[S.197 CrPC] Want Of Sanction For Prosecution Extended To Members Of Kerala Police Entrusted With 'Maintenance Of Public Order': Kerala HC

The Kerala High Court has held that sanction is required to prosecute members of Kerala Police who are responsible for maintaining public order. The Court also relied upon Sarojini v Prasannan (1996) to clarify that maintenance of public order is a subset of law and order.Notably, Section 197 of CrPC protects judges and public servants from false, vexatious or malafide prosecution. Section 197 (2) provides that members of the Armed Forces of the Union cannot be prosecuted without previous sanction of the Government. It is to be noted that the benefit of this provision was also extended to the members of the Kerala Police Force by issuance of notification under Section 197 (3).Justice Kauser Edappagath thus held that sanction was required to prosecute officers of the Kerala Police who were accused of assaulting a family over a parking dispute while they were discharging their official duties in Alapuzha beach during beach festival. The Court stated that the allegation here was police excess in connection with the discharge of official duty.Court stated, “The State Government has issued a Notification No. 61155/A2/Home on 06/12/1977 directing that the provisions of sub-section (2) shall apply to all members of Kerala State Police Force charged with the maintenance of Public Order. By the notification mentioned above, the provisions of sub-section (2) have been made applicable to members of Kerala Police charged with 'maintenance of public order' who form a class of the police force. The Division Bench of this Court in Sarojini (supra) has held that 'maintenance of public order' can fall within the definition of 'law and order', the former being an extension of the latter. Hence, the petitioners would come within the scope of this Notification and be entitled to its protection.”In the facts of the case, the Petitioners were accused of verbally abusing and shouting at the respondents (husband, wife and daughter) over a parking dispute during the beach festival in Alappuzha district. A Private complaint was filed against the respondents and Trial Court took cognizance offences punishable under Sections 323, 294(b) 339, 352, 354, 354B, 384, 120(b), 204, 211, 503, 509, 500 r/w 34 of IPC and Section 23 of the Juvenile Justice Act. The Trial Court on enquiry issued summons to the Petitioners. The Petitioners filed original petition to set aside the order issuing summons for want of sanction under Section 197 of CrPC. The Trial Court issued Process holding that sanction was not necessary on two grounds. First, Petitioners were not acting or purporting to act in the discharge of their official duties. Secondly, because they were not officers whose removal required prior sanction of the Government.The Court stated that Section 197 was enacted to afford protection to public servants for ensuring that they were not prosecuted for acts done during the discharge of their official duties, without reasonable cause. However, the Court clarified that this protection has certain limitations and sanction is not required for prosecuting public servants for acts that are not reasonably connected with discharge of official duties and were instead used as a cloak for doing objectionable acts. The Court stated that the bar created under Section 197 of CrPC was absolute and cognizance cannot be taken without obtaining sanction. It said, “The mandatory character of the protection afforded to a public servant is brought out by the expression, "No court shall take cognizance of such offence except with the previous sanction". Use of the words "no" and "shall" make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred.”The Court stated that commission of offence could never become part of public duty but that should not be used as an excuse to avoid prosecution for objectionable acts. Court elaborated, “ Of course, it is not part of an official duty to commit an offence and never can be. But to apply Section 197, the test is not whether the act complained of was part of the official duty or not; the test is whether the act complained of was committed by the public servant while acting or purporting to act in the discharge of his official duty... If it was done in the performance of duty or in purported performance of duty, Section 197(1) cannot be bypassed by reasoning that an offence could not be committed in an official capacity, and consequently, Section 197(1) could not be attracted.”In the facts of the case, the Court noted that the alleged acts were committed while the Petitioners were acting in the discharge of their official duty. It stated that there was a reasonable connection between the alleged offensive act of the Petitioners and performance of their official duty.Accordingly, the Court set aside the order issued by the Trial Court taking cognizance of the offences without sanction. The Court clarified that the respondent ...

[S.197 CrPC] Want Of Sanction For Prosecution Extended To Members Of Kerala Police Entrusted With 'Maintenance Of Public Order': Kerala HC

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