T.P. Dilip v State of Kerala and Kadavoor C.N. Chandran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020/28TH KARTHIKA, 1942** **Crl.Rev.Pet.No.2943 OF 2007** **AGAINST THE ORDER DATED 04-07-2007 IN CC 296/99 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM** ## **REVISION PETITIONER/PETITIONER/ACCUSED:** **T.P.DILIP, SUB INSPECTOR, FROM KOLLAM WEST POLICE STATION, NOW SUB INSPECTOR, CHADAYAMANGALAM POLICE STATION.** **BY ADVS. SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.S.SREEDEV** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 KADAVOOR C.N.CHANDRAN, S/O.NANU, CHAMAVILA VEEDU, KOTTACKAKATHU CHERI, THRIKKADAVUR VILLAGE, KOLLAM.** **R1 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ R2 BY ADV. SRI.P.GOPALAKRISHNAN MVA R2 BY ADV. SRI.A.N.RAJAN BABU R2 BY ADV. SMT.K.SUNITHA VINOD** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-11-2020, THE COURT ON 19-11-2020 PASSED THE FOLLOWING:** Crl.R.P.No.2943 of 2007 ..2.. ## **ORDER** Dated this the 19[th] day of November, 2020 This memorandum of criminal revision petition is filed under Section 397 read with Section 401 of Code of Criminal Procedure seeking to set aside the order dated 4.07.2007 in C.C.No.296/99 on the file of the Chief Judicial Magistrate Court, Kollam whereby the learned Magistrate dismissed the contention of the revision petitioner/accused that he is liable to be discharged for want of sanction under Section 197(1) of Cr.P.C. 2. The revision petitioner/accused (hereinafter referred to as 'the accused') was working as the Sub Inspector of Police in Kollam West Police Station during December, 1997. The 2[nd] respondent filed a private complaint against the accused alleging offences punishable under Sections 341, 342, 323, 325 and 352 of the Indian Penal Code (hereinafter referred to as 'the IPC') Crl.R.P.No.2943 of 2007 **==> picture [22 x 8] intentionally omitted <==** before the learned Magistrate. Upon recording the sworn statement of the 2[nd] respondent/complainant (hereinafter referred to as 'the complainant'), the learned Magistrate registered the case as C.C.No.296/99 and issued process to the accused. On receipt of the summons, the accused entered appearance. The trial court examined PWs.1 to 5 and marked Exts.P1 to P6. By order dated 28.10.2004, the trial court formed an opinion that there is ground for presuming that the accused has committed offences punishable under Sections 341, 342, 323, 325 and 352 of the IPC and the case was adjourned to 15.1.2005 for framing charge. At this juncture, the accused filed C.M.P.No.2084/2004 before the trial court praying to dismiss the complaint for want of sanction under Section 197(1) of the Cr.P.C. The trial court as per order dated 12.7.2006 dismissed the aforesaid C.M.P. finding that there is no nexus between the alleged acts and the official Crl.R.P.No.2943 of 2007 ..4.. duties of the accused. The accused challenged the aforesaid order before this Court in Crl.R.P.No.3313/2006. This Court dismissed the Crl.R.P. with a direction to complete the evidence under Section 244 of the Cr.P.C. and to consider the question of framing charge under Section 245(1) of Cr.P.C. after adverting afresh taking into consideration of the contention that the prosecution is bad for want of sanction under Section 197(1) of Cr.P.C. This Court further directed the trial court to give full opportunity to adduce evidence under Section 244 of the Cr.P.C. before the question of discharge under Section 245(1) of the Cr.P.C. is considered afresh. It was further directed that, the trial court shall consider admission of Annexures-A5 and A6 produced by the accused before the trial court and pass appropriate orders. 3. In obedience to the direction of this Court, PW1 was recalled and marked Ext.D1. Crl.R.P.No.2943 of 2007 ..5.. 4. The prosecution case in brief is that on 31.12.1997 at 11 pm, the accused took the complainant and his friend into custody and brutally manhandled and abused inside the police station and thereby committed the offences punishable under Sections 341, 342, 323, 325 and 352 of the IPC. 5. It is the contention of the accused that the complainant was taken into custody in connection with law and order duty since the complainant was found behaving in a disorderly manner along with his friend in the public road. Ext.D1 was produced to show that the complainant was involved in S.T.No.138/98 of the Judicial First Class Magistrate Court-II, Kollam for the offence punishable under Section 290 of the IPC. However, the complainant produced documents to prove that he sustained serious injuries and he underwent treatment in the hospital pursuant to the occurrence. Crl.R.P.No.2943 of 2007 ..6.. 6. The learned counsel for the revision petitioner/accused submitted that the alleged offences took place inside the police station when the accused was being interrogated. Ext.D1 would show that the complainant was an accused in connection with a petty case registered for the offence punishable under Section 290 of the IPC. Thus, it is contended that during such course of interrogation, if an excess is committed he may be liable for the offence, but a criminal proceeding for such an offence requires prior sanction. 7. The learned counsel for the complainant submitted that the action of the accused in assaulting the complainant in connection with a petty case was not in due discharge of his official duty and hence no sanction under Section 197 of the Cr.P.C. is required. 8. Heard the learned counsel for the revision petitioner, the learned Senior Public Prosecutor for the 1[st] Crl.R.P.No.2943 of 2007 **==> picture [22 x 8] intentionally omitted <==** respondent-State, and the learned counsel for the 2[nd] respondent. 9. It is true that protection is available even for an act done or purporting to act in the discharge of official duties. To be protected under Section 197 of Cr.P.C., the act constituting the offence should be so connected with the official duty or any act which is inseparable from such duty. When the act and the official duty are so interrelated that it would be difficult to separate them, it can be reasonably postulated that the act was done in performance of official duty though possibly in excess of the needs and requirements of the situation. The conduct of arresting an accused in connection with a petty case and taking him into custody for further interrogation to the police station and torturing him at the police station had no relation to the discharge of the official duties of the police. While the case of the complainant is assault on him Crl.R.P.No.2943 of 2007 ..8.. by the accused at the police station, sanction for prosecution was wholly unnecessary. The act complained of was not an act connected with the discharge of official duty. Where search was conducted after obtaining proper warrant from the court, in case an allegation was levelled that the police during the search assaulted the complainant or his relatives sanction under Section 197 of the Cr.P.C. was necessary. A case of search and seizure under the orders of court and while so the complainant was assaulted, there was nexus between the official duty and the alleged assault made by the accused. Similarly, the alleged overt act was employed by the police in the course of an attempt to apprehend an accused in a nonbailable offence, the police could not be prosecuted without sanction under Section 197 of the Cr.P.C. Thus it is clear that in order to attract Section 197 of the Cr.P.C. the offence has to be so connected with the official act so as Crl.R.P.No.2943 of 2007 **==> picture [22 x 8] intentionally omitted <==** to form part of the same transaction as if it is inseparable from it. The protection granted under the Section cannot be extended in respect of an accusation which tends to show that the act had absolutely no nexus with his official duties. It is not part of the duty of the accused, actual or purported, to assault, abuse or wrongfully restrain the complainant in connection with a petty case. It is not part of his official duty to commit a criminal offence and never can be. The scope of Section 197 of the Cr.P.C. has been discussed in **Rizwan Ahmed Javed Shaikh & others v. Jammal Patel & others** (AIR (2001) SC 2198), **Sankaran Moitra v. Sadhna Das & another** (AIR (2006) SC 1599), **Virupakshappa.D.T. v. C.Subhash** [2015 (2) KLD 138 (SC)], **Krishna Kumar.B v. State of Kerala & another** [2017 (5) KHC 556] and in many cases in the manner indicated hereinabove. No other conclusion is possible. It is also not possible to hold that Crl.R.P.No.2943 of 2007 ..10.. the police has power to interrogate a person involved in a petty case and under the guise of interrogation, the police has power to manhandle him. The act itself is against the scheme of the Code of Criminal Procedure. 10. Judged by the above standards, this Court is of the view that the accused is not entitled to get the protection under Section 197 of the Cr.P.C. 11. In the impugned order, the learned Magistrate stated in paragraph 7 of the order that the learned Magistrate is satisfied from the evidence of PWs.1 to 5 and Exts.P1 to P6 that the complainant has made out a case, which if unrebutted, would warrant his conviction under Sections 341, 342, 323, 325 and 352 of the IPC. 12. In a complaint case instituted otherwise than on a police report, the accused has a right to cross-examine the witnesses who have been offered as witnesses at the stage of Section 244(1) of the Cr.P.C. In **Ajoy Kumar** Crl.R.P.No.2943 of 2007 ..11.. ## **Ghose v. State of Jharkhand & another [(2009) 14** **SCC 115]** the Supreme Court has held that the accused can show, by way of the cross-examination, that there is no justifiable ground against him for facing the trial. In the case on hand, PWs.1 to 5 were cross-examined by the learned counsel for the accused. Exts.P1 to P6 were also marked on the side of the prosecution. The test of _prima facie_ case has to be applied before framing of charge. The expression _prima facie_ case means a case established by _prima facie_ evidence which in turn means evidence sufficient in law to raise a presumption of fact or establish fact in question unless rebutted. It is true that, at the stage of framing charge, the probative value of the material on record cannot be gone into, the material brought on the record by the prosecution has to be accepted as true at that stage. In the case on hand, the accused filed an application seeking discharge soon after Crl.R.P.No.2943 of 2007 **==> picture [28 x 8] intentionally omitted <==** his appearance before the trial court. Under the circumstances, the learned Magistrate ought to have ascertained as to whether the ingredients of the offences including the offence under Section 352 of the IPC were _prima facie_ made out. In the case on hand, the learned Magistrate has not considered the evidence of the witnesses examined in the case including documents produced under Section 244(1) of the Cr.P.C. It is also difficult to understand from the impugned order as to how the learned Magistrate has arrived at a conclusion that a _prima facie_ case against the accused has been made out which, if unrebutted, would warrant his conviction. Grounds for arriving at such a satisfaction have not been recorded. This is necessary in a case where an application for discharge was filed by the accused stating that no case has been made out against the accused. In the case on hand, the learned Magistrate has not considered the Crl.R.P.No.2943 of 2007 **==> picture [28 x 8] intentionally omitted <==** evidence of the witnesses and documents for the prosecution. The learned Magistrate has written a single sentence that he is satisfied from the evidence on record that the offences alleged against the accused are prima facie attracted, which if unrebutted, would warrant his conviction. The accused has a right to know the reason for such a finding by the learned Magistrate. Sitting in revision, this Court is not in a position to ascertain the evidence which was considered by the trial court for the purpose of deciding a _prima facie_ case. 13. The criminal revision petition is allowed in part and the impugned order is set aside. The case is remanded back to the trial court for consideration afresh. The learned Magistrate is directed to consider the evidence in accordance with law with regard to _prima facie_ case and pass appropriate orders after hearing both sides. Crl.R.P.No.2943 of 2007 **==> picture [28 x 8] intentionally omitted <==** 14. The learned counsel for the 2[nd] respondent submitted that the case is likely to be settled between the parties. In case the case is settled, the trial court may consider the same and pass appropriate orders in accordance with law. Registry is directed to send back the records to the trial court forthwith. Sd/- **N.ANIL KUMAR, JUDGE** skj Crl.R.P.No.2943 of 2007 ..15.. ## **APPENDIX** ANNEXURE A1 COPY OF THE COMPLAINT FILED BY THE 2[nd] RESPONDENT DTD.21.4.98. ANNEXURE A2 COPY OF THE PETITION IN CRL.M.P.No.2084/2006 FILED BY THE PETITIONER IN C.C.No.296/99 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE, KOLLAM. - ANNEXURE A3 COPY OF THE OBJECTION DTD.1.7.2006 FILED BY THE 2[nd] RESPONDENT. - ANNEXURE A4 COPY OF THE EVIDENCE OF THE DOCTOR WHO TREATED THE 2[nd] RESPONDENT EXAMINED AS PW4. - ANNEXURE A5 COPY OF THE PETTY CASE REGISTER OF KOLLAM WEST POLICE STATION. - ANNEXURE A6 COPY OF THE REGISTER OF SUMMARY TRIAL OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM. - ANNEXURE A7 COPY OF THE ORDER DTD.12.7.2006 IN CRL.M.P.No.2084/2006 IN C.C.No.296/99 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE, KOLLAM. - ANNEXURE A8 COPY OF THE JUDGMENT DTD.27.9.06 IN Crl.R.P.No.3313/2006 ON THE FILE OF THIS COURT. - ANNEXURE A8(a) COPY OF THE JUDGMENT DTD. 5.3.2007 IN CRL.M.C.No.597/07. - ANNEXURE A9 COPY OF THE ORDER DTD.4.7.07 IN C.C.No.296/99 ON THE FILE OF THE CHIEF JUDICIAL MAGSITRATE COURT, KOLLAM.