Kerala High Court
Appu Nair vs State Of Kerala on 6 November, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
W.P.(C) No.6502/19 1
2024:KER:82403
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
WP(C) NO. 6502 OF 2019
PETITIONERS:
1 APPU NAIR
AGED 68 YEARS,
S/O.NAMBALATTU VETTIL MEENAKSHY AMMA,
KUNNAMKULAM VILLAGE,KIZHOOR DESOM,
THALAPPILLY TALUK-680503.
*2 KRISHNANKUTTY,
AGED 64 YEARS, S/O MEENAKSHI AMMA,
NAMBALATTU VEETTIL HOUSE,
KUNNAMKULAM VILLAGE, KIZHOOR DESOM,
KUNNAMKULAM TALUK,
THRISSUR DISTRICT - 680503
*(ADDL.P2 IS IMPLEADED AS PER ORDER DATED 02-09-2024 IN
IA NO.1/2022 IN WPC 6502/2019)
BY ADV RAJIT
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 MINISTRY OF HOME AFFAIRS,
SECRETARIAT,THIRUVANANTHAPURAM-695001
REPRESENTED BY THE SECRETARY .
3 M.J.SOJAN,
S.I.OF POLICE, KUNNAKULAM,
NOW WORKING AS POLICE INSPECTOR,
VIGILANCE AND ANTICORRUPTION BUREAU,
PALAKKAD-678001.
*4 JOSHI,
W.P.(C) No.6502/19 2
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AGED 56 YEARS, S/O. JACOB,
MULAKKAL HOUSE,
MATTOM, ALOOR VILLAGE,
THRISSUR - 680683
*(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 02-09-2024 IN
IA NO.1/2024 IN WPC 6502/2019)
BY ADVS.
SRI.C.K.SURESH, PUBLIC PROSECUTOR
SRI.B.G.HARINDRANATH
SRI.S.RAJEEV
SMT.MARIA PAUL
SRI.THOMAS J ANAKKALLUNKAL
SRI.NIRMAL CHERIYAN VARGHESE
SRI.ABISHEK JOHNY
SRI.JAYARAMAN S.
SRI.V.VINAY
SRI.M.S.ANEER
SRI.ANILKUMAR C.R.
SRI.SARATH K.P.
SRI.PRERITH PHILIP JOSEPH
SRI.K.S.KIRAN KRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.10.2024, THE COURT ON 06.11.2024 DELIVERED THE FOLLOWING:
W.P.(C) No.6502/19 3
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BECHU KURIAN THOMAS, J.
--------------------------------
W.P.(C) No.6502 of 2019
---------------------------------
Dated this the 6th day of November, 2024
JUDGMENT
Petitioner challenges an order declining to grant sanction to
prosecute the third respondent.
2. The original petitioner died and his brother has come on record
as additional second petitioner. Both petitioners are siblings of late
Sri. Narayanan Nair, who died on 02-09-2001. Alleging that the death of
the brother was due to police atrocities, a private complaint was filed by
the original petitioner before the Judicial First Class Magistrates Court,
Kunnamkulam. Though there is a chequered history for the said private
complaint, which will be narrated later, as matters now stand, in Crl.M.C
No.407/2016 a learned single Judge of this Court quashed the said
complaint after concluding that sanction for prosecuting the third
respondent herein was essential as the act alleged was part of his official
duties. The challenge against the aforesaid order was also dismissed by
the Supreme Court. Subsequently, an application was filed on
13.09.2017 by both petitioners herein, seeking sanction to prosecute the
third respondent in the private complaint. By the impugned order dated
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02-07-2018, the Government refused to grant sanction. The said order
refusing sanction to prosecute the third respondent produced as Ext.P10,
is under challenge in this petition under Article 226 of the Constitution of
India.
3. Before adverting to the rival contentions, it is appropriate to
delve deeper into the circumstances that have resulted in this writ
petition. The original petitioner alleged that on 01-09-2001, while the
deceased Narayanan Nair was standing at a bus stop, the third
respondent, who was then the Sub Inspector of Police of Nilambur Police
Station, assaulted and poked the deceased with a lathi while other
policemen also assaulted him. Sri. Narayanan Nair fell down and was
taken to the Government Hospital from where he was allegedly referred
to the Medical College Hospital but, enroute, his condition deteriorated
and he was admitted to Mother Hospital at Thrissur, where he
succumbed to his injuries. On the death of Sri. Narayanan Nair, Crime
No.184/2001 of West Fort Police Station, Thrissur was registered,
alleging unnatural death. The doctor who conducted the postmortem
opined that the deceased died due to acute myocardial infarction.
Subsequently, the said crime was transferred, due to territorial
jurisdiction and re-registered as FIR No.653/2001 before the
Kunnamkulam Police Station alleging offences under section 324 read
with section 34 IPC against the police officers. The said case is now
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pending as C.C. No.1441/2003 before the Judicial First Class Magistrates
Court, Kunnamkulam. In the meantime, the Human Rights Commission
interfered and even directed payment of compensation to the wife of the
deceased as an interim relief.
4. While so, a complaint, which is the basis for this writ petition, was
filed as Crl.M.P. No.12398/2003 before the Judicial First Class
Magistrate's Court, Kunnamkulam by the original petitioner alleging
offence under section 302 IPC. The said complaint was initially dismissed
by the learned Magistrate, against which a revision petition was
preferred as Crl.R.P No.1/2007 before the Sessions Court, Thrissur. The
Sessions Court set aside the order of dismissal and directed the
Magistrate to reconsider the complaint. On reconsideration, the learned
Magistrate took cognizance of the complaint for the offences under
sections 325, 326 and 201 read with 34 IPC. Challenging the order
taking cognizance, a revision petition was filed by the third respondent,
but it was dismissed by the Sessions Court. Crl.M.C No.407 of 2016 was
filed before this Court by the third respondent. By judgment dated
18.08.2017, a learned single Judge allowed the petition and quashed
C.C. No.197/2011 after observing that the alleged incident occurred
during the course of discharge of duty and hence sanction was required
to prosecute the third respondent. As mentioned earlier, the Special
Leave Petition preferred against the said order was dismissed. Thereafter
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the original petitioner approached the Government seeking sanction to
prosecute the third respondent, which was declined as per the impugned
order.
5. Since the original petitioner died in the meantime, his brother
had himself impleaded as the second petitioner and this petition is being
prosecuted by him. Hereafter, the term petitioner will be used to refer to
both the original petitioner as well as the second petitioner.
6. Sri Rajit, the learned counsel for the petitioner contended that
the deceased died due to the brutal assault by the third respondent and
other police officers and hence it is essential to prosecute the accused. It
was submitted that considering the nature of assault, sanction itself was
not required however, the Government refused sanction due to the clout
wielded by the third respondent and also that the sanction was denied
for the private complaint based on the materials in the police charge and
therefore relevant factors had not been taken into consideration. The
learned counsel also argued that the sanctioning authority misconstrued
the scope of the request for sanction and on account of irrelevant
considerations having been taken into reckoning and relevant
considerations omitted, the order refusing sanction is liable to be set
aside. According to the learned Counsel, the place of occurrence in the
private complaint and the police case were both different, the post-
mortem was delayed purposely enabling severe decomposition of the
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body and a crime was not even registered on the basis of the statement
taken from the deceased at the hospital. It was argued that the
aforesaid factors were omitted from consideration by the sanctioning
authority rendering the order perverse. He mainly relied upon the
decisions in Rajaram Prasad Yadav v. State of Bihar and Another
(2013) 14 SCC 461, and Rajendra Prasad v. Narcotic Cell through
its officer in charge, Delhi (1999) 6 SCC 110 apart from other
decisions to support his contentions.
7. Sri Suresh P., the learned Public Prosecutor on the other hand
contended that all materials were placed before the sanctioning authority
as per Ext.P11 report of the Inspector General of Police through the
State Police Chief and that Ext.P10 order refusing sanction was issued
after considering the relevant factors and that too after perusing the
relevant materials. He pointed out that the typographical error in the
crime number mentioned in Ext.P10 order is of no significance as the
same has been specifically pointed out in the affidavit filed by the first
respondent. The learned prosecutor relied upon the decision in State of
Maharashtra v. Ishwar Piraji Kalpatri and Others (1996) 1 SCC
542.
8. Sri B.G.Harindranath, the learned Senior Counsel instructed by
Adv. Thomas J.Anakkallunkal appearing on behalf of the third respondent
submitted that the facts as alleged in the writ petition are misleading
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and incorrect. It was pointed out that the post-mortem certificate clearly
stated that Sri Narayanan Nair died of acute myocardial infarction and
that there was no injury of any nature except some superficial scars for
which there were no supporting documents as well. The learned Senior
Counsel submitted that since by Ext.P6 judgment the criminal
proceedings were quashed, there cannot be any revival of the said case.
The learned Senior Counsel also submitted that the relief sought by the
petitioner is for a direction to grant sanction and such a direction cannot
be issued by this Court, as held in Mansukhlal Vithaldas Chauhan v.
State of Gujarat (1997) 7 SCC 622. It was also submitted that, even
otherwise, the required parameters for the grant or refusal of sanction
were borne in mind by the authority and once sanction has been refused,
this court should seldom interfere. The decision in State of Punjab and
Another v. Mohammed Iqbal Bhatti (2009) 17 SCC 92 was also relied
upon by the learned Senior Counsel.
9. Sri S.Rajeev, the learned counsel for the additional fourth
respondent, also submitted that the sanctioning authority had considered
all the aspects and had refused to grant sanction, which is not liable to
be interfered with.
10. The only issue that requires to be considered is whether the
order dated 02-07-2018 produced as Ext.P10, refusing sanction to
prosecute the third respondent for the alleged offence that took place on
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01.09.2001 should be interfered with.
11. The concept of prosecution sanction is not an idle formality or
an unnecessary exercise, but a solemn and sacrosanct act which affords
protection to public servants against frivolous prosecutions. The decision
in Mohd. Iqbal Ahmed v. State of Andhra Pradesh (1979) 4 SCC
172 is relevant in this context. Sanction is a weapon to discourage
frivolous and vexatious prosecutions and is a safeguard for the public
servant from unnecessary prosecutions. In the decision in Mansukhlal
Vithaldas Chauhan v. State of Gujarat (supra) it was observed that
the validity of the sanction order would depend upon the material placed
and the nature of consideration by the sanctioning authority. It was also
observed that consideration implies application of mind and if the order
of sanction ex facie discloses that the sanctioning authority had
considered the evidence and other materials placed before it, the scope
of interference is very limited. It was further observed that the question
of whether the sanctioning authority had considered all the requisite
particulars can even be established by extrinsic evidence by placing
relevant files before the Court to show that all relevant facts were
considered by the sanctioning authority. The Supreme Court relied upon
the decisions in Jaswant Singh v. State of Punjab [AIR 1958 SC 124]
and C.S. Krishnamurthy v. State of Karnataka (2005) 4 SCC 81
while coming to the above conclusion. Apart from the above, in the
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decision in State of Punjab and Another v. Mohammed Iqbal Bhatti
(supra) it was observed that the sanctioning authority must apply its
mind to the materials collected during investigation and even if such
application does not appear from the order of sanction, extrinsic
evidence may be placed before the Court on that behalf.
12. The discretion to grant or not to grant sanction, vests
absolutely with the sanctioning authority. If the discretion of the
sanctioning authority is not affected by any extraneous considerations
and the authority has applied its mind independently to arrive at the
conclusion, then this Court ought not to interfere with an order granting
or refusing sanction. The purpose of sanction itself being to insulate a
public servant from frivolous prosecutions, the said process would
become a dead letter, if the orders of the sanctioning authority are
interfered with, without any rhyme or reason.
13. In the instant case, as is evident from the order of this Court in
Crl.M.C No.407/2016, the third respondent was held to be acting in the
discharge of his official duties at the time of the incident. The contention
that he was not acting in the discharge of his official duties is hence not
open for consideration. Once it is held that an offence was committed
while acting in the discharge of official duties, the sanctioning authority's
order, either granting sanction or refusing sanction, should not be
generally interfered with in the exercise of the power of judicial review.
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The well established principle that it is not the decision but the decision
making process alone that is under consideration while exercising the
power of judicial review ought to deter this Court from interfering with
orders of the sanctioning authority, without any legal basis.
Circumspection is required while considering such challenges to orders of
the sanctioning authority.
14. In Ext.P10, the application of the first petitioner along with the
report of the State Police Chief was considered. The report submitted by
the Inspector General of Police to the State Police Chief which in turn
was placed before the sanctioning authority, is produced as Ext.P11. The
said report elaborately refers to every circumstance connected with the
incident and recommended not to sanction the prosecution. The report
specifically mentions that already the police case is pending and the third
respondent is facing prosecution in that case. The private complaint of
the petitioner is over and apart from the police charge and therefore it
was reported that the public servant is required to be protected from
malicious prosecution in respect of acts that were done in connection
with his official duties.
15. The sanctioning authority in Ext.P10 had considered the report
forwarded by the State Police Chief along with other documents and
came to the conclusion that the death of the petitioner's brother was due
to a heart attack as revealed from the post-mortem report and that the
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incident alleged, occurred when the third respondent waved his lathi for
dispersing the crowd to maintain law and order. The impugned order also
states in no uncertain terms that, as the police officer was acting in the
discharge of his official duties, the request of the petitioner for
prosecuting him is declined. However, in the impugned order, the
authority had referred to Crime No.653/2001, which is not the crime, for
which sanction was sought for by the petitioner. In the counter affidavit
filed by the Joint Secretary, Home Department, it was clarified that
Crime No.653/2001 mentioned in the impugned order was a clerical
mistake, and that sanction was sought for the private complaint.
16. The contention of the petitioner that mentioning the crime
number relating to the police charge clearly indicates non-application of
mind by the sanctioning authority, though impressive at first blush, it is
evident on deeper scrutiny that the said contention has no merits and is
not legally tenable. In this context, it is apposite to note that the very
consideration by the authority was with respect to the application of the
petitioner for prosecuting the third respondent in his private complaint.
The application filed by the petitioner is mentioned and referred to in
Ext.P10 as reference No.1 while reference No.2 is the judgment of this
Court in W.P.(C) No.1926/2018. The question of sanction for prosecuting
the accused in Crime No.653/2001 was never raised for consideration.
The report of the State Police Chief and the report given by the Inspector
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General of Police, all referred to the request for prosecuting the third
respondent in the private complaint filed by the petitioner. Viewed in the
above perspective and considering the circumstances, this Court is of the
view that reference to the wrong crime number in Ext.P10 is not a
reflection of non-application of mind and the same is only a clerical
mistake having no serious consequences. The clarification in the counter
affidavit of the first respondent can hence be accepted as valid as it is
only pointing to a typographical error. The legal principle that affidavits
of Officials cannot clarify impugned orders will have no application in the
instance case as what was clarified was only a typographical error in the
order impugned.
17. The contentions on the basis of the alleged delayed conduct of
post-mortem, omission to register a crime based on the alleged
statement recorded from the hospital and the difference in the police
charge and the private complaint were all omitted from consideration by
the sanctioning authority are according to me, not germane to the issue
of sanction. In this context, this Court bears in mind that already a
prosecution is pending against the third respondent for the alleged
incident of assault of the deceased on the same day. The said case is
now pending as C.C. No.1441/2003 before the Judicial First Class
Magistrate's Court, Kunnamkulam. Apart from there being no material
to justify the contentions put forth by the petitioner regarding the
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omissions or the delay in conducting post-mortem or even the difference
in the nature of the incident, they are not, by themselves, sufficient
enough to warrant an interference with the impugned order refusing
sanction.
18. Considering the nature and scope of interference against
orders, refusing sanction to prosecute a public servant, this Court is of
the view that the impugned order has been passed after due application
of mind, by considering all the relevant materials including the report of
the Inspector General of Police. The order refusing sanction to prosecute
the third respondent in the private complaint that was filed as C.C.
No.197/2011 on the files of Judicial First Class Magistrate's Court,
Kunnamkulam, therefore does not warrant any interference in exercise of
the powers under Article 226 of the Constitution of India.
The writ petition lacks merit and it is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
2024:KER:82403
APPENDIX OF WP(C) 6502/2019
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER DTD.4.8.2003 IN HRNP
NO.2907/2001 OF THE KERALA STATE HUMAN RIGHTS
COMMISSION.
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION ISSUED BY THE
DEPUTY DIRECTOR OF PROSECUTION DTD.28.5.2001
ALONG WITH A COPY OF THE REQUEST MADE BY THE
SUPERINTENDENT POLICE.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DTD.27.9.2004 IN
R.P.NO.983/2003 ARISING OUT OF
WP(C)38284/2003.
EXHIBIT P4 TRUE COPY OF THE ORDER DTD.3.4.2010 IN
CRL.RP.NO.1/2007.
EXHIBIT P5 TRUE COPY OF THE ORDER IN CRL.R.P.NO.39/2011
DTD.24.9.2012.
EXHIBIT P6 TRUE COPY OF THE ORDER DTD.18.8.2017 IN
CRL.M.C.407/2016.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE RESPONDENTS 1 & 2.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED AND
HIS BROTHER DTD.30.10.2001.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 30.01.2018.
EXHIBIT P10 TRUE COPY OF THE ABOVE ORDER DATED
02.07.2018.
EXHIBIT P11 TRUE COPY OF THE REPORT OF THE STATE POLICE
CHIEF,OBTAINED BY THE PETITIONER UNDER THE
RIGHT TO INFORMATION ACT.
