Madhu Babu, The Then Sub Inspector of Police, Cherthala Police Station, Madhu Nivas, Kalavoor P.O., Alappuzha District vs Sidhardhan and State of Kerala

Justice S.S. Satheesachandran

Petitioner, who is a Sub Inspector of police, is the first accused in a pending case, numbered as C.C. No. 1326 of 2007 on the file of Judicial First Class Magistrate Court - I, Cherthala. Trial of that case is now in progress. He is insulated from prosecution u/s 197 of the Code of Criminal Procedure, for short, ''the Code'', and also by the protection afforded under the statutory provision covered by Kerala Police Act, is his case to quash the criminal proceedings against him in the above case, invoking the inherent powers of this court u/s 482 of the Code. Learned counsel for the petitioner submits that the protection canvassed as above has not been raised before the magistrate hitherto. To substantiate his claim as being insulated from prosecution under the sections referred to above, according to the counsel, production of some documents, GD entry, final report etc. is warranted. That being so, the remedy available to him is only to resort to the exercise of the inherent powers of this court u/s 482 of the Code, which would enable him to produce such documents also for consideration of this court. From the submissions made by the counsel, it is seen that the prosecution evidence is already over and the case now awaits further steps for trial. When that be so, I find that it may not be proper for this court to consider the challenge raised against the prosecution by the petitioner when such challenges could be set forth and canvassed before the magistrate. In " Kalimuthu v State of Kerala & quot; (AIR 2005 (4) SCC 512), the apex court has held that the question relating to sanction covered u/s 197 of the Code can be canvassed by an accused at different stages of the case as well. The apex court in the above case has held thus:

The question relating to the sanction u/s 197 is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. The question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

When that be so, I find no difficulty for the petitioner to canvass that plea before the magistrate, if so available. Reserving his right to do so, the petition is closed.