The petition is filed before High Court of Kerala under Section 482 of Code of Criminal Procedure to quash complaint pending before Judicial First Class Magistrate II, Nedumangad by invoking inherent powers. 

Mr. Suresh filed a complaint against the S.I. of Police for offences punishable under Section 341 and 323 IPC and under Section 3(1)VIII, IX, X and 3(2)VII of the Scheduled Caste and Scheduled Tribe Prevention of Atrocities Act, 1986. But the learned Magistrate took cognizance for offence punishable under section 341, 323 IPC alone. While he was working as the Sub Inspector of Police, Nedumangad Police Station, suresh filed a complaint against him for an incident occurred during the discharge of his official duty. According to him proper sanction from the State Government is necessary for taking cognizance of the offence and if trial is proceeded without sanction, it is a mere abuse of the process of court.

The allegation before the Judicial First Class Magistrate II, Nedumangad was that on 17.2.2007 at 6.15 pm, he was travelling in a motor cycle, when he reached at Kacheri junction in front of Nedumangad Police Station, S.I. rushed towards him calling obscene words, obstructed the motor cycle and thereafter assaulted him and he sustained injuries. Subsequently, he was arrested and produced before court and as per the direction of the learned Magistrate, he was treated in the Government Fort Hospital, Kottakkakam. For the aforesaid incident, suresh filed complaint before Judicial First Class Magistrate Court II, Nedumangad. In the circumstance, S.I. approached High court to invoke the inherent jurisdiction.

Advocate Swathy Kumar Counsel appearing for the S.I. contended that cognizance of the offence was taken by the learned Magistrate without a sanction under Section 197 Cr.P.C. He was admitted in a hospital at the relevant time, due to the act of the respondent which is clear from Annexure C wound certificate and for that incident Annexure D FIR was registered against him. The allegations show that false and frivolous complaint was filed to wreck personal vengeance against him.

Learned Public Prosecutor Sri. Githesh contended that whether the S.I. was in discharge of his official duty is a matter of evidence. No duty certificate or any other related documents were produced along with this petition to show that he was discharging his official duty and charged with maintenance of public order at the relevant time. Without furnishing those details, Sub Inspector of Police is not entitled to get the benefit of Section 197 Cr.P.C. 

The intention of the legislature u/s.197(1) of the Code is to ensure the dignity of the highly placed government servants 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 alone is protected. In order to attract 197 (1) of the Code, two things must co-exist. Firstly, the person must be a public servant not removable from office save by or with the sanction of government. Secondly the act must have been committed by such a person acting or purporting to act in the discharge of his official duty. Therefore, it is clear that S.197(1) and 197(2) of the Code are independent of each other. The second condition is common in Section 197(1)(2). This means that the officers of the government in higher grade vested with more responsible and onerous duties has to be protected from vexatious prosecution which would be detrimental to their administrative work. There are public servants removable by lesser authority by virtue of delegation of power by government to subordinate officers. Therefore those officers removable by lesser government authority are not protected u/s. 197(1) of the Code. Petitioner was the Sub Inspector of police, Nedumangad at the relevant time. Though he is a public servant, but not one removable by government u/s.197(1) of the Code and no sanction of the government is necessary to prosecute him there is no need to extend this protection to the Sub Inspector of police, Court Said.

The S.I. of Police contended that on 17.2.2007, there was a political agitation organized by the CPM in protest to the escalation of price of food grains. On that day, after 6 pm, he was on duty at Kacheri Junction with other policemen. At that time, Suresh came there in a motorcycle bearing registration No.KL 16A 2629 at Satram Junction in a rash and negligent manner and hit against the S.I., as a result, he sustained serious injury. Immediately, he was removed to Taluk Headquarters Hospital, Nedumangad and for that incident, Nedumangad Police registered Crime No.141/2007 of Nedumangad Police Station u/s.332 IPC. Annexure A3 is the wound certificate. Annexure A4 is the FIR. Since he is discharging official duty as per a public order, he is entitled to get the protection u/s.197(2) and 197(3) of the Code. But no documents are produced by S.I. to show that he was discharging public duty according to a public order.

Sub Inspector of Police is undoubtedly a public servant governed by the Kerala Police Act, but I am of the opinion that he is not a public servant not removable from his office save by or with the sanction of the Government. A person accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty alone is protected u/s.197(1) of the Code. Petitioner has failed to produce relevant documents to get the benefit granted to the officers of the Kerala police force according to the notification issued u/s.197(3) of the Code. In the absence of such documents, mere suggestion alone is not sufficient to extend the protection on the basis of "public order". The mere fact that the (accused) raised a defence that the act done in execution of duty would not sufficient to thrown out a case for want of sanction, but during the course of judicial enquiry or evidence during trial any facts coming to the light can establish want of sanction. It is well settled that the jurisdiction of the court come from the averment made in the complaint and not from what is stated by the accused, Court Said.