrate that this was a case in which the magistrate could not have negatived the challenge raised by the public servant that his ## **Crl.R.P.No.1522 of 2011** ## **:: 19 ::** prosecution without sanction in the complaint cannot be entertained as it is based on unfounded allegations, and that the acts imputed squarely fall within the ambit of “official duties” as a public servant. The explanation offered by the complainant as to why he did not report before the magistrate when he was produced with the remand report about his illegal custody beyond 24 hours and police torture since he was threatened by the accused, which appeared to the magistrate as reasonable, at any rate, in the given facts of the case, where the complaint was filed more than 7 months after his arrest and production before the magistrate in the crime case by the accused, hardly merited any consideration. At any rate, the allegations as to the violation of the detention in excess of 24 hours after his arrest, custodial torture and also ## **Crl.R.P.No.1522 of 2011** ## **:: 20 ::** harassment when he appeared to comply with the bail conditions, which formed the basis of the offences imputed against the accused, in the given fact of the case, having regard to the time lag in filing the complaint before the magistrate, and also that his arrest was as an accused in a crime case involving of grave offence inciting communal disharmony, with the undisputed fact that he is involved in several other such crime cases, prima facie, would disclose that there is sufficient reason to sustain the objection by the accused, a public servant, that the acts imputed against him were done in discharge or purportedly in discharge of his official duties as a police officer deserved acceptance. 8. Reversing the impugned order passed by the magistrate, allowing of Annexure A3 petition moved by the petitioner/accused seeking ## **Crl.R.P.No.1522 of 2011** ## **:: 21 ::** his discharge for want of sanction under Section 197 of the Code is called for in the case, and it is ordered accordingly. Complaint against the petitioner shall stand dismissed, but without prejudice to the complainant's right to prosecute the petitioner, if sanction is accorded by the appropriate Government. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.