Balaraj B.K vs State Of Kerala And Ors

Petitioner is the 2nd accused in C.C.No.11/2017 on the file of the Judicial First Class Magistrate Court, Koyilandy.

Crime No.132/2015 was registered by the Elathur Police based on Annexures A1 and A2 complaint from the Assistant Executive Engineer and

Assistant Engineer of Kuttiady Irrigation Project. After investigation, the police filed a refer report as evident by Annexure A3 treating it as a

“mistake of factâ€. When Annexure A3 report was submitted before the learned Magistrate, the learned Magistrate conducted an enquiry under

Section 202(1) Cr.P.C and examined PW1 to PW3, who are the officials of the Irrigation Department. Annexures A4, A5 and A6 are the statements

recorded by the learned Magistrate under Section 202(1) Cr.P.C. Based on these statements, the learned Magistrate took cognizance of the offence

under Sections 427 and 447 IPC and issued summons to the petitioner. The petitioner was the Secretary of Kozhikode Corporation at the relevant

time. He filed this petition to quash the proceedings.

Heard the learned counsel for the petitioner and the Public Prosecutor.

The counsel for the petitioner submitted that, as per the decision taken by the Kozhikode Corporation and based on Annexure A7 memo, a road

work was sanctioned by the Corporation. According to the counsel, the work was done based on the recommendation of Grama Sabha which was

ratified by the Council of the Corporation. The work is tarring the existing road adjacent to Kanoli canal. According to the counsel, there is absolutely

no case to the prosecution that the petitioner or others claimed title over the property. In such circumstances, the offences under Sections 447 and 427

IPC is not made out. The counsel also submitted that there is a bar in taking cognizance of the offence as per Section 548 of the Kerala Municipality

Act, 1994.

The Public Prosecutor submitted that the police after investigation referred the case and Annexure A3 is the refer report.

After hearing both sides, I think there is some force in the argument of the learned counsel for the petitioner. Admittedly, it is a work done based on

the decision of the Kozhikode Corporation Council. Annexure A7 is the memo issued by the corporation Engineer accepting the tender from the

contractor for the work. Section 548 of the Municipality Act read like this:

“548. Sanction for prosecution of Chairperson, Secretary or Councillor.â€" Where the Chairperson, any Councillor or the Secretary of a

Municipality 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 of the Government.â€​

Admittedly, in this case, there is no sanction as per Section 548 of the Municipality Act. In the light of Section 548, no court shall take cognizance of

any offence except with previous sanction of the Government if the offence alleged to have been committed by him while acting or purporting to act in

discharge of his official duty. Admittedly, the petitioner was the Secretary of the Kozhikode Corporation during the relevant time. He was acting in

discharge of official duty at the relevant time. In such situation, according to me, sanction is mandatory. It is a case in which the learned Magistrate

took cognizance without sanction as per Section 548 of the Municipality Act. According to me, taking cognizance is illegal.

Therefore, this Crl.M.C is allowed. All further proceedings against the petitioner in C.C.No.11/2017 on the file of the Judicial First Class Magistrate

Court, Koyilandy are quashed.