K. PRADEEP Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) The first accused in C.C. No. 1657/2013 on the file of the Judicial First Class Magistrate Court-I, Neyyattinkara, Thiruvananthapuram has filed this application to quash the proceedings as against him under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for short). The case of the petitioner in the petition was that he is now working as Circle Inspector of Police and he has been arrayed as the first accused in C.M.P. No. 8054/2009, a private complaint filed by the second accused, who was the 7th accused in C.C. No. 17/2007 of Judicial First Class Magistrate Court-I, Neyyattinkara. The allegation in the complaint was that the petitioner along with four others, who were also police officials attached to Aryan code police station, involved in the commission of the offence alleging offences under sections 120(B), 191, 192, 202, 220 and 506(1) read with section 34 of the Indian Penal Code. The allegation against the petitioner was that while he was working as Sub Inspector of Police, Aryan code police station, falsely implicated the second respondent herein as the 7th accused in Crime No. 281/2006 of Aryan code Police Station alleging offences under sections 143, 149, 153 and 283 of the Indian Penal Code on the allegation that the complainant in the lower court along with the others have formed an unlawful assembly and caused traffic block on 6.11.2006 at a place called Karikkottukuzhi junction on the side of Chempooru-Vellarada road in order to cause inconvenience to the public. The incident happened on 6.11.2006 and the crime was registered as Crime No. 281/2006 by the petitioner who was then working as Sub Inspector of Police, Aryanacode Police station alleging offences under sections 143, 149, 188 and 283 of the Indian Penal Code and the final report was filed on 18.12.2006 before the Judicial First Class Magistrate Court-I, Neyyattinkara, Thiruvananthapuram and it was taken on file as C.C. No. 17/2007. The final report was filed against 26 accused persons including the second respondent herein, who was shown as the 7th accused in the case. During the pendency of that case, the second respondent filed C.M.P. No. 2845/2005 for further investigation and the learned Magistrate allowed the same and thereafter the investigating officer again conducted further investigation and filed supplementary report under section 173(2) read with section 173(8) of the Code and there was no materials found out by the investigating officer to come to a different conclusion than the one arrived at by the petitioner in the final report filed by him earlier. Thereafter, the case was withdrawn as per the sanction accorded by the Government and permitted by the court invoking the power under section 321 of the Code. Thereafter in the year 2009, the second respondent filed CMP. No. 8054/2009 as a private complaint for prosecuting the petitioner as well as four others, who were in charge of the investigation and after enquiry under section 202 of the Code, the learned Magistrate dismissed the Criminal Miscellaneous Petition by order dated 6.9.2011 under section 203 of the Code. Against the same, the second respondent filed Crl. R.P. No. 7/2012 before the Sessions Court, Thiruvananthapuram, which was made over to the Additional Sessions Court, Neyyattinkara for disposal and the learned Additional Sessions Judge allowed the revision setting aside the order of dismissal passed by the court below and remitted the case to the Magistrate court for disposal of the case in accordance with law. On that basis, the learned Magistrate conducted further enquiry and took cognizance of the case as C.C. No. 1657/2013 and issued process to the petitioner and others alleging offences under sections 120B, 191, 192, 202, 220 and 506(1) read with section 34 of the Indian Penal Code. Aggrieved by the same, the present petition has been filed by the petitioner, who was arrayed as the first accused in the case, seeking the following relief:

(2.) Heard the learned counsel appearing for the petitioner, the second respondent and the learned Public Prosecutor.

(3.) The counsel appearing for the petitioner submitted that the alleged incident occurred on 6.11.2006, but the complaint was filed only on 19.11.2009, which is more than three years of the alleged incident. Further, even going by the allegations, it will be seen that the petitioner was the investigating officer, who investigated the case and filed final report and this was done in discharge of his official duty and as such, he is entitled to get protection under section 197 of the Code. Even assuming that there was some excess during the course of discharging his official duty, if it is done as part of the official duty, even then he is entitled to get protection and this aspect has not been considered by the court below before taking cognizance of the case. Further it was barred by limitation as the complaint was filed after three years of the alleged incident and the punishment provided for the offence is upto three years and thereby under section 468 of the Code, it is barred by limitation. Further, even under section 64(3) of the Kerala Police Act, 1960 the action ought to have been taken within six months of the alleged incident, this aspect has not been considered by the court below before taking cognizance. So cognizance is bad.