SUNIL KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner Is the Sub Inspector of Police of Thannithode Police Station and an accused in CP No. 43/06, inter alia, under S. 307 of the IPC pending before the Judicial First Class Magistrate's Court II, Pathanamthitta. THE petitioner is the 1st accused and a Police Constable on duty along with him is arrayed as the 2nd accused. Cognizance was taken on the basis of a complaint made by the complainant who was arrested by the petitioner and produced before the learned Magistrate on 18/06/2006 at 3. 45 p. m. THE crux of the allegations is that the accused persons the Sub Inspector of Police and the Police Constable, attempted to cause the death of the complainant by strangulating him by applying constrictive force around his neck using a towel. He was allegedly assaulted also.

(2.) THE petitioner submits that cognizance taken by the learned Magistrate is unsustainable in law as it violates the mandate of S. 197 (3) of the Crpc. This question appears to have been considered by the learned Magistrate and the learned Magistrate states so in the order dated 19/06/2006 on the relevant aspect: " Though A1 and A2 are public servant, sanction of the State Government is not required for taking cognizance against them since they are removable from their office without the sanction of the Government and offence complained of cannot be considered as the offences committed while acting or purported to act in the discharge of their official duty. So there is no bar in taking cognizance of the above offences against them. "

(3.) THE learned counsel for the respondent / complainant, however, submits that the alleged overt acts against the complainant cannot be said to be the acts done in the discharge of his official duty or in the purported discharge of his official duty.