Kerala High Court Asks Magistrate To Proceed With Complaint Against 5 Cops Accused Of Assaulting Army Personnel, Defers Sanction Issue

Justice G. Girish directed that the question of requirement of sanction can be considered at a later stage, after the completion of evidence.

The Court was considering the plea filed by Midhun M., challenging a Magistrate order directing him to produce sanction from the government to proceed against the cops [respondents 2 to 6] in the private complaint preferred by him.

According to the petitioner, he was subjected to severe physical assault by these policemen, who were in the rank of civil police officers and Sub Inspector at the temple festival. He further stated that he was admitted to the hospital and discharged after treatment for 2 days.

Though he preferred a complaint before the Superintendent of Police, Palakkad, and even his commanding officer requested action, instead of taking action, a counter case was registered against him alleging him of assaulting a police party and obstructing their official duty. He was accused of the offences under Sections 341, 323 and 353 r/w Section 34 I.P.C.

In such circumstances, he had approached the Magistrate with a complaint alleging commission of offences under Sections 341, 323, 324, 325 and 352 r/w Section 34 I.P.C. After taking cognizance, the Magistrate proceeded with enquiry and examined the petitioner along with 4 witnesses. Thereafter, it came to the conclusion that sanction is required to proceed against the accused.

Challenging the same, the petitioner approached the Sessions Court, which remitted the matter to the Magistrate for reconsideration. Again, the Magistrate concluded that sanction is required and passed the impugned order.

The petitioner had approached the Government requesting for sanction but the same was rejected. Left with no other remedy, he came before the High Court.

The Court noted that the alleged assault on the petitioner by the accused policemen has been narrated in the complaint before the Magistrate and confirmed by the four witnesses. It also noticed that the FIR against the petitioner was delayed, and a FIR in the nature of a counterblast was filed against him.

The Court remarked that the Magistrate is expected to take cognizance the moment it decides to record the complainant's sworn statement. Looking at the present case, the Court observed that the Magistrate adopted the procedure contemplated under Section 200 CrPC when it examined the complainant and witnesses.

The Court remarked that though it is open to the Magistrate to consider the question of requirement of sanction, in the peculiar facts of the case, the same can be deferred:

“But, in the peculiar facts and circumstances of this case, the question whether the respondents 2 to 6 resorted to the physical violence upon the petitioner in discharge of their official duty is a matter which could be ascertained only after evaluating the evidence in detail. This is especially so in view of the fact that there occurred an unexplained delay of about nine days in registering a crime against the petitioner…the contention of the petitioner that the aforesaid crime was registered against him in retaliation of the act of the petitioner preferring a complaint before the District Police Chief against the unjustified physical violence perpetrated upon him by the respondents 2 to 6, cannot be ignored. All the above aspects could be scrutinised by the court below, only at the stage of trial.”

The Court then went on to set aside the Magistrate's order requiring the petitioner to take sanction and directed it to proceed with the complaint by relegating the issue of requirement of sanction.

Thus, it allowed the plea.

Case No: W.P.(Crl.) No. 658/2026

Case Title: Midhun M. v. State of Kerala and Ors.

Citation: 2026 LiveLaw (Ker) 426

Counsel for the petitioner: K.R. Rajkumar, Jagadeesh Lakshman, Aromalunni M.S., R.K. Rakesh,Sreeram Ojas, Sreelakshmi P.S.

Counsel for the respondents: Neelanjana Nair - Public Prosecutor

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