K.L.Joseph vs State Of Kerala
2023 Latest Caselaw 8797 Ker

WP(C) No.4306/2013                 1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
      MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
                         WP(C) NO. 4306 OF 2013
PETITIONER/S:

             K.L.JOSEPH
             LAWYER, S/O.LONACHAN, KURUPPASSERRY HOUSE, KUMBALANGHI
             P.O., KOCHI - 682 007.

             BY ADV GEORGE SEBASTIAN


RESPONDENT/S:

     1       STATE OF KERALA
             REP. BY SECRETARY TO DEPARTMENT OF HOME AFFAIRS,
             THIRUVANANTHAPURAM-695001.

     2       ANOOB
             SUB INSPECTOR OF POLICE, DRCB, ERNAKULAM-682015.

             BY ADVS.
             MATHEW JOHN (THARAMUTTOM)FOR R2
             M.SHYJU
             SR.GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH FOR R1



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.7.2023, THE COURT ON 14.08.2023 DELIVERED THE FOLLOWING:
 WP(C) No.4306/2013                                 2




                             MOHAMMED NIAS C.P., J

                      .......................................................

                               W.P(C) No.4306 of 2013

                       ...........................................................

                     Dated this the 14th day of August, 2023



                                          JUDGMENT

The petitioner, an Advocate, challenges Ext.P12 order passed by the

Additional Secretary, Department of Home Affairs, rejecting his request for

granting sanction under Section 113 of the Kerala Police Act, 2007, read

with Section 197 of the Code of Criminal Procedure to prosecute the second

respondent.

2. The second respondent arrested the petitioner on 30.6.2011,

alleging that he drove his car under the influence of alcohol. The petitioner

was released on bail on the same day after the breath analyzer test and

taking the blood samples. On 01.7.2011, the second respondent registered

Ext.P1 FIR bearing Crime No. 1309/2011 before the Judicial First Class

Magistrate's Court-II, Kochi, alleging commission of offences under Section

279 IPC and Section 185 of the Motor Vehicles Act. Petitioner alleges that

Ext.P2 certificate issued by the Doctor only states "smell of alcohol," which

forced the petitioner to make Ext.P3 complaint to the District Medical

Officer, Ernakulam, which was rejected. The petitioner, on 11.7.2007,

issued notices to the Doctor and the Secretary Department of Health about

deleting the false entry in the certificate stating that there was a smell of

alcohol. It is also alleged that on 18.02.2010, the Sub Inspector of Police

also misbehaved with the petitioner while he was standing in the Zebra

crossing line for crossing the road. The petitioner submits that he had also

filed O.S. No.615/2010 for damages against the Sub Inspector as well as the

State of Kerala before the Sub Court, Ernakulam, which was dismissed, and

an appeal against the same is pending before this Court. He also preferred

Ext.P10 petition seeking sanction on 23.9.2011 contending that the second

respondent had made a false entry in the First Information Statement and

that he had intentionally fabricated false evidence for the purpose of using

the same, and all the offences alleged are in furtherance of his intention to

wreak vengeance against the petitioner and therefore, the second

respondent had commuted offences punishable under Sections 4, 29, 31(3),

114, 116, 121 and 125 of the Kerala Police Act, 2011 and sought sanction

under Section 197 of the Cr.P.C. for prosecuting the respondents under

Sections 192 and 193 of IPC. Since the Government Secretary did not take

any action on Ext.P10, he approached this Court wherein there was a

direction to the Government in W.P(C) No.11799/2012 (Ext.P11).

Accordingly, Ext.P12 order was passed, rejecting his request to grant

sanction, which this writ petition challenges.

3. The State and the second respondent have filed counter affidavits

opposing the writ petition.

4. I have heard Sri. George Sebastian, the learned counsel for the

petitioner, Smt. Mary Beena Joseph, the learned Senior Government Pleader

appearing for the first respondent and Sri. Mathew John (Tharamuttom), the

learned counsel appearing for the second respondent.

5. The learned counsel for the petitioner reiterated the contentions in

the writ petition and submitted that the second respondent did not take the

blood sample for examination purposefully as he knew well that the test

result would be negative. The second respondent also took the petitioner in

the police jeep to the hospital for medical examination but has not produced

the result of the blood test or the breath test. The Director General of

Police in Circular No.44/2009 dated 22.10.2009 had directed to conduct a

breath analyzer test properly and to record the statutory requirement in

such cases, and the second respondent had presumably failed to comply

with the said circular, which was based on the statutory requirements. He

also argued that the petitioner's arrest was against the provisions under

Section 125 of the Police Act. Since the action of the second respondent was

not done or intended to be done in good faith in due discharge of his official

duties, either under the provision of the Police Act or under the Cr.P.C. or

any other law, his request for granting sanction for prosecution ought to

have been allowed.

6. The learned counsel appearing for the official respondents

submitted that the petitioner was driving the car under the influence of

alcohol, and the second respondent arrested him as he drove the car rashly

and negligently, and the doctor had also certified the smell of alcohol.

7. The learned counsel appearing for the second respondent argues

that the second respondent, while discharging his official duties, having

found the petitioner driving the car in a rash and negligent manner and on

realising that the petitioner had consumed alcohol, steps were taken which

was sanctioned under law. It is also the contention of the second

respondent that the alcometer available in the police station was defective,

and the drunkenness certificate from the Medical Officer was not obtained

as the hospital authorities did not send the blood samples to the Chemical

Examiner. He also denied the charges that he had committed the offences

alleged by the writ petitioner. He also contended that the suit filed by the

petitioner was dismissed by judgment dated 31.8.2015 and that the arrest of

the petitioner was lawful.

8. Ext.P12 order that rejected the application for sanction reads as

follows:-

"Government have examined the matter in detail and found

that there is no prima facie disclosure of commission of an

offence by the second respondent. There is no ground to

prove any police atrocity alleged against the Police Officer.

Therefore, Government found that the request of the

petitioner to give sanction to prosecute the second respondent

does not merit consideration and hence it is dismissed."

9. It is clear that the Government has not considered all the relevant

materials required for considering the grant of sanction. The order of this

Court in Crl. M.C. No.2326/2014, which held the action of the second

respondent as bad, was not considered possibly because the same

happened to be passed after Ext.P12. However, it is a relevant material

that should go into consideration for considering the question of sanction to

prosecute. It is also seen from Ext.P12 that the three documents referred

to were also not considered, or at least the same was not reflected in the

impugned order.

10. The principles that are germane for consideration of the grant of

sanction are as follows:-

(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR disclosure statements, statements of witnesses. recovery memos, draft charge - sheet and all other relevant material. The record so sent should also contain the material/ document, if any, which may tit the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(e) In every individual case, the prosecution has to establish and satisfy the Court leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law. [CBI v. Ashok Kumar Aggarwal (2013 KHC 4983)].

11. Thus, the sanctioning authority is obliged to peruse all the

relevant materials and make complete and conscious scrutiny of the same

by applying an independent mind and to satisfy as to whether there is a

prima facie case against the accused or not and, accordingly, decide to

grant or refuse sanction sought for against the public servant. Such an

order should reveal that the sanctioning authority had been aware of the

facts and circumstances of the case, had perused and scrutinised the

relevant materials, and applied its independent mind to arrive at the

conclusion. The mind of the sanctioning authority cannot be under

pressure from any quarter, nor should any external force be acting upon it

to take a decision one way or the other. Since the discretion to grant or not

to grant sanction vests absolutely in the sanctioning authority, its discretion

should be shown to have not been affected by any extraneous

consideration.

12. Doubtless, the details of the crime registered against the

petitioner, the FIS, and the FIR, none of them have been referred to in the

order impugned. True, the Ext.P15 order came after the Ext.P12 order, but

the same is certainly relevant. Though the impugned order refers to

Exts.P10 and P11, there is no discussion about the same in the order

impugned. The third document mentioned is an intra-departmental

communication, which is also not seen considered. The contentions in

Ext.P10 petition preferred by the petitioner have not been looked into.

Under such circumstances, no other decision is possible except to quash

Ext.P12, and I do so.

Accordingly, there will be a direction to the first respondent to

consider Ext.P10 afresh, in the light of the observations made above, in

accordance with law, within an outer time limit of three months from the

date of receipt of a copy of this judgment.

The writ petition is allowed as above.

Sd/-

MOHAMMED NIAS C.P., JUDGE okb/

APPENDIX OF WP(C) 4306/2013

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE FIR IN CRIME NO. 1309/2011 OF KOCHI CUSBA POLICE STATION

Exhibit P2 TRUE COPY OF THE CERTIFICATE OF DRUNKENNESS ISSUED FROM THE MAHARAJAS HOSPITAL KARUVELIPADY

Exhibit P3 TRUE COPY OF THE COMPLAINT DATED 15-12-2011 ISSUED TO THE DISTRICT MEDICAL OFFICER ERNAKULAM

Exhibit P4 TRUE COPY OF THE NOTICE UNDER SECTION 80 OF CPC DATED 11-07-2012 ISSUED BY THE PETITIONER TO THE DOCTOR AND THE SECRETARY DEPARTMENT OF HEALTH.

Exhibit P5 TRUE COPY OF THE REPLY NOTICE DATED 31-10-2012 ISSUED BY THE DISTRICT MEDICAL OFFICER ERNAKULAM

Exhibit P6 TRUE COPY OF THE JUDGEMENT DATED 23-07-2011 IN O.S. 615/2010 BEFORE SUB COURT ERNAKULAM

Exhibit P7 TRUE COPY OF THE NOTICE DATED 16-05-2012 ADDRESSED TO THE RESPONDENTS.

Exhibit P8 TRUE COPY OF THE REPLY NOTICE DATED 10-06-2012 ISSUED BY THE 2ND RESPONDENT

Exhibit P9 TRUE COPY OF THE REPLY NOTICE DATED 07-12-2012 ISSUED BY THE 1ST RESPONDENT

Exhibit P10 TRUE COPY OF THE PETITION FOR PROSECUTION DATED 23-09-2011 ADDRESSED TO THE SECRETARY DEPARTMENT OF HOME AFFAIRS.

Exhibit P11 TRUE COPY OF THE JUDGEMENT DATED 13-07-2012 IN WP(C) 11799/2012 BEFORE THE HIGH COURT OF KERALA ERNAKULAM

Exhibit P12 TRUE COPY OF THE ORDER DATED 12-12-2012 ISSUED BY THE ADDITIONAL SECRETARY DEPARTMENT OF HOME AFFAIRS

Exhibit P13 TRUE COPY OF THE MEDIATION AGREEMENT IN O.S.NO. 615/2010 OF THE SUB COURT ERNAKULAM DATED 18-08-2014

Exhibit P14 TRUE COPY OF THE CHARGE SHEET IN CRIME NO. 1309/2011 OF KOCHI KASABA POLICE STATION.

Exhibit P15 TRUE COPY OF THE ORDER DATED 06-07-2018 IN CRL.MC NO. 2326/2014

Exhibit P16 TRUE COPY OF THE STATEMENT FILED BY THE INSPECTOR OF POLICE, PALLURUTHY CIRCLE IN CRL.MC. 2326/2014

Exhibit P17 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER HEREIN DATED 29-07-2015 IN CRL.MC 2326/2014

Exhibit P18 TRUE COPY OF THE CIRCULAR DATED 22-10-2009 ISSUED BY THE DIRECTOR GENERAL OF POLICE.

Exhibit P19 TRUE COPY OF THE MEMORANDUM OF RFA 174/2016 PENDING BEFORE THIS COURT.

RESPONDENTS' EXHIBITS:

EXT.R2(A):- TRUE COPY OF JUDGMENT DT.31.8.2015 IN OS 269/2014 OF SUB COURT ERNAKULAM

EXT.R2(B0:- TRUE COPY OF DECREE DT.31.8.2015 IN OS 269/2014 OF SUB COURT, ERNAKULAM