Kerala High Court
Shoukkathali vs State Of Kerala on 16 June, 2005
Equivalent citations: 2005(3)KLT634
Author: M. Sasidharan Nambiar
Bench: M. Sasidharan Nambiar
ORDER M. Sasidharan Nambiar, J.
1. Second, respondent/complainant filed Annexure I complaint before the Judicial First Class Magistrate-Ill, Neyyattinkara alleging that first accused Sub Inspector along with four Constables committed offences under Sections 342, 323 and 324 read with Section 34 of Indian Penal Code. The learned Magistrate took cognizance of the case before framing the charge. First accused, Sub Inspector filed a petition under Section 197 of Code of Criminal Procedure contending that the alleged offence was committed in discharge of his official duty as a Police Officer and therefore he is entitled to protection provided under Section 197 of Cr.P.C. and sanction is necessary before taking cognizance of the offences. The learned Magistrate did not pass any order in the petition. Instead charge was framed against all the accused including the petitioner. This petition is filed under Section 482 of Code of Criminal Procedure to quash the complaint and the charges as against the petitioner on the ground that without obtaining sanction as provided under Section 197 of Cr.P.C., the learned Magistrate could not have taken cognizance of the case as against the petitioner.
2. What is alleged in the complaint is that in furtherance of the common intention, five accused, viz, the Sub Inspector Police and the four Police Constables took second respondent into custody from his house on the night of 10.8.1997 at 10 PM and he was taken to the Police Station and was manhandled and thereby committed the offences under Sections 342, 332 and 324 read, with Section 34 of Indian Penal Code. The case of the petitioner is that as borne out by Annexure I complaint submitted before the Magistrate, on 11.8.1997 second respondent was produced before the Magistrate, after he was arrested on the night of 10.8.1997 for the offence under Section 51(a) of Kerala Police Act. Annexure I complaint itself reveals that second respondent was produced before the learned Magistrate on 11.8.1997 and at that time he did not reveal to the learned Magistrate that he was either physically manhandled or was illegally taken into custody from his house as is the case now projected in Annexure I complaint. Along with Annexure IV report, Annexure III certificate of drunkenness was also produced before the Magistrate which shows that second respondent was examined by the Civil Surgeon Grade-II at 10 PM on 10.8.1997. As rightly pointed out by learned counsel appearing for petitioner, 10 PM was the time exactly when second respondent was allegedly taken into custody by the Police from his house in Annexure I complaint. Annexure III also reveals that it was represented to the Civil Surgeon that second respondent was arrested at 9.30 PM by the petitioner and was produced before the doctor for obtaining a certificate of drunkenness. The certificate shows that second respondent had consumed alcohol and was under its influence at that time. As rightly pointed out by learned counsel appearing for the second respondent, it is absolutely clear that the petitioner had taken custody of second respondent in discharge of his duty as a Sub Inspector on the night of 10.8.1997. Even if the allegation of the second respondent that petitioner along with other accused physically manhandled him and offences as alleged in Annexure I complaint, it is clear that it was committed in discharge of his duty as a Sub Inspector. May be, if the allegation is true, he had exceeded the limit. But the question is whether in such a case, sanction is necessary. Section 197 (1) of Cr.P.C. reads:
"When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
The question of exercise of the inherent power of the court under Section 482 of Code of Criminal Procedure to quash the proceedings taken in violation of the mandatory provisions of Section 197(1) of Cr.P.C. was considered by the Apex Court in State of Orissa v. Ganesh Chandra Jew, , the Apex Court held:
"The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a Court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, "no Court shall take cognizance of such offence except with the previous sanction". Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means "jurisdiction" or "the exercise of jurisdiction" or "power to try and determine causes". In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty."
Petitioner is the Sub Inspector of Police and the alleged offence was committed in discharge of his official duty. As declared by the Apex Court in a catena of cases, the protection afforded by Section 197 would be rendered 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. In that case, the section will be rendered sterile. Official duty implies that the act or omission must have been done by him, in the course 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. Petitioner had taken second respondent in custody in the discharge of his official duty as is clear from the drunkenness certificate and also the final report filed before the court for the offence under Section 51 (a) of Kerala Police Act. Therefore the sanction provided under Section 197(1) is mandatory to prosecute petitioner. In view of the notification issued by the State Government which was considered by a Division Bench of this court in Sarojini v. Prasannan, (1996 (2) KLT 859), it can only be held that petitioner Sub Inspector of Police is an officer against whom sanction as provided under Section 197(1) of Cr.P.C. is mandatory. Hence this is a case where the learned Magistrate should have decided the contention of the petitioner that the proceedings as against him without obtaining a sanction under Section 197 of Cr.P.C. is not maintainable. The leaned Magistrate unfortunately omitted to take into consideration these facts and framed a charge.
As this is a case where sanction is mandatory as provided under Section 197 of Cr.P.C. and cognizance was taken without sanction and the continuation of the proceeding as against the petitioner would be an abuse of process of the court, exercising the power under Section 482 of Cr.P.C. case against the petitioner in C.C. No. 654/97 is quashed.