Kerala High Court
Unnikrishnan vs The State Of Kerala
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935
Crl.Rev.Pet.No. 2173 of 2013 (B1)
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AGAINST THE ORDER IN CRMP 3797/2008 of J.M.F.C., OTTAPPALAM DATED 14.11.12
REVISION PETITIONER/COMPLAINANT:
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UNNIKRISHNAN, AGED 45 YEARS,
S/O.MAKKU, RESIDING ATSANKARANKANDATH VEEDU
VEERAMANGALAM POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
RESPONDENTS/NOT PARTY/ACCUSED NOS.1 & 2:
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682 031.
2. PRATHAPAN
ASSISTANT SUB INSPECTOR, SHORNUR POLICE STATION
SHORNUR-679 121.
3. ANILKUMAR
GENERAL MANAGER
MANAPPURAM FINANCE (OLD LAKSHMI FINANCE)
SHORNUR-679 121.
R2,R 3 BY ADV. SRI.V.B.UNNIRAJ
R3 BYADV. SMT.R.S.GEETHA
R3 BYADV. SMT.P.ANITHA
R1 BY PUBLIC PROSECUTOR SRI. LIJU V.STEPHEN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 20-11-2013, THE COURT ON THE SAME DAYPASSED THE FOLLOWING:
OKB
"C.R."
K. HARILAL, J.
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Crl.R.P. No.2173 of 2013
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Dated this the 20th day of November, 2013
O R D E R
The revision petitioner is the complainant and the respondent Nos.2 and 3 are the accused Nos.1 and 2 in Crl.M.P. No.3797/2008 on the files of the Judicial First Class Magistrate's Court, Ottapalam. The 2nd respondent is a public servant working as the Sub Inspector of Police. The above complaint was filed alleging the offences punishable under Sections 384 and 389 of the Indian Penal Code.
2. The revision petitioner is the accused in Crime No.368/08 of Shornur Police Station. The above crime was registered on the basis of a complaint filed by the 3rd respondent herein alleging the offence punishable under Section 468 of the Indian Penal Code.
3. He is the complainant in another Crime No.459/2008 registered against the 3rd respondent herein. In connection with that case, on 21.9.2008 at 9.00 a.m., when the revision petitioner went to the police station, the 2nd respondent had Crl.R.P.2173/13 :2:
arrested him in Crime No.368/08, which was registered against him on the complaint of the 3rd respondent. After the arrest, he was not produced before the court on that day. When his relatives questioned, the 2nd respondent said that there was 24 hours time to produce the revision petitioner before the court. That night, the 2nd respondent had come to the police station at 8 p.m. and talked with the revision petitioner for about half an hour. After that, the 2nd respondent asked the revision petitioner to sign on a paper and write that the revision petitioner had omitted to repay the loan allegedly due to the 3rd respondent owing to his financial difficulties and had obtained HP termination letter promising to obtain finance from some other finance company to repay the amount. When the revision petitioner had refused to sign in it, the 2nd respondent threatened to book the revision petitioner in an arrack case. At last, the revision petitioner was forced to write and sign as directed by the 2nd respondent. On the basis of the above incident, the revision petitioner had filed Crl.M.P.No.3797/08 against the 2nd respondent alleging the offences punishable under Sections 384 and 389 r/w 34 of the IPC.
4. The revision petitioner was examined himself as C.W.1 and a witness was examined as C.W.2. After considering the Crl.R.P.2173/13 :3:
complainant's evidence, the court below found that the first accused is a public servant and the offence is alleged to have been committed by him, while acting in discharge of his official duty and prior sanction of the government under Section 197 of the Cr.P.C. is required to prosecute him as he had taken action of arresting the revision petitioner in discharge of his official duty. But, the complainant had not obtained and produced sanction under Section 197 of the Cr.P.C. to take cognizance of the offence alleged against the 2nd respondent. On that premise, the learned Magistrate dismissed the complaint under Section 203 of the Cr.P.C. This order is under challenge in this Revision Petition.
5. The learned counsel for the revision petitioner submits that the learned Magistrate erroneously found that sanction, as provided under Section 197 of the Cr.P.C., is required for prosecuting the 2nd respondent. The 2nd respondent was holding the post of Assistant Sub Inspector of Police. As such, there is no need for prior sanction as contemplated under Section 197 of the Cr.P.C. According to the revision petitioner, for removal of an Assistant Sub Inspector of Police from his office, sanction by or with the Government is not required; and the order passed by the Inspector General of Police is sufficient Crl.R.P.2173/13 :4:
for the same as per the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958. Similarly, the offence alleged to have been committed by him was not done while acting or purporting to act in discharge of his official duty. Therefore, sanction is not required for prosecuting the 2nd respondent.
6. Per contra, the learned Public Prosecutor advanced arguments to justify the impugned order under challenge. The learned Public Prosecutor submits that even though the Assistant Sub Inspector of Police is not a public servant removable by Government, the protection under Section 197 of the Cr.P.C. was made applicable to all members of the police force, who are in discharge of their official duties related to maintenance of public order, by notification dtd. 6.12.1977 issued by the Government of Kerala. Therefore, sanction is required to prosecute the members of the police force below the rank of Sub Inspector also, if they are officially related to maintenance of public order.
7. In view of the rival contentions, the question to be considered is, whether there is any illegality or impropriety in the impugned order under challenge? Put it differently, the question is, whether sanction under Section 197 of the Cr.P.C.
Crl.R.P.2173/13 :5:
is required for prosecuting the 2nd respondent herein for the alleged act done by him? According to Section 197 of the Cr.P.C., when any person who is or was 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 discharge of his official duty, no court shall take cognizance of such offence, except with the previous sanction of the Central Government or the State Government as the case may be. Admittedly, the 2nd respondent is working as Assistant Sub Inspector of Police and for his removal from his office, the sanction of the Government is not required. For removing him from the office, an order passed by the Inspector General of Police is sufficient, as per the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958. In short, all members of the Kerala State Police have not been given protection under Section 197 of the Code of Criminal Procedure and the members of certain category of officers not removable from his office save by or with the Government alone are given protection under Section 197(1) of the Cr.P.C. But, Section 197 (2) of the Cr.P.C. enjoins that no court shall take cognizance of any offence alleged to have been committed by any member of Crl.R.P.2173/13 :6:
the Armed Forces of the Union Government, while acting or purporting to act in discharge of his official duty, except with previous sanction of the Central Government. Thus, all members of the Armed Forces of the Union Government have been given protection under Section 197 of the Cr.P.C. According to Section 197(3) of the Cr.P.C., the State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply. Then the question is, whether the 2nd respondent would come under the scope and extent of the notification dtd. 6.12.1977 issued by the Government of Kerala under Section 197(3) of the Cr.P.C.? The notification dtd. 6.12.1977 issued by the Government of Kerala is extracted below:
"GOVERNMENT OF KERALA Home (A) Department Notification No.61135/A2/77/Home Dated, Trivandrum 6th December 1977 S.R.O.No.1211/77 - In exercise of the powers conferred by sub-section (3) of section 197 of the code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of subsection (2) of the said section shall apply to all members of the Crl.R.P.2173/13 :7:
Kerala State Police, charged with the maintenance of public order.
By order of the Governor, S.Narayanaswamy, Special Secretary."
8. Going by the notification, it could be seen that all members of the Kerala State Police, notwithstanding their rank, would come under the purview of the requirement of sanction under Section 197 of the Cr.P.C. for prosecuting them, provided that they shall be charged with maintenance of public order. If that be so, the next question is whether the act, which is alleged to have been done by the 2nd respondent in the instant case, would come under the purview of an act related to maintenance of public order? What is the scope and extent of "duty charged with maintenance of public order?" This question was considered by the Apex Court in Rizwan Ahmed Javed Shaikh and others Vs. Jammal Patel and others [(2001) 5 SCC 7], which reads as follows:-
"The person on whom the protection is sought to be conferred by the State Government notification is to be determined by reading the notification and once it is found that the State Government notification applies to a member of the force which the accused is, the scope, purview or compass of the protection has to be determined by reading sub-section (2) of Section 197 of the Code i.e. by asking a question whether the act alleged to be an offence was done or purported to have Crl.R.P.2173/13 :8:
been done in the discharge of the official duty of the accused. Such official duty need not necessarily be one related to the maintenance of public order."
9. In this decision, the Apex Court relied on the Constitution Bench decision in Madhu Limaye Vs. S.D.M., Monghyr (AIR 1970 (3) SCC 746), which held as follows:
" 20. In dealing with the phrase 'maintenance of public order' in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the largest circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to affect 'public order' in a different sense, namely, in the sense of a state of law abidingness vis-a-vis the safety of others. In our judgment the expression 'in the interest of public order' in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or are within ordre publique as described but also certain acts which disturb public tranquility or are breaches of the peace. It is not necessary to give to the expression a narrow meaning because, as has been observed, the expression 'in the interest of public order' is very wide. Whatever may be said of 'maintenance of public order' in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquility but of ordre publique. "
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10. In the light of the above decisions, it can be held that, the question, whether the act done by a police officer was an act charged with maintenance of public order, can be determined by asking a question whether the act alleged to be an offence was done or purported to have been done in the discharge of the official duty of the accused. Such official duty need not necessarily be one related to maintenance of public order. Relying on the above Constitution Bench decision, the Apex Court in Rizwan Ahmed's case (supra) held that the phrase "maintenance of public order" need not be assigned a narrow meaning as is assigned to it in preventive detention matters; the police officers do discharge duties relating to maintenance of public order in their wider sense can be taken into consideration for determining whether the act would come under an act charged with maintenance of public order.
11. Let us examine the instant case in the light of the parameters laid down by the Supreme Court in the aforesaid decision. In the instant case, admittedly, Crime No.368/08 was registered against the revision petitioner on the basis of the complaint filed by the 3rd respondent alleging the offence under Section 368 of the IPC. While investigation of that crime was pending, the revision petitioner had filed another complaint Crl.R.P.2173/13 :10:
against the 3rd respondent and Crime No.459/2008 was registered on the basis of that complaint. It is also admitted that the revision petitioner was asked to appear before the police officer in connection with the crime registered against him. Here, the specific allegation of the revision petitioner is that though he was arrested, he was not produced before the concerned Magistrate having jurisdiction within 24 hours and he was constrained to execute certain documents under coercion and force exercised by the 2nd respondent. Therefore, I am of the opinion that his presence was required for investigation of a crime registered against him. Therefore, the police officer can be justified in requiring his presence for taking statements in connection with the crime. But, he was not produced before the concerned Magistrate within 24 hours and coerced him to execute certain documents. Certainly, he abused his official power and violated the law relating to arrest. But, I am of the opinion that the 2nd respondent has abused his power and authority and violated the law while in discharge of his official duty. Therefore, even if the allegations are admitted at its entirety, the alleged act, which is said to have been done by the 2nd respondent, would come under the act in discharge of his official duty, even though he abused his power and Crl.R.P.2173/13 :11:
authority. Therefore, in view of the parameter laid down by the Hon'ble Supreme court in Rizwan Ahmed Javed Shaikh and others Vs. Jammal Patel and others [(2001) 5 SCC 7], I find that the alleged act done by the 2nd respondent would come under the scope and extent of the notification dtd. 6.12.1977. Therefore, the sanction under Section 197 of the Cr.P.C. is required for prosecuting the 2nd respondent. There is no illegality or impropriety in the impugned order under challenge.
The Revision Petition is dismissed accordingly.
Sd/-
(K. HARILAL, JUDGE) okb.