Dismissed

A.L.Abhilash v. State of Kerala

Kerala HC6 Oct 2020Crl.MC/90/2019

Case brief

AI extract

What is this about?

The High Court dismissed two criminal miscellaneous petitions challenging the initiation of proceedings against a Sub Inspector of Police. The court held that jurisdiction under Section 482 Cr.P.C. is unavailable when the sanction question requires adjudication and affirmed the legal position that no notice is required to the accused at the pre-cognizance stage under Section 202 Cr.P.C.

What did the court decide?

Both the Criminal Miscellaneous Cases were dismissed.

A.L.Abhilash Vs State of Kerala — Kerala HC (2020) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942

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Crl.MC.No.90 OF 2019(A)

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AGAINST THE ORDER/JUDGMENT IN CC 1424/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA

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CRIME NO.562/2016 OF KURATHIKADU POLICE STATION, ALAPPUZHA

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PETITIONER/ACCUSED:

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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

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BY ADV. SRI.A.RAJASIMHAN

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RESPONDENTS/STATE AND ANOTHER:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM 682 031

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2 SHIBU, S/O.SASI, PALLIPATTU NIKARTH, THURAVOOR PANCHAYAT, WARD-5, THURAVOOR P.O, CHERTHALA 688 532.

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R2 BY ADV. SRI.B.PRAMOD PUBLIC PROSECUTOR SRI.RAMESH CHAND

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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:

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Crl.MC.90/2019,Crl.MC.116/2019 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942

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Crl.MC.No.116 OF 2019(D)

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AGAINST THE ORDER/JUDGMENT IN CC 322/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA

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CRIME NO.1192/2016 OF Kuthiyathode Police Station , Alappuzha

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PETITIONER/ACCUSED:

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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.

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BY ADV. SRI.A.RAJASIMHAN

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RESPONDENTS/STATE AND ANOTHER:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM-682031.

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2 P.RAJESH VIMALALAYAM VEETTIL, KARUPPANKULANGARA.P.O., CHERTHALA, ALAPPUZHA-688539.

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R2 BY ADV. SRI.B.PRAMOD PUBLIC PROSECUTOR.SRI.RAMESH CHAND

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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:

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Crl.MC.90/2019,Crl.MC.116/2019 3

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ORDER

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The question involved is with respect to the

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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

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Police at the time when the alleged offence was committed. The question whether it was done while

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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

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202 Cr.P.C. and no opportunity was also afforded to the accused.

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The legal position was very much settled that

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the Code does not permit an accused person to intervene

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in the course of enquiry by the Magistrate under

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Section 202 Cr.P.C. ( Muljibhai Kakadia v. Shaileshbhai

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Crl.MC.90/2019,Crl.MC.116/2019 4

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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:

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1963 (2) Cr. LJ 397, S.S.Khanna (Dr) v. Chief

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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.

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State of Gujarat 2013 (9) SCC 209 : (2013) 3 SCC (Cri) 881).

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Whether sanction is required under Section 197 Cr.P.C. and whether there is compliance of the said

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requirement, if it is found required under Section 197

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Crl.MC.90/2019,Crl.MC.116/2019 5

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Cr.P.C. is a mixed question of law and fact and when it requires adjudication, the jurisdiction under Section

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482 Cr.P.C. cannot be exercised.

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Both the Crl.M.Cs fail, dismissed.

Sd/-

P.SOMARAJAN

JUDGE

msp

Crl.MC.90/2019,Crl.MC.116/2019 6

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APPENDIX OF Crl.MC 90/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 CERTIFIED COPY OF CMP NO. 5150/2016 FILED BY THE 2ND RESPONDENT IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA

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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

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RESPONDENTS EXHIBITS:NIL

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Crl.MC.90/2019,Crl.MC.116/2019 7

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APPENDIX OF Crl.MC 116/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 CERTIFIED COPY OF CMP NO.8028/2016 FILED BY THE 2ND RESPONDENT IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA.

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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.

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RESPONDENTS EXHIBITS:NIL

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//TRUE COPY//

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P.A. TO JUDGE

A.L.Abhilash v. State of Kerala

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A.L.Abhilash v. State of Kerala

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