Slapping Complainant By Police Isn't Due Discharge Of His Official Duty; Not Entitled To Protection Under S. 197 CrPC: Kerala HC [Read Order]

The Kerala High Court on Wednesday (14th October) observed that in order to get the protection under Section 197 of Cr.P.C., the act constituting the offence should be so connected with the official duty or should be an act which is inseparable from such duty.In the present case, the Bench of Justice N. Anil Kumar was hearing a Criminal Revision Petition filed under Section 397 r/w Section 401 of CrPC seeking to set aside the order dated 22.9.2005 in C.C.No.266/2005 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta whereby the learned Magistrate had taken cognizance of the offences punishable under Sections 323 and 341 of the IPC against the revision petitioner/accused (a policeman).Under Section 197 of CrPC, no court can take cognizance of criminal charges against a public servant, unless the previous sanction has been received from a competent authority to prosecute such a public servant. This safeguard is meant to help the Government Servants perform their duties honestly without fear of malicious prosecution.Background of the CaseThe prosecution case, in brief, is that on 15.3.2005, the complainant was summoned by the police to appear before the police station alleging that the complainant assaulted one Mohanan.It is further alleged that, when he reached the police station he was called inside the closed room of the accused (the revisionist/petitioner herein) and he slapped him on his cheeks.The complainant went to the hospital and later filed the complaint. Consequent to the summons, the accused entered appearance on 16.2.2006 and he was enlarged on bail.According to the counsel for the revisionist, the occurrence, in this case, would not have happened if no notice was issued to the complainant under Section 160 of the Cr.P.C. in connection with an enquiry in a petition matter.Therefore, it was contended that the act was done in his official capacity or purported to be performed by the accused.On the other hand, the Public Prosecutor submitted that the action of the accused in assaulting the complainant was not in due discharge of his official duty and hence no sanction under Section 197 of the Cr.P.C. is required.Court's AnalysisThe Court observed, when the act and the official duty are so interrelated that it would be difficult to separate them, it can be reasonably postulated that the act was done in the performance of official duty though possibly in excess of the needs and requirements of the situation.In this context, the Court opined,"The conduct of summoning the complainant to the police station and torturing him at the police station had no relation to the discharge of the official duties of the police. While the case of the complainant is an assault on him by the accused at the police station, sanction for prosecution was wholly unnecessary. The act complained of was not an act connected with the discharge of official duty." (emphasis supplied)The Court also said that the protection granted under Section 197 of CrPC cannot be extended in respect of an accusation which tends to show that the act had absolutely no nexus with his official duties.Importantly, the Court said,"It is not part of the duty of the accused, actual or purported, to assault, abuse or wrongfully restrain the complainant in connection with a petition matter. It is not part of his official duty to commit a criminal offence and never can be." (emphasis supplied)Therefore, the Court came to the conclusion that the accused was not entitled to get the protection under Section 197 of the Cr.P.C.Lastly, the Court said,"The trial court has taken cognizance of the complaint and proceeded with the complaint in accordance with the law. No interference in revision is warranted. Hence the revision is liable to be dismissed."In the result, the criminal revision petition was dismissed. The trial court was directed to proceed with the trial of the case and decide the same on merits untrammelled by the observations contained in this order.Click Here To Download Order[Read Order]

Slapping Complainant By Police Isn't Due Discharge Of His Official Duty; Not Entitled To Protection Under S. 197 CrPC: Kerala HC [Read Order]

Sparsh Upadhyay

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