VARGHESE K.J. Vs. SHYAM KUMAR AND ORS.

JUDGEMENT

(1.) The petitioner is a Police Officer. He is the accused in CC No. 1432 of 2010 on the files of the Court of Judicial First Class Magistrate-I, Cherthala and he is indicted therein for the offences punishable under Sections 294(b) and 341 of the Indian Penal Code. The first respondent filed Annexure-A1 private complaint which was taken on file and registered as CC No. 1432 of 2010 against the petitioner alleging commission of the aforesaid offences. The gist of the allegations of the first respondent in the complaint is as hereunder:

(2.) Cognizance of the aforesaid offences was taken thereon and the complaint was taken into file and numbered as CC No. 1432 of 2010 by the learned Magistrate. It is in the said circumstances that the petitioner has come up with the captioned Crl MC raising grievance against the continuation of the proceedings based on Annexure-A1 complaint on the ground that it is bad for want of sanction under Section 197(1) CrPC and permission under Section 113 of the Kerala Police Act, 2011 and seeking for quashment of Annexure-A1 complaint and all further proceedings in the said calendar case. It is contended that on 10/10/2009 the petitioner registered a crime against the first respondent alleging commission of an offence punishable under Section 119 read with Section 177 of the Motor Vehicles Act and that was taken into file as ST No. 1804 of 2009 by the Court. Annexure-A2 is the charge sheet in that case. Subsequently, the first respondent was issued with summons and he was required to appear before the Court on 19/10/2009. It is thereafter that the first respondent filed Annexure-A1 complaint against the petitioner as a counter blast.

(3.) Now, the petitioner challenges continuation of the proceedings in CC No. 1432 of 2010 mainly contending that the complaint could not be proceeded with for want of sanction under Section 197(1), CrPC as also permission under Section 113 of the Kerala Police Act. In fact, cognizance could not have been taken by the learned Magistrate in the absence of proper sanction, it is submitted. The petitioner also contended that a conjoint reading of Annexures-A1 and A2 would reveal that the petitioner was present at the place of occurrence as part of his official duties at the relevant point of time and that he registered a crime against the first respondent accusing him of commission of offences punishable under Section 119 read with Section 177 of the Motor Vehicles Act. Though he was acquitted in ST No. 1804 of 2009 arising therefrom it is contended that Annexure-A2 would reveal that in ST No. 1804 of 2009 the first respondent was required to appear before the Court on 19/10/2009 and Annexure-A1 complaint was filed by him only subsequently viz., on 25/11/2009. In short, according to him, institution of Annexure-A1 complaint is nothing but an afterthought. The core contention of the petitioner is that since he was only discharging his official duties the first respondent could not have filed a complaint without obtaining sanction under Section 197(1) CrPC and also obtaining permission under Section 113 of the Kerala Police Act. The learned counsel for the petitioner further contended that even if there is excess in the action of the petitioner while discharging his official duties it would not deprive him of the protection available under Section 197(1), CrPC. Per contra the learned counsel for the first respondent contended that since the action from the part of the petitioner is absolutely unconnected with the discharge of his official duties he is not entitled to get the protection under Section 197(1), CrPC and no permission need be sought for and obtained for prosecuting the petitioner for such an action neither under Section 197(1), CrPC nor under Section 113 of the Kerala Police Act. To support the contention the learned counsel for the first respondent relied on the decisions of this Court in Prakash P., I.PS. v. State of Kerala and Another, 2011 CrLJ 2572. Mehaboob v. State, 2011 CrLJ 2795 and the decision of the Hon'ble Apex Court in Centre for Public Interest Litigation v. Union of India, 2005 AIR(SC) 4413. The learned counsel for the petitioner submitted that the entire proceedings in CC No. 1432 of 2010 is liable to be interfered with for want of sanction as mentioned above in the light of the decision of this Court in Unni Rajan v. State of Kerala and Another, 2012 CrLJ 4081 and also the decisions of the Hon'ble Apex Court in Rizvan Ahmed v. Jammal Patel, 2001 AIR(SC) 2198, Shoukathali v. State of Kerala, 2005 3 KerLT 634 and State of Orissa through Kumar Raghvendra Singh and Others v. Ganesh Chandra Jew, 2004 AIR(SC) 2179.