Kerala High Court
Sunil Kumar & Others vs State Of Kerala And Others
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937
WP(C).NO. 22000 OF 2011 (Y)
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PETITIONER(S):
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1. SUNIL KUMAR & OTHERS,
S/O.THANKAPPAN, MAILAMATTATHIL HOUSE,
PATHAMMILE BHAGAM, VADAYANBADI KARA,
AIKKARANADU SOUTH PO, ERNAKULAM DISTRICT.
2. ANILKUMAR,AGED 39 YEARS,
S/O.THANKAPPAN, MAILAMATTATHIL HOUSE
PATHAMMILE BHAGAM, VADAYANBADI KARA
AIKKARANADU SOUTH PO, ERNAKULAM DISTRICT.
3. DHINILKUMAR,AGED 29 YEARS,
S/O.THANKAPPAN, MAILAMATTATHIL HOUSE
PATHAMMILE BHAGAM, VADAYANBADI KARA
AIKKARANADU SOUTH PO, ERNAKULAM DISTRICT
BY ADVS.SRI.PAUL K.VARGHESE
SMT.A.A.GEETHA
RESPONDENT(S):
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1.STATE OF KERALA AND OTHERS
SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.
2.K.K.JOHN,ADDITIONAL SUB INSPECTOR OF
POLICE, RAMAMANGALAM POLICE STATION
ERNAKULAM DISTRICT, PIN 686 663.
3.YESUDAS, SUB INSPECTOR OF POLICE,
RAMAMANGALAM POLICE STATION, ERNAKULAM DISTRICT
PIN 686 663.
R2 BY ADV. SRI.B.GOPAKUMAR
R3 BY ADV. SRI.B.RAMAN PILLAI
R3 BY ADV. SRI.SUJESH MENON V.B.
R3 BY ADV. SRI.SHYAM ARAVIND
R3 BY ADV. SRI.T.ANIL KUMAR
R3 BY ADV. SRI.MANU TOM
R1 BY ADV. GOVERNMENT PLEADER, SRI. MANZOOR ALI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).NO. 22000 OF 2011 (Y)
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APPENDIX
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PETITIONER'S EXHIBITS:
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EXT.P1 TRUE COPY OF THE REPRESENTATION DTD.31.12.10
EXT.P2 THE TRUE COPY OF THE NOTICE ISSUED TO THE 2ND AND 3RD
RESPONDENTS DTD.19.1.11
EXT.P3 THE TRUE COPY OF THE REPRESENTATION DATD 27.1.11 FILED
BY THE 1ST PETITIONER TO THE SUPERINTENDENT OF POLICE.
EXT.P4 TRUE COPY OF THE APPLICATION DATED 3.1.11.
EXT.P5 THE TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.5118/2011
OF THIS HON'BLE COURT DATED 28.2.2011.
EXT.P6 THE TRUE COPY OF THE COMMUNICATION NO.2058/A3/2011/HOME
DATED 4.7.11 OF THE 1ST RESPONDENT DATED 28.2.11.
EXT.P7 THE TRUE COPY OF THE PAPER CUTTING FROM MALAYALA MANORAMA
DTD.31ST JULY,2011.
EXT.P7(A) THE TRUE COPY OF THE PAPER CUTTING FROM MANGALAM DAILY
DTD.1.8.11.
EXT.P7(B) THE TRUE COPY OF THE PAPER CUTTING FROM MALAYALA
MANORAMA DTD.27TH JULY, 2011.
RESPONDENTS' EXHIBITS: NIL
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//TRUE COPY//
P.A. TO JUDGE
DST
K. HARILAL, J.
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W.P. (C) No.22000 of 2011
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Dated this the 1st day of March, 2016
J U D G M E N T
The petitioners are brothers. According to them, they never involved in any crime. One `Sukumaran', the uncle of the petitioners, owned landed properties and he handed over the possession of the said property to the petitioners and since then the petitioners were in possession and enjoyment of the said property. Certain civil disputes were pending between `Sukumaran' and one `Joshy Joseph', since 1992. The Munsiff Court, Muvattupuzha has passed a permanent prohibitory injunction, restraining the above `Joshy Joseph' from trespassing into the property owned by `Sukumaran'. On 24.09.2010, the petitioners were summoned to the police station on a false complaint W.P.(C) No. 22000 of 2011 -: 2 :- of `Joshy Joseph'. When the petitioners reached the police station, 2nd and 3rd respondents compelled the petitioners to give Rs.1,00,000/- to the above named `Joshy Joseph' as compensation towards the advance amount received by `Sukumaran' towards sale consideration. When the petitioners refused, the petitioners were produced before the Magistrate late night violating the directions of the Supreme Court and they were remanded to sub jail. Respondents 2 and 3 misusing their official capacity falsely and maliciously registered Crime No.169 of 2010 and filed a false report, causing the petitioners to be detained in jail for a day and also the 2nd respondent with mala fide intention, without enquiry had proceeded further against the petitioners. Thus, the act of 2nd and 3rd respondents constitute W.P.(C) No. 22000 of 2011 -: 3 :- offences punishable under Section 42 of the Kerala Police Act, 1960, Sections 120B, 166, 167, 192, 193, 219 and 342 of the Indian Penal Code. The respondents 2 and 3 had committed those illegal acts misusing their official capacity. So, the petitioners desired to prosecute them in accordance with law.
2. As prosecution sanction is to be obtained in compliance to Section 197 of the Code of Criminal Procedure, the petitioners submitted Ext.P4 application, seeking sanction for prosecuting the respondents 2 and 3 before the Chief Secretary, State of Kerala. When the said application was kept in abeyance, by the 1st respondent, to aid 2nd and 3rd respondents, who are influential persons and there was no response from the 1st respondent, the W.P.(C) No. 22000 of 2011 -: 4 :- petitioners, to redress their grievance the petitioners approached this Court, by filing W.P.(C) No.5118 of 2011, seeking a direction to the 1st respondent, to grant sanction to prosecute 2nd and 3rd respondents and this Court, by Ext.P5 judgment, directed the 1st respondent, to consider the application and pass orders. Thereupon, the 1st respondent considered the application and rejected the same, by Ext.P6 order.
3. According to the petitioners, the fundamental rights to live and the equal protection of law guaranteed by the Constitution of India are denied to the petitioners by unlawful act of the 1st respondent. It is with this averments, this writ petition is filed, to quash Ext.P6 order passed by the 1st respondent and to direct the 1st respondent W.P.(C) No. 22000 of 2011 -: 5 :- to accord sanction to the petitioners to prosecute the 2nd and the 3rd respondents.
4. All the respondents have field counter affidavits, denying the allegations levelled against them by the petitioners in this writ petition.
5. The sum and substance of the contentions raised by respondents 2 and 3 are that the 2nd respondent is Additional Sub Inspector of Police and the 3rd respondent is Sub Inspector of Police. According to these respondents, the petitioners have sought for sanction under Section 197 Cr.P.C. to prosecute them for the act done by them, while discharging their official duty. On 21.09.2010, at about 8 pm, one `Joshy' appeared before the 2nd respondent and made complaint alleging the acts constituting the offences punishable under Sections W.P.(C) No. 22000 of 2011 -: 6 :- 447, 427, 379 read with Section 34 of the Indian Penal Code, against the petitioners, and crime No.169 of 2010 was registered by the said ASI against the petitioners herein. On the basis of the statement given by the de facto complainant, investigation launched and First Information Statements were recorded and after the completion of the investigation, report was sent to the learned Judicial First Class Magistrate, Kolenchery, as contemplated by them. During the course of investigation, the 1st respondent recorded 161 statements, which form part of the case diary.
6. According to the 3rd respondent, he is not directly involved in the investigation and he is made an accused only on the reason that he was Station House Officer at that time. Since, the W.P.(C) No. 22000 of 2011 -: 7 :- cognizable offence were allegedly committed by the petitioners, in accordance with the direction of the investigating officer, the petitioners were taken into custody and arrest was recorded. The vehicle, which was alleged to have been used for commission of the offence was also seized. The petitioners were produced before the learned Magistrate along with all relevant documents and remand report. The learned Judicial First Class Magistrate, Kolencherry, remanded them to judicial custody and thereafter, on 27.09.2010, the petitioners were released on bail, as per the conditional orders issued by the learned Magistrate. Subsequently, the vehicle was also released to the 2nd petitioner on 23.10.2012, under orders on the petition filed by him. Eventually, the said crime W.P.(C) No. 22000 of 2011 -: 8 :- was re-numbered as CC No.274 of 2011 and taken into the files of Judicial First Class Magistrate's Court, Kolencherry.
7. Heard the learned counsel for the petitioners and the learned Government Pleader.
8. In view of the rival submissions made at the Bar, the question is, whether there is any reason or circumstances, warranting interference with Ext.P6, invoking extra ordinary jurisdiction of this Court, under Article 226 of the Constitution of India?
9. Going by the sequence of events that led to the registration of crime against the petitioners and, the subsequent investigation conducted thereunder, it is seen that respondents 2 and 3 have acted in accordance with law, in discharge of their W.P.(C) No. 22000 of 2011 -: 9 :- official duty only. Sanction under Section 197 of the Cr.P.C. is a measure to protect the act done by the public servant, in discharge of their official duty.
10. The petitioners have no case that respondents 2 and 3 and the Policemen under them physically attacked them, abusing their official capacity and power, while remaining in their custody. Their allegation is that they abused them with filthy language and compelled them to give Rs.1,00,000/- to one 'Jose Joseph' and registered a Crime No.169/2010 against them alleging cognizable offences and consequently, they were remanded to judicial custody, for one day. According to them, the complaint filed against them was a false one, but that culminated into illegal detention, which W.P.(C) No. 22000 of 2011 -: 10 :- caused harm to their reputation in the society. Thus, the registration of Crime No.169/2010, on a false complaint caused entire mischief, causing mental agony and impairment of their reputation. In short, without conducting a proper investigation respondents 2 and 3 filed a report disclosing cognizable offence before the court, and relaying on that report, the court remanded them for one day in judicial custody and thereby the petitioners were made to suffer the consequences, by the act or omission from the part of the respondents 2 and 3.
11. Can the respondents 2 and 3 be accused of the registration of the crime on receipt of a complaint disclosing a cognizable offence? It is to be remembered that on receipt of a complaint disclosing a cognizable offence, it is incumbent W.P.(C) No. 22000 of 2011 -: 11 :- upon the police to register a crime. Similarly, it is incumbent upon them to make a proper and effective investigation to find out the genuineness of the allegation. The Police is bound to file a Final Report charge-sheeting the accused, only if the evidence collected in the investigation are sufficient to prove the commission of the offence. In the instant case, the petitioners have not produced the copy of the complaint or statement given by 'Joshy Joseph' against the petitioners, before the respondents 1 and 2. So, there is no material to arrive at a finding that registration of the crime was unwarranted.
12. Coming to Final Report under Section 173(2) of the Cr.P.C, even if the Investigating Officer files a Final Report charge-sheeting the accused, W.P.(C) No. 22000 of 2011 -: 12 :- without conducting a proper investigation, the said omission may amount to dereliction of duty warranting departmental disciplinary action and I am of the opinion that such omission, is not sufficient to constitute a criminal offence, unless the same was the result of a criminal conspiracy with the complaint.
13. In the instant case, going by Ext.P4 application, seeking sanction for prosecution, no sufficient reasonings have been made or circumstances have been brought out to give rise to an inference in my mind, that registration of the crime or further investigation against the petitioners, was the result of a criminal conspiracy with 'Joshy Joseph', the complainant. In the absence of such materials in the application seeking W.P.(C) No. 22000 of 2011 -: 13 :- sanction, for prosecution, as has been held above, even if a report is filed without conducting a proper investigation that would amount to misconduct warranting departmental disciplinary action against the respondents and the sanction cannot be given for prosecuting the Police officer for the commission of criminal offence. The question of sanction cannot arise, unless the act complained of is an offence. An act or omission constituting a criminal offence either directly or reasonably connected with his official duty is required to grant sanction for prosecution under Section 197 of Cr.P.C. In the absence of such allegations constituting criminal offence, supported by materials, the sanctioning Authority can be justified in denying sanction for criminal prosecution.
W.P.(C) No. 22000 of 2011 -: 14 :-
14. Going by Ext.P6 order passed by the 1st respondent, it is seen that the 1st respondent conducted an enquiry on the allegations made by the petitioners against respondents 2 and 3 and it was revealed that the allegations constituting criminal offences are unfounded and false. The question, whether sanction can be granted to prosecute a public servant is a matter which depends upon subjective satisfaction of the 1st respondent, on the materials on record. When the 1st respondent is satisfied with the findings, on enquiry, this Court is not inclined to interfere with such finding, invoking extraordinary jurisdiction under Article 226 of the Constitution of India particularly, in the absence of any other material,which would give rise to a contrary inference against the subjective W.P.(C) No. 22000 of 2011 -: 15 :- satisfaction of the 1st respondent. In the above view of the matter, this Court is not inclined to interfere with Ext.P6.
Consequently, this writ petition will stand dismissed.
Sd/-
K. HARILAL, JUDGE DST //True copy// P.A. To Judge