The petitioner, who is the first accused in C.C.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 120 B 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 3.3.2003 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 pubic 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 u/s.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.
2. 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 18.9.2002, 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.
3. 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 u/s.197 of Cr.P.C. He relied on the decisions in Shoukkathali v. State of Kerala [ 2005(3) KLT 634] and Ravada A. Chandrasekhar v. State of Kerala & Anr. [ 2012 (3) KLJ 490].
4. 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 S.197 Cr.P.C. He relied the decision in Prakash v. State of Kerala [2011 (2) KLT 158], Choudhary Praveen Sultana v.
State of West Bengal [AIR 2009 SC 1404], Centre for Public Interest Litigation and another [AIR 2005(8) SCC 202], Kalimuthu v. State [AIR 2005 (4) SCC 512] and P.K. Pradhan v. State of Sikkim [AIR 2001 (6) SCC 704].
5. Before adverting to the arguments put forward by the learned counsel, I may extract the relevant provision of S. 197 of the Code of Criminal Procedure which reads as follows:
197. Prosecution of Judges and pubic servants.- (1) When any person who is or was a Judge or Magistrate or a pubic servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognisance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.
Explanation.- for the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D or section 509 of the Indian Penal Code (45 of 1860).
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.
3A Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 f the Constitution was in force therein, except with the previous sanction of the Central Government.
3B, Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”
According to the above Section, when any person who is or was a Judge or Magistrate or a pubic servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the government in the case of a person who is or was employed in connection with the affairs of Union, by the Central government and in case of a person who is or was employed in connection with the affairs of the State, by the State Government. Here, both parties admitted that no sanction was obtained before filing the above complaint. Now the question that arises for consideration is whether trial would be vitiated in the absence of sanction under Section 197 of the Code?
6. In order to attract the above Section, it requires three conditions:
(1) The person accused of the offence must be the judge, magistrate or the public servant who is or was not removable from his office save by or with the sanction of the Government.
(2) The offence alleged must have been committed while acting or purporting to act in discharge of his official duty.
(3) Previous sanction of the central government is necessary if he is employed at the time of commission of offence with the affairs of Union. If he is employed in connection with the affairs of the State, previous sanction from the State Government.
It is also stated in Section 197 (4) that the Central or State government may determine the person by whom, the manner in which the prosecution is to be conducted and the court in which the trial is to be proceeded. From the aforesaid explanation, it is clear that Section 197 of Cr.P.C. is an exception to the common rule that any person having knowledge of the commission of an offence may set the law in motion even though he is not personally affected. This section, as a matter of policy, impose limitations on the unfettered powers of the Magistrate u/s. 190 Cr.P.C. For invoking S.197 Cr.P.C. in a criminal proceedings, the accused public servant must have committed an offence while acting or purporting to act in discharge of his official duty. The alleged act done by the public servant while discharging his official duty or act done excess of the official duty has been explained by the Apex Court on different occasions. If he acted in excess of his official duty, there must be sufficient grounds for granting sanction.
7. Apex Court in Centre for Public Interest Litigation and another v. Union of India and another [(2005) 8 SCC 202] held as follows:
9.The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
8. Apex Court in P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation [(2001) 6 SCC 704] held as follows:
“15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped.It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main Judgment which may be delivered upon conclusion of the trial.
9. The object, nature and scope of S.197 Cr.P.C. was explained by the Apex Court in Pukraj v. State of Rajasthan and another [ 1973 SCC (Cri) 994] held as follows:
2. The law regarding the circumstances under which sanction under Section 197 of the Code of Criminal Procedure is necessary is by now well settled as a result of the decisions from Hori Ram Singh's 1939 FCR 159 = (AIR 1969 FC 43) case to the latest decision of this Court in Bhagwan Prasad Srivastava v. N. P. Misra (1971) 1 SCR 317 = (AIR 1970 SC 1661).
While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed.The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty. In Hori Ram Singh's case (supra) Sulaiman, J. observed:
"The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction."
In the same case Varadachariar, J. observed ''there must be something in the nature of the act complained of that attaches it to the official character of the person doing it." In affirming this view, the Judicial Committee of the Privy Council observed in Gill's case, 75 Ind App 41= (AIR 1948 PC 128) :
"A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty ............ The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."
In Matajog Dobey v. H. C. Bhari (1955) 2 SCR 925 = (AIR 1956 SC 44) the court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by Section 197. After referring to the earlier cases the court summed up the results as follows:
"There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
Applying this test it is difficult to say that the acts complained of i.e. of kicking the complainant and of abusing him, could be said to have been done in the course of performance of the 2nd respondent's duty. At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said to be in purported exercise of his duty. Very clearly it is not. We must make it clear, however, that we express no opinion as to the truth or falsity of the allegations.
10. The object and scope of Section 197 of the Code have been explained by 41st Law Commission and the relevant discussions are as follows:
15.115.“ the object being to enable the more important categories of public servants performing onerous and responsible functions to act fearlessly by protecting them from false, vexatious or mala fide prosecutions.
15.121. “ The public servants now protected by section 197 are, broadly speaking, those government servants in the higher grade with more responsible and onerous duties to perform and hence requiring to be protected from vexatious prosecutions which would be highly detrimental to the administrative work of Government. There is, in our opinion, no need to extend this protection to other categories of government servants.(underlined by me).
Therefore the intention of the legislature is to ensure the dignity of high placed government servants and he is not compelled to be embarassed by trial while performing onerous and responsible functions fearlessly. Therefore, a public servant, who is or was not removable from his office save by or with the sanction of the Government is accused of any offence, while acting or purporting to act in discharge of his official duty, is protected.
11. In this backdrops, I have considered the averment in the petition, in which it is admitted that the dividers were erected in all accident prone areas according to the decision of the Road Safety Committee, Kannur District and as a part of it, police installed traffic dividers at Caltex junction, Mele chovva, Thazhe Chovva, Taluk Junction etc. As per the decision of the State Level Traffic Advisory Committee, private sponsorship was also allowed for setting up these traffic dividers. Accordingly, the 2nd accused in Annexure-A1 complaint put up dividers at the Plaza junction to prevent traffic accidents. However, after the installation of the traffic dividers, the Kannur Municipality without any prior notice destroyed few of the dividers. It is admitted that the issue relating to traffic control is vested with the police. The State and District Level Committees are functioning as per the directions issued by the Government. When any action is taken by the Police Department for implementing any Government direction in the Municipality, there must be an official level discussions by both departments. At the same time, the Municipality has to show responsibility with regard to implementation of the traffic regulations inside the Municipality. Traffic reforms in the Municipality are implementing only for the safety of the people. Therefore, the police department and officers of the Municipality have to take this joint venture with full co-operation and implement the traffic regulation to avoid traffic accidents. Here, there was no such consultation and discussion.
12. While considering the argument advanced by the learned counsel for the petitioner, it is clear that the petitioner, a senior IPS Officer acted as per the directions issued by the Government. Even though he was not present at the place of occurrence, the action of the petitioner is protected u/s.197(1) Cr.P.C. Moreover, he also stated that there was a public order in connection with removal of traffic dividers. If petitioner has given direction as per the public order, that is also protected by the Government notification issued on 6.12.1977, according to Section 197(2) of the Code of Criminal Procedure. The Municipal authorities have no right to take law in their own hands. If they formed themselves into an unlawful assembly under the leadership of Chairman of the Municipality and thereby committed any mischief by destroying the traffic dividers installed by the police, on the ground that they have not obtained any proper sanction from the Secretary of the Municipality, that is unsustainable in law. If there is any violation of Municipal law, they can inform that to the superior officers of the Home Department or bring it to the notice of the DGP and invite the Senior Police Officers for an official discussion. Moreover, as per the Municipality Act, thirty days' period has been granted for preferring appeal against the impugned order. Without waiting for such period, the Municipality misconstrued the law and the Chairman and the officers directly took the law in their own hands and proceeded to the place where dividers are installed and destroyed them.
13. Apex Court had occasion to consider the term 'while acting or purporting to act in discharge of official duty' in several decisions. The first leading decision of the Apex Court on this point was in Shree Kantiah Ramayya Munipalli v. State of Bombay (1955 (1) SCR 1177: AIR 1955 SC 287) in which their Lordships relied the decision of the Privy Council in H.H.B.Gill V king (AIR 1948 PC 128), which were relied in 1973 SCC (Cri) 994. The use of the expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by him in discharge of official duty.
14. Apex Court in Sankaran Moitra v. Sadhna Das and another [ (2006) 4 SCC 584] held as follows: (para 22) “Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of the Supreme Court, clearly indicate that a prosecution hit by that provision cannot be launched without the contemplated sanction. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage.”
15. This Court in Harikumar.B. v. Suesh @ Karupooru Suesh & anr. [2014 (2) KHC 632] held as follows: (para 18) “Therefore, the intention of the legislature u/s.197
(1) of the Code is to ensure the dignity of the highly placed government servants save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty alone is protected. In order to attract 197(1) of the Code, two things must co- exist. Firstly, the person must be a public servant not removable from office save by or with the sanction of government. Secondly the act must have been committed by such a person acting or purporting to act in the discharge of his official duty. Therefore, it is clear that S.197(1) and 197
(2) of the Code are independent of each other. The second condition is common in Section 197 (1)(2). This means that the officers of the government in higher grade vested with more responsible and onerous duties has to be protected from vexatious prosecution which would be detrimental to their administrative work. There are public servants removable by lesser authority by virtue of delegation of power by government to subordinate officers. Therefore, in my opinion, those officers removable by lesser government authority are not protected u/s. 197
(1) of the Code.”
From the aforesaid discussion, it is clear that the object behind S.197 of the Code of Criminal Procedure is to guard the public servant against the vexatious proceedings by securing opinion of the Government or a superior officer as to whether there is any need for prosecution. In Harikumar's case (supra), it is held that the sub Inspector of Police and other police officers below him will not come within the purview of S.197(1) of Cr.P.C. In this case, the petitioner was the Superintendent of Police,Kannur and a member of Indian Police Service (IPS). When he is a public servant not removable from his office save by or with sanction of the Government is accused of an offence alleged to have been committed while acting or purporting to act in discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction as mentioned u/s.197(1) of the Code of Criminal Procedure, 1973. This protection is granted to the acts done by him during his official duty alone. Therefore, u/s.197 of the Code, a narrow line has been drawn between strict official duties and the acts outside the scope of official duties. Hence, any act or omission done by him in discharge of his official duty is protected and the notification issued u/s.197(3) will also give protection given u/s. 197(2) of the Code. It is clear that all pubic servants are not protected under the Code, but they are protected only for the acts mentioned u/s.197(1) and (2). Therefore, without sanction, a prosecution is not possible and the petitioner is entitled to get protection u/s.197 of Cr.PC. Before parting with the above discussion, I may conclude that;
a) Section 197 of the Code of Criminal Procedure cannot be interpreted neither too narrow nor too wider.
b) The 'act' done by the public servant in discharge of an official duty or neglect of it, may be construed but not the 'duty' at the relevant time.
c) There needs a reasonable nexus between the act alleged of and discharge of his official duty. If the acts complained of is in excess of the official duty of the public servant then also sanction becomes necessary.
d) The act done by the public servant in discharge of his official duty shall be determined in the circumstances of each case.
e) The question of sanction is only for filing of the case but the bar is against taking cognizance of the offences, that may arise at any stage of the offence.
In the light of the above discussion, I am of the opinion that the petitioner is a senior police officer protected u/s.197 (1) of Cr.P.C. and a valid sanction is necessary before taking cognizance of the offence, therefore, proceedings initiated against the petitioner in Annexure-A1 is hereby quashed by invoking the inherent jurisdiction u/s.482 of Cr.P.C. This will not prohibit the learned Magistrate to take cognizance of the offence on production of a proper sanction from the Government.
Crl.M.C. is allowed.
P.D. RAJAN, JUDGE.
acd