Kerala High Court
E.J.Stanley vs Sebastian @ Juby on 30 May, 2008
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 662 of 2005()
1. E.J.STANLEY, S/O.E.J.JOCKEY,
... Petitioner
Vs
1. SEBASTIAN @ JUBY,
... Respondent
2. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.GEORGE THOMAS (MEVADA)
For Respondent :SRI.PEEYUS A.KOTTAM
The Hon'ble MR. Justice V.K.MOHANAN
Dated :30/05/2008
O R D E R
V.K.MOHANAN, J.
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Crl.M.C. No.662 of 2005
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Dated, 30th May, 2008
ORDER
The petitioner who is the accused in C.C.No.27 of 2003 on the file of the Judicial First Class Magistrate court, Nedumkandam approached this Court by filing this petition under Section 482 of Cr.P.C. to quash Annexure A2 complaint and C.C.No.27/2003 instituted thereon on the ground that the trial court has committed mistake in taking cognizance without sanction under section 197(2) of Cr.P.C. The averments contained in this petition in brief is as follows:
The Ist respondent assaulted one Raju @ Mathew on the basis of which Crime No.6/2002 of Nedumkandam police station was registered for the offences punishable under sections 143, 147, 148, 341, 294(b), 324, 427 read with Sec. 149 of IPC. Initially, the crime was investigated by the Sub Inspector of Police Nedumkandam. Dissatisfied with the perfunctory investigation conducted by the S.I. of Police, Nedumkandam police station, the Deputy Superintendent of Police, Kattappana, by his proceedings No.523/GL/128/02-KSD CRL.M.C.662/05 -:2:- dated 16.5.2002 which is marked as Annexure-I, directed the petitioner to conduct further investigation and rectify the defects in the charge sheet which has already been filed before the court concerned. On the basis of the Annexure I proceedings, the petitioner herein, on 25-5-2002, applied for sanction to conduct further investigation in crime No.6/2002 and accordingly, as per order dated 30-5-2002, sanction was accorded for further investigation. Thus, according to the petitioner, he is the investigating officer in Crime No.6/2002 of Nedumkandam Police station. Thereafter, on 5-7-2002, petitioner issued summons to the accused including the Ist respondent herein to appear before him. It is stated that the accused, including the Ist respondent herein were summoned to the police station for further proceedings and necessary follow up action and for the purpose of concluding the investigation. According to the petitioner, by 1.30 p.m., the accused persons were allowed to go out and have their lunch and they were directed to come back to the station after lunch. But according to the petitioner, thereafter they never came back as the accused were CRL.M.C.662/05 -:3:- apprehensive of arrest and laying of proper charges which would result in their conviction. So according to the petitioner, the accused tried to sabotage the investigation by foisting a false case against the petitioner and with the above intention, the Ist respondent got admitted in the Primary Health Centre, Nedumkandam with the allegation that he sustained injury at the hands of the petitioner. It is the further case of the petitioner that after two weeks, with the support of a financier one Antony @ Ponnachan who is figured as the 6th accused in crime No.6/2002, the Ist respondent filed a complaint before the court of the Judicial Magistrate of the First Class, Nedumkandam which is marked as Annexure 2. The learned Magistrate took cognizance upon Annexure 2 complaint and instituted C.C.No.27/2003 for the offences punishable under Sections 294(b) and 323 of IPC. The petitioner came to know about the filing of the complaint and taking of cognizance when he received Annexure 3 summons. It is the case of the petitioner that the Magistrate committed mistake in taking cognizance upon Annexure 2 complaint against the CRL.M.C.662/05 -:4:- petitioner as the complainant/Ist respondent has failed to obtain sanction under section 197(2) of Cr.P.C. According to the petitioner, even going by Annexure 2 complaint it is crystal clear that the alleged incident though it is admitted as true, that has taken place while the petitioner discharging his official duties. Therefore, the learned Magistrate has no jurisdiction to take cognizance upon Annexure 2 complaint without sanction as contemplated by Sec.197(2) of Cr.P.C. Therefore, it is prayed that Annexure 2 complaint and all proceedings thereon may be quashed.
2. I have heard Sri George Thomas Mevada, the learned counsel appearing for the petitioner as well as Sri Peeyus A Kottam, counsel for the Ist respondent and also the learned Public Prosecutor. So, the question to be considered in this case is whether the Magistrate is wrong in taking cognizance upon Annexure 2 complaint without sanction as contemplated by Sec.197(2) Cr.P.C.
3. I have gone through the materials available on record. Along with the Crl.M.C., the petitioner has produced Annexure 4 CRL.M.C.662/05 -:5:- which is a Notification of the Home (A) Department, Government of Kerala with an explanatory note which says:
" S.197 of the Criminal Procedure code affords protection from falls, vexatious or mala fide prosecutions to some categories of public servants in the shape of requirement of previous sanction of the Government concerned, when such public servants are accused of an offence, alleged to have been committed while noting or purporting to act in the discharge of their official duties. The members of the Armed forces of the Union are also protected. Government consider that members of the Kerala Police Force who are charged with the maintenance of public order are also in need of similar protection. The notification is issued to achieve this objective".
In the second paragraph of Annexure 4 Notification it is further stated:
"The above Notification and the Explanatory Note read with sub-sections (2) and (3) of S.197 will make it clear that sanction is necessary for launching prosecution against not only Sub Inspectors but a Constable of the Kerala State Police force, charged with maintenance of public order".
CRL.M.C.662/05 -:6:-
4. Going by Annexure 1 proceedings of the Deputy Superintendent of Police, Nedumkandam, it can be seen that the petitioner is entrusted with the investigation of crime No.6/2002 of the Nedumkandam police station. So in the light of Section 197(2) and in the light of the averments contained in this Crl.M.C., what is to be examined primarily is whether the alleged incident was occurred while the petitioner was discharging his official duty. Going by Annexure 2 petition, it is crystal clear that on 1-7-2002, one Police Constable attached to Nedumkandam police station approached and asked the complainant and the witnesses to be present before the Circle Inspector of Police/the petitioner herein at 11 a.m. on 4.7.2002 and according to the complainant, pursuant to the above direction, they went to the office of the Circle Inspector of Police and as the petitioner had gone to attend a conference, they were sent back with a direction to be present at 8 a.m. on the next day, i.e., on 5-7-2002. In paragraph 4 of the CRL.M.C.662/05 -:7:- complaint it is further stated that thus on 5-7-2007 at about 8 a.m. the complainant and the witnesses appeared in the office of the petitioner and by 10 a.m. the petitioner reached in the office and questioned the complainant and other witnesses. Thereafter asked them to keep outside with a warning that they will be called again. It is the further case of the complainant that thereafter by 1.30 p.m. the de facto complainant in crime No.6/2002 and the 6th witness in the complaint came into the room of the petitioner and sat facing the petitioner and thereafter the complainant and other witnesses were called to his office room and asked the complainant whether he had taken Rs.15,000/- belonging to Jose and further asked as to where it is concealed and further told that if it is confessed as the money was taken, they will be writ large. It is also the case of the complainant that as an answer to the above question he had replied that he had not forcibly taken money from anybody and that he had no acquaintance with the said Jose. It is the CRL.M.C.662/05 -:8:- further case of the complainant that on hearing such reply, the petitioner abused him with obscene words and also assaulted him. On the basis of the so called incident, the complainant preferred Annexure 2 complaint. The petitioner submitted that going by the averments contained in the complaint it can be seen that the petitioner who is in charge of investigation in crime No.6/2002 of Nedumkandam police station summoned the accused therein who is the complainant and the witnesses and while discharging his duty as an investigating officer he had just questioned the accused therein and the same is sufficient to show that even if the alleged incident as true - not conceded - it has taken place while discharging the official duty conferred upon the petitioner. So, the crucial question to be considered is not the correctness of the alleged incident but even if the incident is admitted as true, whether it was taken place while discharging the duty by the petitioner. Whether the petitioner had exceeded his right or gone beyond his power is CRL.M.C.662/05 -:9:- a matter to be considered separately. From the averments contained in Annexure 2 complaint itself and from the available materials produced by the petitioner, it is crystal clear that the petitioner was in charge of investigation of crime No.6/2002 of Nedumkandam police station and towards the discharge of his duty, the Ist respondent/complainant and other accused in the said crime were summoned to his office and as he has no time, the accused were asked to report on the next day on which they were questioned as part of investigation in the above crime. So, I am of the view that even if the alleged incident is taken as true, the same has taken place while the petitioner was discharging his official duty.
5. In support of the contention raised by the petitioner, reliance was placed upon the decision of the Apex Court reported in Sankaran Moitra v. Sadhna Das {(2006) 4 SCC 584} and also the decisions of this Court in Shoukkathali v. State of Kerala (2005 (3) KLT 634) and Sunil Kumar v. CRL.M.C.662/05 -:10:- State of Kerala (2007(4) KLT 359). In paragraph 25 of the decision in Sankaran Moitra's case, the apex court has held:
"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 bypassed by reasoning 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 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 CRL.M.C.662/05 -:11:- 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 Section 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 such sanction".
In Shoukkathali v. State of Kerala (2005(3) KLT 634), a learned Judge of this Court has held as follows:
"The protection afforded by S.197 would be illusory if the words "any offence alleged to have been committed by him while acting or purporting to act on the discharge of his official duty" is given a narrow meaning. Official duty implies that the act or omission must have been done by him, in the curse of his service and in discharge of his duty. Once any act or omission has been found to have been committed by a public servant in discharge of his duty, then it must be given liberal and wide construction so as to advance the objection of the section in favour of the public servant. Sub Inspector of Police is an officer against whom CRL.M.C.662/05 -:12:- sanction as provided under S.197(1) of Cr.P.C. is mandatory".
Another learned Judge of this Court in Sunil Kumar v. State of Kerala (2007 (4) KLT 359) has held which reads as follows:
"It can certainly be held that it is not the official duty of the public servant to use the towel around the neck of the accused person to be apprehended and tighten the same. It may not be proper to come to a conclusion that the alleged act is so totally outside the official duty or purported official duty of the official concerned as to lead the Court to a conclusion that he is not entitled to the protection under S.197 of the Cr.P.C. The purpose of S.197 of the Cr.P.C. is to afford the public servant protection subject to the grant of sanction by the Government against unnecessary indictment by persons on whose feet he may have to tread while discharging his official duty. So considered, it cannot at all be held that the alleged conduct is so alien to the official act which the petitioner and the co-accused were performing as to deprive them of the protection under S.197(3) of the Cr.P.C. on the basis of the Notification dated 6-12-1977"..
In the above decision, the learned Single Judge has also considered the decision of the Apex court in Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001 (2) KLT SN 77)(C.No.98) = AIR 2001 SC 2198) CRL.M.C.662/05 -:13:- and quoted the same which reads as follows:
"The real test to be applied to attract the applicability of S.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".
Thus according to the counsel for the petitioner, the petitioner is entitled to the protection under section 197 of Cr.P.C. and in the absence of sanction as required by Sec.197(2), the learned Magistrate is wrong in taking cognizance against the petitioner.
6. Per contra, Sri Peeyus A Kottam, the counsel appearing for the Ist respondent/complainant submitted that the acts complained of against the petitioner is not within his official duty or not part of discharge of his official duty. Therefore, no sanction is necessary as a condition precedent for taking cognizance against the petitioner. In support of the above contention, the CRL.M.C.662/05 -:14:- learned counsel for the Ist respondent/complainant placed reliance on the decision of the Apex Court in Kalimuthu v. State (2005) 4 SCC 512) and the decision in Rakesh Kumar Mishra v. State of Bihar (2006) 1 SCC 557). In the latter decision cited supra, the Apex Court has held that "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". In the very same decision while defining the official duty, the Apex Court held as follows:
"Use of 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. This section does not extend its protective cover to every act or omission done by a 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".
There is no doubt regarding the dictum laid down by the Apex Court in the above decision.
7. Going by the facts and circumstances involved in the case, it can be seen that as admitted by the Ist CRL.M.C.662/05 -:15:- respondent/complainant in Annexure 2 complaint, the complainant and the witnesses who are the accused in crime No.6/2002 of Nedumkandam police station which being investigated by the petitioner as per the special order namely, Anneuxre 1 issued by the Deputy Superintendent of Police, Kattappana summoned to the office of the petitioner and all questions put to them were part and parcel of the investigation in the crime in which they are accused. In the light of the decision reported in Sunil Kumar v. State of Kerala (2007(4) KLT 359), especially on the basis of the decision of the Supreme Court in Rizwan Ahmed Javed Shaikh v. Jammal Patel (AIR 2001 SC 2198), even if the act alleged is taken as true, it can be said that it was part of the official duty of the petitioner.
8. The object of section 197 of Cr.P.C. is not to prevent the aggrieved persons from prosecuting an officer who committed wrong or who exceeded his jurisdiction, but to give protection to the officers those who are discharged their duties and to save them from frivolous proceedings and harassment. Even if the complainant stick on the allegation against the petitioner, he can prosecute the petitioner after obtaining necessary sanction under section 197 of Cr.P.C. But the facts and circumstances involved in CRL.M.C.662/05 -:16:- the case shows that the alleged incident was taken place while discharging the official duty by the petitioner who is a police officer and therefore Magistrate ought to have considered the scope of Section 197 of Cr.P.C. and cognizance would not have been taken without previous sanction as contemplated under section 197 (2) of Cr.P.C. Therefore, according to me without previous sanction as contemplated under section 197(2) of Cr.P.C., Annexure 2 complaint is not maintainable and the Magistrate is wrong in taking cognizance upon Annexure 2 complaint.
In the result, Annexure 2 complaint and C.C.No.27/2003 pending before the Court of Judicial Magistrate of First Class, Nedumkandam are quashed. The Crl.M.C. is allowed.
V.K.MOHANAN, JUDGE.
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