VISWAMBHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner fourth accused in C.C.5/2006 on the file of Judicial First Class Magistrate Court-I, Sulthan Bathery (originally C.C.9/2004 on the file of Judicial First Class Magistrate II, Sulthan Bathery) filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken as against him contending that being a Police Officer he is entitled to the protection under Section 197(3) of Code of Criminal Procedure and cognizance could have been taken only on a sanction as provided under Section 197(2) of the Code. Petitioner contended that while he was working as Sub Inspector of Police, Sulthan Bathery, there was a complaint that 800 members of Adivasi Gothra Mahasabha criminally trespassed into Ambukkuthi, within the reserve forest area of Muthanga Wild Life Sanctuary, on 5.1.2003 and out of them 300 persons later spread to Thakarappadi and another group to Ponkuzhi within the Wild Life Sanctuary, Muthanga. The members of Gothra Maha Sabha were armed with deadly weapons and created a fierce atmosphere by erecting check post and prevented the movement of forest officials. Forest fire broke out on 17.2.2003 at Thakarappadi near the occupied area of the adivasis. When the forest officials went there, they were captured and illegally detained. They were released only on 18.2.2003, at the intervention of District Administration. Crime 71/2003 of Bathery Police Station was registered for the offences under Section 143, 147, 148, 447, 341, 324, 353 and 365 read with Section 149 of Indian Penal Code and Section 3(i)(ii) of PDPP Act. It is also contended that as decided, evicting members of the Gothra Maha Sabha from the Wild Life Sanctuary started at 6.30 a.m. on 19.2.2003 at Thakarappadi. During the course, a fierce fight broke out between the members of the Gothra Maha Sabha and the police. Several police officials sustained injuries. Crime 78/2003 was registered for the offence under Sections 143, 147, 148, 109, 120B, 332, 353 and 307 read with Section 149 of Indian Penal Code. An isolated group of adivasi abducted three officials. One of them was seriously injured and abandoned in the forest. The two others were detained. Crime 77/2007 was registered for the offences under Sections 143, 147, 148, 342, 357 and 364 read with Section 149 of Indian Penal Code. It is contended that second Respondent was 43rd accused in that crime. It is also alleged that in the attempt to rescue the detenues, adivasis killed one police constable and seriously injured the other. In the operation one adivasi was killed in the police firing. Crime 79/2003 was registered for the offences under Sections 143, 144, 145, 147, 148, 506 (ii), 353, 109 and 120B read with Section 149 of Indian Penal Code. The second Respondent was the third accused in that Crime. Crime 80/2003 was registered under Sections 143, 145, 147, 148, 120B, 109, 342, 364, 307 and 302 read with Section 149 of Indian Penal Code. The second Respondent was 41st accused in that crime. Second Respondent was arrested on 22.2.2003 in connection with the said three crimes. He was produced before the Magistrate who remanded him to judicial custody. Annexure 1 complaint was filed by the second Respondent before Judicial First Class Magistrate, Sulthan Bathery alleging that the five accused including the Petitioner, committed offences under Sections. 341, 342, 323 and 324 read with Section 34 of Indian Penal Code. Learned Magistrate after conducting an inquiry under Section 202 of Code of Criminal Procedure took cognizance of the offence under Sections 341, 342, 323 and 324 read with Section 34 of Indian Penal Code in C.C.9/2004. It is that cognizance which is sought to be quashed by filing this petition.

(2.) Case of the Petitioner is that the acts alleged against the Petitioner are discharging his official duty as Sub Inspector and therefore he is entitled to the protection provided under Section 197(3) of Code of Criminal Procedure as held by the Apex Court in Sankaran Moitra v. Sadhna Das and Anr., 2006 4 SCC 584.

(3.) Learned Counsel appearing for the Petitioner and second Respondent, the complainant before the learned Magistrate, were heard.