A.P.Jinan vs K.O.Mathew
2021 Latest Caselaw 20381 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
         FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                        CRL.A NO. 1199 OF 2006
AGAINST THE   JUDGMENT IN CC 827/1998 OF JUDICIAL MAGISTRATE OF FIRST
              CLASS -II,NEYYATTINKARA, THIRUVANANTHAPURAM
APPELLANT/PETITIONER/COMPLAINANT:


            A.P.JINAN
            ATHAZHA MANGALAM LAVANYA,, KADAVATTARAM DESOM,
            NEYYATTINKARA TALUK,, THIRUVANANTHAPURAM DISTRICT.

            BY ADV SRI.K.ANAND



RESPONDENTS/ACCUSED & STATE:


     1      K.O.MATHEW, DYSP,NEYYATTINKARA TALUK,,

            THIRUVANANTHAPURAM DISTRICT.

     2      K.V.PRABHAKARAN, SUB INSPECTOR,

            POOVAR POLICE STATION,, NEYYATTINKARA TALUK,,
            THIRUVANANTHAPURAM DISTRICT.

     3      P.C. 4442 ,CONSTABLE OF POOVAR POLICE STATION,
            NEYYATTINKARA TALUK,,

            THIRUVANANTHAPURAM DISTRICT.

     4      P.C. 2718, CONSTABLE OF POOVAR POLICE STATION,
            NEYYATTINKARA TALUK,,

            THIRUVANANTHAPURAM DISTRICT.

     5      P.C.8264, CONSTABLE OF POOVAR POLICE STATION,
            NEYYATTINKARA TALUK,, THIRUVANANTHAPURAM DISTRICT.
 CRL.A NO. 1199 OF 2006         2




     6     THE STATE OF KERALA ,REPRESENTED BY THE PUBLIC
           PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

           BY ADVS.
           A.MOHAMMED
           SRI.R.ANIL
           PUBLIC PROSECUTOR


           SRI SANGEETHARAJ , PUBLIC PROSECUTOR


THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1199 OF 2006               3



                                    JUDGMENT

This appeal has been filed challenging the judgment dated 30.11.2005 in

C.C. No.827/1998 on the file of the Judicial First Class Magistrate Court-II,

Neyyattinkara.

2. C.C. No.827/1998 was a private complaint filed by the

appellant/complainant against respondent Nos.1 to 5 herein, alleging

commission of offences under Sections 323, 324, 342 and 355 r/w. Section 34 of

the Indian Penal Code, against respondent Nos.1 to 5 who are police officials.

The complainant alleged that he is a reporter of the Kerala Kaumudi Daily in

Neyyattinara area. It is alleged that on 07.12.1997, when he was travelling

alongwith a friend, a group of people were found blocking the jeep of the Poovar

police station. When the appellant enquired with the then Sub Inspector of

Poovar Police station (respondent No.2) as to what had happened, he was

informed that a person had been arrested in connection with an Abkari offence.

The appellant and his friend were subsequently arrested by respondent Nos.1 to

5 on the allegation that they had helped the accused in the Abkari case to escape

from the scene of crime. It is alleged that respondent Nos.1 to 5 used

unnecessary force and manhandled the appellant/accused and thereby

committed the offences alleged in the complaint.

3. The 1st respondent herein who was the then Deputy Superintendent

of Police, Neyyattinkara, was discharged by the learned Magistrate through

order dated 09.02.2000. It is submitted before this Court that the said order

was not challenged by the appellant/complainant and that the said order has

become final.

4. Following the discharge of the 1st respondent/1st accused, trial

proceeded against respondent Nos.2 to 5. Learned Magistrate took the view

that the prosecution must fail for the reason that no sanction had been obtained

under the provisions of Section 197(1) of the Criminal Procedure code which

was a sine qua non for proceeding with the private complaint as the police

officials in question were acting in discharge of their official duty.

Notwithstanding the aforesaid finding, the learned Magistrate considered the

evidence and also found that the appellant/complainant has failed to prove the

case against respondents/accused Nos.2 to 5. On the basis of the aforesaid

findings, learned Magistrate acquitted accused Nos.2 to 5.

5. Learned counsel appearing for the appellant/complainant would

submit that the finding of the learned Magistrate that sanction was required

under Section 197 of the Cr.P.C was not justified inasmuch as the facts of the

case show that the accused persons were not acting in discharge of any official

duty. He places reliance on the judgment of the Hon'ble Supreme Court in

Devendra Prasad Singh V. State of Bihar and Another [2019 (4) SCC

351] to contend that where the alleged offences were not in connection with the

discharge of official duty, the question of obtaining sanction under provisions of

Section 197(1) Cr.P.C did not arise for consideration. He submits with reference

to the finding in Paragraph No.11 of the aforesaid judgment that in order to

attract the rigour of Section 197 Cr.P.C, it is necessary that the offence alleged

against a Government officer must have some nexus or/and relation with the

discharge of his official duties as a Government servant. He also places reliance

on the judgment of the Hon'ble Supreme Court in S.B. Saha and Others V.

M.S. Kochar [1979 (4) SCC 177] which again takes the view that that the sine

qua non for the applicability of Section 197 Cr.P.C is that the offence charged

must be one of commission or omission which has been committed by the

public servant within his official capacity or under the colour of office held by

him.

6. Learned counsel appearing for respondent Nos.2 to 5 would

contend that the entire facts pleaded in the complaint would show that the

officials were acting in discharge of their official duty. He submits with

reference to Ext.P4 wound certificate and the evidence of PW3 that the alleged

injures caused to the appellant/complainant were not caused due to use of any

unnecessary force. He places reliance on the recent judgment of the Hon'ble

Supreme Court in Devaraja D. V. Owais Sabeer Hussain [2020 (7) SCC 695]

to contend that considering the object and reason behind providing protection

as contained in Section 197 of the Cr.P.C, the sanction under that provisions

was very much required in this case. He has also placed reliance on the Hon'ble

Supreme Court in Indra Devi V. State of Rajastan and Another

[Judgment dated 23.07.2021 in Crl.Appeal No.593 of 2021] where again the

Hon'ble Supreme Court has considered the reason behind providing a

protection as contained in Section 197 Cr.P.C to officials who act in discharge of

official duties and states that the facts of this case will show that

respondents/accused Nos.2 to 5 were certainly entitled to such protection. He

also submits with reference to the provisions of Section 113 of the Kerala Police

Act that since all the accused were police officials, they were also entitled to the

protection extended to them under Section 113 of the Kerala Police Act, 2011.

He submits that though this point has not been considered by the court below,

being a question of law, it can be raised even at appellate stage.

7. I have considered the contentions raised. The facts of the case

show that what was alleged against the accused was that they had used

unnecessary force and had implicated the appellant/complainant in a false case

alleging that he had helped an accused in the Abkari offence to escape from the

clutches of the police. Therefore, the allegation against respondents/accused

Nos.2 to 5 was clearly one which fell within their official duties and going by the

judgment cited at the bar, even actions which are remotely connected with the

discharge of official functions will attract the rigour of Section 197(1) Cr.P.C.

8. In S.B. Saha (supra), it was held:-

''19. In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.

20. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar J. of the Federal Court in Hori Ram V. Emperor, 1939 FCR 159 is generally applied with advantage. After referring with approval to those observations of Varadachariar J., Lord Simonds in H.H.B. Gill V. The King AIR 1948 PC 128 tersely reiterated that the "test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office."

21. Speaking for the Constitution Bench of this Court, Chandrasekhar Aiyer J., restated the same principle, thus:

".....in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty...there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty".

(Emphasis supplied)

In Devendra Prasad Singh (supra), it was held:-

''In other words, it cannot be contended that respondent No.2 committed the alleged offences while acting in discharge of his official duties or while purporting to act in discharge of his official duties so as to attract the rigor of S.1978 of the Cr.P.C.''

9. The law laid down in Section 197 Cr.P.C was examined minutely by

the Hon'ble Supreme Court in Devaraja .D. (Supra). After the exhaustive

analysis of all the earlier judgments on the point, it was held:-

''69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under S.197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police

Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.

70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.

72. The language and tenor of S.197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under S.197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.''

The same effect is the recent judgment in Indra Devi (supra) where it was

held that the yardstick to be followed is to form a prima facie view, whether the

act or omission for which the accused was being charged had a reasonable

connection with the discharge of his duties. The Court also referred to the

judgment in State Of Maharashtra V. Dr. Budhikota Subharao [(1993)

3 SCC 337] to reach the conclusion.

10. Having considered the circumstances mentioned in the complaint

and on applying the ratio of the aforesaid judgments to the facts of this case, I

have no hesitation to hold that the prosecution could not have proceeded

without the sanction under Section 197 Cr.P.C. This is so, even if the action

complained of was not directly related to official duties but was only remotely

connected to it. In the facts of the present case, I am not inclined to hold that

the action complained of was not even remotely connected to the discharge of

their official duties. That apart, learned counsel appearing for respondent

Nos.2 to 5 is also right in contending that even if the provision under Section

197 Cr.P.C would not available to respondents/accused Nos.2 to 5, the

provisions of Section 113 of the Kerala Police Act would come to their aid and

that without the sanction as contemplated in Section 113(2) of that Act, the

prosecution could not have proceeded further. It is admitted that the

appellant/complainant had not obtained any sanction either under Section 197

Cr.P.C or under Section 113(2) of the Kerala Police Act. In that view of the

matter, there is no merit in this appeal and it is accordingly dismissed.

Sd/-

GOPINATH P.

ajt                                                       JUDGE