MANOJ ABRAHAM Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who is the first accused in CC No. 41/2004 of the Judicial First Class Magistrate Court-I, Kannur, preferred this petition under Section 482 Cr.P.C. to quash Annexure-A1 complaint which is filed for offences punishable under Sections 341, 323, 324, 353, 332 r/w. 34 IPC and 120B of IPC and under Sections 273, 364 of the Kerala Municipality Act, 1994 by invoking inherent jurisdiction. The petitioner alleges that while he was acting as Superintendent of Police Kannur, certain traffic dividers were installed at the instance of Kannur Town Police in the Fort Road, Kannur, according to the direction of the Road Safety committee. The installation of traffic dividers and control of traffic are under the prerogative control of the Police. On 03/03/2003 at 8 a.m. around 100 people formed themselves into an unlawful assembly at Fort Road Kannur, forcefully removed the traffic dividers under the leadership of the Chairman, Kannur Municipality, which created a law and order problem on the public way and they were arrested and thereafter a crime was registered against them. In order to counter blast that crime, the above complaint was filed by the Secretary of the Kannur Municipality who is the second respondent. The petitioner is a senior IPS officer now working as I. G. of Police in the Kerala Police, and he has been protected under Section 197 of the Code of Criminal Procedure. According to the petitioner, without obtaining sanction under Section 197 of Cr.P.C., cognizance was taken by the learned Magistrate and therefore, if trial is proceeded it amounts to a mere abuse of the process of Court. Hence the petition. The second respondent's averment in Annexure-A1 is that Complainant is a Municipality functioning under the Local Self Government constituted under Article 243Q of the Constitution of India. Secretary is the person to represent a complaint before the Court. According to the Municipality Act and Rules, public roads, fence etc. within the municipal area are under the control of the Municipality. Without obtaining any permission, a person cannot do anything to the matters mentioned above in the Municipality Act. Fort Road situates within the Municipality jurisdiction, therefore regulation of traffic and installation of dividers within the area are possible with the sanction of the Municipality. On 18/09/2002, employees of the second respondent reported that some persons have encroached into the road dividers of the Fort Road and erected metal boards in it and on 23/09/2002 second respondent gave an order to the Revenue Inspector to remove the unlawful erection at the Fort Road. At that time, the Police Officers attached to Kannur Town Police Station wrongfully prevented them from discharging their official duty and unlawfully taken them into custody. Subsequently on 03/03/2003 the second respondent and its employees under the leadership of the Chairperson of the Municipality tried to remove the advertisement board erected unlawfully at the Fort Road. The accused Nos. 3 to 5 in Annexure-A1 obstructed them while discharging their official duty and caused hurt to a Councillor, Health Inspector and the other staff. In the circumstances, second respondent filed a complaint.

(2.) The learned counsel appearing for the petitioner contended that the petitioner was discharging his official duty as per the direction issued by the Government, which is clear from Annexures-A2, A3 and A4 documents. Therefore, when the petitioner acting in discharge of the aforesaid Government official duty, he will be protected under Section 197 of Cr.P.C.. He relied on the decisions in Shoukkathali v. State of Kerala, 2005 3 KerLT 634 and Ravada A. Chandrasekhar v. State of Kerala and Another, 2012 3 KerLJ 490.

(3.) The learned counsel appearing for the 2nd respondent strongly resisted the above contention and contended that the petitioner and other accused have no right in the administration of the Municipality in discharging of their official duty. The Roads and Streets within the Municipality are under the control of the Municipal council. The implementation of the traffic rules on the roads of the Municipality is subject to the concurrence by the Municipality. The petitioner has no right to interfere in the statutory function of the 2nd respondent as per the Municipal law and the act committed by the accused will not come within the purview of Section 197 Cr.P.C.. He relied the decision in Prakash v. State of Kerala, 2011 2 KerLT 158, Choudhary Praveen Sultana v. State of West Bengal, 2009 AIR(SC) 1404, Centre for Public Interest Litigation and Another AIR : 2005 (8) SCC 202, Kalimuthu v. State, 2005 4 SCC 512 and P.K. Pradhan v. State of Sikkim, 2001 AIR(SC) 2547.