T.O. Henry v. N. Randheer, Muraleedharan Nair, K. Prabhakaran Nair, V.K. Damodaran, S. Venu, Ramachandran Nair, Anil S. Rose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** **OP(CRL.).NO. 21 OF 2016** **AGAINST THE ORDER IN CC NO.1603/2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM** ## **PETITIONER/COMPLAINANT:** **T.O.HENRY, AGED 52 YEARS, S/O.OUSEPH, HOUSE NO.F-12/1, TC 3/1489(2), LEKSHMI NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004.** **BY ADVS. SRI.SOORAJ T.ELENJICKAL SMT.MARY RESHMA GEORGE** ## **RESPONDENTS/ACCUSED AND STATE:** - **1 N.RANDHEER, RAGAM, KAILAS LANE, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM (NOW RESIDING AT RAGAM, F-13, LEKSHMI NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004.** - **2 MURALEEDHARAN NAIR, F-13, LEKSHMI NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004.** - **3 K.PRABHAKARAN NAIR, HARI NIVAS, TC 3/1404, G-29, LEKSHMI NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004.** - **4 V.K.DAMODARAN, HARSHAM, E-35(1), LEKSHMI NAGAR, KESAVADASAPURAM,THIRUVANANTHAPURAM-695004.** - **5 S.VENU, ROHINI, TC 3/1441(1), G-18, LEKSHMI NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004.** - **6 RAMACHANDRAN NAIR, DEVINIVAS, TC 3/1450, F-17, LEKSHMI NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM-695004.** **OP(CRL.).NO. 21 OF 2016 2** **7 ANIL S.ROSE, SUB INSPECTOR OF POLICE, PEROORKADA POLICE STATION, PRESENTLY WORKING AS INSPECTOR OF POLICE, VIGILANCE AND ANTI-CORRUPTION DEPARTMENT, KUNJALUMOODU, THIRUVANANTHAPURAM-695033.** **8 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.S. BREEZ, SENIOR PUBLIC PROSECUTOR** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(CRL.).NO. 21 OF 2016** **3** ## **J U D G M E N T ---------------------** The petitioner herein is the complainant in C.C. No.1603 of 2014 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram. He is aggrieved by Annexure-II order passed by the learned Magistrate, as per which, the court below refused to take cognizance as against the 7[th] accused in the crime for want of prosecution sanction under Section 197(1) of the Cr.P.C. 2. The allegation as per the prosecution case is that, the petitioner had filed a Suit before the Civil Court and obtained an order of injunction in his favour. The defendants in the Suit were restrained from interfering with the peaceful possession and enjoyment of the petitioner over the property owned and possessed by him. On 06.09.2011, by violating the order of injunction, accused Nos.1 to 6 are alleged to have trespassed into the residential home of the de facto complainant and threatened him as well as his workers and forced them to demolish the car shed, which was built by him. The 7[th] accused, who was the then territorial Sub Inspector of Police, is alleged to have aided and abetted accused Nos.1 to 6. 3. The petitioner filed C.M.P. No.2618 of 2011 before the learned Magistrate. The sworn statements of the petitioner and the **OP(CRL.).NO. 21 OF 2016 4** witnesses were recorded and the learned Magistrate took cognizance of the offence under Sections 143, 147, 447, 348 and 427 read with Section 149 of the Indian Penal Code as against accused Nos.1 to 6. However, owing to the failure of the petitioner herein to produce prosecution sanction under Section 197 of the Code of Criminal Procedure, cognizance was not taken as against the 7[th] accused. 4. Sri.Sooraj T. Elenjickal, the learned counsel appearing for the petitioner, submitted that the 7[th] respondent, at the relevant point of time, was working as a Sub Inspector of Police, Peroorkada Police Station, belonging to the Kerala Subordinate Police Service. The power to dismiss or remove the officer such as the 7[th] respondent has been conferred, under the relevant provisions in the Kerala Police Act and Rules, upon the IG, DIG, AIG and the Superintendent of Police. It is urged that the 7[th] respondent is, therefore, not a public servant not removable from office save with the previous sanction of the State Government and hence, the benefit of sub clause (b) of Section 197 cannot be claimed by him. He would point out that the notification dated 16.12.1977 issued by the Government would also not apply in the instant case as the prosecution has no case that the 7[th] respondent was charged with the maintenance of public order. To substantiate his contention, the **OP(CRL.).NO. 21 OF 2016 5** learned counsel would rely on **Sarojini v. Prasannan** [1996(2) KLT 859], wherein a Division Bench of this Court had occasion to hold that a Sub Inspector of Police cannot claim benefits under Section 197(1) of the Cr.P.C. Reliance is also placed on a decision of this Court in **Harikumar B. v. Suresh @ Karuppooru Suresh and Another** [2014 (2) KHC 632], wherein a learned Single Judge of this Court had occasion to consider the same question and it was held that the protection under Section 197 cannot be availed by a Sub Inspector of Police. 5. The learned counsel would then argue relying on a decision of the Apex Court in **K.Kaalimuthu** v. **State** [(2005) 4 SCC 512] that the question relating to sanction is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. The question may arise at any stage of the proceeding. It is submitted that the question whether sanction is necessary or not may have to be determined from stage to stage. He would also refer to the decisions of this Court in **Venkitachalam K.R. and others** v. **State and Another** [2011 (4) KLT 222] and **Abdul Rahiman** v. **State of Kerala and Another** [2018 (1) KHC 19] and contended that the question of sanction can be raised at any time and even at the stage of framing of charges. **OP(CRL.).NO. 21 OF 2016** **6** 6. I have heard the learned Government Pleader. Though notice was served on the 7[th] respondent, he has not entered appearance. 7. The first question is whether the learned Magistrate was justified in insisting upon sanction to prosecute the 7[th] respondent. Admittedly, the 7[th] respondent was, at the relevant point of time, working as a Sub Inspector of Police. A similar question was considered in **Sarojini** (supra) by a Division Bench of this Court and it was held as follows: “3. At the relevant time the respondents/accused were the Sub Inspector and two constables of Manantoddy Police Station, who have contended that their prosecution by the petitioners is bad for want of sanction under S.197 CrPC. The object of the section is indeed to prevent vexatious proceedings against public servants. It is in public interest that they are not dragged to court by unscrupulous persons on unfounded allegations to harass and intimidate them for acts done in the discharge of functions as public servants. But then, before sub-s.(1) of S.197 CrPC. can be invoked, the conditions stipulated there will have to be satisfied. Non compliance of any one of the conditions, viz. that the person accused is or was a public servant removable from his office only with the sanction of the State Government or of the General Government according to whether he is employed in connection with the affairs of **OP(CRL.).NO. 21 OF 2016** **7** the State or the Central Government and that he must have been accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duties. The benefit of this provision cannot be claimed by the accused, who, as stated already, are the Sub Inspector and Constables belonging to the Kerala Subordinate Police Service. The power to dismiss or remove them from service has been conferred under the relevant provisions in the Kerala Police Act and Rules upon the I.G., D.I.G., A.I.G. and S.Ps. In otherwords, they are not public servants not removable from office, save with the previous sanction of the State Government. The benefit of sub clause (b) of S.197(1) could not be claimed by them. (See in this connection 1983 KLT 349).” 8. The same view was taken by a learned Single Judge of this Court in **Harikumar** (supra). 9. The 7[th] respondent can take a stand that he was discharging his duty in connection with maintenance of public order so as to be entitled to the benefit of notification dated 16.12.1977. However, the said fact can only be adjudicated after taking evidence. As held by this Court in **Venkitachalam** (supra) and **Abdul Rahiman** (supra), the protection under Section 197 can be raised by the accused at all stages or on the basis of the evidence tendered. Any view formed by the Judge, solely on the basis of the prosecution materials, even at the time of framing of the charge, **OP(CRL.).NO. 21 OF 2016** **8** would not deprive the accused from showing at a later stage, after evidence is collected, that the case on hand required sanction under Section 197 for his prosecution. 10. In view of the above position, I am of the view that the order passed by the learned Magistrate is liable to be interfered with. The direction to the complainant to secure sanction to prosecute the 7[th] respondent is hereby set aside. The court below shall take cognizance as against the 7[th] respondent as well and proceed in accordance with law. It is made clear that the 7[th] respondent will be at liberty to raise the question of sanction, at the appropriate stage, and in that event, the court below shall consider the same and pass appropriate orders. This O.P.(Crl.) is disposed of as above. Sd/- **RAJA VIJAYARAGHAVAN V., JUDGE** NS //true copy// P.A. to Judge **OP(CRL.).NO. 21 OF 2016** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1** **TRUE COPY OF THE COMPLAINT CMP NO.2618/2011 DATED 17.10.2011 PREFERRED BY THE PETITIONER BEFORE THE JURISDICTIONAL JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM.** **ANNEXURE II CERTIFIED COPY OF ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM IN C.C.NO.1603/2014.** **ANNEXURE III TRUE COPY OF COMMUNICATION ISSUED TO THE PETITIONER FROM THE OFFICE OF THE SECRETARY TO THE GOVERNMENT DEPARTMENT OF HOME AFFAIRS.** **RESPONDENT(S) EXHIBITS : NIL**