Suresh Babu v. Jayaprakash and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** ## **Crl.MC.No.2972 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 1767/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA** **CRIME NO.945/2013 OF Cherthala Police Station, Alappuzha** ## **PETITIONER/ACCUSED:** ## **SURESH BABU** **AGED 56 YEARS, S/O.PRABHAKARA MENON,ADDITIONAL SUB INSPECTOR OF POLICE,AROOR POLICE STATION, RESIDING AT PADMALAYAM,PATTANAKKAD.P.O., CHERTHALA.** ## **BY ADV. SRI.B.PRAMOD** ## **RESPONDENTS/RESPONDENTS:** **1 JAYAPRAKASH S/O.VISWANATHAN NAIR,PANDISSERIL, WARD NO.5, VAYALAR PANCHAYATH,CHERTHALA. 688 524.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.B.S.SURESH (CHIRAKKARA)** ## **OTHER PRESENT:** ## **PP- SRI JAYASURYAN. B(SR)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2972 OF 2016** **2** ## **ORDER** **Dated this the 11[th] day of March 2020** The petition on hand is filed by the sole accused in C.C.No.1767/2014 pending on the files of Judicial First Class Magistrate's Court-I, Cherthala. Jurisdiction under Section 482 is sought to be invoked in the matter to quash the private complaint, copy of which is produced alongwith the petition on hand as Annexure-I. The Judicial First Class Magistrate Court-I, Cherthala took cognizance of the complaint and registered a case on its file as C.C.No.1767/2014. The allegations in the complaint are discussed in brief hereinbelow: On 07.09.2014, the 1[st] respondent was summoned to the police station for enquiring into a complaint lodged by one **Crl.MC.No.2972 OF 2016 3** Maria, neighbour of the first respondent. A police officer named Samson was interacting with the complainant at the police station. While so, the petitioner arrived there and caught hold of the collar of the shirt of the 1[st] respondent and beat him with his hands, a couple of times. The petitioner had also threatened the 1[st] respondent. The 1[st] respondent availed treatment from a Government Hospital at Cherthala. There he was treated as inpatient for two days. His statement was recorded by a police constable. But no action was followed. Therefore, he had filed a private complaint as Annexure-I before Judicial First Class Magistrate's Court-I, Cherthala, which was taken cognizance of and a case was **Crl.MC.No.2972 OF 2016** ## **4** registered as C.C.No.1767/2014, which is sought to be quashed by filing the petition on hand. 2. The contention mainly raised by Sri.B. Pramod, the learned counsel for the petitioner was that the incident that led to the filing of the private complaint (Annexure A1) was occurred in the course of discharge of official duty by the petitioner and the court below is erred in taking cognizance of it without a sanction as contemplated under Section 197 Cr.P.C being obtained. The learned counsel has also relied on **Virupakshappa D.T. v. C.Subash** [2015 KHC 4330], **Shoukkathali v. State of Kerala** [2005 KHC 1018) and **Krishnakumar B. V. State of Kerala and another** [2017 (5) KHC **Crl.MC.No.2972 OF 2016** **5** 556] to rest his contention. 3. There cannot be any dispute with respect to the fact that sanction of the Government is a pre-requirement for the prosecution against a public servant to be successful. Whether sanction is necessary or not depends upon the nexus of the act allegedly committed by the public servant with the official duty which he was supposed to discharge. 4. In **Virupakshappa** 's case supra the allegation was that the appellant exceeded while exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one lady. Undoubtedly the alleged act has **Crl.MC.No.2972 OF 2016 6** nexus to the official duty of conduct of investigation of which extract of information is a part and parcel. Previous sanction of the Government was found by the Apex Court essential in the matter of prosecuting the petitioner/accused and for want of that the order of the High Court declining to quash the order taking cognizance by the Magistrate of the alleged offence was set aside. Taking cognizance of and issuance of process by the Magistrate were also set aside. The prosecution was directed to obtain sanction under Section 197 Cr.P.C from the State Government and to produce the same before the Magistrate so as to enable the latter to proceed further in the case in accordance with law. **Crl.MC.No.2972 OF 2016** **7** 7. In **Shoukkathali** supra, the allegation was that the Sub Inspector along with four constables have committed offences under Sections 342, 323 and 324 read with Section 34 IPC. Magistrate took cognizance of the case without sanction under Section 197 Cr.P.C being obtained to prosecute the accused. 8. As the facts stand in the private complaint filed in the case cited, 2[nd] respondent was taken into custody by the accused from his house at 10 p.m. on 10.08.1997 and was manhandled. According to petitioners, 2[nd] respondent was produced before the Magistrate on 11.08.1997, after being arrested on 10.08.1997 under Section 51(a) of Kerala Police Act. But, before the **Crl.MC.No.2972 OF 2016 8** Magistrate, he has not raised any case of physical assault. The 2[nd] respondent was examined by a Medical Practitioner at 10 p.m. on 10.08.1997 itself and the certificate of drunkenness prepared reveals that he had consumed alcohol and was under its influence. 9. In the factual scenario, it is revealed that the 2[nd] respondent was taken into custody by petitioners in discharge of their official duty. Even if there is truth in the allegations regarding manhandling of the respondent in the complaint preferred by him, it must be taken to have been occurred during the course of discharge of the official duty. Therefore, the proceedings initiated against petitioners without prior **Crl.MC.No.2972 OF 2016 9** sanction being obtained from Government was ordered to be quashed. 10. In **Krishna Kumar B** supra, the allegation was that the police officers who came to the Medical Store of the defacto complainant to take him to the police station were asked to wait for a while but they barged into the Medical Store and tortured him. According to the defacto complainant the incidents have been narrated to the Magistrate, before whom he was taken after arrest. But, no materials are there to evidence that. As revealed from the records available, the defacto complainant was taken into custody for being a suspect in an idol theft case. In the above scenario, the alleged **Crl.MC.No.2972 OF 2016 10** acts being occurred while the petitioners were discharging the official duty, sanction under Section 197 Cr.P.C was held a prerequisite for the prosecution to be successful. Accordingly, the cognizance taken on the private complaint filed by the defacto complainant without sanction was set aside. 11. Therefore, the question whether sanction under Section 197 Cr.P.C is required or not in a case depends upon the nexus of the acts allegedly committed by the public servant with the official duties, he is liable to discharge in the said capacity at the relevant time. 12. In the above backdrop the factual situation in the case on hand has to be **Crl.MC.No.2972 OF 2016 11** analysed. As the allegations stand in the case on hand the respondent was called on to the police station to have a discussion about the allegations raised against him in a complaint lodged by a neighbour to him. A police officer named Samson was talking with them. The petitioner then came to the cabin and abused and assaulted him severally. He being injured was taken by his wife to Government Hospital, Cherthala and was treated there as inpatient. 13. According to the petitioner a neighbour of the defacto complainant had filed a complaint alleging that the latter has exhibited his nudity. Petitioner has no claim that a case is registered on the basis of the complaint filed. **Crl.MC.No.2972 OF 2016** **12** Therefore, the acts alleged against the petitioner, in the prima facie view of this Court cannot be taken to have any nexus to the official duty purportedly discharged by him. Therefore, absolutely no valid reason is made out to quash Annexure-I complaint and proceedings initiated as CC No.1767/2014 and pending on the files of Judicial First Class Magistrate Court-I, Cherthala. The petition fails for the foregoing reasons and is dismissed. **Sd/-** ## **MARY JOSEPH** **JUDGE** MJL/ttb **Crl.MC.No.2972 OF 2016** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I CERTIFIED COPY OF THE COMPLAINANT FILED BY THE 1ST RESPONDENT.** **ANNEXURE II TRUE COPY OF THE PETITION REGISTER.** **ANNEXURE III** **TRUE COPY OF THE F.I.R. IN CRIME NO.945/2013 OF CHERTHALA POLICE STATION.** ## **ANNEXURE IV** **TRUE COPY OF THE F.I.R. INC RIME NO.962/2013 OF CHERTHALA POLICE STATION.** **ANNEXURE V TRUE COPY OF THE F.I.R. IN CRIME NO.1580/2012 OF CHERTHALA POLICE STATION.** ## **//TRUE COPY//** **P.S. TO JUDGE**