Kerala High Court
Suhyb P.J vs State Of Kerala on 23 June, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.65/25 & con.cases
1
2025:KER:49758
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
CRL.MC NO. 65 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN CMP NO.2869 OF
2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, DEVIKULAM
PETITIONER:
SUHYB P.J,
AGED 48 YEARS
S/O.JAMALUDHEEN, PUTHUPARAMBIL HOUSE,
PERUPPANACHI POST, THENGANA, CHANGANASSERY,
KOTTAYAM DISTRICT, PIN - 686536
BY ADV SRI.BABU S. NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682031
2 K.P. SUNIL,
S/O.PUSHPANGATHAN,KALARIKKAL HOUSE, KARIMUTTI,
MARAYOOR, IDUKKI DISTRICT, PIN - 685620
BY ADV SMT.SREELAKSHMI SABU
Crl.M.C.No.65/25 & con.cases
2
2025:KER:49758
OTHER PRESENT:
SRI. NAGARAJ NARAYANAN, SPL. PP FOR FOREST.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
28.05.2025, ALONG WITH Crl.MC.73/2025, 74/2025 AND
CONNECTED CASES, THE COURT ON 23.06.2025 PASSED THE
FOLLOWING:
Crl.M.C.No.65/25 & con.cases
3
2025:KER:49758
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
CRL.MC NO. 73 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.613 OF 2024
OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, DEVIKULAM
PETITIONERS:
1 SUHYB P.J,
AGED 48 YEARS
S/O.JAMALUDHEEN, PUTHUPARAMBIL HOUSE,
PERUPPANACHI POST, THENGANA, CHANGANASSERY,
KOTTAYAM DISTRICT, PIN - 686536
2 ABJU K. ARUN,
AGED 37 YEARS
S/O.K. KARUNAKARAN, AAKKAKATTIL HOUSE, NEENDOOR
P.O., KOTTAYAM DISTRICT, PIN - 686601
BY ADV SRI.BABU S. NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682031
2 RAJESH KUMAR J,
S/O.JAYARAJ, PULIKKARAVAYAL HOUSE, MARAYOOR,
IDUKKI DISTRICT, PIN - 685620
Crl.M.C.No.65/25 & con.cases
4
2025:KER:49758
BY ADV SMT.SREELAKSHMI SABU
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
28.05.2025, ALONG WITH Crl.MC.65/2025 AND CONNECTED CASES,
THE COURT ON 23.06.2025 PASSED THE FOLLOWING:
Crl.M.C.No.65/25 & con.cases
5
2025:KER:49758
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
CRL.MC NO. 74 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.612 OF 2024
OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, DEVIKULAM
PETITIONERS:
1 SUHYB P.J,
AGED 48 YEARS
S/O.JAMALUDHEEN, PUTHUPARAMBIL HOUSE,
PERUPPANACHI POST, THENGANA, CHANGANASSERY,
KOTTAYAM DISTRICT, PIN - 686536
2 ABJU K. ARUN,
AGED 37 YEARS
S/O.K. KARUNAKARAN, AAKKAKATTIL HOUSE, NEENDOOR
P.O., KOTTAYAM DISTRICT, PIN - 686601
BY ADV SRI.BABU S. NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682031
Crl.M.C.No.65/25 & con.cases
6
2025:KER:49758
2 SARATH @ SIVA,
S/O.AYYAPPAN,LAKSHMI HOUSE, KOODAVAYAL,'MARAYOOR,
IDUKKI DISTRICT, PIN - 685620
BY ADV SMT.SREELAKSHMI SABU
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
28.05.2025,, ALONG WITH Crl.MC.65/2025 AND CONNECTED CASES,
THE COURT ON 23.06.2025 PASSED THE FOLLOWING:
Crl.M.C.No.65/25 & con.cases
7
2025:KER:49758
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
CRL.MC NO. 85 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.614 OF 2024
OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, DEVIKULAM
PETITIONERS:
1 SUHYB P.J,
AGED 48 YEARS
S/O.JAMALUDHEEN, PUTHUPARAMBIL HOUSE,
PERUPPANACHI POST, THENGANA, CHANGANASSERY,
KOTTAYAM DISTRICT, PIN - 686536
2 ABJU K. ARUN,
AGED 37 YEARS
S/O.K. KARUNAKARAN, AAKKAKATTIL HOUSE, NEENDOOR
P.O., KOTTAYAM DISTRICT, PIN - 686601
BY ADV SRI.BABU S. NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682031
Crl.M.C.No.65/25 & con.cases
8
2025:KER:49758
2 MANOJ KUMAR,
AGED 22 YEARS
S/O.CHRISTOPHER,NACHIVAYAL, MICHEALGIRI P.O.,
MARAYOOR, IDUKKI DISTRICT, PIN - 685620
BY ADV SMT.SREELAKSHMI SABU
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
28.05.2025,, ALONG WITH Crl.MC.65/2025 AND CONNECTED CASES,
THE COURT ON 23.06.2025 PASSED THE FOLLOWING:
Crl.M.C.No.65/25 & con.cases
9
2025:KER:49758
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
CRL.MC NO. 86 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN CMP NO.2814 OF
2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, DEVIKULAM
PETITIONERS:
1 SUHYB P.J.
AGED 48 YEARS
S/O.JAMALUDHEEN, PUTHUPARAMBIL HOUSE,
PERUPPANACHI POST, THENGANA, CHANGANASSERY,
KOTTAYAM DISTRICT, PIN - 686536
2 ABJU K. ARUN,
AGED 37 YEARS
S/O.K. KARUNAKARAN, AAKKAKATTIL HOUSE, NEENDOOR
P.O., KOTTAYAM DISTRICT, PIN - 686601
BY ADV SRI.BABU S. NAIR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682031
Crl.M.C.No.65/25 & con.cases
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2025:KER:49758
2 LIJU,
S/O.MANI, M.S. NIVAS,
THEKKUMBAGOM,CHIRAYINKEEZHU, THIRUVANANTHAPURAM
DISTRICT, PIN - 695304
BY ADV SMT.SREELAKSHMI SABU
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
28.05.2025,, ALONG WITH Crl.MC.65/2025 AND CONNECTED CASES,
THE COURT ON 23.06.2025 PASSED THE FOLLOWING:
Crl.M.C.No.65/25 & con.cases
11
2025:KER:49758
"CR"
V.G.ARUN, J
= = = = = = = = = = = = = = = = = = = = =
Crl.M.C.Nos.65,73,74,85 and 86 of 2025
= = = = = = = = = = = = = = = = = = = = =
Dated this the 23rd day of June, 2025
ORDER
Petitioners are forest officials, the 1st petitioner being the Divisional Forest Officer, Marayoor Forest Division and the 2 nd petitioner, the Range Forest Officer. Three crimes were registered at the Marayoor Forest Range as O.R.Nos.1, 2 and 3 of 2024 for offences under Sections 27(1)(d), 27(1)(e)(ii), 27(1)
(e)(iii) and 27(1)(e)(iv) read with Sections 47C and 47G of the Kerala Forest Act against certain persons including the 2 nd respondents herein. As the facts in Crl.M.C.Nos.65 and 86 of 2025 are slightly different from those in Crl.M.C.Nos.73, 74 and 85 of 2025, the two sets of cases are dealt with separately. Crl.M.C.Nos.73, 74 and 85 of 2025 Pursuant to the registration of O.R.Nos.1,2 and 3 of 2024, Vinod, the 5th accused in O.R.No.1 of 2025, was arrested and his Crl.M.C.No.65/25 & con.cases 12 2025:KER:49758 confession statement recorded on 14.11.2024. During his confession, Vinod revealed the names of Sarath @ Siva, Soorya, Suresh and Liju @ Jithu as participants in the crime. Thereafter, the 1st accused Sarath was taken into custody on 18.11.2024. In the confession statement of Sarath recorded on 19.11.2024, he mentioned about the involvement of others named Manoj, Rajesh and Jaleel. Thereupon, Manoj, Rajesh and Jaleel were arrested on 21.11.2024. After recording their arrest the accused were produced before the Judicial Magistrate of First Class, Devikulam and remanded to judicial custody. While so, the petitioners sought the custody of Sarath, Manoj and Rajesh for the purpose of interrogation. The learned Magistrate allowed the prayer and granted custody from 04.12.2024 to 09.12.2024. On completion of the custody period the accused were produced before the Magistrate on 09.12.2024. Later in the day, after meeting their lawyer, the accused complained to the Magistrate that they were subjected to extreme harassment and physical torture by the petitioners. Crl.M.C.No.65/25 & con.cases 13 2025:KER:49758 The Magistrate thereupon directed the accused to be taken for medical examination. After returning from the hospital, Sarath, Manoj and Rajesh submitted written complaints to the Magistrate. The Magistrate accepted the complaints and recorded the sworn statements of the accused on 21.12.2024. Based on the complaints and the sworn statements, the Magistrate took cognisance of the offences punishable under Sections 115(2), 118(1), 120(1), 127(2), 194 and 351(1) read with Section 3(5) of the BNS and issued summons to the petitioners. The cases were thereupon numbered as C.C.Nos.613, 612 and 614 of 2024 on the files of the Judicial Magistrate of First Class, Devikulam. Crl.M.C.Nos.65 and 86 of 2025 The 2nd respondent in Crl.M.C.No.65 of 2025 is the 4 th accused in O.R.No.1 of 2024 and was arrested on 14.11.2024. While continuing in judicial custody, the 2 nd respondent submitted a complaint alleging physical torture while he was in the custody of the petitioners. Thereupon, the Magistrate Crl.M.C.No.65/25 & con.cases 14 2025:KER:49758 issued notice under Section 223(1) of BNSS to the petitioners.
2. The 2nd respondent in Crl.M.C.No.86 of 2025 is the 5 th accused in O.R.No.3 of 2024. He was arrested on 21.11.2024 and at the request of the petitioners, the 2 nd respondent was given to their custody from 23.11.2024 to 26.11.2024. Subsequently, the 2nd respondent submitted Annexure B complaint to the Magistrate on 17.12.2024, and the Magistrate issued notices to the petitioners under Section 223(1) of BNSS.
3. Heard Advs.Babu S. Nair for the petitioners, Thomas J Anakallungal and Sreelakshmi Sabu for the accused. Adv.Nagaraj Narayanan, the Special Government Pleader (Forest) appeared for the State.
4. Learned counsel for the petitioners made the following submissions with respect to Crl.M.C.Nos.73, 74 and 85 of 2025;
While the accused were in the custody of the petitioners, their medical examination was conducted every 48 hours. Neither was any complaint regarding torture made to the Doctor, nor did the Doctor notice any injuries on the accused. Crl.M.C.No.65/25 & con.cases 15 2025:KER:49758 Even on 09.12.2024, when they were produced before the Magistrate, the accused did not complain about torture. The complaint was made only after the accused interacted with their counsel. It was the counsel who entered the Magistrate's chamber to make the complaint. Surprisingly, the counsel was allowed to take the accused to the hospital for medical examination in his own vehicle. The identically worded complaints alleging torture, were submitted thereafter. By recording the sworn statements of the complainants and withou issuing notice to the petitioners, taking cognisance the Magistrate acted in violation of the procedure prescribed in Section 223 of the BNSS. The personal bias of the Magistrate is evident from the issuance of notices proposing to initiate contempt proceedings against the petitioners based on certain media reports regarding the illegal procedure adopted by the Magistrate. The petitioners have approached the High Court on its administrative side pointing out these illegalities. The bias and prejudice of the Magistrate being apparent, interest of Crl.M.C.No.65/25 & con.cases 16 2025:KER:49758 justice demands that the proceedings be transferred to some other court.
5. The following contentions were advanced with respect to Crl.M.C.Nos.65 and 86 of 2025;
After accepting the complaint filed by the 2 nd respondents, the Magistrate issued notice under Section 223(1) of BNSS to the petitioners, without following the procedure prescribed in Section 223(2). If the complaint is against a public servant, for any offence alleged to have been committed in the course of the discharge of his official functions or duties, opportunity should be given to the public servant to make assertions as to the situation that led to the alleged incident and a report containing the facts and circumstances of the incident obtained from an officer superior to such public servant. The accused were allegedly tortured during interrogation, which is an integral. Being so, the Magistrate was bound to comply with the procedure under Section 223(2) before issuing notice to the petitoners. Reliance is placed on the decisions of the Supreme Crl.M.C.No.65/25 & con.cases 17 2025:KER:49758 Court in Rizwan Ahmed Javed Shaikh and Others v. Jammal Patel and Others [(2001) 5 SCC 7] and Sankaran Moitra v. Sadhna Das and Another [(2006) 4 SCC 584] to contend that any act constituting an offence directly and reasonably connected with the official duty of the public servant will fall within the ambit of Section 223(2) of BNSS.
6. Responding to the above contentions, learned counsel for the 2nd respondents put forth the following arguments;
Cognisance was taken based on the sworn statement of the complainant as well as the medical evidence, which clearly indicated that the accused were tortured by the petitioners. The torturing of accused persons under the guise of interrogation has nothing to do with the discharge of official duties. Therefore, Magistrate was not bound to follow the procedure under Section 223(2) of BNSS. In support of the argument, reliance is placed on the decisions of the Supreme Court in Om Prakash Yadav v. Niranjan Kumar Upadhyay [2024 KHC 6707] and of the High Court in Alavi C v. State of Crl.M.C.No.65/25 & con.cases 18 2025:KER:49758 Kerala [2024 KHC 7210]. Alternatively, it is contended that the 2nd petitioner, being a Range Officer, whose appointing authority is not the Government, is not entitled for the protection under Section 223(2) of BNSS. It is submitted that, the unwarranted and unsubstantiated allegations are raised against the Magistrate only to demoralise the judicial officer and get the case transferred to some other court.
7. Learned Special Government Pleader submitted that the jurisdiction of the JFCM Court, Devikulam spreads over a vast area and the Forest Department is facing issues due to the inimical stand taken by the Magistrate against its officers. It is argued that interrogation is part of official duty and cognisance could have been taken only after following the procedure prescribed in Section 223(2). Support for the argument is sought to be drawn from the decisions of the Apex Court in P. Arulswami v. State of Madras [AIR 1967 SC 776] and Rakesh Kumar Mishra v. State of Bihar and Others [(2006 1 SCC 557].
Crl.M.C.No.65/25 & con.cases 19 2025:KER:49758
8. The first contention being regarding the failure of the Magistrate to follow the procedure prescribed in Section 223 of the BNSS, the said provision is extracted hereunder for easy reference "223. Examination of complainant.
(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212:
Provided also that if the Magistrate makes over the case to another Magistrate under Section 212 after examining the Crl.M.C.No.65/25 & con.cases 20 2025:KER:49758 complainant and the witnesses, the latter Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless-
(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and
(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."
(underline supplied)
9. The difference between the procedure prescribed in Section 202 of the Code of Criminal Procedure and Section 223(1) was noticed by this Court in Suby Antony v. Susha [2025 (1) KHC 596], the relevant portion of which is extracted below;
"7. Indeed, a radical change in procedure is brought about by the proviso to S.223(1) of BNSS. Pertinently, in spite of the proviso to S.223(1) making it mandatory to provide opportunity of hearing to the accused before taking cognisance, S.226 does not reckon the Crl.M.C.No.65/25 & con.cases 21 2025:KER:49758 accused's objection at the stage of taking cognisance as a relevant factor for dismissing the complaint. Being guided by the precedents on S.200 and S.202 of the Code and the plain language of the proviso to S.223(1) of the BNSS, this Court is of the opinion that, after the complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognisance of the offence/s, opportunity of hearing should be afforded to the accused. "
10. In so far as cognisance was taken by the Magistrate in C.C.Nos. 612, 613 and 614 of 2024, without following the prescribed procedure, Crl.M.C. Nos. 73, 74 and 85 are liable to be allowed.
11. The next contention is regarding the failure to follow the procedure prescribed in sub-section (2) to Section 223 of BNSS. Here, it is pertinent to note that Section 202 of the Code of Criminal Procedure did not contain a provision corresponding to Section 223(2) of BNSS. The only provision in the Code providing such protection to public servants was Section 197(1) and the corresponding Section in the BNSS is Section 218(1), extracted below;
Crl.M.C.No.65/25 & con.cases 22 2025:KER:49758 "218. 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 officer 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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)--
(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 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:
(underline supplied)
12. On careful scrutiny of Sections 218(1) and 223(2) it can be seen that the protection under Section 218 is confined to the offences alleged to have been committed by a public servant while acting or purporting to act in the discharge of official duty. On the other hand, sub-section (2) of Section 223 covers offences alleged to have been committed by a public Crl.M.C.No.65/25 & con.cases 23 2025:KER:49758 servant in course of the discharge of the official functions or duties. Interpreting the words 'any offence alleged to have been committed by the public servant while acting or purporting to act in the discharge of his official duty, the Apex Court in B.Saha and Others v M.S. Kochar [AIR 1979 SC 1841] has observed that if those words are construed narrowly, the provision will be rendered sterile, for, it is not part of an official duty to commit an offence and in the wider sense the words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed.
Therefore, the right approach lies between the two extremes. In Rizwan Ahmed Javed Shaikh (supra), the Supreme Court laid down the test for the applicability of Section 197 as under;
"15. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in Crl.M.C.No.65/25 & con.cases 24 2025:KER:49758 dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected."
13. Later, in Sankaran Moitra (supra), after extensive survey of precedents, the Supreme Court encapsulated its conclusion as to the primary object of Section 197 in the following words;
"67. From the aforesaid decisions, in my opinion, the law appears to be well settled. The primary object of the legislature behind Section 197 of the Code is to protect public officers who have acted in discharge of their duties or purported to act in discharge of such duties. But, it is equally well settled that the act said to have been committed by a public officer must have reasonable connection with the duty sought to be discharged by such public officer. If the act complained of has no nexus, reasonable connection or relevance to the official act or duty of such public servant and is otherwise illegal, unlawful or in the nature of an offence, he cannot get shelter under Section 197 of the Code. In other words, protection afforded by the said section is qualified and conditional."
14. True, that in Alavi C. (supra), this Court, in the context of Section 197, has held that acts of physical torture Crl.M.C.No.65/25 & con.cases 25 2025:KER:49758 and abuse cannot be said to have reasonable connection with official duty. Here, it is pertinent to note that the wordings of Section 223(2) of BNSS are much more expansive than Section 197(1) of the Code (Section 218(1) of BNSS). While Section 218(1) contemplates sanction of the Government if the public servant is alleged to have committed any offence while acting or purporting to act in the discharge of his official duty, Section 223(2) provides an opportunity to the public servant to make his assertions with respect to any offence alleged to have been committed in course of the discharge of his official functions or duties. Undoubtedly, the words 'any offence alleged to have been committed in course of the discharge of his official functions or duties' would take in an excessive act committed by such person in the course of the discharge of his official functions or duties.
15. Another vital difference between the provisions is that, in Section 218(1) only the word duty is used, whereas in Section 223(2), both duty and function are mentioned. While Crl.M.C.No.65/25 & con.cases 26 2025:KER:49758 the expression 'public duty' refers to an obligation or responsibility imposed on a public official, the term public function refers to the activity, role or service performed by a public official or a person acting on behalf of the Government. Thus, it is apparent that the legislature has consciously used the expansive expression in Section 223(2) so as to provide additional layer of protection to public servants from prosecution based on false and frivolous complaints. Therefore, when dealing with complaints alleging commission of offence by a public servant in course of the discharge of his official function or duty, the Magistrate is bound to follow the procedure prescribed in Section 223(2) of BNSS.
16. While on the subject it may also be profitable to note that while sanctioning under Section 218(1) of BNSS is confined to persons employed by the Central and State Governments, no such restriction is stipulated in Section 223(2), the expression used therein being public servant simplicitor. Therefore, all persons falling within the definition Crl.M.C.No.65/25 & con.cases 27 2025:KER:49758 of 'public servant' under Section 2(28) of the BNS are covered by the protective umbrella of Section 223(2) of BNSS. Being so, the contention of the 2 nd respondent that the 2 nd petitioner is not appointed by the State Government and therefore do no fall within the ambit of Section 223(2) can only be rejected.
17. The above discussion leads to the conclusion that in CMP Nos.2814 of 2024 and 2869 of 2024, the Magistrate should afford opportunity to the petitioners to offer their explanation regarding the alleged incident and call for a report from their superior officer. The 1st petitioner being the immediate superior of the 2nd petitioner, the Magistrate may call for a report from an officer superior in rank to both the petitioners.
In the result, Crl.M.C.Nos.73, 74 and 85 of 2025 are allowed and the orders taking cognisance and further proceedings in C.C.Nos.613, 612 and 614 are quashed. The Magistrate is directed to commence fresh proceedings by adhering to the procedure prescribed in Sections 223(1) and 223(2) of the BNSS.
Crl.M.C.No.65/25 & con.cases 28 2025:KER:49758 Crl.M.C.Nos.65 and 86 of 2025 are disposed of by directing the Magistrate to continue the proceedings pursuant to Annexures C and D notices in accordance with the procedure prescribed in Section 223(2) of the BNSS.
sd/-
V.G.ARUN, JUDGE sj Crl.M.C.No.65/25 & con.cases 29 2025:KER:49758 APPENDIX OF CRL.MC 73/2025 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE FORM 1 IN O.R.NO.1/2024 OF THE MARAYOOR FOREST STATION DATED, 30-6-2024 Annexure A(1) A TRUE COPY OF THE FORM 1 IN O.R.NO.2/2024 OF THE NACHIVAYAL FOREST STATION DATED, 20-9-2024 Annexure A(2) A TRUE COPY OF THE FORM 1 IN O.R.NO.3/2024 OF THE NACHIVAYAL FOREST STATION DATED, 6-11-2024 Annexure B A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT DATED, 10-12-2024 Annexure C A TRUE COPY OF THE SWORN STATEMENT OF THE 2ND RESPONDENT RECORDED BY THE LEARNED MAGISTRATE DATED, 21-12-2024 Annexure D A TRUE COPY OF THE SUMMONS ISSUED TO THE 2ND PETITIONER IN C.M.P.NO.2771/2024 Annexure E A TRUE COPY OF THE ORDER IN CRL.M.P.NO.2792/2024 OF THE J.F.C.M., DEVIKULAM DATED, 16-12-2024 Annexure F A TRUE COPY OF THE ORDER OF THE J.F.C.M., DEVIKULAM IN C.M.P.NO.2825/2024 DATED, 18-12-2024 Annexure G A TRUE COPY OF THE CONFESSION STATEMENT OF THE 8TH ACCUSED IN O.R.NO.3/2024 OF THE MARAYOOR FOREST RANGE Crl.M.C.No.65/25 & con.cases 30 2025:KER:49758 APPENDIX OF CRL.MC 74/2025 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE FORM 1 IN O.R.NO.1/2024 OF THE MARAYOOR FOREST STATION DATED, 30-6-2024 Annexure A(1) A TRUE COPY OF THE FORM 1 IN O.R.NO.2/2024 OF THE NACHIVAYAL FOREST STATION DATED, 20-9-2024 Annexure A(2) A TRUE COPY OF THE FORM 1 IN O.R.NO.3/2024 OF THE NACHIVAYAL FOREST STATION DATED, 6-11-2024 Annexure B A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT DATED, 9-12-2024 BEFORE THE J.F.C.M., DEVIKULAM Annexure C A TRUE COPY OF THE SWORN STATEMENT OF THE 2ND RESPONDENT RECORDED BY THE J.F.C.M., DEVIKULAM DATED, 21-12-2024 Annexure D A TRUE COPY OF THE SUMMONS ISSUED TO THE 2ND PETITIONER IN C.M.P.NO.2768/2024 Annexure E A TRUE COPY OF THE ORDER IN CRL.M.P.NO.2792/2024 OF THE J.F.C.M., DEVIKULAM DATED, 16-12-2024 Annexure F A TRUE COPY OF THE ORDER OF THE J.F.C.M., DEVIKULAM IN C.M.P.NO.2825/2024 DATED, 18-12-2024 Annexure G A TRUE COPY OF THE CONFESSION STATEMENT OF THE 8TH ACCUSED IN O.R.NO.3/2024 OF THE MARAYOOR FOREST RANGE Annexure H A TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE FIRST PETITIONER AND THE PROCEEDINGS DATED, 31-1-2025 OF THE J.F.C.M., DEVIKULAM Annexure I A TRUE COPY OF THE REPLY SUBMITTED TO ANNEXURE H NOTICE BY THE FIRST PETITIONER DATED, 16-2-2025 Crl.M.C.No.65/25 & con.cases 31 2025:KER:49758 Annexure J A TRUE COPY OF THE COVERING LETTER OF THE CHIEF CONSERVATOR OF FOREST, KOTTAYAM DATED, 3-4-2025 Annexure K TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER BEFORE THE REGISTRAR (VIGILANCE) OF THIS HON'BLE COURT DATED, 2-4-2025 Crl.M.C.No.65/25 & con.cases 32 2025:KER:49758 APPENDIX OF CRL.MC 85/2025 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE FORM 1 IN O.R.NO.1/2024 OF THE MARAYOOR FOREST STATION DATED, 30-6-2024 Annexure A(1) A TRUE COPY OF THE FORM 1 IN O.R.NO.2/2024 OF THE NACHIVAYAL FOREST STATION DATED, 20-9-2024 Annexure A(2) A TRUE COPY OF THE FORM 1 IN O.R.NO.3/2024 OF THE NACHIVAYAL FOREST STATION DATED, 6-11-2024 Annexure B CERTIFIED COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT DATED, 10-12-2024 BEFORE THE J.F.C.M., DEVIKULAM Annexure C A TRUE COPY OF THE SWORN STATEMENT OF THE 2ND RESPONDENT RECORDED BY THE LEARNED MAGISTRATE DATED, 21-12-2024 Annexure D A TRUE COPY OF THE SUMMONS ISSUED TO THE FIRST PETITIONER IN C.M.P.NO.2772/2024 DATED, 23-12-2024 Annexure E A TRUE COPY OF THE ORDER IN CRL.M.P.NO.2792/2024 OF THE J.F.C.M., DEVIKULAM DATED, 16-12-2024 Annexure F A TRUE COPY OF THE ORDER OF THE J.F.C.M., DEVIKULAM IN C.M.P.NO.2825/2024 DATED, 18-12-2024 Annexure G A TRUE COPY OF THE CONFESSION STATEMENT OF THE 8TH ACCUSED IN O.R.NO.3/2024 OF THE MARAYOOR FOREST RANGE Crl.M.C.No.65/25 & con.cases 33 2025:KER:49758 APPENDIX OF CRL.MC 86/2025 PETITIONER ANNEXURES Annexure A TRUE COPY OF THE FORM 1 IN O.R.NO.1/2024 OF THE MARAYOOR FOREST STATION DATED, 30-6-2024 Annexure A(1) TRUE COPY OF THE FORM 1 IN O.R.NO.2/2024 OF THE NACHIVAYAL FOREST STATION DATED, 20-9-2024 Annexure A(2) TRUE COPY OF THE FORM 1 IN O.R.NO.3/2024 OF THE NACHIVAYAL FOREST STATION DATED, 6-11-2024 Annexure B TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE J.F.C.M., DEVIKULAM DATED, 17-12-2024 Annexure C ATRUE COPY OF THE NOTICE ISSUED TO THE FIRST PETITIONER DATED, 18-12-2024 FROM THE J.F.C.M. COURT, DEVIKULAM Annexure D TRUE COPY OF THE NOTICE ISSUED TO THE SECOND PETITIONER DATED, 18-12-2024 FROM THE J.F.C.M. COURT, DEVIKULAM Annexure E TRUE COPY OF THE ORDER IN CRL.M.P.NO.2792/2024 OF THE J.F.C.M., DEVIKULAM DATED, 16-12-2024 Annexure F TRUE COPY OF THE ORDER OF THE J.F.C.M., DEVIKULAM IN C.M.P.NO.2825/2024 DATED, 18-12-2024 Annexure G TRUE COPY OF THE CONFESSION STATEMENT OF THE 8TH ACCUSED IN O.R.NO.3/2024 OF THE MARAYOOR FOREST RANGE DATED, 18-12-
2024 Crl.M.C.No.65/25 & con.cases 34 2025:KER:49758 APPENDIX OF CRL.MC 65/2025 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE FORM 1 IN O.R.NO.1/2024 OF THE MARAYOOR FOREST STATION DATED, 30-6-2024 Annexure B A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE J.F.C.M., DEVIKULAM DATED, 24-12-2024 Annexure C A TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER DATED, 30-12-2024 UNDER SECTION 223(I) PROVISO OF BNSS