UNNI RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) In this petition under Section 482 of the Code of Criminal Procedure, the petitioner, who is the accused in C.C. No. 438/2011 on the file of the Judicial Magistrate of the First Class-I, Muvattupuzha, assails the order taking cognizance for offence under Section 323 of the Indian Penal Code on Annexure 1 complaint filed by the 2nd respondent. The 2nd respondent in Annexure-I dated 3.1.2011 would complain that the petitioner summoned the 2nd respondent, who was a teacher in Ilahia College of Arts and Science, Moovattupuzha to the Police Station on 6/8/2010 and he was brutally assaulted and detained. On the next day also he was assaulted and on 8/8/2010 arrest was recorded in Crime No. 704/2010 of Moovattupuzha Police Station and produced the 2nd respondent before the Magistrate. The 2nd respondent would further allege that at the time of production, the assault by the petitioner was complained to the Magistrate and that the 2nd respondent was falsely implicated in Crime No. 704/2010 and he was in judicial custody for about 92 days and that soon after the release, the 2nd respondent lodged a complaint before the Moovattupuzha Police, but it was understood that no action was taken on his complaint. Annexure-I was filed on 4/1/2011. After due enquiry, on 17/10/2011, the learned Magistrate took cognizance for offence under Section 323, IPC and process was ordered.

(2.) The petitioner would contend that he is the Superintendent of Police, CBCID. Thiruvananthapuram. By Annexure-5 order dated 8/7/2010, the petitioner was appointed as the Head of the Special Team for the investigation of Crime No. 704/2010 for offences under Sections 143, 147, 148, 120-B, 341, 427, 323, 324, 326, 506(ii) and 307 read with 149 of the Indian Penal Code and Section 3 of the Explosive Substances Act, 1908 of Muvattupuzha Police Station. Later offences under Sections 15, 16, 18 and 20 of the Unlawful Activities (Prevention) Act was also added. The petitioner would further contend that, he being a Police Officer, while investigating the grave crime arrested the 2nd respondent as an accused and that the offence alleged in Annexure-I was said to have been committed while purporting to act in discharge the official duties and therefore the prosecution is not sustainable for want of sanction under Section 197(1) of the Code of Criminal Procedure and there is total prohibition under Section 113 of the Kerala Police Act and Section 49 of the Unlawful Activities (Prevention) Act; and therefore, the prosecution is not sustainable.

(3.) The fact that the petitioner is the head of the team investigating Crime No. 704/2010 of the Muvattupuzha Police Station and that the 2nd respondent is the 47th accused in that case is not disputed. So also the arrest of the 2nd respondent is not disputed. Though it is pleaded in the complaint that the arrest was on 8/8/2010, the petitioner would contend that the arrest was on 7/8/2010. He would deny the summoning of the 2nd respondent on 6/8/2010 or the assault alleged in the complaint. The petitioner had in support of the plea relied upon Annexure-3 Medical Certificate and Annexure-4 Remand Report to argue that the 2nd respondent was arrested on 7/8/2010 and had not made any complaint regarding any assault to the Magistrate on 8/8/2010 when produced and that there was no injury found the 2nd respondent when he was examined by the Medical Officer.