The High Court held that no jurisdiction can be exercised under Section 482 Cr.P.C. as the validity of sanction under Section 197 Cr.P.C. is a question requiring adjudication, and thus the Criminal Misc. cases were dismissed.
Both Criminal Misc. Cases (90/2019 and 116/2019) failed and were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942
Crl.MC.No.90 OF 2019(A)
AGAINST THE ORDER/JUDGMENT IN CC 1424/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA
CRIME NO.562/2016 OF KURATHIKADU POLICE STATION, ALAPPUZHA
PETITIONER/ACCUSED:
A.L.ABHILASH, AGED 37 YEARS, S/O. APPU PILLAI, SUB INSPECTOR OF POLICE, KUTHIYATHODE POLICE STATION, ALAPPUZHA 688 533 NOW WORKING IN KADAVANTHRA POLICE STATION, ERNAKULAM 682 020
BY ADV. SRI.A.RAJASIMHAN
RESPONDENTS/STATE AND ANOTHER:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM 682 031
2 SHIBU, S/O.SASI, PALLIPATTU NIKARTH, THURAVOOR PANCHAYAT, WARD-5, THURAVOOR P.O, CHERTHALA 688 532.
R2 BY ADV. SRI.B.PRAMOD PUBLIC PROSECUTOR SRI.RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.10.2020, ALONG WITH Crl.MC.116/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.90/2019,Crl.MC.116/2019 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942
Crl.MC.No.116 OF 2019(D)
AGAINST THE ORDER/JUDGMENT IN CC 322/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA
CRIME NO.1192/2016 OF Kuthiyathode Police Station , Alappuzha
PETITIONER/ACCUSED:
A.L. ABHILASH, AGED 37 YEARS S/O.APPU PILLAI, SUB INSPECTOR OF POLICE, KUTHIYATHODE POLICE STATION, ALAPPUZHA-688533 NOW WORKING IN KADAVANTHRA POLICE STATION, ERNAKULAM-682020.
BY ADV. SRI.A.RAJASIMHAN
RESPONDENTS/STATE AND ANOTHER:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM-682031.
2 P.RAJESH VIMALALAYAM VEETTIL, KARUPPANKULANGARA.P.O., CHERTHALA, ALAPPUZHA-688539.
R2 BY ADV. SRI.B.PRAMOD PUBLIC PROSECUTOR.SRI.RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.10.2020, ALONG WITH Crl.MC.90/2019(A), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.90/2019,Crl.MC.116/2019 3
ORDER
The question involved is with respect to the
application of Section 197 Cr.P.C in initiating proceedings against a Sub Inspector of Police on the allegation of offences punishable under Sections 341,323,294(b) and 500 IPC in a private complaint and the validity of the cognizance taken under Section 202 Cr.P.C. without considering the application of Section 197 Cr.P.C. The accused was a serving Sub Inspector of
Police at the time when the alleged offence was committed. The question whether it was done while
acting or purporting to act in discharge of his official duty was not taken up or considered properly at the time when cognizance was taken under Section
202 Cr.P.C. and no opportunity was also afforded to the accused.
the Code does not permit an accused person to intervene
in the course of enquiry by the Magistrate under
Section 202 Cr.P.C. ( Muljibhai Kakadia v. Shaileshbhai
Crl.MC.90/2019,Crl.MC.116/2019 4
Mohanbhai Patel ( 2012) 10 SCC 517 : 2012 (16) JT 61, 2012 (9) SCALE 617:2012 (7) SLT 455.) Further it is not necessary to issue notice to the accused at the pre-cognizance stage of the proceedings. The accused has no role to play at the pre-cognizance stage and has no right of hearing under Section 202 Cr.P.C. The role of accused would come into play only after taking cognizance under Section 202 Cr.P.C. by issuing process to the accused under Section 204 Cr.P.C. The legal position was settled by various decisions of the Apex Court right from the year 1963 onwards ( Smt..Nagawwa v. Veeranna AIR 1976 SC 1947; 1976 Cr LJ 1533, Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430:
1963 (2) Cr. LJ 397, S.S.Khanna (Dr) v. Chief
Secretary, Patna AIR 1983 SC 595: (1983) 2 SCC 42 : 1983 Cr LJ 1044). At the pre-cognizance stage, no notice need be issued to the accused (Sunil Metha v.
State of Gujarat 2013 (9) SCC 209 : (2013) 3 SCC (Cri) 881).
requirement, if it is found required under Section 197
Crl.MC.90/2019,Crl.MC.116/2019 5
Cr.P.C. is a mixed question of law and fact and when it requires adjudication, the jurisdiction under Section
482 Cr.P.C. cannot be exercised.
Both the Crl.M.Cs fail, dismissed.
Sd/-
P.SOMARAJAN
JUDGE
msp
Crl.MC.90/2019,Crl.MC.116/2019 6
APPENDIX OF Crl.MC 90/2019
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF CMP NO. 5150/2016 FILED BY THE 2ND RESPONDENT IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA
ANNEXURE A2 CERTIFIED COPY OF THE ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA IN CC NO. 1424/2016 DATED 15-2-2017 ANNEXURE A3 TRUE COPY OF FIR NO. 562/2016 OF KUTHIYATHODE POLICE STATION
RESPONDENTS EXHIBITS:NIL
Crl.MC.90/2019,Crl.MC.116/2019 7
APPENDIX OF Crl.MC 116/2019
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF CMP NO.8028/2016 FILED BY THE 2ND RESPONDENT IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA.
ANNEXURE A2 CERTIFIED COPY OF THE ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA IN CC.NO.322/2017 DATED 15/02/2017. ANNEXURE A3 TRUE COPY OF FIR NO.1192/2016 OF KUTHIYATHODE POLICE STATION.
RESPONDENTS EXHIBITS:NIL
//TRUE COPY//
P.A. TO JUDGE
3 issues framed by the court
Whether sanction under Section 197 Cr.P.C. was required to initiate proceedings against a serving Sub-Inspector of Police.
Whether the Magistrate erred in taking cognizance under Section 202 Cr.P.C. without considering the application of Section 197 Cr.P.C.
Whether the jurisdiction under Section 482 Cr.P.C. could be exercised when sanction is a mixed question of law and fact.
Colour shows how this judgement treated each authority
Muljibhai Kakadia v. Shaileshbhai Mohanbhai PatelExplained¶39
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel ( 2012) 10 SCC 517 · Who else cites this
Smt. Nagawwa v. VeerannaExplained¶44
Smt. Nagawwa v. Veeranna AIR 1976 SC 1947 · Who else cites this
Chandra Deo Singh v. Prokash Chandra BoseExplained¶44
Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430 · Who else cites this
S.S.Khanna v. Chief Secretary, PatnaExplained¶45
S.S.Khanna (Dr) v. Chief Secretary, Patna AIR 1983 SC 595 · Who else cites this
Sunil Metha v. State of GujaratExplained¶46
Sunil Metha v. State of Gujarat 2013 (9) SCC 209 · Who else cites this
4 provisions across 1 enactments
A.L. Abhilash
State of Kerala
Shibu
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
