1. The petitioner is the Sub Inspector of Police of Thannithode Police Station and an accused in C.P. No. 43/06, inter aha, under S.307 of the I.P.C. pending before the Judicial First Class Magistrate's Court-II, Pathanamthitta. The petitioner is the 1st accused and a Police Constable on duty along with him is arrayed as the 2nd accused. Cognizance was taken on the basis of a complaint made by the complainant who was arrested by the petitioner and produced before the learned Magistrate on 18/06/2006 at 3.45 p.m. The crux of the allegations is that the accused persons-the Sub Inspector of Police and the Police Constable, attempted to cause the death of the complainant by strangulating him by applying constrictive force around his neck using a towel. He was allegedly assaulted also.

2. The petitioner submits that cognizance taken by the learned Magistrate is unsustainable in law as it violates the mandate of S. 197(3) of the Cr.P.C. This question appears to have been considered by the learned Magistrate and the learned Magistrate states so in the order dated 19/6/2006 on the relevant aspect:

"Though A1 and A2 are public servants, sanction of the State Government is not required for taking cognizance against them since they are removable from their office without the sanction of the Government and offence complained of cannot be considered as the offences committed while acting or purported to act in the discharge of their official duty. So there is no bar in taking cognizance of the above offences against them."

3. The learned counsel for the petitioner submits that the process of reasoning by which the learned Magistrate came to the conclusion that cognizance can be taken even without the requisite sanction under S.197 of the Cr.P.C. is incorrect, improper and perverse. First of all, it is contended that the Notification dated 06/12/1977 issued under S.197(3) of the Cr.P.C. is squarely applicable and must protect the petitioner who is a member of the police force which in turn is engaged in the maintenance of law and order.

4. The question whether persons like the petitioner who are members of the Kerala Police engaged in maintenance of law and order are entitled to the protection of the Notification dated 6.12.1977 was considered by a Single Bench of this Court in Muhammed v. Sasi (1985 KLT 404). Though it was held that such sanction is not necessary for persons engaged in law and order duty, in contra distinction of maintenance of public order, that decision stands overruled by the decision in Sarojini v. Prasannan (1996 (2) KLT 859). It is perhaps not necessary to place reliance on the decision of the Division Bench in Sarojini v. Prasannan (1996 (2) KLT 859) in as much as the Supreme Court later in Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001 (2) KLT SN 77 (C.No.98) SC = AIR 2001 SC 2198) has made it clear that the question is only whether the officer claiming protection under S.197 (3) of the Cr.P.C. belongs to the police force which in turn is charged with responsibility of maintenance of public order/law and order. In the light of the dictum in Sarojini v. Prasannan (1996 (2) KLT 859) and Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001 (2) KLT SN 77 (C. No.98) SC = AIR 2001 SC 2198) the reasoning of the learned Magistrate based on the former part-that the sanction is not required for persons like the petitioner, cannot obviously be accepted. The learned counsel for the respondent' complainant does not also seriously support the said conclusion of the learned Magistrate in the light of the clear pronouncements referred above.

5. The learned counsel for the respondent/complainant, however, submits that the alleged overt acts against the complainant cannot be said to be the acts done in the discharge of his official duty or in the purported discharge of his official duty.

6. To the crucial facts first. It is the case of the petitioner that the accused had to be arrested in connection with Annexure-I crime registere