Abdul Majeed vs The State of Kerala

A. Hariprasad, J.—Petitions filed under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.").

Petitioners are the accused in C.C.No. 105 of 2011 on the file of Chief Judicial Magistrate Court, Manjeri. In a private complaint they have been implicated for offences punishable under Sections 341, 423, 424, 294(b) and 506(ii) read with Section 34 of the Indian Penal Code (in short, "IPC").

Gist of allegations in the complaint is as follows: The 2nd respondent/complainant along with six others are accused in Crime No. 101 of 2011 of Areekode Police Station. The allegation therein is that the accused attacked the Areekode Police Station and pelted stones. In that case, the learned Sessions Judge, Manjeri granted bail to the accused. In the bail order, the accused were directed to appear before the Investigating Officer on specified days at a specified time. On 31.03.2011 the accused went to the Office of the Circle Inspector, Manjeri. At that time, they were directed to go to Areekode Police Station and meet the Additional Sub Inspector. At about 4.00 p.m. on that day, the complainant and other accused went to Areekode Police Station and met Shri Unnikrishnan, Additional Sub Inspector of Police. At that time, petitioner in Crl.M.C.No. 1742 of 2012/1st accused was present in the Police Station. On seeing the 2nd respondent/complainant and other accused, 1st accused abused them and unlawfully restrained them in the Police Station. Thereafter, he called each one of them and physically assaulted. 1st accused fisted on the chest of the complainant and hit the complainant with a ruler. He also threatened that he would kill all the accused and put them in a river. The petitioners/accused have no authority to restrain, manhandle and abuse the complainant and others. Therefore, they have committed the above said offences.

Heard Shri Rakesh K., learned counsel for the petitioners and Shri Justin Jacob, learned Public Prosecutor.

Learned counsel for the petitioners submitted that the court below took cognizance of the matter and issued process without considering the question of sanction required under Section 197 Cr.P.C.. My attention is drawn to the decisions of this Court in Moosa Vallikkadan Vs. State of Kerala, and Unnikrishnan Vs. State of Kerala and Others, . In Moosa''s case, the question was relating to necessity of sanction in the case of a Sub Inspector of Police while discharging law and order duty. The point decided after considering SRO No. 1211/1977 dated 06.12.1977 is as follows:

"............ Thus, if a member of the Kerala Police has committed an offence while acting or purporting to act in discharge of his official duty, the Court is precluded from taking cognizance of such offence except with the previous sanction of the State Government as enjoined by S. 197(2) Cr.P.C. and by virtue of S. 197(3) Cr.P.C., the words "Central Government" occurring in Ss. 197(2) Cr.P.C. stand substituted "State Government". A police officer entitled to protection under S. 197(2) Cr.P.C. by virtue of the notification issued under S. 197(3) Cr.P.C. need not be removable from his office by or with the sanction of the Government. Admittedly the petitioner was, at the relevant time, the Sub Inspector of Police, Ponnani and, therefore, he is a member of the Kerala Police Force covered by the aforesaid notification and will be protected by S. 197(2) Cr.P.C. if the offending act was committed by him while acting or purporting to act in discharge of his official duty."

In that decision, the meaning of the words "while acting or purporting to act in the discharge of his official duty" occurring in Section 197(1) Cr.P.C. was also considered referring to S.B. Saha and Others Vs. M.S. Kochar, . It was held as follows:

"Thus, the test appears to be that if the accused public servant or member of the Forces, when challenged, can reasonably claim that what he did was by virtue of his office, then the protection under S. 197 Cr.P.C. will be available to him and he can be prosecuted for the act before a criminal Court only with the previous sanction of the Government. It is the quality of the act that is important and if the act falls within the scope and range of his official duties, then the protection contemplated by S. 197 Cr.P.C. would be available to him............"

The learned Single Judge in Unnikrishnan''s case (supra) held that notification No. 61135/A2/77/Home dated 06.12.1977 gives protection to all members of the Kerala State Police notwithstanding their rank provided that they are charged with maintenance of public order.

Learned counsel for the petitioners relying on the decision of the Supreme Court in Rizvan Ahmed v. Jammal Patel (2001 KHC 636) contended that the petitioners are entitled to protection as they were discharging their duty in the Police Station. Learned counsel for the petitioners further submitted that the petitioner in Crl.M.C. No. 1742 of 2012 was the Station House Officer (SHO) of the Police Station wherein the accused persons, including the complainant, were directed to appear. Petitioner in the other case is a Constable attached to the same Police Station. It is not a case where the petitioners allegedly went out of the Police Station and attacked the complainant and others. It is submitted that every Police Officer, who is enforcing law and order, is likely to be entangled in a false complaint, if criminal cases are entertained on flimsy reasons without considering the necessity of sanction under Section 197 Cr.P.C. What is envisaged under Section 197 Cr.P.C. is only a scrutiny by the higher authority as to the veracity of the allegations levelled against Officers. It is, therefore, contended by the learned counsel for the petitioners that the learned Magistrate without applying his mind to find out whether sanction was required or not mistakenly took cognizance and issued process.

In answer to this argument, learned Prosecutor submitted that the materials in the complaint would go to show that the petitioners have exceeded their powers. However, as declared by the Apex Court in Rizvan Ahmed''s case (supra), the question whether an Officer is acted in discharge of his official duty is a question of fact depending on each case. Considering the nature of the allegations in the complaint and the probability of dragging a Police Officer into a false complaint, it has to be decided by the court below before taking cognizance and issuing process. This Court exercising jurisdiction under Section 482 Cr.P.C. cannot go into the vexed questions of fact. The order issuing process does not reflect anything as to whether the learned Magistrate has applied his mind to find out whether sanction under Section 197 Cr.P.C. is required or not. Therefore, I find that this is a case wherein it has to be sent back to the court below for considering the necessity of sanction under Section 197 Cr.P.C.

Learned counsel for the petitioners submitted that the petitioners may be permitted to urge a contention regarding the requirement of sanction under Section 197 Cr.P.C. before the court below without insisting on their personal appearance. For adjudicating whether sanction under Section 197 Cr.P.C. is required or not, the presence of petitioners is not necessary. Therefore, the learned Magistrate shall allow the petitioners to raise such a contention in their absence, if they move a petition in that respect.

In the result, the petitions are partly allowed. The order taking cognizance of the complaint (Annexure-A) is hereby set aside. The matter is remitted to the court of learned Chief Judicial Magistrate, Manjeri for considering whether sanction under Section 197 Cr.P.C. is required in this matter in the light of the discussions made above. Learned Magistrate shall take up this issue on the next hearing date.

All pending interlocutory applications will stand dismissed.