Kerala High Court
K.J.Varghese vs Shyam Kumar on 7 October, 2014
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 7TH DAY OF OCTOBER 2014/15TH ASWINA, 1936
Crl.MC.No. 3477 of 2012 ()
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(CC No.1432/2010 of THE COURT OF JUDICIAL MAGISTRATE OF THE FIRST
CLASS-I, CHERTHALA)
PETITIONER/ACCUSED:
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K.J.VARGHESE
SUB INSPECTOR OF POLICE, TRAFFIC UNIT
CHERTHALA RESIDING IN KELAMPARAMBIL HOUSE
THYKATTUSERY P.O, CHERTHALA
ALAPPUZHA DISTRICT - 688 528.
BY ADV. SRI.ASHIK K.MOHAMMED ALI
RESPONDENTS/COMPLAINANT & STATE:
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1. SHYAM KUMAR
S/O. CHANDRASEKHARAN NAIR, KANNEZHATH MADOM
THURAVOOR PANCHAYATH WARD NO.5, THURAVOOR P.O
CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 532.
2. STATE OF KERALA.
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.
R1 BY ADV. SRI.SHERRY J. THOMAS
R2 BY PUBLIC PROSECUTOR SMT.V.A.JASMINE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
07-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3477 of 2012
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE-A1: CERTIFIED COPY OF THE COMPLAINT FILED BY THE 1ST
RESPONDENT IN CC NO.1432 OF 2010 BEFORE THE COURT OF
THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, CHERTHALA.
ANNEXURE-A2: CERTIFIED COPY OF THE CHARGE SHEET IN ST NO.1804 PF 2009
OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST
CLASS-I, CHERTHALA.
ANNEXURE-A3: TRUE COPY OF THE PETITION FILED UNDER SECTION 258 OF THE
CODE OF CRIMINAL PROCEDURE BY THE PETITIONER.
// TRUE COPY //
TKS
P.S.TO JUDGE
"C.R."
C.T.RAVIKUMAR, J.
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Crl.M.C.No.3477 of 2012
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Dated 7th October, 2014
ORDER
The petitioner is a Police Officer. He is the accused in C.C.No.1432 of 2010 on the files of the Court of Judicial First Class Magistrate-I, Cherthala and he is indicted therein for the offences punishable under Sections 294(b) and 341 of the Indian Penal Code.
2. The first respondent filed Annexure-A1 private complaint which was taken on file and registered as C.C.No.1432 of 2010 against the petitioner alleging commission of the aforesaid offences. The gist of the allegations of the first respondent in the complaint is as hereunder:-
On 10.10.2009 he was riding his motor cycle bearing No.KL.32-A-8075 through Cherthala - Alappuzha road from north to south. He stopped the vehicle at X-ray junction to turn right from there to enter into Cherthala - Ernakulam Highway and upon getting green signal at about 12.15 p.m. he proceeded to enter Cherthala - Ernakulam road and then a white coloured Lancer car came ignoring the signal and it almost hit on his vehicle. He challenged the said action and upon seeing the petitioner in the nearby parked police jeep he made an oral complaint against the driver of the said white coloured Crl.M.C.No.3477/2012 2 Lancer car. However, the petitioner let off the driver of Lancer car without even giving a warning and thereupon, he questioned the impropriety in the said action and the petitioner got annoyed and abused him with obscene language. The petitioner caught hold of him on the collar of his shirt and restrained his movement and then apprehending a complaint from him the petitioner registered a case against him alleging commission of an offence punishable under Section 119 read with Section 177 of the Motor Vehicles Act. It was with such allegations that Annexure-A1 complaint was preferred.
3. Cognizance of the aforesaid offences was taken thereon and the complaint was taken into file and numbered as C.C.No.1432 of 2010 by the learned Magistrate. It is in the said circumstances that the petitioner has come up with the captioned Crl.M.C. raising grievance against the continuation of the proceedings based on Annexure-A1 complaint on the ground that it is bad for want of sanction under Section 197(1) Cr.P.C. and permission under Section 113 of the Kerala Police Act, 2011 and seeking for quashment of Annexure-A1 complaint and all further proceedings in the said calendar case. It is contended that on 10.10.2009 the petitioner registered a crime against the first respondent alleging commission of an offence punishable under Section 119 read Crl.M.C.No.3477/2012 3 with Section 177 of the Motor Vehicles Act and that was taken into file as S.T.No.1804 of 2009 by the court. Annexure-A2 is the charge sheet in that case. Subsequently, the first respondent was issued with summons and he was required to appear before the Court on 19.10.2009. It is thereafter that the first respondent filed Annexure-A1 complaint against the petitioner as a counter blast.
4. Now, the petitioner challenges continuation of the proceedings in C.C.No.1432 of 2010 mainly contending that the complaint could not be proceeded with for want of sanction under Section 197(1), Cr.P.C. as also permission under Section 113 of the Kerala Police Act. In fact, cognizance could not have been taken by the learned Magistrate in the absence of proper sanction, it is submitted. The petitioner also contended that a conjoint reading of Annexures A1 and A2 would reveal that the petitioner was present at the place of occurrence as part of his official duties at the relevant point of time and that he registered a crime against the first respondent accusing him of commission of offences punishable under Section 119 read with Section 177 of the Motor Vehicles Act. Though he was acquitted in S.T.No.1804 of 2009 arising therefrom it is contended that Annexure-A2 would reveal that in S.T.No.1804 of 2009 the first respondent was required to appear Crl.M.C.No.3477/2012 4 before the court on 19.10.2009 and Annexure-A1 complaint was filed by him only subsequently viz., on 25.11.2009. In short, according to him, institution of Annexure-A1 complaint is nothing but an afterthought. The core contention of the petitioner is that since he was only discharging his official duties the first respondent could not have filed a complaint without obtaining sanction under Section 197(1) Cr.P.C. and also obtaining permission under Section 113 of the Kerala Police Act. The learned counsel for the petitioner further contended that even if there is excess in the action of the petitioner while discharging his official duties it would not deprive him of the protection available under Section 197(1), Cr.P.C.. Per contra the learned counsel for the first respondent contended that since the action from the part of the petitioner is absolutely unconnected with the discharge of his official duties he is not entitled to get the protection under Section 197(1), Cr.P.C. and no permission need be sought for and obtained for prosecuting the petitioner for such an action neither under Section 197(1) , Cr.P.C. nor under Section 113 of the Kerala Police Act. To support the contention the learned counsel for the first respondent relied on the decisions of this Court in Prakash P., I.P.S. v. State of Kerala and Another (2011 (2) KHC 1), Mehaboob v. State (2011 (2) KHC 261) and the decision of the Hon'ble Apex Court in Centre for Public Interest Crl.M.C.No.3477/2012 5 Litigation v. Union of India ((2005) 8 SCC 202). The learned counsel for the petitioner submitted that the entire proceedings in C.C.No.1432 of 2010 is liable to be interfered with for want of sanction as mentioned above in the light of the decision of this Court in Unni Rajan v. State of Kerala and Another (2012 (2) KHC 707) and also the decisions of the Hon'ble Apex Court in Rizvan Ahmed v. Jammal Patel (2001 (2) KLT SN 98), Shoukathali v. State of Kerala (2005 (3) KLT 634) and State of Orissa through Kumar Raghvendra Singh and Others v. Ganesh Chandra Jew (AIR 2004 SC 2179).
5. I have heard the learned counsel for the petitioner, the learned counsel appearing for the first respondent and also the learned Public Prosecutor.
6. I have already adverted to the rival contentions. The rival contentions would reveal that at the relevant period the petitioner was the Sub Inspector of Police, Traffic Unit, Cherthala. Annexure-A1 complaint itself would indicate that he was thus present there at the X-ray junction in discharge of his official duties. Evidently, the allegation is that he has committed certain acts mentioned in Annexure-A1 complaint and therefore, the question is whether the petitioner is entitled Crl.M.C.No.3477/2012 6 to the protection available under Section 197(1), Cr.P.C. ? Annexure-A2 would reveal that the petitioner registered a case against the first respondent on 10.10.2009 itself alleging commission of offences punishable under Section 119 read with Section 177 of the Motor Vehicles Act. True that the said prosecution against the first respondent ended in his acquittal. At the same time, it is evident that while discharging the duty the petitioner registered a case against the first respondent alleging commission of the above mentioned offences and later it was taken into file as S.T.No.1804 of 2009 and Annexure-A2 would reveal that the first respondent was required to appear before the court in connection with S.T.No.1804 of 2009, on 19.10.2009. Annexure- A1 would reveal that the first respondent filed a complaint against the petitioner only on 25.11.2009. True that, it carries allegations to the effect that the petitioner abused him with obscene language and caught hold of him on the collar of his shirt. In the said factual background the question is whether cognizance could have been taken on Annexure-A1 complaint without previous sanction under Section 197(1), Cr.P.C. and permission under Section 113 of the Kerala Police Act ?. In the decision in Abdul Wahab v. State of Bihar (2000 KHC 719) prosecution was initiated against a Sub Divisional Magistrate for directing opening of fire, while discharging his duty, to control an unruly mob. The question at Crl.M.C.No.3477/2012 7 which stage such an accused could take the plea under Section 197 Cr.P.C. was also considered by the Hon'ble Apex Court. It was held that a plain reading of the provisions under Section 197 Cr.P.C. would make it clear that the court is prohibited from taking cognizance of the offence, except with the previous sanction of the competent authority and therefore, there is no requirement that the accused should wait for taking such plea till charges are framed. As regards the necessity of obtaining previous sanction in terms of the provisions under Section 197, Cr.P.C. in such circumstances, the Hon'ble Apex Court quoted with approval a passage from its previous decision in Gauri Shankar Prasad v. State of Bihar and Anr. ((2000) 5 SCC 15) and it reads as follows:
"It is manifest that the appellant was present at the place of occurrence in his official capacity as Sub Divisional Magistrate for the purpose of removal of encroachment from Government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under S.197 Cr.P.C."
After noting the aforesaid passage in Gauri Shankar Prasad's case Crl.M.C.No.3477/2012 8 (supra) in Abdul Wahab's case (supra) the Hon'ble Apex Court held that the action on the part of the Sub Divisional Magistrate who was present in the place of occurrence with police force for removal of encroachment in question and in the course of discharge of his duty to control the mob, in ordering for opening of fire could be held as an action having nexus with his official duty and therefore, the provisions under Section 197, Cr.P.C. would apply to the facts of that case. Subsequently, taking note of the fact that cognizance was taken by the Magistrate without previous sanction the proceedings were quashed. In Shoukathali's case (supra) the learned Judicial First Class Magistrate- III, Neyyattinkara took cognizance of offences under Sections 342, 323 and 324 read with Section 34 of the Indian Penal Code. The allegation therein was that the accused therein who are respectively the Sub Inspector of Police and four Police Constables in furtherance of their common intention took the 2nd respondent into custody from his house on the night of 10.8.1997 at 10 p.m. and manhandled him and thereby committed the aforesaid offences. The petitioner therein was Sub Inspector of Police and it was found that the alleged offence was committed in discharge of his official duties. It was held therein that as declared by the Hon'ble Apex Court in a catena of cases, the protection afforded under Section 197 Cr.P.C. would be rendered illusory if the Crl.M.C.No.3477/2012 9 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 course of his service and in discharge of his official duty. In that case, taking note of the fact that cognizance was taken without obtaining sanction under Section 197 Cr.P.C. continuation of the proceedings was held as an abuse of process of the court and consequently, the entire proceedings against the petitioner therein were quashed. The said decision was rendered relying on the decision of the Hon'ble Apex Court in Ganesh Chandra Jew's case (supra). The sum and substance of the decisions referred aforesaid is to the effect that even in a case where there is slight excess in the action by a public servant while discharging the duties attached to his post that by itself will not deprive him of the immunity available under Section 197(1) Cr.P.C. In the decisions in Prakash.P's case (supra) and Mehaboob's case (supra) the allegation was that in the course of investigation the Police officer concerned allegedly inflicted custodial violence on a person. Criminal proceedings were lodged against based on private complaints and in spite of want of sanction under Section 197(1), Cr.P.C. cognizance of the offences alleged against the petitioners therein was taken. This Court held that what is relevant for the purpose of Section 197(1) Crl.M.C.No.3477/2012 10 Crl.P.C. is what the Officer did "in discharge of" his official duty, and is not what the officer did "in the course of discharge of" his duty or "in the course of investigation". In short, it was held that a Police Officer who allegedly commits an offence in the course of investigation, is not entitled to protection under Section 197(1) Cr.P.C. The learned counsel for the first respondent also relied on the decision in Centre for Public Interest Litigation's case (supra). In that decision, the Hon'ble Apex Court held that protection under Section 197(1) Cr.P.C. is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and it is not merely a cloak for doing an objectionable act. In the said decision it was further held that there could not be any universal rule to determine the reasonable connection between the act done and the official duty and it is not possible to lay down any such universal rule. The Hon'ble Apex Court also observed that one safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of, could have made him answerable for a charge of dereliction of his official duty. If the answer to the said question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official Crl.M.C.No.3477/2012 11 duty of the public servant. In this case, as noticed hereinbefore, indisputably, the petitioner was present in the place of occurrence for discharge of his official duty. He has also registered a case against the first respondent for an offence under Section 119 read with Section 177 of the Motor Vehicles Act. Even though the said prosecution against the first respondent ended in acquittal that by itself can be no reason for holding that the petitioner had registered the case against the first respondent not in discharge of his official duty. The conviction or acquittal in a case registered against a person would depend upon the weight of evidence tendered and its assessment in accordance with law, in that particular case. The mere fact that after assessing such evidence the concerned accused was acquitted cannot be a reason for holding that the concerned officer had registered the case not in discharge of his official duty. In this case, as noticed hereinbefore, the petitioner registered a crime against the first respondent and in S.T.No.1804 of 2009 arising therefrom the first respondent was directed to appear before the court on 19.10.2009 and he filed Annexure-A2 complaint only thereafter viz., on 25.11.2009. True that, he is also having a case that in between he had filed a complaint before the Circle Inspector of Police, Cherthala and the first respondent is alleging commission of offences under Sections 294(b) and 341, IPC against the petitioner. Considering Crl.M.C.No.3477/2012 12 the allegations raised against the petitioner and also the indisputable fact that he was present in the place of occurrence for discharging his official duties at the most the action complained of would be described as an excess done in discharge of duty. Indisputably, cognizance of the offences was taken, in the case on hand, without previous sanction. Taking into account the degree of the alleged offence and the aforesaid admitted facts and the consideration of such aspects in the light of the aforesaid decisions of the Hon'ble Apex Court in Rizvan Ahmed's case (supra), Shoukathali's case (supra) and Ganesh Chandra Jew's case (supra) I am of the view that the entire proceedings are bad in law. The learned Magistrate should not have and could not have taken cognizance without previous sanction as contemplated under Section 197(1) Cr.P.C. against the petitioner. The bar on the exercise of power of the court to take cognizance of any offence under Section 197(1), Cr.P.C. without previous sanction is absolute and complete. The complaint could not have been taken notice of as the court is precluded from entertaining a complaint or taking notice of it, if it is in respect of a public servant accused of an offence alleged to have been committed during the discharge of his duty. In the said circumstances, continuance of such proceedings would be an abuse of process of court. Accordingly, Annexure-A1 complaint and all proceedings against the petitioner in Crl.M.C.No.3477/2012 13 C.C.No.1432 of 2010 pursuant thereto are liable to be quashed and accordingly they are quashed.
The Crl.M.C. is allowed as above.
Sd/-
C.T.RAVIKUMAR Judge TKS