P. P. Unnikrishnan VS Puttiyottil Alikutty

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000(3) Crimes 209 (SC)
Supreme Court of India
(From Kerala High Court)
K.T. Thomas & R.P. Sethi, JJ.
P.P. Unnikrishnan & Anr. —Appellants
versus
Puttiyottil Alikutty & Anr. —Respondents
Criminal Appeal No. 747 of 2000
(Arising out of SLP (Criminal) No. 3556 of 1999)
Decided on 5-9-2000
Counsel for the Parties :
For the Appearing Parties : Ms. M. Jayshree, Rajiv Mehta, L.N. Rao, A. Raghunath, Ms. Modhurima Tatia, G. Prakash, Ms. Beena Prakash, Jyothish A.P., Advocates.

Headnote:(i) Criminal Procedure Code, 1973—Section 473 r/w Section 467—Extension of period of time limit to take cognizance of limitation—Section 473 cannot operate in respect of period of limitation prescribed under any other enactments.
       It is clear from a raising of the Section 467, the opening provision of Chapter XXXVI that the entire Chapter concerns only with the period of limitation prescribed in the succeeding provisions. Of course the usual play at the joints is provided therein by using the words “unless the context otherwise requires”. But on reading Section 473 it would become crystally clear that it is intended to be applied only with reference to the period fixed in Section 468 of the Code. The extension of period contemplated in the said Section is only by way of an exception to the period fixed as per the provisions of Chapter XXXVI of the Code. Section 473 of the Code therefore cannot operate in respect of any period of limitation prescribed under any other enactment. (Paras 6 and 7)
       Where the Magistrate took cognizance of complaint against police officer but the complainant contended that the complaint was time barred prescribed under Section 64(3) of Kerala Police Act since the same was filed beyond six months of alleged offence the complaint could not be taken cognizance of but the High Court taking recourse to Section 473 of Cr.P.C. rejected the plea of the police, held that the view adopted by the High Court that Section 473 could be invoked by the complainant for circumventing the bar contained in Section 64(3) of the Kerala Police Act, cannot be accepted. (Paras 5 and 7)
       (ii) Kerala Police Act—Section 64(3)—Prosecution of police—Time limit to take cognizance of offence—Bar contained in Section 64 not limited to offence mentioned in Kerala Police Act—Bar against taking cognizance of offence mentioned in Kerala Police Act on expiry of period prescribed in Section 64(3) is absolute ban—Scope under Section 64(3) much narrower than amplitude of Section 197(1) of Cr.P.C.
       (iii) Kerla Police Act—Section 64(3)—Indian Penal Code, 1860—Sections 325, 342, 330 and 506(1)—Prosecution of police official—Time limit to take cognizance of complaint—Complaint of physical assault and locking up in police station for more than 24 hours—Complaint resisted as time barred under Section 64(3)—Not tenable—Police officer assaulting a prisoner inside a lock-up cannot claim that such act was connected with discharge of his duty—By keeping a person for more than 24 hours without authority such an officer would be abusing his duty—Benefit envisaged in Section 64(3) not available to accused police officials.
       Held : It was contended that Section 64(3) of the K.P. Act contains words which are analogous to the words employed in Section 197(1) of the Code and on that premise learned counsel requested us to follow certain decisions for understanding the scope of the sub-section concerned in the K.P. Act. Even assuming that the words employed in those two different sub-sections (one in the K.P. Act and the other in the Code) are the same it has to be pointed out that the context envisaged in Section 197(1) of the Code or the purpose of providing a filter therein is demonstrably different from the object of Section 64(3) of the K.P. Act. Section 197(1) of the Code does not impose any absolute ban against taking cognizance of the offence, but it only says that the sanction contemplated therein is a condition precedent for taking such cognizance. It obviously is for preventing public servants from being subjected for frivolous prosecutions for discharging their official duties. On the other hand, Section 64(3) of the K.P. Act incorporates an absolute ban against taking cognizance of the offences of the type mentioned therein on the expiry of the period specified therein. That apart the words used in Section 197(1) of the Code for qualifying the offence are seemingly wider. Those words are these : “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”. In Section 64(3) of the K.P. Act the offence is qualified as the offence committed by a police officer “on account of any act done in pursuance of any duty imposed or authority conferred on him, by this Act or any other law for the time being in force or any rule, order of direction lawfully made or given thereunder”. The commission of an offence, while acting or purporting to act in the discharge of his official duty is of a wider radius when compared with an offence committed on account of an act done in pursuance of any duty or authority. In the latter, the act done itself should be an exercise in discharge of his duty or authority and that act should amount to an offence. It is not enough that the act complained of was only purported to be in exercise of his duty though it may be sufficient under the former. So the scope under Section 64(3) of the K.P. Act is much narrower than the amplitude of Section 197(1) of the Code for a public servant to claim protection. (Paras 12, 13 and 14)
       If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3) of the K.P. Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a magistrate or an order of a court it would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority. (Para 16)
       If sub-section (3) of Section 64 of the K.P. Act is given the interpretation sought for by the learned counsel for the appellants, it may give rise to calamitous consequences, e.g. if a police officer inflicts torture on a prisoner inside the lock up and he knows that the right of the prisoner to move within the time prescribed for such acts would stand permanently debarred after the expiry of six months, he might inflict such sorts of physical harm to the prisoner as to disable him from moving out for the next 6 months so that the offending policemen would stand permanently immuned from any prosecution proceedings in respect of the offences committed by him. This may be only an illustration in fiction but such fiction may turn out to be reality, at least in exceptional cases. So the interpretation which may lead to such dangerous consequences should be averted. (Para 18)
       Result : Appeal dismissed.

Judgment

Thomas, J.—Leave granted.

2. Two cops who are caught in the dock of a criminal court want to pre-empt the trial on the ground of limitation. But the trial court and the High Court did not accede to their plea. Hence they are now before the Supreme Court challenging the order of the High Court. How they got themselves enmeshed in the cobweb of the criminal proceedings can be narrated in brief :

First appellant was the Sub-Inspector of Police and second appellant was a Police Constable attached to Perambra Police Station situated in a moffusil centre within the Calicut district (Kerala). First respondent, a middle aged shopkeeper of Perambra, was living with his wife and three children within the limits of the said Police Station. On 1.9.1995 the first respondent (hereinafter referred to as the ‘complainant’) filed a complaint against the two appellants before the Judicial Magistrate of First Class Perambra complaining that the appellants have committed offences under Sections 325, 342, 330 and 506(1) IPC. The First Class Magistrate after examining the complaint on oath and after taking cognizance of the said offences issued process to the appellants. They entered appearance in the Magistrate’s court and raised preliminary objection that the magistrate should not have taken cognizance of the offences in view of the bar contained in Section 64(3) of the Kerala Police Act (for short ‘the KP Act’) which fixed a period of six months from the date of commission of the offence for taking cognizance thereof. The magistrate over-rule the objections. Appellants them moved the High Court under Section 482 of the Code of Criminal Procedure (For short ‘the Code’) for quashing the criminal proceeding initiated by the complainant. They contended that the Magistrate could not take cognizance of the offences as the complaint was filed only after the expiry of six months of the alleged commission of the offences. A learned single judge of the High Court dismissed the petition as per the impugned order.

3. For dealing with the question raised in this appeal it is necessary to extract, at least briefly, the allegations made in the complaint. They are the following :

On the evening of 23.12.1994 the complainant was called to the police station, he was asked to remain therein till the arrival of the first appellant. But appellants did not arrive at the police station on that evening nor was the complainant permitted to leave the police station. Hence he had to remain inside the police station overnight. On the next morning, both the appellants reached the station. They put the complainant in the lock up room, and first appellant asked him “did you not steal the articles from the next shop?” and so asking he started beating the complainant. Thereafter both the appellants together showered a volley of blows all over his body. He fell down. Appellants kept him inside the lock-up room and left the police station. By evening they returned to the police station and resumed their assault operation during which they inflicted lots of blows on different portions of his body by uttering the words “if you do not tell the truth you will be killed”. Thereafter the complainant was asked to sit on the floor and then both the appellants stood on his legs and in that posture they inflicted blows on him with hands as well as lathi. He again fell down and this time he became unconscious. He was kept in the lock up room from 24th December, 95 till the morning of 27th December, 95. He was released from the confinement of police station on the morning of 27th after administering a warning that if he divulged to any person outside of what happened he would be trapped in a false case. The above is in substance the allegations in the complaint.

4. Section 64 of the K.P. Act deals with initiation of legal proceedings against police officers or magistrates. The first two sub-sections are intended to afford protection against any penalty or action for damag

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Cases Referred (2)