B.M.MONNAPPA Vs C.K.NOUFAL, S/O P.K.ABDUL REHMAN

Heard the learned counsel appearing for petitioner as well as learned counsel appearing for respondent No.1 and also learned High Court

Government Pleader for respondent No.2. Perused the records.

Respondent No.1 has filed a private complaint in PCR No.207/2015. The Magistrate after taking cognizance, recorded the sworn statement of

complainant and thereafter considering the complaint averments, sworn statement and materials on record, issued process against the

accused/petitioner under Section 204 of Cr.P.C. for the offences punishable under Sections 324, 504 and 506 of IPC.

The brief allegation made in the complaint are that respondent No.1 was the accused in C.C.549/2010. Due to his absence, the trial Court has

issued Non Bailable Warrant (herein after called ?NBW? for short) to secure the presence of respondent No.1 in the said case. The Petitioner

was entrusted for execution of said NBW against the respondent No.1 as he being a Head Constable in Town Police Station, Virajpet, S Kodagu

District. During that point of time, it is alleged that while taking NBW for execution, the petitioner was intoxicated. After seeing respondent No.1,

he started abusing, assaulting and threatening him with dire consequences, as a result, the respondent No.1 sustained injuries. It is also alleged that

petitioner kicked respondent with the help of his shoes. Thereafter, accused/respondent No.1 was produced before the Judicial Officer. The

accused/respondent No.1 complained to the Judicial Officer about the physical assault by the petitioner and he was taken for medical treatment as

per the order of Judicial Officer. One Dr. Hemapriya gave medical treatment to the accused/respondent No.1 in the said case etc. Therefore, on

these allegations the complaint came to be lodged and cognizance was taken.

While passing the order, learned Magistrate has considered tentatively whether Section 197 of Cr.P.C. is applicable at that stage and whether

sanction to prosecute the petitioner was required to this case. Considering the factual aspects and materials available in the case on record, the

Magistrate has tentatively taken a decision that sanction is not required to prosecute the accused/petitioner because the complained act of the

accused/petitioner falls outside the purview of his official duty. Therefore, tentatively trial Magistrate held that there is no guard of Section 197 of

Cr.P.C. so far as the petitioner is concerned.

The learned counsel for the petitioner strenuously argued before this Court that there is a nexus between the duties of the accused/petitioner and

the offences alleged. While executing the warrant, the accused has exercised reasonable force for the purpose of arresting the accused in

connection with C.C.No.549/2010. His acts are bonafide and while discharging his duty as a public servant, he has done a particular act.

Therefore, Section 197 of Cr.P.C. is attracted. The consideration with regard to the reasonableness of the petitioner while executing the warrant is

a matter of fact that has to be considered by the trial Court at various stages. Admittedly, it is a private complaint and the complainant has to lead

his evidence under Section 244 of Cr.P.C. in order to enable Magistrate to consider whether it is a fit case to frame charges against him. In such

an eventuality, the Court should also consider the reasonableness of the act of the petitioner while executing the warrant against the respondent

No.1.

Therefore, ample opportunity is available to the petitioner to approach the trial Court and plead that he acted in a reasonableness while

executing the warrant. In that context, he can also cross examine the complainant and the witnesses and thereafter, the trial Magistrate has to take

appropriate action in this regard. It is needless to state that the orders passed by the learned Magistrate under Section 197 of Cr.P.C. is only

tentative order. Even trial Magistrate can take different views depending upon the facts and circumstances of the case by the parties during the

course of evidence. From the aforesaid circumstances, I do not find any strong reasons to interfere with the order passed by learned Magistrate.

Hence, the following Order.

ORDER

Petition is dismissed. However, the petitioner is also at liberty to make necessary application for his discharge before the trial Court. The learned

Magistrate has to consider the evidence that may be placed under Section 244 of Cr.P.C. and thereafter, pass an appropriate order with regard to

framing of charges including requirement of sanction.

The learned Magistrate has to bestow his attention for disposal of the application for discharge that may be filed by the petitioner as expeditiously

as possible preferably within two months from the date of receipt of a copy of this order. Both the parties are directed to cooperate with the trial

Court in that endeavour.