Kerala High Court
Arunkumar.A vs State Of Kerala on 6 February, 2025
2025:KER:9773
Crl.M.C.No.152 of 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 6TH DAY OF FEBRUARY 2025 / 17TH MAGHA, 1946
CRL.MC NO. 152 OF 2021
AGAINST RE CC NO.696 OF 2016 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT -I, MAVELIKKARA
PETITIONER/SOLE ACCUSED:
ARUNKUMAR.A
AGED 50 YEARS
S/O. ARAVINDAKSHAN NAIR, ARAVINDAM,
MAVELIKKARA P.O, ALAPPUZHA - 690107.
BY ADVS.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SRINATH
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682031.
2 SAM JOHN
S/O.K.S.JOY, KIZHAKKEYATTATHU PUTHEN VEETTIL,
VETTIYAR MURI, VETTIYAR VILLAGE,
MAVELIKAKRA TALUK, ALAPPUZHA DISTRICT - 690558.
BY ADV SRI.RAMESH .P
OTHER PRESENT:
P.P. SMT. MAYA M.N
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
31.01.2025, THE COURT ON 06.02.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.152 of 2021
2
S.MANU, J.
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Crl.M.C.No.152 of 2021
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Dated this the 06th day of February, 2025
ORDER
The 2nd respondent filed a private complaint before the Judicial
First Class Magistrate Court I, Mavelikara against the petitioner
alleging that he had committed offences under Sections 323, 324, 342
and 506 (1) of IPC.
2. Brief facts as narrated in the complaint of the 2 nd
respondent are as follows:
The marital relationship of the complainant and his wife was in a
strained phase. In May, 2015, some quarrels flared up and the wife left
the home with children. On 28.05.2015, by 7.00 am, three police
officers from Kurathikadu Police Station came to his house and took
him to the Police Station. The petitioner, a civil police officer attached
to the Police Station approached the 2 nd complainant around 10o clock
and assaulted him brutally. The assault continued till the complainant
became unconscious. Next day early morning at 4.45, he was taken to
Government Hospital Mavelikara and was brought back to Police
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Station after giving first aid. The torture he suffered was revealed to the
doctor by the complainant. Later, the complainant was produced before
the court and taking note of the physical condition, he was released on
bail. He thereafter, underwent treatment in Government Medical
College, Vandanam and also in Government Hospital, Mavelikara.
3. Statements of the 2nd Respondent and of the doctor who
had treated him at the Government Hospital, Mavelikara were
recorded by the learned Magistrate under Section 244 of Cr.P.C.
Cognizance was taken and later charge was framed against the
petitioner on 03.09.2019. On 17.02.2020, plea of the petitioner was
recorded. He pleaded not guilty. Thereafter, this Crl.M.C was filed
seeking to quash the charge and all proceedings in C.C.No.696 of 2016
pending before the JFCM - I, Mavelikara. By order dated 12.01.2021,
in Crl.M.A No.1/2021, further proceedings in the case were stayed by
this Court for a period of two months. The interim order was extended
later on different occasions.
4. Prime contention of the petitioner is that he was a Senior
Civil Police Officer attached to the Kurathikadu Police Station at the
relevant time and the 2nd respondent was taken into custody in a case
registered on the basis of information furnished by his minor daughter.
The daughter gave a statement to the police while undergoing
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treatment in hospital that she as well as her mother were assaulted by
the 2nd respondent. Crime No.533/2015 was registered against the 2 nd
respondent for the offences under Sections 294 (b), 323, 324 IPC r/w
23 Juvenile Justice Act, 2015. The 2nd respondent was taken into
custody and thereafter produced before the jurisdictional court, which
granted him bail. Therefore, the 2nd respondent was taken to the police
station in lawful discharge of official duties by police. Case of the 2 nd
respondent is that he was manhandled while he was in the police
station. Since the alleged offences occurred inside the police station
while the 2nd respondent was in lawful custody, it is contended that
sanction under Section 197 of the Cr.P.C. was essential for proceeding
against the petitioner. It is also contended that though the alleged
incident occurred on 28.05.2015, the complaint was filed only on
13.01.2016 after a lapse of 230 days. It is pointed out that there is no
explanation for the delay in filing the complaint and also for not
approaching the police.
5. The learned counsel for the petitioner relied on the
following reported judgments/orders to canvas the proposition that
sanction under Section 197 of Cr.P.C is a mandatory requirement when
the alleged offence had happened during the course of discharge of
official duty.
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i) Joji Joseph v. State of Kerala [2024 KLT OnLine 1651]
ii) Krishna Kumar B. v. State of Kerala and another [2017 (4)
KLT SN 84]
iii) Unni Rajan v. State of Kerala and Another [2012 (3) KLT
SN 27]
6. The learned counsel for the 2nd respondent contended that
the 2nd respondent was brutally assaulted by the petitioner while he was
in custody. He pointed out that the 2 nd respondent revealed the
custodial torture to the doctor who attended him when he was
produced in the Government Hospital. He also pointed out that the
injuries sustained by the 2nd respondent were clearly noted in the
medical records. He further submitted that the 2 nd respondent was
released on bail on the same day by the learned Magistrate in view of
the brutal assault. The 2nd respondent thereafter, had to undergo
treatment in the Government Medical College and also in the
Government Hospital, Mavelikara. He submitted that the assault
adversely affected the health condition of the 2nd respondent. He
pointed out that it is not within the scope of the duty of police officials
to manhandle anyone. Even when a person is under lawful custody, he
cannot be subjected to brutal torture. When a person in custody is
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subjected to physical torture, it cannot be considered as something
happened during the discharge of the official duty of the police officer
concerned. Such criminal acts of police officers are not protected under
Section 197 of Cr.P.C. He therefore, asserted that no sanction was
required in the case at hand. Referring to the specific averment in the
complaint, he submitted that the said aspect was clearly stated in the
complaint. Regarding the contention of the learned counsel for the
petitioner that the complaint was filed after long delay, the learned
counsel for the 2nd respondent submitted that the delay happened on
account of the fact that the 2nd respondent had to undergo prolonged
treatment after the incident. Hence, he was not in a position to pursue
legal remedies immediately. It was also submitted that the 2 nd
respondent had approached the Police Complaint Authority and also
the State Human Rights Commission. The learned counsel for the
respondent relied on the following reported orders in support of his
contention that sanction was not required for proceeding against the
petitioner in the facts and circumstances of the case:
i) Sadanandan P.P. v. Gayathri and Ors [2022 (2) KLT 388]
ii) Rajagopal D. v. Ayyappan and another [2021 (5) KLT 107]
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7. Necessity of sanction under Section 197 of Cr.P.C is an
aspect which will depend upon the facts and circumstances of the case.
The issue can be raised and examined at various stages of the
proceedings. In this case, the learned Magistrate has taken cognizance
and framed charges also. Before taking cognizance, whether this issue
was considered by the learned Magistrate is not discernible from the
records. The order taking cognizance is not produced in this Crl.M.C.
The order sheet produced as Annexure - 3 does not reveal whether this
issue was raised before the learned Magistrate at any point of time or
that the Court had considered this issue. Therefore this court is
constrained to proceed assuming that the trial court has considered the
issue before taking cognizance and proceeded with a view that sanction
is not necessary or that the question can be considered later.
8. Uncontroversial facts of the case at hand are that the case
was registered against the 2nd respondent on the basis of information
furnished by his daughter about assault. He was taken into custody and
brought to the police station after the crime was registered. The 2 nd
respondent was produced before the Jurisdictional Magistrate within
24 hours of taking him into custody and was subjected to medical
examination before production in court. Therefore, there was
justification for taking the 2nd respondent into custody, bringing him to
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police station and keeping him there. Hence, it can be emphatically
said that the detention of the 2 nd respondent in Police Station on the
relevant day was as part of discharge of official duties of police.
9. I have analyzed the case laws cited by both sides. The
learned counsel for the 2nd respondent cited the reported orders
referred supra in support of his argument that custodial violence in all
cases will not be falling within the scope of Section 197 of Cr.P.C. He
argued that this Court, in the orders cited by him, had held that
sanction was not required in those cases. I have perused the order cited
by the learned counsel in Rajagopal D (supra), wherein the learned
Single Judge considered revision petitions filed by some police officers
who challenged the concurrent findings of conviction and sentence for
offences committed against a person arrested by the police while he was
in custody. It was contended in the revision petitions that sanction
under Section 197 was not obtained and therefore, the conviction was
vitiated. The learned Single Judge rejected the contention and
dismissed the revision petitions. However, a close reading of the order
shows that in the said case, it was pointed out that the victim was taken
into custody without any cogent and reasonable cause. In paragraph 31
of the order, this aspect was considered. In the next paragraph, the
learned Single Judge noted that the complainant was brought to the
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police station by the accused not for any legal purpose, nor in the
exercise of any lawful authority by the police. Learned Judge pointed
out that what is intended by the incorporation of Section 197 in Cr.P.C
is an assurance to a public servant that for whatever things bona fide
done by him in the lawful exercise of the authority conferred on him,
protection would be afforded. It was held that the police officials
cannot be permitted to take advantage of Section 197 after committing
mischievous acts under the guise of lawful discharge of official duties.
The learned Single Judge entered into a categorical finding that the
accused in the case had committed illegal acts under the guise of
exercise of lawful discharge of the official duties and held that they were
not entitled to rely upon the provisions of Section 197 of Cr.P.C to
challenge the conviction.
10. In the next order cited by the learned counsel for the 2 nd
respondent, in Sadanandan P.P. (supra) the learned Single Judge
considered a case in which the victim was taken into custody and was
kept under illegal detention for four days. The arrest was recorded only
on the fourth day. He was allegedly subjected to assault in custody. The
learned Single Judge noted that there were sufficient materials to arrive
at a prima facie finding that the detention was not legal and therefore,
the acts committed by the police officials could not be treated as
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something connected with their official duties. Therefore, in both cases
cited by the learned counsel for the 2nd respondent, apparently, there
were circumstances which showed that the police officers were acting
without bona fides and apart from mere acts in excess committed
during the course of discharge of official duties, factors which would
take the acts committed out of the purview of bona fide discharge of
duties were also involved. For the sake of brevity, I do not refer to the
reported cases cited by the learned counsel for the petitioner in detail
which undoubtedly support the legal contentions raised by him.
11. In Devinder Singh and Ors. v. State of Punjab [2016 (12)
SCC 87 : (AIR 2016 SC 2090)], the Hon'ble Supreme Court had laid
down guidelines for determining whether sanction under Section 197
of Cr.P.C is required or not. The same are reproduced hereunder for
ready reference:
"37. The principles emerging from the aforesaid
decisions are summarized hereunder :
I. Protection of sanction is an assurance to an honest
and sincere officer to perform his duty honestly and
to the best of his ability to further public duty.
However, authority cannot be camouflaged to
commit crime.
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II. Once act or omission has been found to have
been committed by public servant in discharging his
duty it must be given liberal and wide construction
so far its official nature is concerned. Public servant
is not entitled to indulge in criminal activities. To
that extent Section 197 CrPC has to be construed
narrowly and in a restricted manner.
III. Even in facts of a case when public servant has
exceeded in his duty, if there is reasonable
connection it will not deprive him of protection
under section 197 Cr.P.C. There cannot be a
universal rule to determine whether there is
reasonable nexus between the act done and official
duty nor it is possible to lay down such rule.
IV. In case the assault made is intrinsically
connected with or related to performance of official
duties sanction would be necessary under Section
197 Cr.PC, but such relation to duty should not be
pretended or fanciful claim. The offence must be
directly and reasonably connected with official duty
to require sanction. It is no part of official duty to
commit offence. In case offence was incomplete
without proving, the official act, ordinarily the
provisions of Section 197 Cr.PC would apply.
V. In case sanction is necessary it has to be decided
by competent authority and sanction has to be
issued on the basis of sound objective assessment.
The court is not to be a sanctioning authority.
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VI. Ordinarily, question of sanction should be dealt
with at the stage of taking cognizance, but if the
cognizance is taken erroneously and the same comes
to the notice of Court at a later stage, finding to that
effect is permissible and such a plea can be taken
first time before appellate Court. It may arise at
inception itself. There is no requirement that
accused must wait till charges are framed.
VII. Question of sanction can be raised at the time
of framing of charge and it can be decided prima
facie on the basis of accusation. It is open to decide
it afresh in light of evidence adduced after
conclusion of trial or at other appropriate stage.
VIII. Question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in
course of evidence during trial. Whether sanction is
necessary or not may have to be determined from
stage to stage and material brought on record
depending upon facts of each case. Question of
sanction can be considered at any stage of the
proceedings. Necessity for sanction may reveal itself
in the course of the progress of the case and it would
be open to accused to place material during the
course of trial for showing what his duty was.
Accused has the right to lead evidence in support of
his case on merits.
IX. In some case it may not be possible to decide the
question effectively and finally without giving
opportunity to the defence to adduce evidence.
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Question of good faith or bad faith may be decided
on conclusion of trial."
(Emphasis added)
12. A close reading of Annexure-1 complaint in this case would
show that the specific allegation against the petitioner is that, on
28.5.2015, by morning 10o clock, he rushed into the room where the
2nd respondent was sitting, wearing 'khaki' pants and civil shirt, and
assaulted him. Paragraph 5 of Annexure-1 complaint is extracted
hereunder:-
"5. But on 28.5.2015, by morning at 7 O'clock, much to
the surprise of the complainant, three police officers from
Kurathicadu police station rushed into the house of the
complainant and took him to Kurathicadu Police station.
They asked him to sit there. By morning 10 'O' clock the
accused, a civil police officer of Kurathicadu Police
station, rushed into the room wearing Kaki Pants and civil
shirt, where the complainant was sitting. He yelled at the
complainant that he is the one who received the
complaint against the complainant and he made the
complainant stand by pulling his hair with his left hand
and started slapping on his face with the other hand and
kicking the complainant on his back and private area with
his heavy boots. Then the accused dragged the
complainant to a room on the western side of the police
station and he handcuffed the right hand of the
complainant to a table. Then the accused started kicking
the complainant on his private area so brutally. He
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continued this till the complainant had become
unconscious."
13. According to the averment in the complaint, contained in
paragaph 5 extracted above, the petitioner was not in uniform when he
allegedly assaulted the 2nd respondent. He was not among the police
officers who arrived at the residence of the 2 nd respondent, took him
into custody and brought to police station. It is not discernible
whether the petitioner was on duty on 28.05.2015 and had any role in
the investigation of the case registered against the 2 nd respondent.
There is no assertion in the memorandum of Crl.M.C. that the
petitioner was on duty on 28.05.2015 and was entrusted with the
interrogation or any other task in Crime No.533/2015. The 2 nd
respondent has alleged in the complaint that on the next day when he
was taken to the court for production the petitioner threatened on the
way. But, the same allegedly happened on 29.05.2015 going by the
averments in the complaint and probably he might have been on duty.
If the petitioner was not on duty on 28.05.2015 or if he was not
assigned with any duty regarding Crime No.533/2015 on that day the
acts alleged to have been committed by him cannot be considered as
part of discharge of his official duty. The said aspect is a matter of
evidence. Materials on record in this Crl.M.C. do not throw light to
the said aspect. Whatever happening in a police station to an accused
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wherein he was kept in lawful custody cannot be justified as part of
official acts of police.
14. As the issue of requirement of sanction can be considered at
any stage of the proceedings even after conclusion of evidence and the
accused having the liberty to adduce evidence in support of the
contention regarding requirement of sanction, in the facts of this case,
I do not find that intervention by this Court at this stage would be in
the interest of justice. If the petitioner is able to convince the trial court
during the stage of evidence or at the time of hearing that the alleged
acts were committed during the discharge of official duties, necessarily
want of sanction can be considered as a factor in favour of the
petitioner by the trial court. It is also to be noted that there is nothing
to show that the petitioner had raised the issue of requirement of
sanction before the trial court at the stage of framing of charges. No
explanation for not availing the said opportunity is forthcoming. Since
the crucial aspect as to whether the petitioner was on duty on the
alleged date of occurrence and assigned with any work related to the
crime registered against the 2nd respondent cannot be decided on the
basis of materials available in this Crl.M.C, I dispose this Crl.M.C.,
leaving it open to the petitioner to raise the issue of want of sanction
before the trial court at any appropriate stage of the proceedings and
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the court shall consider the same. The trial court shall consider the
merits of the contention regarding requirement of sanction,
untrammeled by any observations made by this Court in this order.
Crl.M.C. is disposed of as above.
Sd/-
S.MANU
JUDGE
rp&skj
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PETITIONER'S ANNEXURES
ANNEXURE 1 A TRUE COPY OF COMPLAINT DATED
13.01.2016 FILED BY THE 2ND RESPONDENT
BEFORE THE COURT OF THE JUDICIAL FIRST
CLASS MAGISTRATE -I, MAVELIKKARA.
ANNEXURE 2 A TRUE COPY OF WOUND CERTIFICATE DATED
29.05.2015 ISSUED BY THE DISTRICT
HOSPITAL, MAVELIKKARA.
ANNEXURE 3 A TRUE COPY OF THE ORDER SHEET IN CC
NO.696/2016 BEFORE THE COURT OF THE
JUDICIAL FIRST CLASS MAGISTRATE -I,
MAVELIKKARA.
ANNEXURE 4 CERTIFIED COPY OF THE DEPOSITION OF PW1
ANNEXURE 5 CERTIFIED COPY OF THE DEPOSITION OF
PW2.
ANNEXURE 6 CERTIFIED COPY OF THE MEMO OF CHARGES
DATED 03.09.2019 OF THE COURT OF THE
JUDICIAL FIRST CLASS MAGISTRATE -I,
MAVELIKKARA.
ANNEXURE 7 THE TRUE COPY OF FIR NO.533/2015 DATED
26.05.2015 LODGED BEFORE KURATHIKADU
POLICE STATION.
ANNEXURE 8 THE TRUE COPY OF THE WOUND CERTIFICATE
DATED 25.02.2015 OF MERLIN.
ANNEXURE 9 THE TRUE COPY OF THE WOUND CERTIFICATE
DATED 25.02.2015 OF MOLAMMA.
