Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 3RD DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 CRL.MC NO. 6497 OF 2021 CC 443/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,TIRUR PETITIONER/ACCUSED: RAJENDRAN NAIR.R, AGED 43 YEARS S/O. RAMANPILLAI, RESIDING AT CHENAPPADY, ERUMELY, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN 686 520, (PRINCIPAL SUB INSPECTOR OF POLICE MANJERI). BY ADVS. J.R.PREM NAVAZ SUMEEN S. RESPONDENT/S: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM , PIN 682 031. OTHER PRESENT: SR.PP - SRI. HRITHWIK C.S. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.12.2021, ALONG WITH Crl.MC.190/2022, 6498/2021 AND CONNECTED CASES, THE COURT ON 03.03.2022 PASSED THE FOLLOWING: Crl MC.6497/2021 & connections 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 3RD DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 CRL.MC NO. 6498 OF 2021 CC 1848/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,TIRUR PETITIONER/ACCUSED: SHAMEER P.M., AGED 44 YEARS S/O. MUSTHAFA P.M, RESIDING AT PENDANATH HOUSE, MANRY P.O, PAIPRA, MUVATTUPUZHA, MARADY, MUVATTUPUZHA ERNAKULAM DISTRICT, PIN 686 673, (DETECTIVE INSPECTOR, CRIME BRANCH ERNAKULAM). BY ADVS. J.R.PREM NAVAZ SUMEEN S. RESPONDENT/S: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031. SR.PP - SRI. HRITHWIK C.S. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.03.2022, ALONG WITH Crl.MC.6497/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl MC.6497/2021 & connections 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 3RD DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 CRL.MC NO. 6500 OF 2021 CC 173/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,TIRUR PETITIONER/ACCUSED: SHAMEER P.M, AGED 44 YEARS S/O MUSTHAFA P.M, RESIDING AT PENDANATH HOUSE , MANRY P.O.PAIPRA, MUVATTUPUZHA , MARADY, MUVATTUPUZHA ERNAKULAM DISTRICT, PIN-686 667( DETECTIVE INSPECTOR, CRIME BRANCH ERNAKULAM) BY ADVS. J.R.PREM NAVAZ SUMEEN S. RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031 SR.PP - SRI. HRITHWIK C.S. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.03.2022, ALONG WITH Crl.MC.6497/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl MC.6497/2021 & connections 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY, THE 3RD DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 CRL.MC NO. 190 OF 2022 CC 2448/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,TIRUR PETITIONER/ACCUSED: SUNIL PULIKKAL AGED 48 YEARS SREEMANDIRAM, POOTHRAKKOVE, PORUR, VANIYAMBALAM, NILAMBUR, MALAPPURAM, PIN - 679339 (SHO , PERINTHALMANNA, MALAPPURAM) BY ADVS. J.R.PREM NAVAZ SUMEEN S. RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 SR.PP - SRI. HRITHWIK C.S. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.03.2022, ALONG WITH Crl.MC.6497/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl MC.6497/2021 & connections 5
O R D E R
These are petitions filed under Section 482 of the Criminal Procedure Code seeking to quash the proceedings initiated against them by the Judicial First Class Magistrate-I, Tirur at the instance of the Family Court, Tirur. As common questions arise for consideration, all these cases were heard together and are being disposed of by this common order. Petitioners were Sub Inspectors of Police of different police stations at the time when proceedings were initiated against them by the Family Court. The allegations against them are that even though the Family Court, Tirur had initiated execution proceedings against the counter petitioners in different miscellaneous cases pending before it, either for procuring the presence of counter petitioners in those miscellaneous cases in Section 125 Cr.P.C. proceedings, despite repeated steps initiated against them by issuing warrants through the Sub Inspectors concerned, they did not obey the same. Though repeated proceedings were initiated, warrants were not executed. Thereafter the Family Court, Tirur initiated proceedings against the Principal Sub Inspectors who are the petitioners, alleging offence under Sections 161, 174 etc. of the Judicial First Class Magistrate-I, Tirur. The offences alleged against the petitioner in Crl.M.C.6497/2021 are under Crl MC.6497/2021 & connections 6 Sections 166, 174 and 207 IPC. Similarly, petitioner in Crl.M.Cs 6498 and 6500 of 2021 are one and the same. In Crl.M.C.6498/2021, proceeding is initiated against him as CC 1848/2016 alleging offence under Sections 166, 174 and 187 of the IPC. Crl.M.C.6500/2021 is in respect of the petitioner who faces miscellaneous case CC 173/2016 alleging offence under Sections 166, 174 and 217 of the IPC. Similarly, Crl.M.C.2448/2014 is against the then Principal Sub Inspector, Tirur, alleging offence under Sections 174, 177, 187, 188, 217 of the IPC. All these proceedings were initiated based on complaints preferred at the instance of the Family Court before the Judicial First Class Magistrate-I, Tirur and thus proceedings were initiated against them and now for quashing the proceedings they have approached this Court.
2. All the petitioners contend that they were appointed as Sub
Inspectors in respective police stations, on completion of training as new recruits, their work load was very heavy, and during the entire period they were not Sub Inspectors, that during the period in question, election to the local self government was declared, due to the issues relating to local body election notified on 04.10.2015 which continued upto 25.11.2015, they were busily engaged in activities. Moreover, all the police stations were very heavy. They have given statistics of crimes registered during the Crl MC.6497/2021 & connections 7 period.
3. It is also the common case that they have not received show
cause notice as stated in the proceedings initiated by the Family Court. According to them, the Magistrate had initiated proceedings against them without appreciating relevant aspects. Moreover, it is the common case that the proceedings were initiated without obtaining sanction under Section 197 of the Cr.P.C., which is bad, and therefore entire proceedings are sought to be quashed.
4. I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.
5. The learned counsel for the petitioners relied on the verdict of this Court in Crl.M.C.5059/2021 in which the petitioner in
Crl.M.C.Nos.6498/2021 and 6500/2021 was the petitioner, by that order
dated 15.11.2021 proceedings initiated against him on similar grounds were quashed under Section 482 of the Cr.P.C. Therefore, they seek an identical order in their favour.
6. I have no doubt that criminal proceedings were initiated against
the Station House Officers in compelling circumstances. It is evident from the complaints preferred before the Magistrate by the Family Court that repeated steps taken against the counter petitioners in different MCs, who Crl MC.6497/2021 & connections 8 in the Family Court remained unexecuted. It appears that in all those cases the counter petitioners were defaulters in proceeding under Section 125 of the Cr.P.C., for having defaulted maintenance allowances granted in favour of wives or former wives; even after repeated steps, warrants were not executed and that was the compelling reason by which the Family Court had to prefer complaints against them. It is also seen from the proceedings that after repeating proceedings against the defaulters, when warrants were not even returned, they were directed to appear before the Court, which they did not obey, and thereafter show cause notices were issued and then only these proceedings were initiated and complaints were preferred before the Magistrate, initiating criminal proceedings against the defaulting police officers.
7. I have no doubt that the Court had initiated such steps in
compelling circumstances. But we cannot forget two aspects. All these police officials are public servants as defined under Section 21 of the IPC. Therefore, their cases fall within the mischief of Section 197 of the Cr.P.C. Under Section 197 of the Cr.P.C., there is a statutory injunction on the Court from initiating criminal proceedings against such public servants who are not removable from their office, save by or with sanction of the Government, is accused of any offence alleged to have been committed by Crl MC.6497/2021 & connections 9 them while acting or purporting to act in the discharge of official duty. In such a situation, cognizance of such offence could be taken only with the previous sanction of the Government, which is the appointing authority.
8. In order to attract Section 197 of the Cr.P.C., two essential
conditions are to be fulfilled; i.e. the offence has been committed by the public servant and that the public servant was employed in connection with the affairs of the Union or the State is not removable from office save by or with the sanction of the Government. Here, even though they were not appointed by the Government, it is essential that appointing authorities should give sanction for the prosecution. In one of the cases, from the proceedings of the Judge of the Family Court, it is evident that he had already moved the Superintendent of Police, Malappuram seeking sanction for prosecution, but that was not responded. Whatever it may be, the point is that the learned Judge was also convinced that these are cases in which the petitioners are public servants as defined under Section 21 of the IPC and they can be prosecuted only with the sanction issued by the appointing authority. But that has not been obtained.
9. As rightly pointed out by the learned counsel for the
petitioners, the allegation against these petitioners is that they had failed to execute warrants entrusted with them in different cases issued by the Crl MC.6497/2021 & connections 10 Family Court and they have disobeyed the directions of the Court. As noticed earlier, in order to attract the mischief under Section 197 of the Cr.P.C., the public servant should either be engaged in public duty or purported to act in discharge of official duties. In other words, there must be reasonable nexus between the alleged offence and the purported discharge of functions. If there is no such nexus between the official discharge of functions and the alleged acts, sanction is not necessary. But if there is reasonable nexus, sanction is necessary. Execution of warrant of arrest by a Sub Inspector of police, no doubt, is part of discharge of official functions and therefore, sanction under Section 197 of the Cr.P.C. is necessary and unavoidable. Here sanction is not obtained and on that ground alone all these proceedings are liable to be quashed. In the result, entire proceedings in CC. 443/2016, CC. 1848/2016, CC.173/2016 and CC.2448/2014 pending before the Judicial First Class Magistrate's Court-I, Tirur, are quashed and the petitioners shall stand exonerated. All the Crl.M.Cs are allowed as above. Sd/- K.HARIPAL JUDGE okb/1.2.22 //True copy// P.S. to Judge Crl MC.6497/2021 & connections 11 APPENDIX OF CRL.MC 6497/2021 PETITIONER ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE COMPLAINT FORWARDED
BY THE FAMILY COURT TIRUR, IN MALAPPURAM DISTRICT TO THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS TIRUR, MALAPPURAM DISTRICT. Annexure A2 THE TRUE COPY OF THE E- COURTS RECORDS OF CC. NO. 443 OF 2016 ON THE FILES OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, TIRUR EXTRACTED FOR THE OFFICIAL WEBSITE. Crl MC.6497/2021 & connections 12 APPENDIX OF CRL.MC 6498/2021 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE COMPLAINT FORWARDED BY THE FAMILY COURT TIRUR IN MALAPPURAM DISTRICT TO THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS TIRUR, MALAPPURAM DISTRICT. Annexure A2 THE TRUE COPY OF THE E-COURTS RECORDS OF CC NO. 1848 OF 2016 ON THE FILES OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, TIRUR EXTRACTED FOR THE OFFICIAL WEBSITE. Crl MC.6497/2021 & connections 13 APPENDIX OF CRL.MC 6500/2021 PETITIONER ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE COMPLAINT FORWARD BY THE FAMILY COURT TIRUR IN MALAPPURAM DISTRICT TO THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS TIRUR, MALAPPURAM DISTRICT Annexure A2 THE TRUE COPY OF THE E-COURTS RECORDS OF CC NO 173 OF 2016 ON THE FILES OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-1, TIRUR EXTRACTED FOR THE OFFICIAL WEBSITE Crl MC.6497/2021 & connections 14 APPENDIX OF CRL.MC 190/2022 PETITIONER ANNEXURES Annexure1 THE TRUE COPY OF THE COMPLAINT FORWARDED BY THE FAMILY COURT TIRUR IN MALAPPURAM DISTRICT TO THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-I TIRUR, MALAPPURAM DISTRICT Annexure2 THE TRUE COPY OF THE NON BAILABLE WARRANT ISSUED AGAINST THE PETITIONER DATED 25.10.2021