Judgment:
ORDER
1. In this petition under Section 482 of the Code of Criminal Procedure, the petitioner, who is the accused in C.C.No.438/2011 on the file of the Judicial Magistrate of the First Class-I, Muvattupuzha, assails the order taking cognizance for offence under Section 323 of the Indian Penal Code on Annexure 1 complaint filed by the 2nd respondent.
2. The 2nd respondent in Annexure-I dated 3.1.2011 would complain that the petitioner summoned the 2nd respondent, who was a teacher in Ilahia College of Arts and Science, Moovattupuzha to the Police Station on 6/8/2010 and he was Crl.M.C.NO. 4105 OF 2011 2 brutally assaulted and detained. On the next day also he was assaulted and on 8/8/2010 arrest was recorded in Crime No.704/2010 of Moovattupuzha Police Station and produced the 2nd respondent before the Magistrate. The 2nd respondent would further allege that at the time of production, the assault by the petitioner was complained to the Magistrate and that the 2nd respondent was falsely implicated in Crime No.704/2010 and he was in judicial custody for about 92 days and that soon after the release, the 2nd respondent lodged a complaint before the Moovattupuzha Police, but it was understood that no action was taken on his complaint. Annexure-I was filed on 4/1/2011. After due enquiry, on 17/10/2011, the learned Magistrate took cognizance for offence under Section 323 IPC and process was ordered.
3. The petitioner would contend that he is the Superintendent of Police, CBCID, Thiruvananthapuram. By Annexure 5 order dated 8/7/2010, the petitioner was appointed as the Head of the Special Team for the investigation of Crime No.704/2010 for offences under Section 143, 147, 148, 120 B, 341, 427, 323, 324, 326, 506(ii) and 307 read with 149 of the Indian Penal Code and Section 3 of the Explosive Substances Act, 1908 of Muvattupuzha Police Station. Later offences under Sections 15, 16, 18 and 20 of the Unlawful Activities (Prevention) Act was also added. The petitioner would further contend that, he being a Police Officer, while investigating the grave crime arrested the 2nd respondent as an accused and that the offence alleged in Annexure-I was said to have been committed while purporting to act in discharge the official duties and therefore the prosecution is not sustainable for want of sanction under Section 197 (1) of the Code of Criminal Procedure and there is total prohibition under Section 113 of the Kerala Police Act and Section 49 of the Unlawful Activities (Prevension) Act; and therefore, the prosecution is not sustainable.
4. The fact that the petitioner is the head of the team investigating Crime No.704/2010 of the Muvattupuzha Police Station and that the 2nd respondent is the 47th accused in that case is not disputed. So also the arrest of the 2nd respondent is not disputed. Though it is pleaded in the complaint that the arrest was on 8/8/2010, the petitioner would contend that the arrest was on 7/8/2010. He would deny the summoning of the 2nd respondent on 6/8/2010 or the assault alleged in the complaint. The petitioner had in support of the plea relied upon Annexure 3 Medical Certificate and Annexure 4 Remand Report to argue that the 2nd respondent was arrested on 7/8/2010 and had not made any complaint regarding any assault to the Magistrate on 8/8/2010 when produced and that there was no injury found the 2nd respondent when he was examined by the Medical Officer.
5. Annexures 3 and 4 were assailed by the learned counsel for the 2nd respondent with a plea that those are documents to be brought in evidence during the defence and it cannot be looked into at this stage. Having due regard to the nature of the case, I find that Annexures 3 and 4 cannot be so rejected as if documents in defence because the very case of the 2nd respondent is that he had complained about the assault when produced before the Magistrate. The fact that the 2nd respondent was examined by the Medical Officer was also not disputed. If so, these documents should have been produced along with the complaint in support of the alleged plea of assault. Therefore, in my opinion those documents cannot be rejected as if documents in defence of the prosecution. Those documents would primafacie show that the 2nd respondent had sustained no injury and there was no complaint of assault when produced before the Magistrate after the arrest on 7/8/2010. Petitioner is entitled to rely on such documents in a petition assailing the order taking cognizance to establish that the allegations in the complaint are not true because there was suppression of those material documents by the 2nd respondent.
6. The learned counsel for the petitioner in support of his argument that the offence alleged in Annexure-I was said to have been committed while discharging the duties and therefore sanction is required, relied upon the decisions reported in Sankara Moitra v. Sadhna Das and Anr. (AIR 2006 SUPREME COURT 1599), Abdul Wahab Ansari v. State of Bihar and another (AIR 2000 SUPREME COURT 3187), State through the CBI v. B.L.Verma and Another (1997 KHC 1508), Sunil Kumar v. State of Kerala (2007 (4) KLT 359), Baby M.P., Sub Inspector of Police v. State of Kerala (2009 KHC 4448), Moosa Vallikkadan v. State of Kerala (2010 (3) KLT 437) and Viswambharan v. State of Kerala (2010 (4)KLT 875). Per contra, the learned counsel for the 2nd respondent relied upon the decisions in Prakash P., I.P.S. v. State of Kerala and Another (2011(2) KHC 1), Centre for Public Interest Litigation and another v. Union of India and Another [(2005) 8 SCC 202], Choudhury Parveen Sultana v. State of West Bangal and Another [(2009) 3 SCC 398] and State of M.P. v. Awadh Kishore Gupta and Others [(2004) 1 SCC 691].
7. I have gone through the precedents cited from either side. In Sankara Moitra v. Sadhna Das and Anr. (Supra) referring to earlier decisions in AIR 1973 SC 2591, AIR 1979 SC 1841, AIR 1988 SC 257, 2006 AIR SCW 189, it was held at paragaraph 69:
"But once any act or omission has been found to have been committed by a public servant in the discharge of this duty then it must be given liberal and wide construction so far its official nature is concerned."
That is a case in which the offence alleged against the Investigating Officer is one under Section 302 of the Indian Penal Code.
8. In the case on hand the specific allegation in Annexure-I is that the 2nd respondent was arrested by the petitioner during the course of investigation and therefore the assault alleged is said to have been committed while the petitioner purporting to act in discharge of the official duties. No doubt, that a Police Officer while arresting an accused, however severe the crime, is not entitled to or empowered or permitted to assault the accused. But going though the facts situation and the Section 197 of the Code of Criminal Procedure and Section 113 of the Kerala Police Act as well as Section 49 of the Unlawful Activities (Prevention) Act 1969, I find that the offence alleged in Annexure 1 complaint cannot be said to have been committed not during the discharge his official duties.
9. For a correct appreciation, I find that a reading of Section 197 of the Code of Criminal Procedure, Section 113 of the Kerala Police Act 2011 and Section 49 of the Unlawful Activities (Prevention) Act, 1967 would be appropriate. Section 197 (1) of the Code of Criminal Procedure reads as follows:
"197. Prosecution of Judges and public servants.--(1) When any person who is or was a Judge or Magistrate or a public 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 congnizance 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 exmployed 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:
3 [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.]"
Section 113 of the Kerala Police Act, 2011 reads as follows:
"113. Protection of action taken in good faith.--(1) No suit, prosecution or other legal proceedings shall lie against the Government or any Police officer or any public servant duly appointed or authorized under this Act for anything done or intended to be done in good faith in the due discharge of official duties under the provisions of this Act. (2) No Court shall take cognizance of any offence under This Act and alleged against police officer except with the prior permission of the Government."
Section 49 of the Unlawful Activities (Prevention) Act, 1967 reads follows:
"49. Protection of action taken in good faith.--No suit, prosecution or other legal proceeding shall lie against—
(a) the Central Government or a State Government or any officer or authority of the Central Government or State Government or District Magistrate or any officer authorised in this behalf by the Government or the Distrcit Magistrate or any other authority on whom powers have been conferred under this Act, for anything which is in good faith done or purported to be done in pursuance of this Act or any rule or order made thereunder; and
(b) any serving or retired member of the armed forces or para-military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism."
10. Going by the above provisions, I find that in case the assault (offence) alleged in Annexure-I was done in good faith or purported to have been done in discharge of the official duties, there is prohibition under Section 197 of the Code of Criminal Procedure from taking cognizance without sanction of the Government and there is total prohibition against prosecution under Section 49 of the Unlawful Activities (Prevention) Act, 1967 and Section 113 of the Kerala Police Act, 2011. I had carefully gone through Annexure 1 complaint. There is no whisper in Annexure 1 complaint that the petitioner was not acting in good faith in arresting or interrogating the 2nd respondent though there is statement that assault was not part of official duties. The allegations in Annexure-I would show that the alleged assault was during the course of interrogation. It appears to be a case of interrogation with torture. Therefore, it is to be held that the offence alleged was said to have been committed while purporting to act in discharge of the official duties. There is no case for the 2nd respondent that he had obtained sanction to prosecute the petitioner.
11. It is also pertinent to note that the 2nd respondent, who was released on bail on 9/11/2010, filed the complaint only on 4/1/2011. There is no good explanation for the belated complaint. Though it is alleged that no sooner the petitioner was released on bail than he filed a complaint before the police station, no copy of the complaint was produced. It would indicate that it is not a true statement, but made in his attempt to explain the delay. That explanation is not at all conniving. In this view of the matter, the possibility for making accusation of the Investigating Officer with malafides cannot be ruled out. Adding to that the very case of the 2nd respondent is that he was brutally assaulted by the petitioner on 6/8/2010 and 7/8/2010. But there was no injury when the doctor examined the 2nd respondent. The alleged assault include slapping at both cheeks, stamping at abdomen with shoes on leg as a result the 2nd respondent fell down and then stamped at the face, that also with shoes on leg. In the normal course, there would have been at least some abrasion, swelling, inflammation or pain. But Annexure-3 would show that there was no external injury and not even complaint of pain. Annexue-4 remand report would show that there was not any complaint of assault before the Magistrate. Such being the materials on record, false implication cannot be ruled out.
12. Even if it is assumed that there was some assault, it cannot be said that it was not done not while discharging official duties because the very allegation is that the assault was while interrogating the 2nd respondent. To put it other way, it is a case of interrogation with torture. Though interrogation would not include torture, this is a case of eliciting information by torture. Therefore, in the given set of facts, the hurt alleged to have been caused to the 2nd respondent by the petitioner was while the petitioner purporting to act in discharge of the official duties. Taking into account of all these circumstances, I find that this is a case in which the alleged hurt was inflicted on the 2nd respondent while the petitioner purporting to act in discharge of official duties and therefore sanction for prosecuting the petitioner should have been obtained under Section 197 of the Code of Criminal Procedure. The Magistrate should have noticed that the 2nd respondent has not mentioned any good reason in Anenxure 1 complaint for not applying for sanction under Section 197 of the Code of Criminal Procedure. Whereas it was vaguely stated that the assault alleged in the complaint was committed not during the discharge of the official duties. Going by the averments in Annexure-I, I find that the 2nd respondent had not given any explanation for not obtaining saction under Section 197 of the Code of Criminal Procedure. Therefore, I find that Annexure 1 complaint is bad for want of sanction under Section 197 of the Code of Criminal Procedure. The learned Magistrate ought to have taken note of that defect and should not have taken cognizance. So also, the Magistrate should have taken note that there is total prohibition against prosecution of a police officer for action taken in good faith, by Section 113 of the Kerala Police Act, 2011 and Section 49 of the Unlawful Activities (Prevention) Act, 1967. As stated earlier, in Annexure-I, there is no plea of lack of good faith against the petitioner. There is no plea that the petitioner was anyway motivated against the 2nd respondent. Therefore, action in good faith should have been inferred in favour of the petitioner. The learned Magistrate had omitted to apply the mind despite the fact that the complaint was adjourned six times within a gap of nine months before taking cognizance. It appears that the learned Magistrate had mechanically taken cognizance. Before taking cognizance, the Magistrate should have taken note of the allegations in the complaint, time and place of occurrence and the status of the accused which are basic materials to which there should have been judicial application of mind. The Magistrate should have also satisfied with a primafacie case to issue process and that issue of process is no way barred by any law. Going by the facts in this case, I notice failure for satisfaction of such materials on the part of the learned Magistrate. Result is abuse of process which require rectification invoking jurisdiction under Section 482 of the Code of Criminal Procedure. Annexure 1 complaint is liable to be quashed.
In the result, this petition is allowed. All further proceedings in pursuance to Annexure 1 complaint would stand quashed.