Kerala High Court
Chairperson vs Unknown on 12 April, 2012
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934
Crl.MC.No. 631 of 2012 ()
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CC.1121/2011 of J.M.F.C.-I,HOSDRUG
PETITIONERS/ACCUSED:
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1. CHAIRPERSON
KANHANGAD MUNICIPALITY, KANHANGAD.
2. SECRETARY,
KANHANGAD MUNICIPALITY, KANHANGAD.
3. HEALTH SUPERVISOR,
KANHANGAD MUNICIPALITY, KANHANGAD.
4. STANDING COMMITTEE CHAIRMAN FOR HEALTH,
KANHANGAD MUNICIPALITY, KANHANGAD.
BY ADVS.SRI.T.K.VIPINDAS
SMT.P.K.PRIYA
SRI.K.V.SREE VINAYAKAN
COMPLAINANT(S)/COMPLAINANT:
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1. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA
REPRESENTED BY THE S.G.O. HOSDURG.
2. SREEJESH,
PREIDENT, A.K.G.SMARAKA ARTS AND SPORTS CLUB
A.K.G.NAGAR, KOVVAL, P.O.KANHANGAD.
BY ADV. SRI.A.ARUNKUMAR
BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
12-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.S.GOPINATHAN, J.
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Crl.M.C.No.631 of 2012
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Dated this the 12th day of April, 2012
ORDER
In this petition under Section 482 of the Code of Criminal Procedure, the petitioners, seek an order to quash Annexure-1order in CMP 6196 of 2011 whereby the Judicial Magistrate of the First Class-I, Hosdurg, took cognizance for offences under Sections 268, 269, 270 and 278 of the Indian Penal Code against the petitioners who are the Chairperson, Secretary, Health Supervisor and Standing Committee Chairman for Health of Kanhangad Municipality. The second respondent is the complainant. After taking cognizance the case was numbered as CC 1121 of 2011.
2. The plea of the petitioners is that to prosecute the petitioners for any offence alleged to have been committed by them while acting or purporting to act in the discharge of official duty, sanction under Section 548 of the Kerala Municipality Act and under Section 197 of the Code of Criminal Procedure are to be obtained before launching prosecution and since no sanction was obtained, Crl.M.C.No.631 of 2012 2 Annexure-1 order taking cognizance is not legally sustainable.
3.For a better appreciation of the case, a reading of Section 548 of the Kerala Municipality Act and Section 197 of the Code of Criminal Procedure would be relevant:
Section 548 of the Municipality Act reads thus:
"548. Sanction for prosecution of Chairperson, Secretary or Councillor- Where the Chairperson, any Councillor or the Secretary of a Municipality 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 of the Government."
Section 197 of the Code of Criminal Procedure reads thus:
"197.Prosecution of Judges and public servants-(1) 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 Crl.M.C.No.631 of 2012 3 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:
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
direct (3)class provisions of sub-section (2) shall apply to suchthatTheor category of the members of the Forces State Government may, by notification, the 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 as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
Section 548 of the Kerala Municipality Act would show that before launching prosecution against the Chairperson, any Councillor or the Secretary (petitioners 1, 4 and 2) of a Municipality for any offence alleged to have been committed by them while acting or purporting to act in the discharge of his official duty, there should Crl.M.C.No.631 of 2012 4 have been previous sanction of the Government. To put it other way, sanction under Section 548 is a prerequisite for taking cognizance against petitioners 1,2 and 4. Annexure-1 order itself would show that all the petitioners are accused in their official capacity and not in individual capacity. The nature of the offence alleged would show that the accusation itself is nothing but alleged to have been committed while acting or purporting to act in the discharge of the official duties. As mentioned earlier, the offences alleged are under Sections 268, 269, 270, 278 and 109 of the Indian Penal Code. Section 268 of the Indian Penal code defines public nuisance. Section 269 of the Indian Penal code is relating to negligently doing any act known to be likely to spread the infection of any disease dangerous to life. Section 278 of the Indian Penal Code relates to making of atmosphere noxious to health. Annexure-I order would show that against all the petitioners, a prima facie case was found for abetting the above offences so as to issue process. In paragraph 20 it is observed by the trial court that the petitioners were intentionally aiding in commission of such offences by illegal omission in taking proper action against those offenders and therefore, they are liable to be prosecuted. That Crl.M.C.No.631 of 2012 5 statement would show that the abetment of the above offences was alleged to have been committed for their inaction as public servants. Therefore, it goes without saying that the offences alleged for which the prosecution was launched is while they purporting to act in the discharge of official duties. Therefore, this is a clear case of allegation of the offences for the inaction of the office they hold, for the prosecution of which sanction under Section 548 of the Kerala Municipality act is a prerequisite before taking cognizance as against petitioners 1, 2 and 4.
4. Petitioners 1 and 4 may not come under the definition of public servant as defined under Section 21 of the Indian Penal Code (See the decision in Ramesh Balakrishna Kulkarni v. State of Maharashtra (AIR 1985 SC 1655) and State of Tamil Nadu v. T.Thula Singham (AIR 1995 SC 1314). But petitioners 2 and 3 would come within the definition of the public servant as defined under 12th category of Section 21 of the Indian Penal Code. Therefore, to prosecute them sanction under Section 197 of the Code of Criminal Procedure is required in the event the offence alleged to have been committed by them while acting or purporting to act in discharge of Crl.M.C.No.631 of 2012 6 the official duties. Therefore, I find that to prosecute them sanction under Section 197 of the Code of Criminal Procedure is an absolute requirement.
5. The order impugned would show that the trial court, though not considered the requirement of sanction under Section 548 of the Kerala Municipality Act, considered the requirement of sanction under Section 197 of the Code of Criminal Procedure. The trial court proceeded as if all petitioners would be public servants coming under Section 21 of the Indian Penal Code. The trial court answered the issue against the petitioners without stating any good reason. Having carefully gone through the allegations against petitioners 2 and 3, I cannot agree with the conclusion arrived at by the trial court. It is also pertinent to note that even the name of the petitioners were not mentioned in the complaint. But all of them were arrayed as accused in their official capacity. Therefore, it is evident that the petitioners were prosecuted as public servants. I have earlier concluded that the offences alleged are committed while acting or purporting to act in discharge of the official duty. Therefore, as regards petitioners 2 and 3 are concerned, sanction Crl.M.C.No.631 of 2012 7 under Section 197 of the Code of Criminal Procedure is necessary and the prosecution launched without sanction is not sustainable. The second petitioner along with petitioners 1 and 4 also, as earlier stated, would come under Section 548 of the Municipality Act.
6. The learned counsel appearing for the second respondent would fairly concede that no sanction under Section 548 of the Kerala Municipality Act or Section 197 of the Code of Criminal Procedure was obtained and that for prosecuting the petitioners 1, 2 and 4 sanction under Section 548 of the Municipality Act is a statutory mandate and to prosecute petitioners 2 and 3 sanction under Section 197 of the Code of Criminal Procedure is also mandatory. Second petitioner is entitled to two protections. The learned counsel for the second respondent has no good explanation for not obtaining sanction.
7. For the forgoing reasons, I find that the petitioners are entitled to get the complaint quashed against them as the prosecution of the petitioners without sanction would amount to abuse of the process.
Crl.M.C.No.631 of 2012 8
In the result, this petition is allowed. Annexure-I order so far as it taking cognizance against the petitioners would stand quashed as it is without the sanction under Section 548 of the Kerala Municipality Act as against petitioners 1, 2 and 4 and under Section 197 of the Code of Criminal Procedure as against petitioners 2 and 3.
P.S.GOPINATHAN, JUDGE cms