V.K. Prabhakaran v. SASI and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 Crl.Rev.Pet.No. 3738 of 2007() ------------------------------ CRL.M.P.NO.1409/07 & 1410/07 IN CC NO.1121/04 OF THE JFCM COURT, CHAVAKKAD. REVN. PETITIONER: PETITIONER/ACCUSED NO.1 ----------------------------------------- V.K.PRABHAKARAN, SUB INSPECTOR OF POLICE, PAVARATTY, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE -------------------------------------------- 1. SASI, S/O. SANKARANKUTTY, KARICHAYI HOUSE, MUTHUKKARA DESOM, MULLASSERY VILLAGE, CHAVAKKAD TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. SRI.P.A.CHANDRAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/01/2008, ALONG WITH CRRP NO. 3966 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** **--------------------------------------------------Crl.R.P. Nos. 3738 & 3966 OF 2007 --------------------------------------------------Dated this the 10[th] day of January, 2008** ## **ORDER** Were the petitioners acting or purporting to act in the discharge of their official duty when they allegedly committed the offences alleged against them now by the 1[st] respondent herein? This is the short question that falls for consideration in these revision petitions. The learned Magistrate held that the petitioners were not acting or purporting to act in the discharge of their official duties. The petitioners claim to be aggrieved by that finding in the impugned order. 2. To the crucial facts first. The petitioners are accused 1 to 3 (they are police officials – Sub Inspector of Police (A1) and Police Constables (A2 and A3)) in a private complaint filed by the complainant/1[st] respondent. The 1[st] respondent in that private complaint alleged that the petitioners had perpetrated ## **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 2 :- physical violence against him when he was arrested as accused in a crime under the Kerala Abkari Act. Allegations were raised against the petitioners of commission of offences punishable, inter alia, under Secs.341, 323 and 325 read with Sec.34 of the IPC as also offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioners entered appearance before the learned Magistrate and raised a contention that they are entitled to the protection under Sec.197 of the Cr.P.C. and inasmuch as sanction under Sec.197 of the Cr.P.C. has not been secured, cognizance taken against them is bad in law. 3. The learned Magistrate heard the parties and came to the conclusion in the impugned order that there is no requirement of sanction under Sec.197 of the Cr.P.C. in the facts and circumstances of this case. 4. Crime No.241/02 of the Pavaratty Police Station was registered on 20/8/2002 alleging that two persons had committed offences punishable under the Abkari Act. Both the miscreants allegedly took to their heels and could not be arrested by the ## **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 3 :- police official. The 1[st] accused herein was the Sub Inspector of Police who detected that crime. He was able to ascertain the names and details of the two accused persons involved in the crime and their names are mentioned in the F.I.R. registered. The complainant/1[st] respondent is allegedly one of those two accused persons. 5. On 21/8/02, the 1[st] respondent/complainant was arrested at his residence. He was taken to the Police Station. He allegedly resisted the attempt to arrest him and, even the remand report shows that the police had to employ force to arrest him. He was taken to a Doctor by the arresting official (A1) even before he was produced before the learned Magistrate. Before the learned Magistrate he did not make any allegations against the police; but it would appear that he complained of pain. It was directed that he could be given medical treatment. Later, it is alleged by the complainant that he was tortured by the accused persons after he was taken into custody. 6. To me, it appears to be crucially and vitally relevant that even in the complaint the complainant did not make any **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 4 :- allegations or mala fides against any of the three accused persons. He has no case that the accused herein or any other police official had prior acquaintance with him or any such official entertained prior animosity against him. 7. The legal principle underlying Sec.197 of the Cr.P.C. is very clear and evident. Public Officials have the obligation to perform their public responsibilities and duties. While discharging such duties, it is very likely that they may have to tread on the toes of many persons. This exposes them to the threat/risk of criminal proceedings being initiated maliciously against them by dissatisfied and disgruntled elements. Law affords protection to the public official, that on such occasions, if the act is done or purported to be done in the discharge of the official duties, prosecution against them can be launched only with the sanction of the Government concerned. There is no contention before me (and there can be no such contention also) that the petitioners who are members of the Kerala Police Force and charged with duty of maintaining law and public order shall not be entitled to such protection if they were at the relevant time discharging or were **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 5 :- purporting to discharge their official duties. There has been perennial dispute as to whether the wider view or the restricted view is to be adopted while interpreting Sec.197 of the Cr.P.C. It has always been held that if a very restricted interpretation were accepted, it would render the provisions of Sec.197 of the Cr.P.C. sterile. It can never be said that it is the duty of a public official to commit any offence. It is not the law that a public official if he has actually committed offence is not entitled to the protection of Sec.197 of the Cr.P.C. Therefore, the view cannot be taken that the act alleged is an atrocious one, it does amount to a crime and therefore protection under Sec.197 of the Cr.P.C. would not be available. At the same time, if too wide an interpretation in favour of the public officials were accepted, the private citizen will remain without any efficacious and immediate remedy when his rights are trammelled by the officials under the colour of their official status. The courts have to carefully balance the rival interests while interpreting Sec.197 of the Cr.P.C. and also while applying the principles to give set of facts. 8. It is perhaps unnecessary to advert to various precedents. **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 6 :- I have always felt that the dictum in **Rizwan Ahmed Javed Shaikh v. Jammal Patel** (AIR 2001 SC 2198) has laid down the law about the real test to be applied succinctly in the following words: “The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as the public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected." **9.** In the decision of the three Judge Bench in **Sankaran Moitra v. Sadhana Das** (AIR 2006 SC 1599), this principle is referred to with approval and acceptance. **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 7 :- 10. Coming back to our facts, no mala fides are alleged at all. There is no contention that the accused persons, or any one in whom they are interested, knew or had any motive or mala fides against the complainant prior to the arrest in these cases. Even the allegations shows that the complainant was arrested as an accused in the said crime registered under the Kerala Abkari Act. The alleged conduct of the accused persons as revealed in the complaint further shows that they were going on interrogating the complainant about his involvement and the details of the said crime registered under the Abkari Act. It is seen that the accused had some pain/injuries when he was taken before the learned Magistrate. The crucial question is not whether the complainant had narrated his complaint/grievance before the learned Magistrate or not. It is the very specific case of the petitioners that the complainant had resisted the attempt to arrest and force had to be employed to effect the arrest. Thus, while the complainant asserts that injuries were suffered by him on account of the acts of torture of the petitioners, the petitioners have a very definite case that they had not tortured him and that he had **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 8 :- resisted the arrest and they had employed force to effect arrest. 11. It is certainly no part of the official duty of any police official to torture a person taken into custody or arrested legally. But the allegations of such torture raised against the police officials in these cases definitely relate to the time when they were acting in the discharge of their official duty. In that view of the matter, I am of opinion that Sec.197 of the Cr.P.C. must squarely apply and protect the accused persons from the obligation to face a prosecution without the requisite sanction. 12. The learned counsel for the complainant contends that in the facts of this case it is easy to come to the conclusion that the version of the complainant that he was assaulted in custody is more probable. At the stage of Sec.197 of the Cr.P.C. the question is not whether the accused has committed the offence or not. The question is only whether the alleged offences were committed while discharging or in the purported discharge of their official duty. It is not as though the officials are immune to any prosecution for the offence committed. The legal requirement is only that such prosecution can be only with sanction under ## **Crl.R.P. Nos. 3738 & 3966 OF 2007** **==> picture [34 x 10] intentionally omitted <==** Sec.197 of the Cr.P.C. The emotional arguments advanced that this would result in men in `Kakki' being a law unto themselves and that the public trust in the judicial system would be eroded if courts do not act effectively do not appear to be justified. The Supreme Court in **Sankaran Moitra v. Sadhana Das** has adverted to this very specific contention in para-73 in the following words: “The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197(1) of the Code cannot be by-passed by feasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 10 :- of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Sectopm 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of sanction.” **Crl.R.P. Nos. 3738 & 3966 OF 2007** **==> picture [40 x 10] intentionally omitted <==** 13. The question at this stage is not whether the petitioners had committed the offence or not. The question is only whether the alleged offence can be said to have been committed in the discharge or the purported discharge of their official duty. In the facts and circumstances of this case, I am of opinion that the question has to be firmly and certainly answered in favour of the petitioners. I may hasten to observe that this decision will not in any way fetter the rights of the complainant/1[st] respondent to seek sanction under Sec.197 of the Cr.P.C. from the Government and to launch a prosecution if and after such sanction is obtained. 14. With the above observations, these Criminal Revision Petitions are allowed. The impugned orders are set aside. Cognizance taken against the petitioners in C.C.No.1121/04 is held to be incompetent. ## **(R. BASANT, JUDGE)** ## **Nan/** **Crl.R.P. Nos. 3738 & 3966 OF 2007** -: 12 :-