Kerala High Court
Revision vs A. Rajesh Aged 35 Years on 10 June, 2020
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942
Crl.Rev.Pet.No.767 OF 2012
CRMP 1176/2011 DATED 16-03-2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,
KUNNAMKULAM
REVISION PETITIONER/COMPLAINANT
A. RAJESH AGED 35 YEARS,
S/O.RAMAN NAIR, AMMASOM VEETTIL, PUNNAYURKULAM VILLAGE, CHERAYI
DESOM, ANDATHODU P.O., CHAVAKKAD, THRISSUR DISTRICT, PIN
679564.
BY ADVS.
DR.V.N.SANKARJEE
SRI.V.N.MADHUSUDANAN
SRI.S.SIDHARDHAN
SMT.R.UDAYA JYOTHI
SRI.M.M.VINOD
SMT.M.SUSEELA
SRI.SUDHAKARAN V.
SMT.ARYA BALACHANDRAN
SMT. KEERTHI B. CHANDRAN
RESPONDENTS/STATE AND ACCUSED 1 TO 6
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
2 SAJIN SASI
SUB INSPECTOR OF POLICE, VADAKKEKKAD, THRISSUR DISTRICT, PIN
679564.
3 SURENDRAN
POLICE CONSTABLE, VADAKKEKAD, PIN 679564.
4 JOSHI,ASSISTANT SUB INSPECTOR OF POLICE, VADAKKEKKAD, PIN
679564.
5 DINESAN, POLICE CONSTABLE, VADAKKEKAD, PIN 679564.
6 STEPHEN
POLICE CONSTABLE, VADAKKEKAD, PIN 679564.
BY ADV. SRI.K.K.DHEERENDRAKRISHNAN
BY ADV. SRI.S.RAJEEV
SR.PP- SRI. M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.5.2020,
THE COURT ON 10.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.R.P.767/2012
2
ORDER
1.This revision petition has been filed against the dismissal of Crl.M.P.1176/2011 dated 16.3.2012 on the file of Judicial First Class Magistrate Court, Kunnamkulam.
2.Revision petitioner is the complainant in the private complaint filed against respondents 2 to 6 the Sub Inspector of police and other police constables and Asst Sub Inspector of Police of Vadakkekkad Police Station of Chavakkad Taluk. The case of the revision petitioner is that he has been illegally detained and tortured with third degree methods by respondents 2 to 6 after falsely implicating him as accused in crime No.119/2009. According to him, on 26.7.2010 at 12 noon, while he was standing at Guruvayoor railway station, two police men took him to Guruvayoor police station and after keeping him there for some time, Vadakkekkad police was Crl.R.P.767/2012 3 intimated. The second respondent herein along with other police men came in a jeep and he was taken to Vadakkekkad police station. Thereafter he was tortured brutally by the respondents on 26.7.2010 and 27.7.2010. It is also his allegation that his uncle had filed a complaint alleging commission of offence under Sec.420 IPC which has been registered as crime No.119/2008 in which there is no allegation against him. In spite of that, he has been implicated as an accused and subjected to custodial torture. He would also allege that the torture was made directing him to withdraw the case, C.C.590/2010, filed by his mother Parameswari Amma before the Judicial Magistrate of First Class, Kunnamkulam. His mother has also filed a complaint in connection with the same to the Chief Minister, Home Minister and Director General of Police against the second respondent and others and that is also a reason for enimity Crl.R.P.767/2012 4 to the respondents towards him. Even though he was taken from Guruvayoor police station at 12 noon on 26.7.2010, his family members were not intimated and his arrest was also not recorded. After the intimation of his illegal confinement, his mother and sister came to the police station on 27.7.2010 at noon but respondents 2 to 6 denied the factum regarding the taking in custody of the petitioner initially and on their subsequent queries it was admitted but he was not permitted to talk to them. On 28.7.2010 mother filed Crl.M.P.6312/2010 in which an Advocate Commissioner was appointed and the Commissioner inspected the police station. Thereafter, during night on that day, he was produced at the residence of the Magistrate. The Magistrate has recorded his statements. As per the direction of the Magistrate, he was taken from Chavakkad sub jail to Taluk hospital on 28.7.2010 during night itself and though the Crl.R.P.767/2012 5 doctor stated that he has to be admitted and treated, the policemen were not willing for the same. Thereafter on the immediate next day he was released on bail and undergone treatment at Royal hospital. Even though police was intimated, nobody turned up. Only after his mother filed Crl.M.P.6312/2010 his arrest was recorded falsely on 28.7.2010 at 11 am. So the act of the accused amounts to offence under Secs 166, 211, 220, 294B, 323, 324, 341, 357, 506(1) read with Sec.149 IPC. It is also alleged that he had filed W.P.(C).2877/2010 before the High Court seeking for damages for the illegal acts of respondents 2 to 6 in which he has been directed to resort to appropriate remedy for his redressal and accordingly the complaint has been filed. Though statements of the revision petitioner and two witnesses were taken, the court below by the impugned order dismissed the complaint. Aggrieved by the same, the revision Crl.R.P.767/2012 6 petitioner came up before this Court.
3.Heard the counsel for the revision petitioner and the counsel for respondents 2 to 6. Public Prosecutor was also heard on behalf of the first respondent.Perused the records.
4.According to the learned counsel for the revision petitioner, the court below went wrong in finding that there is nexus between the official act of all the accused and the complaint made by the complainant. It is also his contention that without properly deducting the principles laid down by the Apex Court in Public Interest Litigation and anotherV Union Of India and another(2005 (8) SCC 202), the court below erroneously found that the accused were discharging their official duties as public servants and even if there was any excesses, they are protected from the prosecution by the Crl.R.P.767/2012 7 shield under Section 197 Cr.P.C. According to him, it is the specific allegation in the complaint filed by the revision petitioner that he has been taken into custody on 26.7.2010 at about 12 noon from the railway station and only when his mother filed the Crl.M.P on 28.7.2010, hastily his arrest was recorded on that day at 11 am suppressing the fact of taking him in custody on 26.7.2010. He was brutally manhandled and subjected to third degree methods and all those acts will not come within the purview of discharge of official duties. It is also his contention that he is innocent in crime No.119/2009 registered at the instance of his uncle and there is no allegation in the complaint against him and respondents 2 to 6 in order to assist the land mafia, implicated the complainant as an accused in the crime and ultimately after trial he has been acquitted also. It is also his contention that at the Crl.R.P.767/2012 8 instance of respondents 2 to 6, he was pressurized to withdraw the complaint filed at the instance of his mother.
5. To substantiate his contention the learned counsel produced Annexure-I (alleged to be dated 15,10.2010)which is a paper cutting of Kerala Kaumudi daily in which there is specific report with regard to the illegal arrest and detention of the revision petitioner at the instance of land mafia by the police. There is specific reference with regard to the name of the complainant/revision petitioner and the second respondent. A very detailed report regarding the custodial torture and the act of land mafia have been given in that daily.
6. Annexure-II is the copy of the complainant filed by the revision petitioner on 14.8.2010 before the DGP in connection with his illegal Crl.R.P.767/2012 9 arrest and torture. Annexure-III is the copy of the judgment in W.P.(C).28778/2010 dated 25.11.2010 which was filed by the revision petitioner against respondents 2 to 6 seeking for a writ of mandamus for directing the State of Kerala and also the Secretary, Department of Home Affairs to act upon Ext.P1 complaint referred therein and further to direct the Secretary, Home Department to give sufficient compensation for the physical and mental torture of respondents 2 to 7 and further sought for police protection unconnected with respondents 2 to 7 who are respondents 1 to 6 in the complaint. He would also contend that as per the directions in Annexure-III judgment, he has filed the complaint before the Judicial First Class Magistrate which has been dismissed causing great miscarriage of justice to him.
7.The learned counsel for respondents 2 to 6 on Crl.R.P.767/2012 10 the other hand would contend that the revision petitioner is involved in various other criminal cases of similar nature and it is on proper verification of his involvement in the crime that he has been arrayed as accused in crime No.119/2009 and as a part of investigation, he has been taken into custody on 28.7.2010 and arrested on that day. He also refuted the allegation of the revision petitioner that he has been taken from Guruvayoor railway station on 26.7.2010. According to him, even if there is some excesses on the part of respondents 2 to 6 in arresting the revision petitioner as has been rightly found by the court below, the respondents being the public servants, sanction under Sec.197 of Cr.P.C ought to have been obtained prior to the filing of the complaint. Dismissal of the complaint for want of sanction is only justifiable and no intervention is necessary at the instance of this court. He Crl.R.P.767/2012 11 would also contend that there is no harm in proceeding with the complaint if at all the revision petitioner obtained sanction as contemplated under Sec.197(1) Cr.P.C which is a protective shield to the public servants from dragging to unnecessary litigations from unscrupulous litigants.
8.The learned counsel for the respondents in this context also took my attention to various portions in Annexure-3 judgment of this Court in W.P.(C).28778/2010 wherein it has been stated thus :
"Reference to another cheating case is also pending investigation in Guruvayoor police station in crime No.236 of 2009. It is also stated that Vadakkekkad police station has received three petitions in recent past against the petitioner from Suresh Kumar, Savin and Subaida respectively alleging that the accused had deceived the petitioners Crl.R.P.767/2012 12 using various methods. A warrant from Metropolitan Magistrate Court, Calcutta was received from Vadakkekkad police station against the petitioner. There is reference to the investigation in crime No.119/2009 revealing various aspects. It inter alia states that a caucus is revealed to be operating in this field, ie, collecting documents and title deeds from innocent parties under some pretext and then forging documents pledging it with banks for huge amount. It is stated that the petitioner herein was a party to the conspiracy and had supplied the title deed and other documents without the knowledge and consent of his mother and uncle and collected a substantial amount from the loan amount".
9.Based on the above he would contend that the revision petitioner is involved in several cheating cases, he has close contact with land mafia and has amassed huge amount from bank and hence he was arrested on 28.7.2010 in connection with crime No.119/2009.
10. But the learned counsel for the revision Crl.R.P.767/2012 13 petitioner in this context would vehemently contend that observations made by the Hon'ble High Court in Annexure-III which is extracted above is based only on the statements made from the side of the respondents. He would also contend that it is the present respondents No.2 and others who were giving advise to the public prosecutor during the relevant time since they were in charge of the concerned police station. In other words, according to him, those discussions in the above paragraph are not findings of the court. He would also contend that in the crime alleged to have been filed by one Balakrishnan at Guruvayoor police station, he was not an accused but that also has been incorrectly stated before this Court at the time of disposal of the writ petition referred above.
11. Yet another contention of the learned counsel for the respondents is that the Crl.R.P.767/2012 14 complaint has been filed after a period of six months prescribed under Sec.64(3) of the Kerala Police Act then in force. Hence the complaint filed in the year 2011 is barred by limitation and is not maintainable in law also.
12. To prove the allegations in the complaint prima facie the complainant/revision petitioner himself was examined and statements of two witnesses were also taken. The revision petitioner and two witnesses stated that he was taken by two police men from Guruvayoor railway station on 26.7.2010 at 12 noon. The revision petitioner also stated in detail regarding the physical torture meted out by him at Vadakkekkad police station. PW2 and 3 also state in corroboration that the revision petitioner was taken from Guruvayoor railway station on 26.7.2010.
Crl.R.P.767/201215
13. According to the learned counsel for the revision petitioner, prima facie the revision petitioner is to establish that he has been taken into custody on 26.7.2010 at about 12 noon where as the respondents stick to the stand that he has been taken into custody and arrested only on 28.7.2010. He would also contend that only when his mother approached the Magistrate Court ,and filed a complaint alleging about his illegal confinement, on the very same day his arrest was recorded on 28.7.2010. So there are prima facie material which could be brought in by the revision petitioner to show that respondents 2 to 6 were not acting in discharge of their official duty by keeping him in illegal confinement for more than 24 hours and subjecting him to physical torture. He also produced copy of discharge card issued by the Royal hospital, Kunnamkulam to show that he has undergone treatment from 29.7.2010 to 2.8.2010 Crl.R.P.767/2012 16 at that Hospital. On perusing the discharge card, diagnosis noted as follows:
myalagia both sole feet, contused abrasion back of chest - linear, pain right parietal eminence -head.
14. It is true that the learned counsel for the respondents disputed the discharge card on the ground that it does not bear any date and signature. But on perusing the same it is seen that there is no column for date and date of admission and date of discharge have been clearly shown and entries are also seen to have been made by the doctor. It is true that it does not contain the signature of the doctor. Usually such type of discharge cards are also used to be issued from the hospitals for which the patients cannot be found fault with. But the statement of doctor was not taken and discharge card was not marked. So the learned magistrate could not have Crl.R.P.767/2012 17 acted upon it. The copy of the statements given by the revision petitioner to the Magistrate while producing him at the residence of the Magistrate is also seen produced as Annexure-7 additionally in which he has made specific statements that he has been taken from Guruvayoor railway station the day before his production before the Magistrate. The production was on 28.7.2010 at about 7.30 pm. when produced before the Magistrate also, he has stated about his confinement from 26.7.2010.
15. According to the learned counsel, prima facie materials produced by him would show that he has been under confinement from 26.7.2010 onwards and such confinement exceeding the period of 24 hours cannot at any moment be taken as legal and which in turn cannot be taken in aid by the respondents as in the course of discharging their official duties and hence Crl.R.P.767/2012 18 sanction is not at all necessary for prosecuting the respondents.
16. In this context the learned counsel for the revision petitioner took my attention to Ramesh Lal Jain v. Naginder Singh Rana and Others (2006 KHC 30 [SC]) wherein while dealing with Sec.197 Cr.P.C with regard to the sanction for prosecution and the distinction between the sanction under Sec.197 Cr.Pc and Sec.19 of the Prevention of Corruption Act,1988 it has been held that an order of sanction in terms of Sec.197 is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith. Paragraph 33, 38 and 39 highlighted by the learned counsel, read thus :
33. "The upshot of the aforementioned Crl.R.P.767/2012 19 discussions is that whereas an order of sanction in terms of S.197 Cr.P.C is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts.
Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined.
38. The question as to whether an order of sanction would be found essential would thus, depend upon the facts and circumstances of each case. Crl.R.P.767/2012 20 In a case where ex facie no order of sanction has been issued when it is admittedly a prerequisite for taking cognizance of the offences of where such an order apparently has been passed by the authority not competent therefor, the court may take note thereof at the outset. But where the validity or otherwise of an order of sanction is required to be considered having regard to the facts and circumstances of the case and furthermore when a contention has to be gone into as to whether the act alleged against the accused has any direct nexus with the discharge of his official act, it may be permissible in a given situation for the court to examine the said question at a later stage.
39. We may hasten to add that we do not intend to lay down a law that only because a contention has been raised by the complainant or the prosecution that the question as regards necessity of obtaining an order of sanction is dependent upon the finding of fact that the nexus between the offences alleged and the official duty will Crl.R.P.767/2012 21 have to be found out upon analyzing the evidences brought on record; the same cannot be done at an earlier stage. What we intend to say is that each case will have to be considered having regard to the fact situation obtaining therein and no hard and fast rule can be laid down therefor."
17. So from the principles of law laid down in the above decision it has to be deducted that the question whether an order of sanction would be found essential will depend upon the facts and circumstances of each case. In the instant case, the specific allegation of the revision petitioner is that he has been taken to the police station on 26.7.2010 and thereafter, put under illegal confinement and subjected to third degree methods and only when his mother approached the court and complained about the illegal confinement, his arrest was recorded. Crl.R.P.767/2012 22
18. The learned counsel further refers Amal Kumar Jha v. State of Chhattisgarh ((2016) 3 SCC (Crl) 160) wherein it has been held that protection under Sec.197 is available only when alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing objectionable act. If in doing his official duty he acted in excess of his duty, but there is a reasonable connection between the act and performance of official duty, excess will not be a sufficient ground to deprive public servant of protection. It is also held that the question is not as to the nature of offence such as whether alleged offence contained element necessarily dependent upon offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in discharge of his official capacity. Crl.R.P.767/2012 23
19. In the above case the appellant/accused was in charge of a hospital where operation of deceased was conducted. Allegation against appellant was of omission in discharge of official duty in not providing government vehicle for shifting patient from Primary Health Centre to District Hospital, and patient died for want of treatment, whereas appellant himself travelled in vehicle in question for attending monthly official meeting at District Headquarters. It was held therein that the appellant was in discharge of his official duty when he refused to provide official vehicle since the refusal is reasonable and sanction is to be required for prosecution as provided under Section 197(1). So the question for determination is whether act done by the public servant is reasonably connected to the discharge of his official duty and that has to be decided based on the facts and circumstances of each Crl.R.P.767/2012 24 case.
20. The learned counsel also quoted Unnikrishnan v. Alikutty (2000 KHC 659 [SC] ). In that case the police officer assaulted a prisoner in lock up. While discussing whether he is entitled for the benefit of Sec.64(3) it has been held that the police officer cannot claim such act to be connected to the discharge of his authority or excesses of his duty unless it is established that it was done in his defence or defence of others or any property. It is also held that a policeman keeping a person in lock up for more than 24 hours without authority is not merely abusing but his act would be quite outside the contours of his duty or authority. Paragraph 20 of the said judgment is relevant and is extracted below.
"If a police officer dealing with law Crl.R.P.767/2012 25 and order duty, uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of S.197 of the Code as well as S.64(3) of the K.P.Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property.
Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a court if would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority."Crl.R.P.767/2012 26
21. The learned counsel for the revision petitioner further took my attention to Surinderjit Singh Mand v. State of Punjab ((2016) 8 SCC 722) (this decision was cited by learned counsel for respondents 2 to 6 also). The learned counsel would vehemently contend that the fact situation in that case was very similar to the case in hand and in that case a person was arrested on 24.6.1999 but his arrest was recorded on 28.6.1999 and the police officials contended that he has been arrested on 28.6.1999 and following the dictum laid down in Unnikrishnan's case referred supra, it was held that, the alleged occurrence in detaining 'N' for the period from 24.6.1999 to 28.6.1999 could not be said to have been committed by them while acting or purporting to act in the discharge of their official duties. Hence no sanction for the prosecution was required. It is true that the Crl.R.P.767/2012 27 learned counsel for the respondents also cited the parallel citation (2016 KHC 6448) wherein the head note has been formulated under the head of Sec.319, S.197 Cr.P.C and it has been held that even if the accused is summoned under S.319, the mandate of S.197 Cr.P.C would extend. The learned counsel for the respondent also highlighted paragraph 22 of the said decision wherein it has been held that S.197 of the 'Code' and sanction mandated under a special Statute (as postulated under S.19 of the Prevention of Corruption Act) would be a necessary per-requisite, before a court of competent jurisdiction, takes cognizance of an offence (whether under the Indian Penal Code, or under the concerned special statutory enactment). It is concluded by holding that there is no merit in the said contention advanced at the hands of the respondent that where cognizance is taken under S.319 of the Crl.R.P.767/2012 28 'Code', sanction either under S.197 of the Code or under the concerned special enactment is not a mandatory pre-requisite.
22. The above portion is confined in answering the question while invoking S.319 Cr.P.C and adding another accused, whether sanction under S.197 Cr.PC is to be obtained or not. With regard to the allegation of illegal detention and obtaining of sanction under S.197 Cr.P.C the Apex Court by the said judgment has entered into a categoric finding in the previous paragraph. That is in paragraph 17 of (2016 KHC 6448).
23. It is true that the learned counsel for respondents 2 to 6 also took my attention to Somchand Sanghvi v. Bibhuti Bhusan Chakravarty (1964 KHC 380). In that case while dealing with S.197 Cr.P.C it was held that in order to maintain a complaint against a police officer Crl.R.P.767/2012 29 for wrongful confinement to extort a confession or compel restoration of property sanction under S.197 Cr.P.C is mandatory. But in that case the only allegation by the complainant was that the Assistant Commissioner of police had committed an offence under S.348 IPC in order to extort a confession or compel restoration of property. But in that case there is no allegation of keeping him under confinement for more than 24 hours and the allegation is that the respondent police officer questioned the appellant when produced at his office and asked him to restore the man who had lodged the complaint, who had cheated the appellant and two others. The said case has no application to the fact situation of the case in hand.
24. The learned counsel further took my attention to Viswambharan P. V State of Kerala (2010 KHC 6281) wherein it has been held that, Crl.R.P.767/2012 30 the matter to be considered while determining sanction under S.197 Cr.P.C is whether the acts alleged against the petitioner committed either in discharge of his official duty or purported to be in discharge of his official duty. If act alleged is done in discharge of his official duty or purported to be in discharge of his official duty he is entitled to protection. That is the principle which has been laid down in all cases and it will not in any any way help the respondents.
25. The learned counsel also took my attention to Unni Rajan v. State of Kerala (2012 (2) KHC
707) wherein it has been held that even assuming that the police officer assaulted the accused at the time of interrogation, assault is said to have caused while discharging his official duties and sanction is necessary. But it is to be noted that it has also been found in that Crl.R.P.767/2012 31 case that doctors have certified that no injury has been caused and complaint was filed after six months. So taking all those factors into account it has been held that sanction is necessary.
26. The learned counsel also took my attention to Unnikrishnan v. State of Kerala and others (2014 (1) KHC 575) wherein it has been held that for prosecuting any member of Kerala State police, notwithstanding their rank, sanction under Sec.197 Cr.P.C is required provided they are charged with duty of maintenance of public order. It was also held, in a case of allegation that Assistant Sub Inspector did not produce the accused before concerned magistrate within 24 hours and coerced the accused to execute certain documents, requirement of sanction is necessary, the test is whether the alleged act would come under act of discharge of official duty. So even Crl.R.P.767/2012 32 though Assistant Sub Inspector abused his power and authority since the alleged act came under the act in discharge of his official duty, sanction is required to prosecute him.
27. But as has been rightly pointed out by the learned counsel for the revision petitioner in (2016 KHC 6448 SC) referred above, it has been categorically held that when arrest and detention was illegal and unauthorised, there is no requirement of sanction in prosecuting the police officers and such arrest and detention cannot be held as done in discharge of official duties. In that case the factual position expressed by the appellant was that Neeraj Kumar (complainant) was not detained for the period from 24.6.1999 to 28.6.1999 and his detention during the above period if true, would certainly not emerge from the action of the accused by acting or purporting to act in the position of Crl.R.P.767/2012 33 the official duties. It is also held that if it emerges on evidence adduced before the trial court that Neeraj Kumar was actually detained during the period from 24.6.1999 to 28.8.1999, the said detention cannot be taken to have been made by the accused by acting or purporting to act in discharge of the official duties. But it is not the case of the appellants that they had kept Neeraj Kumar during the period from 24.6.1999 to 28.6.1999. If they had been detained him during that period, it is not open to anyone to assume the position that the detention of Neeraj Kumar during the above period was while acting or purporting to act in discharge of official duties. So it was held that on the legal position declared in Unnikrishnan's case it has to be held that sanction for prosecution of the accused in relation to the detention of Neeraj Kumar for the period from 24.6.1999 to 28.6.1999 would not Crl.R.P.767/2012 34 be required if a court of competent jurisdiction takes cognizance with regard to the alleged arrest of Neeraj Kumar.
28. In this case the learned magistrate while passing the impugned order it has been found that there is reasonable connection between the official duties and the complaint made by the accused. Hence the court below was of the view that the accused were discharging their official duties as public servants and even if there was any excess they are protected from prosecution by the shield under Sec.197 Cr.P.C.
29. But it is to be noted that the revision petitioner had got a specific case that he was taken into custody by the accused on 26.7.2010 at 12 noon and was produced before the magistrate only on 28.7.2010 by night and he was subjected to custodial torture also. On perusing Crl.R.P.767/2012 35 the file it is seen that the copy of the statement given by the revision petitioner while producing before the magistrate on 28.7.2010 at 7.30 pm is seen produced as additional document No.7 in which also he has made specific allegation that he has been taken into custody at 12 noon, day before yesterday of producing him before the magistrate and thereafter, he has given a detailed narration of the custodial torture meted out by him at the instance of the respondents. The copy of Crl.M.P.6312/2010 dated 28.7.2010 filed by the mother of the revision petitioner alleging that he has been taken into custody on 26.7.2010 and seeking for a direction for producing him before the court is also produced as additional document No.9. Coupled with this, the statements of the revision petitioner and two witnesses stated in corroboration that the revision petitioner had been taken into custody on 26.7.2010 from Crl.R.P.767/2012 36 Guruvayoor railway station at 12 noon have also been produced as Annexures-A11, A12 and A13.
30. The revision petitioner has also produced copy of the paper cuttings wherein there is a report with regard to the custodial torture and implication of the revision petitioner in false case. There is also reference with regard to the land mafia and false implication of the revision petitioner in the criminal case and the allegation of false implication against the Vadakkekkad sub inspector by helping the agent and the land mafia.
31. It is true that the learned counsel for respondents 2 to 6 has also got a contention that the complaint is barred under Sec.64(3) of the Kerala Police Act since the incident took place on 26.7.2010, the complaint has been filed after six months on 19.2.2011. The copy of the Crl.R.P.767/2012 37 complaint has been produced as additional document No.8 from the side of the petitioner. In this context it is to be noted that admittedly by both sides the revision petitioner had filed W.P.(C).28778/2010 before this Court seeking for a writ of mandamus to direct respondents 1 and 8 to act upon Ext.P1 and act upon respondents 2 to 7. A direction was also sought against the 8th respondent, ie, the State, to grant effective and sufficient compensation to the petitioner for physical and mental torture of respondents 2 to 7. Police protection was also sought unconnected with respondents 2 to 7 preferably from another distant station. So it would go to show that revision petitioner has approached this Court earlier within six months and obtained an order from this court reserving his right to approach any superior officer and seek such relief and it is after that the present compliant has been filed.
Crl.R.P.767/201238
32. It is relevant in this context to quote Unnikrishnan v. Alikutty referred supra wherein while dealing with Sec.64(3) of the Police Act it has been held that a police officer who assaulted a prisoner in lock-up cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. It is also held that a policeman keeping a person in lock up for more than 24 hours without sanction of the magistrate or an order of a court would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. In paragraph 22 of the said judgment it has also been found that sub sec.3 of Sec.64 of the Kerala Police Act if given the interpretation sought for by them for the Crl.R.P.767/2012 39 appellant in that case it would give rise to calamitous consequences, eg, if a police officer inflicts torture on a prisoner inside the lock- up and he knows that the right of the prisoner to move within the time prescribed for such acts would stand permanently debarred after the expiry of six months, he might inflict such sorts of physical harm to the prisoner as to disable him from moving out for the next six months so that the offending policeman would stand permanently immuned from any prosecution proceedings in respect of the offences committed by him. So in such a situation the Apex Court was not inclined to afford the benefit envisaged under Sec.64(3) of the Act to the appellants in that case.
33. In order to ascertain the above factors the factual aspects brought out during the enquiry has to be appreciated by the court concerned Crl.R.P.767/2012 40 then only a definite opinion can be arrived at with regard to the benefit under Sec.64(3) of the Act. The court below without examining or considering the statements and the other materials produced from the side of the revision petitioner ought not have jumped to a conclusion regarding the maintainability of the complaint on the ground of the sanction under Sec.197 (2) Cr.P.C alone.
35. The learned counsel for respondents 2 to 6 also in this context would further contend that the question whether sanction under Sec.197 is required or not is now pending consideration before the larger bench of the Apex Court in Manjju Surana v. Sunil Arora (2018 KHC 6224) and he would also take my attention to Muhammed V.A. v. State of Kerala (2019 (1) KHC 239) wherein a division bench of this court while determining the question of Sec.197, 156(3) Cr.P.C has Crl.R.P.767/2012 41 held that since the question is referred to a larger bench of the Supreme Court in Manjju Surana's case unless a final decision is taken in the above case,the dictum laid down in Anil Kumar v. M.S.Aiyappa (2013 KHC 4790) to the effect that the special Judge/Magistrate cannot refer a complaint for investigation under Sec.156(3) against a public servant without a valid sanction from the Government holds the field. But it is to be noted that the question arose in that case was whether prior sanction for prosecution against a public servant is required before the setting in motion even the investigation process under Sec.156(3) Cr.P.C On looking at the dictum laid down in Anil Kumar's case supra it could be seen that it was a case in which the question arose as to whether in a private complaint the magistrate directing investigation under Sec.156(3) Cr.P.C is justified or not without a valid sanction order. Crl.R.P.767/2012 42 It is also held that requirement of sanction is a pre-condition for ordering investigation under Sec.156(3) even at the stage of pre-cognizance stage. It is also to be noted that both the above decisions arose in the context of the Prevention of Corruption Act,1988 and sanction under Sec.19 to be obtained or not in a private complaint prior to forwarding of the same for investigation under Sec.156(3) Cr.P.C to the police. But here the situation is quite different and it is relevant in this context to quote Romesh Lal Jain v. Naginder Singh Rana (2006 KHC 30 [SC] ) wherein sanction for prosecution under Sec.197 Cr.P.C and sanction under Sec.19 of the Prevention of Corruption Act,1988 has been dealt with and in paragraph 11 it has been categorically stated that sanction required under Sec.197 Cr.P.C and sanction required under 1988 of P.C Act stand on a different footing. So the dictum laid down in Crl.R.P.767/2012 43 Anil Kumar's case referred supra and that of the division bench of this Court in Muhammed V.A's case, will not have any application to the present case.
35. Based on the above discussions, I am of the considered view that the impugned order passed by the court below dismissing Crl.M.P.1176/2011 under Sec.203 Cr.P.C without considering the statements of the complainant and witnesses and other materials produced from the side of the revision petitioner/complainant merely on the ground of want of sanction under Sec.197 Cr.P.C is not at all sustainable in law and is liable to be set aside.
36. In the result, revision petition allowed and the impugned order in Crl.M.P. No.1176/2011 of Judicial First Class Magistrate, Kunnamkulam is set aside and the court below is directed to Crl.R.P.767/2012 44 pass fresh orders considering the statements on oath of the revision petitioner/complainant and witnesses and hearing the counsel for revision petitioner/complainant if necessary in view of the settled position of law discussed above untrammelled by any of the observations made by this court.
37. Revision petitioner/complainant shall appear before the court below on 9.7.2020. Thereafter the court below shall dispose of the case as expeditiously as possible since the matter is of the year 2011.
Sd/-
M.R.ANITHA Judge Mrcs/27.5.