Kerala High Court
P.P.Sadanandan vs Gayathri on 10 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 10TH DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943
CRL.MC NO. 4079 OF 2016
AGAINST THE ORDER/JUDGMENT IN CC 34/2012 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I,HOSDRUG
PETITIONER/ 2ND ACCUSED:
SADANANDAN P.P.,
S/O.KUNJHIRAMAN, AGED 48 YEARS, PUTHIYAPURAYIL,
CHENGALAI P.O.,KANNUR, FORMERLY WORKED AS CI OF
POLICE, KANNUR TOWN.
BY ADVS.
SRI.I.V.PRAMOD
SRI.K.V.SASIDHARAN
RESPONDENTS/COMPLAINANT AND STATE:
1 GAYATHRI,
AGED 34 YEARS, W/O.MANODATH,
ANANTHA CHANDRA SADANA,
KAIKAMBA, UPPALA VILLAGE & P.O, KASARAGOD DISTRICT.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, COCHIN - 682 031.
BY ADVS.
SRI.M.HARISHARMA
SRI.D.NARENDRANATH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.01.2022 ALONG WITH Crl.MC.4148/2016, THE COURT ON 10.02.2022
PASSED THE FOLLOWING:
Crl.M.C.Nos.4079 & 4148/2016 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 10TH DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943
CRL.MC NO. 4148 OF 2016
AGAINST THE ORDER/JUDGMENT IN CMP 6264/2008 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,KASARAGOD
CC 34/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG
PETITIONERS/ACCUSED 1 AND 3:
1 PREMACHANDRAN,
AGED 45 YEARS,
S/O.NARAYANAN, ENADAN HOUSE, CHEEMANI P.O., KASARGOD.
FORMERLY WORKED AS SUB INSPECTOR OF POLICE,
KANNUR TOWN.
2 REJESH,
AGED 36 YEARS,
S/O.VIKRAMAN NAIR, RAJESH NILAYAM,
ALARKONAM NENNATUKAVU, POTHENKODE P.O.,
TRIVANDRUM. FORMERLY WORKED AS SUB INSPECTOR OF
POLICE KANNUR TOWN.
BY ADVS.
SRI.I.V.PRAMOD
SRI.K.V.SASIDHARAN
RESPONDENTS/COMPLAINANT & STATE:
1 GAYATHRI,
AGED 34 YEARS, W/O.MANODOTH, ANANTHA CHANDRA SADANA,
KAIKAMBA, UPPALA VILLAGE & P.O KASARGOD DISTRICT.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA. COCHIN-682 031.
BY ADVS.
SRI.M.HARISHARMA
SRI.D.NARENDRANATH
R2 BY SRI.SUDHEER GOPALAKRISHANAN - PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.01.2022, ALONG WITH Crl.MC.4079/2016, THE COURT ON 10.02.2022
PASSED THE FOLLOWING:
Crl.M.C.Nos.4079 & 4148/2016 3
ORDER
Petitioners in above Crl.M.Cs are the accused Nos.1 to 3 in C.C.No.34 of 2012 on the file of the Judicial First Class Magistrate Court-I, Hosdurg, Kasaragod, which was registered on the basis of a private complaint submitted by the 1 st respondent herein as C.M.P.No.2437 of 2011. Crl.M.C.No 4148/2016 is filed by the accused 1 and 3 therein and Crl.M.C. No.4079/2016 is filed by the 2nd accused. The offences alleged against the petitioners in the aforesaid private complaint are under Sections 323 and 342 read with Section 34 IPC. But as per Annexure-A2 order passed by the Judicial First Class Magistrate Court-I, Hosdurg, cognizance was taken for the offences punishable under Section 343 read with Section 34 IPC.
2. The allegations in the private complaint, which is produced as Annexure-A1 is as follows: the 1 st respondent's husband, who is a person conducting a small jewellery shop in Crl.M.C.Nos.4079 & 4148/2016 4 a room of an old building situated near Uppala Railway Station, found missing since 11.11.2008. She got the information that her husband was taken into custody by police. Initially, she and her relatives contacted Manjeswaram Police Station and enquired as to whether her husband is detained or not and it was informed that they have not arrested any such person. Later, she received information that her husband along with another person was detained by the Sub Inspector of Police, Kannur Town Police Station. It was also informed that he was arrested on the basis of a statement made by a person arrested for stealing certain gold ornaments, to the effect that he had sold certain ornaments to the husband of the 1 st respondent. Even though, the relatives of the 1st respondent approached the Kannur Police, the petitioners herein, who were police officers of Kannur police station, have not revealed any information as to the detention of her husband. On 13.11.2008 itself she forwarded a complaint through fax to the Chairman of Human Rights Commission, Home Secretary, Thiruvananthapuram and Crl.M.C.Nos.4079 & 4148/2016 5 DGP, Thiruvananthapuram. It was also stated by the 1 st respondent that the husband of the petitioner was detained by the police and manhandled. Later, the husband of the 1 st respondent was produced before the learned Magistrate concerned on 15.11.2008 upon recording of his arrest by the police. The 1st respondent alleges that apart from the illegal detention of her husband, he was also subjected to assault while in custody by the police and accordingly Annexure A1 complaint was submitted before the Judicial First Class Magistrate-I , Kasaragod, as against the petitioners herein, who are the police officials of the police station concerned.
3. This Crl.M.C. is filed praying for an order to quash all further proceedings in the above private complaint mainly on the ground that the learned Magistrate has taken cognizance of the offence under Section 343 read with Section 34 IPC without obtaining sanction as contemplated under Section 197 of Cr.P.C. It is the case of the petitioners that the Crl.M.C.Nos.4079 & 4148/2016 6 petitioners being public servants, are entitled for protection as contemplated Under Section 197 Cr.P.C.
4. Heard Sri.I.V.Pramod, learned counsel for the petitioners, Sri.Sudheer Gopalakrishnan, learned Public Prosecutor and Sri.M.Harisharma, learned counsel for the 1 st respondent.
5. Basic contention that is raised by the learned counsel for the petitioners is regarding the lack of sanction as contemplated under Section 197 Cr.P.C. On the other hand, the learned counsel appearing for the 1 st respondent contended that the learned Magistrate has taken cognizance for the offences under Section 343 read with Section 34 IPC, which deals with illegal detention of the husband of the 1 st respondent. The learned counsel placed reliance upon Annexure-R1(A) in Crl.MC.No.4079/2016, which is a commission report produced by him along with the objection submitted by the 1st respondent. The said report was filed by the Advocate Commissioner appointed by Judicial First Class Crl.M.C.Nos.4079 & 4148/2016 7 Magistrate Court-I, Kasaragod in C.M.P.No.6265 of 2008. The aforesaid report indicates that, on the basis of a direction issued by the learned Magistrate, the Advocate Commissioner conducted an inspection in the Kannur Town Police Station at 5 pm on 15.11.2008. During such inspection, he found the husband of the 1st respondent in the lockup of the said police station and upon enquiry husband of the 1 st respondent had stated that he is kept under detention since 10.30 AM on 11.11.2008. It was also reported by the Advocate Commissioner that, as per his enquiry, one Divakara Acharya who was the worker of the husband of the 1st respondent was also detained along with him and the said Divakara Acharya was released in the morning on 15.11.2008 by the Circle Inspector of Police, Kannur, the 2nd respondent herein, with a direction to produce 15 sovereigns of gold.
6. The learned counsel also brought to my attention to Annexure-R1(B) statement in Crl.M.C.No.4079/2016) made by the officer of Human Rights Commission, during the course of Crl.M.C.Nos.4079 & 4148/2016 8 inquiry under section 202 Cr.P.C. before the Learned Magistrate, who had stated that a complaint with regard to the missing of the husband of the 1st respondent was received by the Human Rights Commission, by way of fax, on 13.11.2008. On the basis of the aforesaid documents, it is contended by the learned counsel for the 1st respondent that, for the period from 11.11.2008 to 15.11.2008, the husband of the 1 st respondent was under illegal detention, as the arrest was recorded only on 15.11.2008. According to the learned counsel, the act of illegally detaining a person in the police station cannot be treated as something which is connected with the discharge of duty as the same is per se illegal. Therefore, the petitioners are not entitled for protection under Section 197 Cr.P.C. and hence no circumstances are in existence, warranting interference by this Court in the act of taking cognizance by the learned Magistrate for the aforesaid offences. The learned counsel also placed reliance upon the judgment rendered in Crl.M.C.Nos.4079 & 4148/2016 9 Surinderjit Singh Mand and Another v. State of Punjab and Another [(2016) 8 SCC 722].
7. The only question that arises is as to whether the petitioners being public servants, are entitled for statutory protection as contemplated under Section 197Cr.P.C. or not. While ascertaining the legal necessity to have a sanction obtained by the authorities before taking cognizance, it was contended by the learned counsel for the petitioners that the particular act which forms the basis of allegation against them was allegedly committed within the premises of police station, while the petitioners were on duty. According to him, even if it is a case of police excess, they are entitled for protection under Section 197 of Cr.P.C. and in the absence of a sanction under the said provision, no prosecution can be launched against them. In support of the said contention, the learned counsel placed reliance upon the decisions in Devinder Singh and Others v. State of Punjab [(2016) 12 SCC 87] and D.Devaraja v. Owais Sabeer Hussain [(2020) 7 SCC 695]. Crl.M.C.Nos.4079 & 4148/2016 10
8. It is true that in Devindar Singh's case and in Devaraja's case, it was categorically held by the Honourable Supreme Court that the public servants are entitled for protection under Section 197 of Cr.P.C. and sanction is required, if the alleged act was committed while they were in discharge of their official duty and the said act was reasonably connected with the official duties. It is also held that, even if it is a case of police excess, they are entitled for protection under the said provision. Here, the crucial question that arises is as to whether there is any reasonable nexus between the act alleged against the petitioners herein with the discharge of their official duty. As per Section 57 of Cr.P.C, No police officer shall detain in custody, a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate Court. Chapter V of the Crl.M.C.Nos.4079 & 4148/2016 11 Cr.P.C. contemplates a detailed procedure for affecting the arrest of the person and detaining him in custody. None of the said provisions enable the police officers to detain any person beyond the period of twenty four hours mentioned in Section 57 Cr.P.C. In such circumstances, the detention of any person without following the procedure contemplated under code of Criminal Procedure and beyond period prescribed therein is an illegal detention per se. The question as to whether detention of a person in police custody without proper procedure amounts to an act connected with the discharge of his authority or exercise of his duty was considered by the Honourable Supreme Court in P.P.Unnikrishnan v. Puttiyottil Alikutty [(2000) 8 SCC 131] and it was observed by the Honourable Supreme Court is as follows:
"If a police officer dealing with law 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 Section 197 of the Code as well as Section 64(3) of the K.P. Act. But if a Crl.M.C.Nos.4079 & 4148/2016 12 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 it 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. "
9. After referring to the aforesaid judgment, the Honourable Supreme Court in Surinderjit Singh Mand's case (supra), it was observed as follows:
"17. Having given our thoughtful consideration to the contention advanced at the hands of learned counsel for the respondents, we are of the view, that the decision rendered by this Court in the P.P. Unnikrishnan's case (supra) is clear and emphatic. The same does not leave any room for making any choice. It is apparent, that the official arrest of Crl.M.C.Nos.4079 & 4148/2016 13 Neeraj Kumar in terms of the provisions of the 'Code', referred to hereinabove, would extend during the period from 28.06.1999 to 30.06.1999. The above period of apprehension can legitimately be considered as, having been made "while acting or purporting to act in the discharge of their official duties". The factual position expressed by the appellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999. His detention during the above period, if true, in our considered view, would certainly not emerge from the action of the accused while acting or purporting to act in the discharge of their official duties. If it emerges from evidence adduced before the trial Court, that Neeraj Kumar was actually detained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken to have been made by the accused while acting or purporting to act in the discharge of their official duties. More so, because it is not the case of the appellants, that they had kept Neeraj Kumar in jail during the period from 24.06.1999 to 28.06.1999. If they had not detained him during the above 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 the discharge of their official Crl.M.C.Nos.4079 & 4148/2016 14 duties. Therefore, in the peculiar facts and circumstances of this case, based on the legal position declared by this Court in the P.P. Unnikrishnan's case (supra), we are of the considered view, that sanction for prosecution of the accused in relation to the detention of Neeraj Kumar for the period from 24.06.1999 to 28.06.1999, would not be required, before a Court of competent jurisdiction, takes cognizance with reference to the alleged arrest of Neeraj Kumar. We therefore hereby, endorse the conclusions drawn by the High Court, to the above effect."
10. Thus, while applying the principles laid down by the Honourable Supreme Court, in this case, it can be seen that the period of detention of the husband of the 1 st respondent in lock- up during the period which is not authorised by law cannot be treated as an act committed in discharge of their official duties. In this case, there are several materials pointing out that the detention of the husband of the 1 st respondent for the period from 11.11.2008 to 15.11.2008 was illegal. Specific case of the petitioners is that the husband of the 1 st respondent was arrested only on 15.11.2008. However, the materials available Crl.M.C.Nos.4079 & 4148/2016 15 on record such as Ext.R1A and R1B would prima facie indicate that he was detained by the police even prior to 15.11.2008. The learned Magistrate has taken cognizance for the offences under Section 343 of IPC, which is relating to illegal detention of the husband of the 1 st respondent. As mentioned above, the documents produced by the 1st respondent indicates prima facie that the claim of the petitioners that the husband of the 1 st respondent was arrested only on 15.11.2008 is not correct. At the moment, there are sufficient materials to arrive at a prima facie finding that, the detention of the husband of the 1 st respondent was not legal and hence, by virtue of the principles laid down by the Honorable Supreme Court in Surinderjit Singh Mand's case, the said acts of the petitioners cannot be treated as something connected with their official duties. In such circumstances, sanction as contemplated under Section 197 Cr.P.C is not warranted.
Thus, I find no merit in these Crl.M.Cs. and accordingly are dismissed. However, it is made clear that the finding and Crl.M.C.Nos.4079 & 4148/2016 16 observations in this order are made only for the purpose of examining whether a case is made out for invoking the inherent powers of this Court under Section 482 Cr.P.C. It is made clear that I have not made any observations touching upon the merits of the contentions of the accused as well as the respondents and all the contentions of the parties are left open. The trial court shall be at liberty to consider all the said contentions on merits untrammeled by any of the observations made herein.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG/1.2.22
Crl.M.C.Nos.4079 & 4148/2016 17
APPENDIX OF CRL.MC 4079/2016
PETITIONER EXHIBITS
A1 A TRUE COPY OF THE COMPLAINT IN CMP
NO.6264/2008 DATED 15.1.2008 BEFORE THE
JFCM-I, KASARAGOD.
A2 A TRUE COPY OF THE ORDER TAKING
COGNIZANCE IN CMP NO.2437/2011 DATED
11.1.2012.
Crl.M.C.Nos.4079 & 4148/2016 18
APPENDIX OF CRL.MC 4148/2016
PETITIONER ANNEXURES
ANNEXURE A1 A TRUE COPY OF THE COMPLAINT IN CMP NO.
6264/2008 DATED 15.1.2008 BEFORE THE
JFCM-1 KASARGOD
ANNEXURE A2 A TRUE COPY OF THE ORDER TAKING
COGNIZANCE IN CMP NO. 2437/2011 DATED
11.1.2012.