Kerala High Court
Manirajan vs Ayyappan on 23 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 23RD DAY OF JUNE 2021 / 2ND ASHADHA, 1943
CRL.REV.PET NO. 519 OF 2013
AGAINST THE JUDGMENT IN CRL.APPEAL NO. 147/2009 OF ADDITIONAL
DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM.
AGAINST THE JUDGMENT IN C.C.NO.181/1996 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT-I, KOTTARAKARA
REVISION PETITIONER/APPELLANT/ACCUSED 1:
D.RAJAGOPAL,
THE THEN S.I OF POLICE,
EZHUKONE POLICE STATION.
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SMT.SREEDEVI KYLASANATH
SRI.ACHUTH KYLAS
SRI.R.MAHESH MENON
SRI.DEAGO JOHN K
SHRI.AMAL DEV C.V.
RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
1 AYYAPPAN,
S/O. CHELLAPPAN, MUKALUVILA VEEDU, KOLANNOOR WARDS,
EZHUKONE VILLAGE - 691003.
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY PUBLIC PROSECUIOR SRI.E.C.BINEESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 14.08.2019, ALONG WITH CRIMINAL REVISION
PETITION NO.520/2013, THE COURT ON 23.06.2021 DELIVERED
THE FOLLOWING:
Crl.R.P Nos. 519 & 520 of 2013
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 23RD DAY OF JUNE 2021 / 2ND ASHADHA, 1943
CRL.REV.PET NO. 520 OF 2013
AGAINST THE JUDGMENT IN CRL.APPEAL NO.149/2009 OF ADDITIONAL
DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM
AGAINST THE JUDGMENT IN C.C.NO.181/1996 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, KOTTARAKARA
REVISION PETITIONERS/APPELLANTS/ACCUSED NOS 3 TO 5:
1 MANIRAJAN,
CONSTABLE NO.4690 OF EZHUKONE POLICE STATION.
2 BABY
CONSTABLE NO.3817 OF EZHUKONE POLICE STATION.
3 SHARAFUDEEN
POLICE CONSTABLE, EZHUKONE POLICE STATION.
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SMT.DEEPTHI S.MENON
SMT.ANUROOPA JAYADEVAN
SRI.D.FEROZE
SRI.S.RAJEEV
SRI.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
1 AYYAPPAN,
S/O CHELLAPPAN, MUKALUVILA VEEDU, KOLANNOOR WARDS,
EZHUKONE VILLAGE-691 003.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.K.S.MIZVER
SRI.P.K.RAKESH KUMAR
SRI.THOMAS CHAZHUKKARAN
SRI.M.M.VINOD KUMAR
BY PUBLIC PROSECUIOR SRI.E.C.BINEESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
14.08.2019, ALONG WITH CRIMINAL REVISION PETITION NO.519/2013,
THE COURT ON 23.06.2021 DELIVERED THE FOLLOWING:
Crl.R.P Nos. 519 & 520 of 2013
-:3:-
" CR"
MARY JOSEPH, J.
------------------------
Crl.R.P Nos. 519 & 520 of 2013
------------------------
Dated this the 23rd day of June, 2021
ORDER
Challenge is raised by accused Nos.1 and 3 to 5 in these
revisions against concurrent findings of guilt and passing of
orders of conviction and sentence against them by Court of
Judicial First Class Magistrate-I, Kottarakkara (for short 'the trial
court') and Additional District and Sessions Judge (Adhoc)-II,
Kollam (for short 'the appellate court') in CC No.181/1996 and
Crl.Appeal Nos.147 and 149 of 2009, respectively for offences
punishable under Sections 323 and 324 read with Section 34 of
the Indian Penal Code (for short 'IPC')
2. By virtue of the judgment under challenge, the accused
were found guilty for the offence under Section 324 read with
Section 34 IPC and convicted and sentenced to undergo simple
imprisonment for one year and to pay a fine of Rs.2,500/- each
and in default to undergo simple imprisonment for six months
each and also found guilty for the offence under Section 323
Crl.R.P Nos. 519 & 520 of 2013
read with Section 34 IPC and convicted and sentenced to pay a
fine of Rs.1,000/- each and in default of payment of fine to
undergo simple imprisonment for three months each. On
realisation of the fine amount, Rs.10,000/- out of that was
directed to be paid to the complainant as compensation under
Section 357(1) of the Code of Criminal Procedure, 1973 (for
short "Cr.P.C").
3. The accused are policemen of Ezhukone Police Station
and the main contentions projected by them in these revisions
are that though they were public servants, cognizance was taken
by the trial court and they were prosecuted without getting the
sanction from the State Government as contemplated under
Section 197 Cr.P.C. and therefore, the process of taking
cognizance and conduct of trial are vitiated.
4. According to Sri.Gopalakrishna Kurup, the learned
Senior Counsel and Sri.S.Rajeev, who were engaged respectively
by accused Nos.1, 3 & 4 and 5, though the trial court as well as
the appellate court were addressed on those, had taken a view
that sanction as contemplated under Section 197 Cr.P.C is
unwarranted in the case on hand, since the acts alleged to have
been committed by the accused have nothing to do with or not
Crl.R.P Nos. 519 & 520 of 2013
related in any manner to the discharge of their official duties.
5. According to the learned counsel, the courts below are
highly erred in taking such a view and are also unjustified in
arriving at a finding of guilt against the accused in the case on
hand. According to them, the complainant was taken into
custody in connection with a case registered against him for
having assaulted a policeman while discharging his official duties
and therefore, the courts below have gone wrong in holding that
sanction contemplated under Section 197 Cr.P.C is not required.
6. According to them, the complainant was arrested in
Crime No.33/1996 by the A.S.I of Police, Ezhukone Police Station
at about 8.15 p.m on 08.02.1996 and was produced before the
Magistrate on the following day. According to them, the injuries
found on the body of the complainant were not inflicted by them,
but were there at the time of his arrest itself.
7. Ext.D4 is the application seeking remand of the accused
in judicial custody in Crime No.33/1996 at the time of his
production firstly before the Magistrate. On finding the accused
unable to speak, on account of the injuries sustained on his
tongue, the Magistrate directed him to avail some treatment.
The Magistrate also enlarged him on bail for that reason.
Crl.R.P Nos. 519 & 520 of 2013
Accordingly, he attended Taluk Head Quarters Hospital,
Kottarakkara wherefrom Ext.P3 was prepared and issued.
8. It is disclosed on a reading of Ext.D4 that, at the time of
the alleged arrest of the complainant in the case on hand as
accused in Crime No.33/1996, body note was not prepared. It is
not described in Ext.D4 that at the time of arrest, the
complainant in the case on hand had some allergic problems in
his mouth or made any complaints of such difficulties. At the
time the complainant was produced before the Magistrate,
injuries were found on his tongue and other parts of body and
due to his inability to speak to the Magistrate, he was granted
bail and directed to avail treatment.
9. The complainant had gone to Taluk Head Quarters
Hospital, Kottarakkara directly from the Court and was admitted
there for treatment. The doctor who attended the complainant
at the hospital had prepared Ext.P3 wound certificate, describing
all injuries found on his body and also the cause of the injuries
as narrated by him. He had undergone inpatient treatment at
the hospital as evidenced from the discharge certificate and
discharge card marked in evidence respectively as Exts.P4 and
P5 and on getting discharged therefrom, a private complaint was
Crl.R.P Nos. 519 & 520 of 2013
lodged before the Judicial First Class Magistrate Court-I,
Kottarakara alleging that policemen of Ezhukone Police Station,
five in numbers assaulted him and inflicted injuries on his body
after forcibly taking him from his home to the Police Station, in a
police jeep.
10. As per the allegations of the complainant, he was taken
into custody from his house by some of the accused in the
presence of his wife, on the premise that a petition containing
allegations against him was obtained at the police station.
11. As stated earlier, the complainant's specific case in the
private complaint lodged was that accused, five in numbers had
brutally assaulted him and inflicted injuries all over his body at
the police station. The wound certificate got marked in evidence
by the complainant as Ext.P3 would also strengthen his
allegation that the injuries were inflicted by the accused.
The injuries are of the following nature:
"1. Abrasion and nail mark on the neck and lower jaw at
different parts.
2. Bleeding abrasion on the front of right leg.
3. Circular burn marks on the tongue on the lateral
side and towards the lower part on either side near
Crl.R.P Nos. 519 & 520 of 2013
the lip 1 c.m in diameter each.
4. Tenderness on different parts of the body."
12. Ext.P3 was prepared by the Assistant Surgeon of Taluk
Head Quarters Hospital, Kottarakkara on 09.02.1996 and he was
examined before the trial court as PW7. PW7 has stated that the
complainant Ayyappan was attended and examined by him on
09.02.1996 at 4.35 p.m. with some injuries on his body and
taking note of those, Ext.P3 was issued. According to him, the
alleged cause of injury narrated by the complainant to him was
noted in Ext.P3 as follows:
"പപപോലലീസുകപോർ പലപോക്കപപ്പിൽ വചച്ച് ചവപ്പിട്ടുകയയും മർദപ്പിക്കുകയയും കതപ്പിച
സപ്പിഗരറച്ച് കകപോണച്ച് നപോക്കപ്പിൽ കപപോളപ്പിക്കുകയയും കചയ്തതപ്പിൽ വചച്ച് ",
13. The allegations of the complainant that he was
assaulted and inflicted with the injuries at the lock up of
Ezhukone Police Station on 08.02.1996 is further strengthened
by the narrations in Ext.D4. In Ext.D4, the arrest was recorded
as made at 8.15 p.m on 08.02.1996, but injuries, either on
tongue or body of the complainant were not recorded. The
defence have not even a claim that after taken to the police
station, the complainant was released by them.
Crl.R.P Nos. 519 & 520 of 2013
14. Therefore, the factum remains was that the
complainant was in the custody of the police on 08.02.1996, till
his production before the Magistrate at 3.50 p.m on 09.02.1996
and therefore the only probability for him to receive the injuries
reported in Ext.P3 was from the police station itself. As per the
allegations of the complainant also, he was assaulted at the lock
up of the police station by five policemen named in the private
complaint filed by him and had also spoken strictly in tune with,
while being examined as PW1.
15. The manner in which each of the accused assaulted
was categorically spoken by the complainant while being
examined as PW1 in the case on hand. The factum that he was
taken from his house to the police station forcibly at 5.45 p.m on
08.02.1996 was also spoken by his wife while tendering evidence
as PW2. According to her, she procured the company of one
Mr.Ayyappan, a neighbour as well as friend of her husband and
went to the Police Station to get her husband released
therefrom, but were unfortunate to leave the place out of
intimidation and threat extended by the accused, despite the fact
that hues and cries of her husband were heard from inside. Her
husband was released on bail by the Magistrate only in the
Crl.R.P Nos. 519 & 520 of 2013
evening of 09.02.1996 with injuries on his body and burn injuries
on his tongue. He was taken to Taluk Head Quarters Hospital,
Kottarakkara and there the cause of injuries was managed to be
spoken by her husband as assault at the lock up by the
policemen of Ezhukone Police Station.
16. Though PW3 deviated somewhat during cross
examination from his stand in the chief examination strictly
supporting the case of the complainant, a scrutiny of the
evidence as a whole convinces this Court that corroboration is
maintained in material particulars. Complainant though
attempted to strengthen his case by examining PW4, the venture
was defeated, when that witness opted to say against the
statement recorded from him under Section 161 Cr.P.C. The
examination of PW4 thus turned a futile exercise by the
complainant.
17. The complainant had examined three medical witnesses
as PW5 to PW7. The doctor who had attended and examined
him firstly at Government Hospital, Kottarakkara, was examined
in the case on hand as PW6 and the wound certificate issued by
him was marked as Ext.P3. The discharge certificate and
discharge card issued by him were also marked through PW6 as
Crl.R.P Nos. 519 & 520 of 2013
Exts.P4 and P5. The doctor who had treated him at Lakshmi
Medical Trust Hospital, Ezhukone was also examined as PW5. The
medical evidence tendered by the above witnesses also lend
clear support to the case of the complainant.
18. The attested copy of the judgment in C.C No.183/1998,
a case registered on the files of Judicial First Class Magistrate
Court-II, Kottarakkara on the strength of the chargesheet laid
from Ezhukone Police Station in Crime No.33/1996 is Ext.P1
marked in evidence through the complainant while being
examined as PW1. Attested copy of the chargesheet in Crime
No.33/1996 of Ezhukone Police Station and the photocopy of it
were produced by the complainant as well as the accused and
got marked in evidence respectively as Exts.P2 and D2. The
complainant in the case on hand was found chargesheeted by
Ezhukone police for offences punishable under Sections 341 and
332 of the Indian Penal Code. It is disclosed from Ext.P1 that
charge was also framed against him by Judicial First Class
Magistrate Court -II, Kottarakkara for the very same offences
and he faced trial for those. The said court upon evaluation of
the evidence of the prosecution and the defence made the
following observation in Ext.P1:
Crl.R.P Nos. 519 & 520 of 2013
"12. xxxx. Thus the oral evidence of DW2 coupled with
Ext.D2(a) wound certificate would show that the accused
has been manhandled by the police officials while he was in
custody immediately before he was produced before court.
In the light of the oral evidence of DW2 and D2(a) wound
certificate, the defence contention that this is a case foisted
against the accused as a counter-blast to the allegations in
C.C No.181/96 cannot be brushed aside."
19. On the basis the court also reached the conclusion that
the prosecution failed to establish the guilt of the accused to the
tilt and thus acquitted the accused who is the complainant in the
case on hand.
20. The above judgment passed in C.C.No.183/1998 on
07.04.2000 was not assailed by the prosecution. Thus contention
of the complainant herein that C.C.No.183/1998 was only a case
foisted against him to counterblast the allegations in
C.C.No.181/1996 was accepted by the court and not being
assailed it has attained finality also.
21. In the context, the question to be dealt with is whether
sanction contemplated under Section 197 Cr.P.C is required to
prosecute the accused being police officers and therefore public
servants. Sankaran Moitra vs. Sadhna Das and Another
[(2006) 4 SCC 584] was relied on by the learned counsel to
Crl.R.P Nos. 519 & 520 of 2013
fortify his view that the accused who are policemen and being
public servants, sanction of the State Government as
contemplated under Section 197 Cr.P.C was required to take
cognizance of the offences alleged against them. In that context,
the relevant portion of the judgment where the Apex Court had
dealt with the requirement of sanction being worth consideration
is extracted hereunder:
"25. The High Court has stated that killing of a person
by use of excessive force could never be performance of duty.
It may be correct so far as it goes. But the question is
whether that act was done in the performance of duty or in
purported performance of duty. If it was done in performance
of duty or purported performance of duty, Section 197(1) of
the Code cannot be bypassed by reasoning that killing a man
could never be done in an official capacity and consequently
Section 197(1) of the Code could not be attracted. Such a
reasoning would be against the ratio of the decisions of this
Court referred to earlier. The other reason given by the High
Court that if the High Court were to interfere on the ground of
want of sanction, people will lose faith in the judicial process,
cannot also be a ground to dispense with a statutory
requirement or protection. Public trust in the institution can
be maintained by entertaining causes coming within its
jurisdiction, by performing the duties entrusted to it diligently,
in accordance with law and the established procedure and
without delay. Dispensing with of jurisdictional or statutory
requirements which may ultimately affect the adjudication
itself, will itself result in people losing faith in the system. So,
Crl.R.P Nos. 519 & 520 of 2013
the reason in that behalf given by the High Court cannot be
sufficient to enable it to get over the jurisdictional
requirement of a sanction under Section 197(1) of the Code
of Criminal Procedure. We are therefore satisfied that the
High Court was in error in holding that sanction under Section
197(1) was not needed in this case. We hold that such
sanction was necessary and for want of sanction the
prosecution must be quashed at this stage. It is not for us
now to answer the submission of learned counsel for the
complainant that this is an eminently fit case for grant of such
sanction. "
22. The factual matrix in which the finding as above was
rendered being relevant, a narration of it as given in Paragraph
23 of the said judgment is also extracted hereunder:
"23. Coming to the facts of this case, the question is
whether the appellant was acting in his official capacity
while the alleged offence was committed or was performing
a duty in his capacity as a police officer which led to the
offence complained of. That it was the day of election to the
State Assembly, that the appellant was in uniform; that the
appellant travelled in an official jeep to the spot, near a
polling booth and the offence was committed while he was
on the spot, may not by themselves attract Section 197 (1)
of the Code. But, as can be seen from the facts disclosed in
the counter-affidavit filed on behalf of the State based on
the entries in the General Diary of the Phoolbagan Police
Station, it emerges that on the election day information was
received in the Police Station at 1400 hours of some
disturbance at a polling booth, that it took a violent turn and
Crl.R.P Nos. 519 & 520 of 2013
clashes between the supporters of two political parties were
imminent. It was then that the appellant reached the site of
the incident in his official vehicle. It is seen that a case had
been registered on the basis of the incidents that took place
and a report in this behalf had also been sent to the
superiors by the Station House Officer. It is also seen and it
is supported by the witnesses examined by the Chief Judicial
Magistrate while taking cognizance of the offence that the
appellant on reaching the spot had a discussion with the
Officer-in-charge who was stationed at the spot and
thereafter a lathi-charge took place or there was an attack
on the husband of the complainant and he met with his
death. Obviously, it was part of the duty of the appellant to
prevent any breach of law and maintain order on the polling
day or to prevent the blocking of voters or prevent what has
come to be known as booth capturing. It therefore emerges
that the act was done while the officer was performing his
duty. That the incident took place near a polling booth on an
election day has also to be taken note of. The complainant
no doubt has a case that it was a case of the deceased being
picked and chosen for ill-treatment and he was beaten up by
a police constable at the instance of the appellant and the
Officer-in-charge of the Phoolbagan Police Station and at
their behest. If that complaint were true it will certainly
make the action, an offence, leading to further
consequences. It is also true as pointed out by the learned
counsel for the complainant that the entries in the General
Diary remain to be proved. But still, it would be an offence
committed during the course of the performance of his duty
by the appellant and it would attract Section 197 of the
Code. Going by the principle, stated by the Constitution
Bench in Matajog Dobey, it has to be held that a sanction
Crl.R.P Nos. 519 & 520 of 2013
under Section 197 (1) of the Code of the Criminal Procedure
is necessary in this case."
23. Sanction contemplated under Section 197 Cr.P.C is
meant to afford protection to a public servant while acting or
purporting to act in the discharge of his official duty. Therefore,
a public servant concerned while acting or purporting to act in
the discharge of his official duty is entitled to protection
envisaged under Section 197 Cr.P.C., if something untoward
happened in the course.
24. In Om Prakash and Others V. State of
Jharkhand through the Secretary, Department of Home,
Ranchi I and another [(2012) 12 SCC 72] the court held:
" The true test as to whether a public servant was acting or
purporting to act in discharge of his duties would be whether
the act complained of was directly connected with his official
duties or it was done in the discharge of his official duties or it
was so integrally connected with or attached to his office as
to be inseparable from it. The protection given under Section
197 of the Code has certain limits and is available only when
the alleged act done by the public servant is reasonably
connected with the discharge of his official duty and is not
merely a cloak for doing the objectionable act. If in doing his
official duty, he acted in excess of his duty, but there is a
reasonable connection between the act and the performance
of the official duty, the excess will not be a sufficient ground
to deprive the public servant of the protection. If the above
Crl.R.P Nos. 519 & 520 of 2013
tests are applied to the facts of the present case, the police
must get protection given under Section 197 of the Code
because the acts complained of are so integrally connected
with or attached to their office as to be inseparable from it. It
is not possible for us to come to a conclusion that the
protection granted under Section 197 of the Code is used by
the police personnel in this case as a cloak for killing the
deceased in cold blood." (Emphasis supplied)
25. Therefore, the act allegedly committed by the public
servant must have some reasonable nexus with the discharge of
his official duty and must not merely a cloak for doing an
objectionable act. The objectionable act alleged by the
complainant in the case on hand is that he was taken from his
home to Ezhukone Police Station by two policemen under the
guise of receipt of a petition against him and was brutally
manhandled by the SHO and his associates at the lock up. The
reason for doing so, according to the complainant was demand
for wages made by him to one Mr.Veerasenan, for the work done
for him, who is none other than a relative of the 3 rd accused.
According to him, the said Veerasenan colluded to wreck
vengeance against him and got it materialised through accused
No.3.
Crl.R.P Nos. 519 & 520 of 2013
26. As described in Ext.D3, the FIR in Crime No.33/1996
Sri.Manirajan, a Police Constable (Q.4690) of A.R Camp, Kollam,
accused No.3 in the case on hand, has furnished information that
he was wrongfully restrained and was prevented from
discharging his official duties by Mr. Ayyappan, the complainant
in the case on hand, and Crime No.33/1996 was registered on
it's basis. As disclosed from Ext.D4, the remand application in
Crime No.33/1996, the complainant was arrested at 8.15 p.m on
08.02.1996. According to the accused in the case on hand,
injuries found on the body of the complainant might have been
caused in the incident that was allegedly occurred at 6.15 p.m on
08.02.1996 and formed the basis for the registration of Crime
No.33/1996 and the injuries found on the tongue of the
complainant was nothing but allergy the latter already had in his
mouth. Even going by the case of the accused, the complainant
was brought arrested to the police station at 8.15 p.m on
08.02.1996 and was produced before the Magistrate at 3.50 p.m
on 09.02.1996. Evenif that version is accepted, it is clear that
the complainant was available at the police station in the night of
08.02.1996, till his production before the Magistrate at 3.50 p.m
on 09.02.1996. As per the remarks made by the Magistrate in
Crl.R.P Nos. 519 & 520 of 2013
Ext.D4, complainant had made complaints of torture by
policemen while in custody. Application was filed seeking bail
and sureties were furnished and therefore, bail was granted on
the day itself. The complainant has gone to THQ Hospital,
Kottarakkara straight away therefrom and the personal injuries
found on him were recorded in Ext.P3 from that hospital.
27. The prosecution in C.C.No.183/1998 has a case that the
accused therein (the complainant herein) was brought arrested
to the police station at 8.15 p.m on 08.02.1996 with injuries on
his body. Since, the complainant was taken in custody from his
house and detained at Ezhukone Police Station throughout the
night on that day till production before the Magistrate on the day
following, prudent policemen would get the injuries, if any found
on his body recorded then and there through a Medical
Practitioner with a view to exonerate themselves from the
probable allegation of custodial torture. It is pertinent to note
that materials of the nature are not available to the court to
justify the contention of the accused that the injuries were
sustained by the complainant in the alleged incident of assault of
Sri.Manirajan. Therefore, it is convincingly established that the
injuries found on the body of the complainant and recorded in
Crl.R.P Nos. 519 & 520 of 2013
Ext.P3 were inflicted while he was in the custody of the
policemen at Ezhukone Police Station as spoken by the
complainant.
28. Each of the injuries sustained by the complainant on his
tongue were of dimension of 1 c.m. The said injuries were
noted down by PW7 in Ext.P3 as caused by a burned cigarette.
Though an attempt was made to divulge through PW7 that injury
having circumference of 1 c.m is unlikely to occur with a
cigarette, the attempt turned futile on explanation being
furnished by PW7 in categoric terms that the injuries of that
dimension are possible on a forcible pressing of a burning
cigarette on the surface of the tongue.
29. What could be drawn from the above discussion was
that the injuries found on the body of the complainant were
caused by the Sub Inspector and four other policemen of
Ezhukone Police Station available at the police station at the
relevant time as claimed by PW1 and stood arrayed as accused 1
to 5.
30. The allegation of the complainant in the case on hand
was that he was procured by two policemen from his house to
Ezhukone police station on the premise that a petition was filed
Crl.R.P Nos. 519 & 520 of 2013
by someone against him and he was manhandled by the
Policemen there.
31. On the contrary, the specific stand of the accused was
that he was arrested following his interference with the lawful
discharge of official duty by a Policeman namely Manirajan who is
accused No.3. On completion of investigation and laying of the
final report, cognizance was taken by the court for the offences
for which the complainant as accused was chargesheeted. On the
basis of the plea raised by the complainant that he is not guilty,
trial was held and he was acquitted. It is pertinent to note that
the acquittal was not for failure of the prosecution to establish
the guilt against the accused beyond reasonable doubt, but on a
revelation of the court from an appreciation of the evidence on
record that the case was purely a false and fabricated one.
Therefore, there is every reason to hold that the complainant
was procured by the policemen into their custody on 08.02.1996
without any cogent and reasonable cause. It is made clear from
the evidence on record that the complainant was there at the
Police Station for about 18 hours after being taken thereto.
Medical evidence available also made it clear that he was inflicted
with several injuries on his body. Therefore, the barbarous acts
Crl.R.P Nos. 519 & 520 of 2013
on the complainant was uncalled for by the context and to any
stretch of imagination cannot be a justifiable one. When the
prosecution case that the complainant was arrested and brought
to the Police Station pursuant to the incident occurred at 8.15
p.m on 08.02.1996, which formed basis for registration of Crime
No.33/1996 fails, credence needs only to be given to the
versions of PW1 and PW2.
32. From the above narrations, it is indicated that the
complainant was brought to the Police Station by the accused not
for any legal pursuit or in exercise by the policemen of any of
their lawful authority. For the mere reason that the Policemen
arrived there in a Departmental vehicle during hours of their
official duty, and took the complainant alongwith them to the
Police Station, it cannot be said that, they were discharging their
official duties. There must be some legal basis while depriving
the personal liberty of a person, since it being the mandate of
our Constitution under Article 21 that a person's life or liberty
shall not only be curtailed or abridged without the support of a
procedure established by law. Sanction contemplated under
Section 197 Cr.P.C is not meant to protect a public servant
dealing with the life or personal liberty of a man out of purview
Crl.R.P Nos. 519 & 520 of 2013
of law or procedure established by law. Therefore, a Policeman
has to act within the limits of the legal domain recognized by the
Code of Criminal Procedure or any other enactments. Sanction
as a protective measure is incorporated in Cr.P.C to save a public
servant acting bonafidely without exceeding the jurisdictional
limits and also duly exercising the authority recognized by law.
What is intended by the incorporation of Section 197 in Cr.P.C is
an assurance to a public servant that for whatever things
bonafide done by him in the lawful exercise of the authority
conferred on him, protection would be afforded to him.
33. Therefore, they cannot take the advantage of Section
197 Cr.P.C after committing mischievous acts under the guise of
lawful discharge of official duties as in the case on hand. The
fact that the incident was occurred within the Police Station and
during the course of discharge of official duty by the Policemen
will not legalise it, if it turns out as an exercise of excess power
by them for illegal gain. Exercise of power by a public servant
in the course of lawful discharge of his official duty, though in
excess, will be given protection under Section 197 Cr.P.C.
34. Viewed in the above perspective, the accused in the
case on hand can only be taken to have exercised their authority
Crl.R.P Nos. 519 & 520 of 2013
for committing some illegal acts, under the guise of exercise of
lawful discharge of their official duties and therefore are not
liable to be afforded with the protection envisaged under Section
197 Cr.P.C. Sanction contemplated under the above provision is
not intended to safeguard illegal acts. Therefore, this Court has
no hesitation to hold that sanction is absolutely unwarranted in
the context for taking cognizance of the offence against the
accused and prosecuting them.
35. In the case on hand, burn injuries were reported on the
tongue of the complainant in Ext.P3 by PW7 and as evidenced
from Exts.P4 and P5 discharge certificate and discharge
summary respectively, those necessitated an extensive
treatment for more than a month. PW7 has stated that the
injuries found on the tongue could be caused with a burned
cigarette as claimed by the complainant. Apart from that the
other injuries reported by PW7 in Ext.P3 also tally with the
version given by the complainant on its cause in the private
complaint lodged by him.
36. The further allegation of the defence was that the
incident alleged by the complainant was found by the courts
below as established based on the versions of PW1 and PW2,
Crl.R.P Nos. 519 & 520 of 2013
who are interested witnesses and without the support of any
independent version to corroborate. According to them, the
complainant was allegedly taken by the accused to the police
station from an area where other residential houses are also
available in his neighbourhood but he failed to cite and examine
any of the inhabitants of the locality to support his case.
According to them, independent version having not been brought
on record by the complainant in evidence, the trial court is
highly unjustified in arriving at a finding of guilt of the accused
purely based on interested versions of PWs1 and 2, and the
appellate court in confirming the same.
37. True that an independent version is not forthcoming to
support the case of the complainant. Even going by the version
of PW1, only a single house is situated in the neighbourhood and
none of the inmates had occasion to see him transported to the
Police Station in the jeep. The admitted case of the accused
being that the complainant was brought to the police station on
08.02.1996, the complainant cannot be found fault with in not
citing any of the inmates of the sole residence in the locality as a
witness and examining him. The admitted case of the accused
being that the complainant was at the Police Station in their
Crl.R.P Nos. 519 & 520 of 2013
custody throughout the night on 08.02.1996, till his production
before the Magistrate at 3.50 p.m. on 09.02.1996, want of
independent evidence cannot be taken to have much material
adverse impact on the complainant's venture to establish the
incident of his transportation to the Police Station. The second
part of the incident according to the complainant was his
sufferance of torture at the hands of the policemen and
sustainment of injuries. Those allegedly being occurred inside
the police station during night hours, it is unlikely to be
witnessed by any outsiders.
38. Complainant as PW1 has categorically deposed that
after reaching the police station the first accused kicked him on
his abdomen with his booted leg and on falling down, accused 2
to 5 fisted and kicked him on several parts of his body with their
booted legs, saying that he would not be let to walk further. The
3rd accused then blowed his hands on his cheek, which caused
oozing of blood out of his ears. He became unconscious then
and regained consciousness only in the morning of 09.02.1996.
Being unable to rise up, accused 2, 4 and 5 caused him to do so
forcibly. First accused then pressed his hands on the
complainant's neck and caused his tongue to protrude out. Third
Crl.R.P Nos. 519 & 520 of 2013
accused then held his tongue and inflicted burn injuries on it with
a burning cigarette, challenging him, how he would make
complaints against them before the Magistrate. According to the
complainant he was manhandled by them in front of his wife who
came there along with his friend and neighbour, Mr.Ayyappan and
they were driven out from the premises of the police station by
intimidating that their life would be endangered. At about 1 p.m,
the 3rd accused poured some water on his body and since he was
unable to clean it, together with accused No.4, he wiped off the
water from his body with a cloth. At about 4 p.m he was
produced before Judicial First Class Magistrate Court - I,
Kottarakara and was granted bail. He was directed to avail
treatment for the injuries found on his body. He was taken to
THQ Hospital, Kottrakara and also to other hospitals for
treatment.
39. The wife of the complainant was not an ocular witness
of the torture that had taken place at Ezhukone Police Station.
Therefore, she is not supposed to speak about the way in which
the injuries were inflicted on him. She had witnessed the arrival
of the policemen at their house at 5.45 p.m on 08.02.1996 and
transportation of her husband to the police station in the police
Crl.R.P Nos. 519 & 520 of 2013
jeep. She also went to the Police Station accompanied by one
Mr.Ayyappan, a neighbour and friend of her husband and there,
she had also occasion to hear the hues and cries of her husband
from inside the police station. She did not raise her voice
against and constrained to leave the premises on being
intimidated by the police. During examination, she has spoken
to the above extent and her version indisputably have
corroboration with that of PW1.
40. Medical evidence let in by the complainant by
examining PW5 to PW7 and marking Exts.P3 to P5, also lend
clear support to his version. The medical witnesses deposed that
the injuries found on the body of PW1 could be caused as
alleged by him. In the above context, the courts below cannot
be found fault with in finding accused 1 and 3 to 5 guilty of the
offences alleged, even without the support of any independent
evidence. The trial against accused No.2 was abated on his
death during the pendency of the case.
41. This Court had discussions already about the context in
which injuries were inflicted by the accused on the complainant
and was convinced that the injuries inflicted were of barbarous
nature and unwarranted by the circumstances that exist at the
Crl.R.P Nos. 519 & 520 of 2013
relevant time, for discharging the official duty by them as
Policemen. The context being so, sanction as contemplated
under Section 197 Cr.P.C cannot be a precondition for taking
cognizance off the offences against the accused and for
prosecuting them. The trial court undoubtedly is justified in
holding so and this Court finds no reason to interfere with that
finding.
42. The argument secondly advanced was that accused
No.3 was not identified properly and the trial is vitiated and the
prosecution case is defeated for the reason. According to
Sri.Gopalakrishna Kurup, the learned Senior Counsel, the name
of accused No.3 is Manirajan and during examination PW2 has
mentioned his name as Manilal. Therefore, identification of
accused No.3 lost it's sanctity and therefore, improper.
According to him identification of accused being a crucial matter
that impacts the finding of guilt of the accused, it being improper
in the case on hand, the findings of guilt of Accused No.3 by the
courts below deserve reversal.
43.It is true that there was no pointed identification of the
accused by the complainant during trial. But PW1 has spoken
categorically during examination that originally when he was
Crl.R.P Nos. 519 & 520 of 2013
transported to the police station and was subjected to torture, he
has no acquaintance with any of the accused, but lateron while
being at the police station for hours, he had occasion to hear
other Policemen calling each of them and thereby got acquainted
of their names and identity. From Ext.D4, this Court is
convinced that PW1 was present at the police station for more
than 18 hours. The said duration is more than sufficient for PW1
to get acquainted of all accused with reference to their names
and roles in manhandling him. While tendering evidence PW1
had also spoken about the contributions each accused made
while torturing him.
44. Moreover, accused No.3 being the defacto complainant
in C.C.No.183/1998, and the complainant herein having been
faced trial in it, there is no question of identity of the accused to
be mistaken by him. Examination of the accused under Section
313 (1) (b) Cr.P.C also lend support to the fact that identity was
not disputed by the accused at anytime during trial. In the
above circumstances the argument advanced on impropriety of
identification of accused No.3 is only to be thrown out as
untenable.
Crl.R.P Nos. 519 & 520 of 2013
45. Yet another argument advanced was that specific overt
act of 5th accused in the incident being not established, finding
him as guilty and passing orders of conviction and sentence
against him deserve reversal. This is a case where common
intention as envisaged under Section 34 IPC is alleged and not
common object under Section 149 IPC. True that unlike in the
case of common object, overt act on the part of each and every
accused need not be established by the prosecution, for
convicting the accused with the aid of Section 34 IPC, lest,
sharing of common intention alone and that can be achieved
even by establishing the presence of the accused in the company
of the main culprits during the transaction. Presence of all
accused was spoken by PW1 and evidence to the contrary has
not been let in by the accused. Therefore, undoubtedly they
shared their common intention to torture the complainant. The
offences attracted in the prosecution are those punishable under
Sections 323 and 324 read with Section 34 IPC. Common
intention shared by the accused in the case on hand was to
wreck vengeance against the accused for demand made by him
for wages from a relative of accused No.3 by causing physical
hurt to him. PW1 has spoken about the motive behind the
Crl.R.P Nos. 519 & 520 of 2013
offensive act by the accused in definite terms. The manner in
which Accused No.5 acted to facilitate the commission of the
offensive act was also categorically spoken by him and the
indication possibly drawn was that he shared the common
intention with the other accused to torture the complainant.
Therefore this Court finds no reason to accept the argument
advanced to the contrary by Sri.S. Rajeev. Para 13 of the
judgment of the Apex Court in Devi Lal and Another v. The
State of Rajasthan [1971 (3) SCC 471] which draws a
distinction on common object and common intention is apposite
extraction hereunder :
"13. The distinction between Sections 34 and 149
of the Indian Penal Code was not clearly noticed by the
Sessions Court and the High Court did not deal with this
point at all. Under Section 34, when a criminal act is
done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act
in the same manner as if it were done by him alone. The
words "in furtherance of the common intention of all" are
a most essential part of Section 34 of the Indian Penal
Code. It is common intention to commit the crime
actually committed. This common intention is anterior in
time to the commission of the crime. Common intention
means a pre-arranged plan. On the other hand, Section
149 of the Indian Penal Code speaks of an offence being
Crl.R.P Nos. 519 & 520 of 2013
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly. The
distinction between "common intention" under Section 34
and "common object" under Section 149 is of vital
importance. The Sessions Court fell into the error of
convicting the appellants under Section 302, read with
Section 34 of the Indian Penal Code by holding that "if a
number of persons assault another with a stick
mercilessly their intention can only be to murder that
man or at least they should know that they are likely to
cause death of the person concerned". This aspect of
their being likely to cause death would be relevant under
Section 149 and not under Section 34 of the Indian Penal
Code for the obvious reason that under Section 34 it has
to be established that there was the common intention
before the participation by the accused."
46. The complainant has stated categorically that accused
No.5 pushed him against the compound wall and facilitated
others to do the offensive part alleged against them. As revealed
from the evidence accused No.5 was in the company of others
and by pushing the victim against the compound wall and
thereby joining in manhandling the complainant, he cannot be
spared of from conviction for the offences under Sections 323
and 324 read with Section 34 IPC. The allegation made by the
complainant in the private complaint and tendered as evidence
Crl.R.P Nos. 519 & 520 of 2013
during examination are satisfactory to impress the Court that all
the accused had acted in furtherance of their common intention
and therefore are guilty of the offences alleged against them.
47. In the light of the foregoing discussions, this Court
has no hesitation to hold that the trial court and the appellate
court are not in error and are perfectly justified in finding
accused Nos.1 and 3 to 5 guilty for the offences under Sections
323 and 324 read with Section 34 IPC, convicting them and
imposing punishments on them for those by the impugned
judgment.
In the result, both revisions fail and are dismissed.
Sd/-
MARY JOSEPH, JUDGE
ttb/NAB/MJL/JJ
