CR

V. RAMKUMAR, J.

1. The petitioner who is a member of the Kerala State Police Force and who was working at the relevant time as the Sub Inspector of Police Ponnani, seeks to quash the cognizance taken and the summons issued to him by the J.F.C.M. - I, Ponnani in S.T. No. 330 of 2008 for offences punishable under Sections 323 and 453 I.P.C. The aforesaid S.T. Case arose out of Annexure – A private complaint filed by the 2nd respondent herein (Smt. Majida, A.M.) who is a lady Advocate practicing at Ponnani.

2. The case of the prosecution as alleged in Annexure – A private complaint can be

THE PROSECUTION CASE summarised as follows:- On 19-2-2008 at about 11 a.m. when the complainant Advocate was discussing a matter with her clients including one Moideen in her office at Gym Road, Ponnani, the accused Sub Inspector of Police, Ponnani barged into her office room without her permission and asked his police party to take her clients as well as the complainant into custody . When the complainant and her husband obstructed the above attempt, an altercation took place between her and the accused in the course of which the accused called her obscene words and gave her a push on her shoulder. Thereafter the complainant's clients including Moideen (three in number) were taken into custody and carried in the police jeep. When the jeep reached the main road two of her clients were let off but Moideen was taken away in the jeep. The accused has thereby committed offences punishable under Sections 294 (b), 447, 452 and 323 I.P.C.

THE COGNIZANCE

3. The learned Magistrate took cognizance only of the offences punishable under Sections 453 and 323 I.P.C. and issued summons to the petitioner. It is the said order which is assailed in this Crl.M.C. filed under Sec. 482 Cr.P.C.

THE DEFENCE OF THE ACCUSED POLICE OFFICER

4. According to the petitioner there was a warrant of arrest (Annexure- B) issued by the Family Court, Malappuram at Manjeri against the said Moideen who was the respondent in a maintenance application and the said Moideen was evading the process of the court. The petitioner was taking into custody the said Moideen in execution of the warrant of arrest against him. Since the petitioner was acting in discharge of his official duties as the Sub Inspector of Police, the learned Magistrate erred in taking cognizance of the aforesaid offences for want of the requisite sanction under Sec. 197 (2) Cr.P.C.

5. I heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. The 2nd respondent/complainant has, however, chosen to remain ex parte.

JUDICIAL EVALUATION

6. After hearing both sides and after perusing the records I am inclined to accept the petitioner's contentions. Way back in the year 1977 the Government of Kerala had issued a notification under Sec. 197 (3) Cr.P.C. The said notification which was published in the Kerala Gazette dated 27-12-1977 reads as follows:-

GOVERNMENT OF KERALA Home (A) Department NOTIFICATION No. 61135/A2/77/Home Dated, Trivandrum 6th December 1977

S.R.O. No. 1211/77 - In exercise of the powers conferred by sub-section (3) of section 197 of the code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of subsection (2) of the aid section shall apply to all members of the Kerala State Police, charged with the maintenance of public order.

By order of the Governor, S. Narayanaswamy, Special Secretary Explanatory Note Section 197 of Criminal Procedure Code affords protection from false vexatious or malafide prosecution to some categories of public servants in the shape of a requirement of previous sanction of the government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in discharge of their official duties. The members of the armed forces of the union are so protected. Government consider that that members of the Kerala Police