IMPORTANT POINTS
To attract the applicability of S.197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected

ORDER :

1. This Revision Petition has been filed against the order dated 31.8.2009 in C.C.126/1998 on the file of the Judicial First Class Magistrate-I, Punalur, refusing to give the protection under Sec.197(1) Cr.P.C to the revision petitioners/accused 2 to 4.

2. The case against the revision petitioners/accused 2 to 4 along with the first accused has been charge-sheeted by the Circle Inspector of police, Anchal in crime No.67/1997 of Anchal police station.

3. Prosecution case is that on 31.3.2007 at about 8.30 pm, first accused who is the festival committee convener of Arackal Devi temple came with the revision petitioners/accused 2 to 4 who were police constables, attached to Anchal police station in a jeep bearing registration No.KL-7/N-2433 to the place where CW1 to 4 were preparing kettuvilakku as part of the festival at Arackal Devi temple and assaulted CW1 to 6 with lathi resulting in injuries to CW1 to 3, 5 and 6. CW4 fell into a well and sustained grievous injury. It is alleged that accused acted in furtherance of their common intention.

4. Earlier Crl.M.C.685/2006 was filed by the revision petitioners/accused 2 to 4 which was disposed of by this Court as per the order dated 17.3.2009 directing the learned Magistrate to consider whether sanction of the state Government as envisaged under Sec.197(1) Cr.P.C is necessary for prosecuting the revision petitioners and thereafter to proceed with the case in accordance with law. On the basis of the said direction, both sides were heard and the impugned order has been passed.

5. Notice was issued to the respondent. Respondent appeared through Public Prosecutor. Lower court records were called for and perused. Heard both sides.

6. The main contention of the learned counsel for the revision petitioners is that it has been found by the learned magistrate that accused 2 to 4 were deputed to do law and order duty in connection with the conduct of festival at Arackal Devi temple and the only reason for refusing the benefit under Sec.197(1) Cr.P.C was that they were not deployed for maintenance of public order but only of law and order duty which, according to the learned counsel, is illegal and improper and is liable to be interfered with.

7. On going through the impugned order passed by the court below it is seen that there is a definite finding by the learned magistrate that the revision petitioners were deputed to law and order duty in connection with the conduct of festival at Arackal Devi temple. But that according to the learned magistrate cannot be held to be deployed for maintenance of public order. The learned magistrate relies upon Sarojini v. Prasannan (1996 (2) KLT 859) to distinguish the deployment for maintenance of public order and also law and order duty. In other words, the court below was of the view that the protection under Sec.197 is available to all members of the Kerala Police Charged with the maintenance of public order and the same is not available to the members of police charged with law and order duty alone. It is also found that in order to claim the benefit u/s 197 Cr.P.C the revision petitioners have to establish that they are public servants not removable from the office save by or with the sanction of the government and that the offence alleged to have been committed by acting or purporting to act in discharge of their official duty. It is also found that the revision petitioners were police constables as on the date of the alleged occurrence and as such they were removable from their office without the sanction of the government. It is further found that the power to dismiss or remove them from the service has been conferred upon the D.G.P, I.G, D.I.G, S.P etc. Hence it has been found that they are not entitled to the general protection as contemplated under Sec.197 Cr.P.C. It is further found that the acts alleged against them cannot be termed as part of the discharge of the official duties as it is alleged that they unleashed violence against the genera