(2012) 279 KLR 301 (CR)

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN 

THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934 

Crl.Rev.Pet.No. 1360 of 2007 ( ) 

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CC.35/2005 of J.M.F.C.-II (MOBILE),ALAPPUZHA 

REVISION PETITIONER(S): 

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V.MURALIDHARAN NAIR, S/O.VELAYUDHAN PILLAI, SUPERINTENDENT OF POLICE NARAKAPARAMBU HOUSE, PURAVEEDU P.O., ALLEPPEY-9. BY ADV. SRI.S.SREEKUMAR 

COMPLAINANT(S): 

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1. SAJU.M.ANTONY S/O ANTONY, KOZHIPPARAMPIL HOUSE, MULLAKKAL, ALLEPPEY. 

2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 

BY ADV. SRI.C.S.MANU FOR R1 PUBLIC PROSECUTOR SMT. M.T. SHEEBA 

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 

N.K. Balakrishnan, J. 

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Crl.R.P. No. 1360 of 2007 

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Dated: 8-11-2012 

Head Note:-

Criminal Procedure Code, 1973 - Section 197 - Public Servant - Circle Inspector of Police - Explanatory Note to S.R.O. No. 1211/1977 - the protection was extended to all members of the Kerala Police Force charged with maintenance of public order - the finding entered by the learned Magistrate that the accused persons are not entitled to protection under Section 197 (2) of Cr.P.C, solely on the ground that they are not removable by the Government, cannot be sustained. 

Criminal Procedure Code, 1973 - Section 197 - Public Servant - Circle Inspector of Police - Explanatory Note to S.R.O. No. 1211/1977 - The intention behind in affording protection under Sec. 197 is to prevent public servants being unnecessarily harassed. The Section is not restricted only to cases anything purported to be done in good faith, for, a person who ostensibly acts in execution of his duties still purports so to act, although he may have a dishonest intention. The offence alleged should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. 

Criminal Procedure Code, 1973 - Section 197 - Public Servant - Circle Inspector of Police - Explanatory Note to S.R.O. No. 1211/1977 - What is to be considered is whether the act alleged against the petitioner was either in discharge of his official duty or in the purported discharge of his official duty. The importance is not on the nature of the act alleged but whether the act allegedly done was in the discharge of his official duty or in the purported discharge of his official duty. 

ORDER 

The petitioner is the first accused in C.C. No. 35 of 2005 on the file of the J.F.C.M. II, Alappuzha. Based on a private complaint, cognizance was taken by the learned Magistrate against the petitioner (C.I. of Police) and two others, (the S.I. and one Constable) alleging offence under Sec. 326 read with Sec. 34 I.P.C. Cognizance was taken and process was issued to the accused. That order was challenged before this Court in Crl. M.C. No. 3148/2000. That petition was dismissed holding that the accused can raise all those contentions and plead for discharge under Sec. 245 of Cr.P.C. Evidence on the side of the complainant under Sec. 244 Cr.P.C. was recorded. The petitioner contended that the cognizance taken without sanction under Sec. 197 Cr.P.C. is bad in law since the petitioner was then working as Circle Inspector of Police and that the act complained of was done in discharge of his official duties or while purporting to act in the course of the official duties. 

2. The learned Magistrate then observed that the question as to the requirement of sanction under Sec. 197 of Cr.P.C. can be raised as a point and considered later at the time of final argument. The petitioner again approached this Court by filing Crl.M.C. No. 477 of 2007. This Court held that when the accused raised an objection that the cognizance taken against him is bad for the reason that it offends Sec. 197 of Cr.P.C., it is impermissible for the Court to relegate consideration of that question at a later stage since, if permitted, it would render sterile the protection under Sec. 197 Cr.P.C. Thus, the order passed by the learned Magistrate was set aside. The Magistrate was directed to consider the petition filed by the petitioner/accused for discharge under Sec. 245 Cr.P.C. 

3. The learned Magistrate again considered the question and passed the impugned order on 22-3-2007. It was held by the learned Magistrate that the appointing authorities of the Circle Inspectors, the Sub Inspectors and the Constables are respectively the Inspector General, Deputy Inspector General and the Superintendent of Police as per the Police Act and Rules and the petitioner can be removed from their office by their appointing authorities and no sanction from the Government is necessary to do so. Therefore, according to the learned Magistrate, the petitioner does not come under the category of 'public servant' referred to in Sec. 197 (1) Cr.P.C. As such the protection claimed by the petitioner under Sec. 197 was turned down by the learned Magistrate. Challenging that order the first accused/petitioner has again approached this Court. 

4. The learned Senior Counsel appearing for the petitioner submits that the complaint and the evidence on record would unequivocally prove that the offence alleged against the petitioner, even if committed was in the discharge of his official duties. It is vehemently argued that based on the complaint filed by one Sasikumar a crime was registered against the complainant (Ist respondent herein) and others as Crime No. 89/95 of South Police Station, Alleppey. It is contended that Sasikumar mentioned earlier was a lessee of a Saw Mill. The period of lease was one year. Despite the expiry of the lease, he did not surrender possession. It appears, since the lessor was interfering with the lessee's possession of the leased premises, the lessee filed a complaint to the Circle Inspector of Police and it was based on that complaint Crime No. 89 of 95 was registered. Hence the complainant (R1) was called to the police station. The allegation made in the complaint is that he was illegally detained and assaulted by the petitioner. 

5. The main thrust of the argument advanced by the learned Senior counsel for the petitioner is that since a crime was registered against the complainant and since the petitioner was conducting investigation in that case, the fact that the respondent (who was the accused in that crime) was taken to the police station and was questioned, cannot in any way attract any of the offences as alleged in the complaint filed by the respondent. 

6. It is pointed out that the request for discharge was rejected by the learned Magistrate not on the ground that the act complained of was not committed by him while acting or purporting to act in the discharge of his official duty but on the ground that the petitioner is not a public servant removable by the Government as mentioned in Section 197 of Cr.P.C. The decision of the Division Bench in Sarojini v. Prasannan - 1996 (2) KLT 859 has been relied on by the learned counsel for the petitioner in support of the submission that the petitioner being the Circle Inspector of Police is not a member of Kerala Subordinate Police Service but the Sub Inspector and Constables belong to that category. The power to dismiss or remove the Sub Inspector or Constable was conferred under the relevant provision of the Kerala Police Act and Rules, upon the I.G. , DIG, AIG and Superintendent of Police. Therefore, earlier so far as they are concerned, they were not public servants. But in view of the subsequent notification - Explanatory Note to S.R.O. No. 1211/1977 the protection provided to other officers was extended to all members of the Kerala Police Force charged with maintenance of public order. It was held in the decision in Viswambharan v. State of Kerala - 2010 (4) KLT 875 that the Sub Inspector of Police being a member of the Kerala Police, is entitled to the protection under Sec. 197 (2) Crl. P.C. Any way that is not required to be considered in this case since admittedly the petitioner was the Circle Inspector of Police at the relevant time who can be removed only by the Government. The finding to the contrary entered by the learned Magistrate cannot, thus be sustained. In the light of the Explanatory Note to S.R.O No. 1211/1997 the finding entered by the learned Magistrate that the accused persons are not entitled to protection under Section 197 (2) of Cr.P.C, solely on the ground that they are not removable by the Government, cannot be sustained. 

7. Sri.C.S. Manu, the learned counsel for the respondent would submit that, whether the petitioner was acting or purporting to act in the discharge of his official duty or whether he exceeded his jurisdiction, is actually a mixed question of fact. The main thrust of the argument is that law does not give any protective umbrage to such police officials to have custodial torture or to interfere with the civil dispute or civil matters. In the present case there was a civil dispute between the lessor and the lessee and as such based on the complaint alleged to have been made by Mr. Sasikumar, a crime should not have been registered. Even if a crime was registered, there was no necessity of calling the Ist respondent/complainant herein) to the police station and to detain him illegally and assault him. This according to the learned counsel amounts to custodial torture for which no protection is given under Section 197 (2) Cr.P.C. 

8. According to the learned counsel, since the evidence has already been adduced in the matter the proper course would be to direct the learned Magistrate to consider all the aspects at the time of final hearing, at the time of pronouncement of the judgment in the main case itself and not to have an order now on the single point as to whether the prosecution without sanction under Section 197 (2) is bad or not. According to Sri.C.S.Manu, since the facts are so interconnected it is not possible to hold that the act complained of was part of the official duty or a purported act of official duty so as to claim protection under Section 197 (2) Cr.P.C. 

9. The learned counsel for the petitioner would submit that in the light of the specific direction issued by this Court in Crl.M.C. No. 477/07, the Magistrate was bound to pass an order on merit whereas the impugned order only shows that the petitioners are not entitled to the protection under Section 197 because they are not officers removable by the Government. That finding is incorrect. The learned Magistrate has to enter a specific finding as to whether the act complained of, was done or purported to have been done in the discharge of his official duties. That question cannot be relegated to the final stage in view of the specific order passed by this Court in Annexure -I in Crl.M.C. 477/2007. The learned Magistrate has observed that on going through the records it could be found that the accused faced trial for offences punishable under Secs. 342, 323 and 325 read with Sec. 34 I.P.C. It was also mentioned that the evidence was adduced on both sides and that the case was posted for final hearing, and it was then the petition was filed by the accused contending that the petitioner and other accused are entitled to protection under Sec. 197 Cr.P.C. 

10. The learned counsel Sri.C.S. Manu would submit that in view of the specific observation made by the learned Magistrate that the cognizance was taken only under Sections 342, 323 and 325 read with 34 I.P.C. and since evidence was adduced by both sides and as the case was actually available for final disposal of the case, there would be no justification in issuing direction to the Magistrate again to hear on the question of sanction alone without considering all the aspects. 

11. According to the respondent, this is only another attempt made by the petitioner to further protract the final disposal of the case. The learned counsel submits that the cognizance against the petitioner was taken by the learned Magistrate in the year 2005. But in view of the fact that the earlier order passed by this Court directed that the learned Magistrate has to pass an order on the plea raised by the accused regarding the requirements of sanction, the learned Magistrate will pass an order on merit regarding the plea raised by the accused whether the prosecution without sanction under Sec. 197 Cr.P.C. is unsustainable or not. 

12. It is submitted by the learned counsel for the complainant/respondent that it is not every offence committed by a public servant that requires sanction for prosecution under Sec. 197 of the Code nor even every act done by him while he is actually engaged in the performance of his official duties. But if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office then sanction would be necessary. That would be so, irrespective of whether it was in fact a proper discharge of his duties because that would really be a matter of defence on the merits. In the matter of grant of sanction under Sec. 197, the offence alleged to have been committed by the accused must have something to do or must be related in some manner with the discharge of the official duty. There must be rational nexus between the act complained of and the discharge of official duty . The act must bear such relation to the duty that the accused could lay a reasonable claim but not a pretended or fanciful claim that he did it in the course of the performance of his duty. 

13. It was held by the Supreme Court Shreekantiah Ramayya Munipalli v. State of Bombay 1995 (1) SCR 1177 dealing with the scope of Section 197, thus: 

"It is obvious that if S. 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning".

It was held by the Supreme Court in Rizwan ahmed Javed Shaikh v. Jammal Patel - (2001) 5 SCC 7 thus: 

"The real test to be applied to attract the applicability of S. 197 (3) is whether the act which is done by a public officer and is alleged to constitute a offence was done by the public officer while 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 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". 

14. The intention behind in affording protection under Sec. 197 is to prevent public servants being unnecessarily harassed. The Section is not restricted only to cases anything purported to be done in good faith, for, a person who ostensibly acts in execution of his duties still purports so to act, although he may have a dishonest intention. The offence alleged should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The learned Sr. Counsel appearing for the petitioner submits that since a crime was registered against the complainant, the fact that he was taken to the police station and was questioned can only be an act done by the investigating officer (the petitioner) in execution of the duty. But the learned counsel for the complainant submits that if actually it is a case where the complainant was detained in the lock-up and was tortured then the said act cannot be given protective umbrella under Sec. 197 Cr.P.C. Therefore, what is to be considered is whether the act alleged against the petitioner was either in discharge of his official duty or in the purported discharge of his official duty. The importance is not on the nature of the act alleged but whether the act allegedly done was in the discharge of his official duty or in the purported discharge of his official duty. The decision cited supra was followed by the Constitution Bench of the Supreme Court in Sankaran Moitra v. Sadhna Das and Another - AIR 2006 SC 1599 = (2006) 4 SCC 584.

15. In Sankaran Moitra's case (supra) the Constitution Bench considered the question whether cognizance could be taken in a case where sanction under Sec. 197 (1) of the Code is necessary. It was held that as it is a condition precedent for taking cognizance, without sanction, cognizance cannot be taken. The learned counsel for the petitioner submits that in the light of the Constitution Bench decision the cognizance taken against the petitioner has to be quashed and that since pre-charge evidence has already been recorded, before proceeding further the said question has to be considered separately since that was the direction issued by this Court earlier. The learned Magistrate is bound by the direction issued by this Court. 

16. The learned counsel for the respondent / complainant has relied upon the decision in Choudhury Parveen Sultana v. State of West Bengal and Another - (2009) 3 SCC 398 where it was held that the underlying object of Sec. 197 Cr.P.C. is to enable the authorities to scrutinize the allegation made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. But it was also held that if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. Therefore, According to the learned counsel for the complainant in respect of prosecution for such excesses or a misuse of authority no protection can be demanded by the public servant concerned. The question whether the act complained of was done by the petitioner in discharge of his official duties or in the purported discharge of his official duty, is a matter to be considered by the court below based on the averments in the complaint and the statements given by the witnesses etc. Since there was already a direction issued by this Court that that question cannot be relegated to the final stage of the case and that it should be answered before proceeding further, the learned Magistrate has to be directed to consider that point separately before proceeding further. 

17. In the result, this Crl.R.P. is disposed of as stated below:- The learned Magistrate is directed to consider the question whether the prosecution without sanction under Sec. 197 (2) Cr.P.C. is bad in law or not. Both sides shall be given opportunity of being heard in the matter. The learned Magistrate will hear and pass appropriate orders on the said question at the earliest. Dated this the 8th day of November, 2012. 

Sd/-N.K. Balakrishnan, Judge. 

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