T A RAJENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Following the unfortunate events in Alleppey on Milad-e-sheriff day in 1982 which led to the death of a Muslim boy, there were protests at several places including Trivandrum on the next day namely, 30-12-1982. The Council of Ministers which was more or less in session throughout that day decided to keep a low police profile in Trivandrum. Evidently, this helped anti social elements to go on a spree of burning, looting and destruction of private and public property. Arson led to one death and by night fall the military was called in and law and order restored. These events led to the present petitioner who is said to be the editor of a news magazine to file a private complaint before the Judicial Magistrate of the Second Class, Trivandrum against the Chief Minister and all other Ministers in the Council of Ministers as well as the Director General of Police alleging offences under S.118 and 221 IPC. read with S.107, 108 and 109 IPC. The complaint was filed on 30-7-1983 and was numbered as Crl.M.P. 1946 of 1983 and was made over to the Chief Judicial Magistrate, Trivandrum, who, after hearing the petitioner, held that the complaint was defective for want of sanction under S.197 of the Code and dismissed the complaint. The revision petition is directed against this order.

(2.) To a query from court whether the complaint was not belated, the learned counsel for the revision petitioner explained the events preceding the complaint. Even on 10-1-1983, the petitioner filed OP. 229 of 1983 in this Court under Art.226 of the Constitution of India seeking the aid of the court in invoking Art.356 of the Constitution for dismissal of the Ministry for breakdown of constitutional machinery in the State. The petition was dismissed saying that the court could not act in the matter. On 12-1-1983, he filed O. P. No. 294 of 1983 under Art.226 of the Constitution of India seeking a writ of mandamus directing the Home Secretary of State Government to start investigation into the alleged offences under IPC., including S.118 against the Chief Minister of the State and the Minister for Home Affairs and under S.221 IPC., against the Director General of Police. The Original Petition was dismissed on 19-1-1983, the decision having been reported in Rajendran v. Vayalar Ravi & others ( 1983 KLT 100 ). The court took the view that the petitioner had an alternative remedy available under the provisions of the Code. The writ appeal filed by the petitioner was dismissed on 3-2-1983. It appears, the petitioner filed a petition on 17-2-1983 before the Chief Secretary to the Government seeking sanction under S.197 of the Code of Criminal Procedure. He also filed O. P. 3988 of 1983 under Art.226 of the Constitution of India seeking a direction to the Government to grant sanction. It was dismissed on 4-7-1983 expressing the view that the Government is expected to deal with the matter. Thereafter, the petitioner again moved the Chief Secretary for grant of sanction and since he did not receive any reply he filed a criminal complaint on 30-7-1983. Learned Public Prosecutor submitted before me that the request for sanction has been turned down.

(3.) The only question which arises for consideration at this stage is whether sanction under S.197 Cr.P.C. is necessary. Learned counsel for the petitioner did not seriously challenge the finding of the learned Magistrate to the effect that prosecution against the Director General of Police (the then D. G. of Police and the present D.G. of Police are officers belonging to the IPS. cadre) requires sanction under S.197 of the Code. Learned counsel made a faint suggestion that the word "Government" in the main part of S.197(1) of the Code means only the State Government. The argument is that the section relates only to the case of a Judge or a Magistrate or a public servant not removable from his office save by or with the sanction of the State Government. There is absolutely no support for this extreme contention. Clause (a) relates to Central Government and clause (b) relates to State Government. Naturally, the expression "Government" in the main pact of the sub-section would take in both the Central and the State Governments. There is no dispute that the person then holding the office of the Director General of Police is a public servant not removable from his office save by or with the sanction of the Central Government. In this view, sanction would be necessary to prosecute him and for want of sanction the dismissal of the complaint against him is sustainable.