Judgment:
ORDER
K.A. Mohamed Shafi, J.
1. The accused in C.C. No. 427/95 on the file of the Judicial First Class Magistrate's Court, Perambra, have filed this Criminal Miscellaneous Case to quash the entire proceedings. The petitioners are standing trial before the Judicial First Class Magistrate's Court, Perambra, for the offences punishable under Sections 323, 325, 330, 341, 342, 343, 348, 351 and 506(1) of the Indian Penal Code on the basis of Annexure-A complaint filed by the first respondent. The allegation made against the petitioners is that the first petitioner while working as S.I. of Police, Perambra Police Station and the second petitioner while working as Police Constable in the same Police Station, took the first respondent to Perambra Police Station at about 4 p.m. on 23-12-1994, wrongfully confined him in the police lock up and brutally manhandled and committed various offences alleged in the complaint and set him free on 27-12-1994 without registering any case against him nor producing him before the Court. The first respondent also alleged that after his release, he was admitted in the Perambra Goveminent Hospital and undergoing treatment as inpatient in the Perambra Government Hospital and in the Medical College Hospital, Kozhikode and though he had given a statement before the police from the Government Hospital, Perambra, no action is taken by the police in spite of a complaint filed before the Superintendent of Police, Kozhikode (Rural).
2. The petitioners have filed this Criminal Miscellaneous Case to quash the entire proceedings on the ground that the complaint is barred under Section 64(3) of the Kerala Police Act. Section 64 of the Police Act deals with the protection of a magistrate or police officer for anything done in good faith and the limitation for instituting proceedings against the said officer. Section 64(3) of the Police Act reads as follows :
Suit or prosecution not to be entertained if instituted more than six months after the date of the act complained of :- No Court shall take cognizance of any suit or complaint, in respect of any offence or wrong alleged to be committed or done by a Magistrate, police officer or other person on account of any act done in pursuance of any duty imposed or authority conferred on him by this Act or any other law for the time being in force or of any rule, order or direction lawfully made or given thereunder unless the suit or complaint is filed within six months of the date on which the offence or wrong is alleged to have been committed or done.
3. In this case it is clear that the offences are alleged to have been committed in between 23-12-1994 and 27-12-1994. Annexure-A com-plaint is dated 1-9-1995 and Annexure-B and C summons issued by the Court to the petitioners are dated 13-11-1995. Therefore, it is clear that the complaint in this case is filed by the first respondent before the magistrate more than six months after the alleged offence committed by the petitioners. Hence the petitioners contended that since the complaint should have been filed within six months from the date of the alleged offences committed by the petitioners and the same is barred by time under Section 64(3) of the Police Act and as such the learned Magistrate has committed manifest illegality in taking cognizance of the offences against the petitioners. The first respondent contended that the offence alleged in this case against the petitioners have nothing to do with the discharge of official duties by the petitioners as police officers and, therefore, they are not entitled to the protection under Section 64(3) of the Police Act. He also contended that the delay in filing the complaint is properly explained in the complaint and the learned magistrate has ample jurisdiction to condone the delay in filing the complaint at any time before the conclusion of the trial in this case and in the interests of justice the magistrate can condone the delay even without a petition filed by the complainant to condone the delay in filing the complaint.
4. The fact that the petitioners are included in the definition of 'police' under Section 2(iv) of the Police Act is not in dispute. The petitioners have relied upon Section 29(b) and (e) of the Police Act in support of the contention that they discharged their official duties in this case. The petitioners have admitted that the first respondent was taken into custody for interrogation with regard to a theft occurred in the shop room adjacent to the shop room where he has been carrying his profession in repairing torch etc. and other metal articles. The first respondent has alleged that after he was taken to the police station, he was brutally manhandled by the petitioners, intimidated etc. and illegally confined and those offences are punishable under the IPC. Therefore be contended that by no stretch of imagination it can be contended that the alleged acts are done by the petitioners in pursuance of the duty imposed or authority conferred on them under the Police Act so as to attract Section 64(3) of the Police Act.
5. In support of the contention that any suit or complaint in respect of any offence or wrong alleged to have been committed by the police officer in the discharge of his official duties should be filed within six months of the date on which the offence is alleged to have been committed, the counsel for the petitioners relied upon a decision of this Court reported in Prabha v. Sankara Giri(1989) 1 Ker LT 927. In that case a learned single Judge of this Court held that a suit for damages for malicious prosecution against a police officer should be instituted within six months from the date on which the offence or wrong is alleged to have been committed or done and not within one year from the date on which the plaintiff is acquitted or criminal proceeding was terminated as provided under Section 74 of the Limitation Act.
6. Section 64(3) of the Police Act is similar to Section 197(3) of the Code of Criminal Procedure.Though the petitioners had filed Crl MC. No. 1394/98 before this Court seeking to quash Annexure-A complaint and the entire proceedings taken thereunder for want of sanction under Section 197(1) of the Cr.P.C., that Crl. M.C. was dismissed as withdrawn since the contention raised in that Crl. M.C, was with regard to the invalidity of the prosecution for want of sanction under Section 197(1) of the Cr.P.C. This Crl. M.C. is filed by the petitioners to quash the entire proceedings on the ground that the complaint was barred by time under Section 64(3) of the Police Act. In the decision reported in Sarojini v. Prasannan (1996) 2 Ker LT 859 a Division Bench of this Court of which I was also a party has observed as follows :
But, then to claim the protection of the notification issued under Sub-section (2) of Section 197, the conditions stipulated in the said provision will have to be satisfied. In other words, the offence alleged must have been committed while acting or purporting to act in the discharge of official duty. There should be reasonable nexus between the impugned act/offence and the discharge of' official duty. No blanket protection of all acts offences is meant or intended by the notification. By no stretch of imagination, it could be said that the impugned acts alleged in the complaints were committed in the discharge of maintenance of public order and therefore, are not protected by the notification above mentioned.
Therefore, in order to claim benefit under Section 197(1) of the Cr.P.C. or Section 64(3) of the Police Act the accused has to establish that the offence alleged against him have been committed while acting or purporting to act in the discharge of his official duty and there should be reasonable nexus between the impugned act and the discharge of his official duty. In this case, the allegation made by the first respondent is that he was taken to the police station on 23-12-1994, wrongfully confined till 27-12-1994, brutally manhandled by the petitioners and released on 27-12-1994 in the evening. The counsel for the petitioners submitted that the petitioners have only questioned the first respondent with regard to the theft committed in the adjacent shop room and apart from discharging their duty as police officials and questioning the first respondent, nothing more is done by them. According to them, even if it is found that they have exceeded in the exercise of their official duty they are entitled to the protection under Section 64(3) of the Police Act. In support of his argument the counsel for the petitioners relied upon a decision reported in State v. B.L. Verma 1997 SCC (Cri) 1037. In that case the Supreme Court held that the actions alleged against the accused were within the scope of his official duties or at any event they were allegedly committed in the purported discharge of his official duties as Director of Enforcement though it was alleged that he had abused his official position while discharging his official duties, sanctioned under Section 197 of the Cr.P.C. to take cognizance of the offence was necessary. But the above decision of the Supreme Court has no bearing to the facts of this case in which the specific allegation made against the petitioners is that the first respondent was taken to the police station, wrongfully confined there, intimidated and brutally manhandled by the petitioners from the evening of 23-12-1994 till 27-12-1994.
7. From the allegation made in the Annexure-A complaint it is clear that the allegation made against the petitioner are with regard to the commission of several offences punishable under the IPC. By no stretch of imagination it can be said that the offence alleged to have committed is in the discharge of the official duties of the petitioners so as to attract the protection under Section 64(3) of the Police Act in favour of the petitioners. Therefore,- the contention of the petitioners that since Annexure-A. complaint is barred by time the cognizance of the offence taken by the learned Magistrate is illegal is not sustainable.
8. It is also to be noted that Section 473 of the Cr.P.C. empowers the Court to condone the delay in making the complaint at any stage before the conclusion of the trial of the case in appropriate cases even if the prosecution is launched after the expiry of the limitation prescribed under Section 468 of the Cr.P.C. under Section 473 of the Cr.P.C. the Courts have got jurisdiction not only in cases where applications are filed to condone the delay by explaining the delay occurred properly but also in appropriate cases even without any application to condone the delay in order to meet the ends of justice. In this case the petitioners have alleged the reasons for the delay in filing the complaint. It is for the trial Court to consider whether there are sufficient reasons to condone the delay in filing the complaint at the appropriate stage merely because of the fact that the complaint, was filed after the lapse of six months from the date of alleged offence committed or acts done the complaint filed against the police officials cannot be thrown out under Section 64(3) of the Police Act. If such contention is accepted, the unscrupulous police officials can drag the investigation for six months and contend that the complaint filed subsequent thereto is barred by time.
From what is stated above, it is clear that the contention of the petitioners that Annexure-A complaint filed against them is barred by limitation under Section 64(3) of the Kerala Police Act and as such the learned magistrate committed illegality in taking cognizance of the offence in this case is absolutely unsustainable.
Hence this Crl. M.C. is dismissed.