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2020 Supreme(Ker) 918
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.SOMARAJAN, J.
A.L.Abhilash, S/o. Appu Pillai – Appellant
Versus
State Of Kerala Represented By The Public Prosecutor, High Court, Ernakulam – Respondent
Crl.MC.90, 116 of 2019
Decided on : 06-10-2020
Advocate Appeared:
For the Appellant : SRI.A.RAJASIMHAN
For the Respondent: SRI.B.PRAMOD, PUBLIC PROSECUTOR SRI.RAMESH CHAND
IMPORTANT POINT
The accused has no role to play at the pre-cognizance stage and has no right of hearing under Section 202 Cr.P.C. The role of accused would come into play only after taking cognizance under Section 202 Cr.P.C. by issuing process to the accused under Section 204 Cr.P.C.
Headnote:
Indian Penal Code- Sections 341, 323, 294(b) and 500 ;; Criminal Procedure Code- Section 197 , Section 202, Section 204-Whether sanction is required under Section 197 Cr.P.C. -Section 197 Cr.P.C. is a mixed question of law and fact and when it requires adjudication, the jurisdiction under Section 482 Cr.P.C. cannot be exercised - The Code does not permit an accused person to intervene in the course of enquiry by the Magistrate under Section 202 Cr.P.C.
Statement of facts:
The application of Section 197 Cr.P.C in initiating proceedings against a Sub Inspector of Police on the allegation of offences punishable under Sections 341, 323, 294(b) and 500 IPC in a private complaint and the validity of the cognizance taken under Section 202 Cr.P.C. without considering the application of Section 197 Cr.P.C. The accused was a serving Sub Inspector of Police at the time when the alleged offence was committed
Finding of the court:
The accused has no role to play at the pre-cognizance stage and has no right of hearing under Section 202 Cr.P.C. The role of accused would come into play only after taking cognizance under Section 202 Cr.P.C. by issuing process to the accused under Section 204 Cr.P.C.
Result: Crl.M.Cs dismissed.
ORDER :
The question involved is with respect to the application of Section 197 Cr.P.C in initiating proceedings against a Sub Inspector of Police on the allegation of offences punishable under Sections 341, 323, 294(b) and 500 IPC in a private complaint and the validity of the cognizance taken under Section 202 Cr.P.C. without considering the application of Section 197 Cr.P.C. The accused was a serving Sub Inspector of Police at the time when the alleged offence was committed. The question whether it was done while acting or purporting to act in discharge of his official duty was not taken up or considered properly at the time when cognizance was taken under Section 202 Cr.P.C. and no opportunity was also afforded to the accused.
2. The legal position was very much settled that the Code does not permit an accused person to intervene in the course of enquiry by the Magistrate under Section 202 Cr.P.C. (Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517 : 2012 (16) JT 61, 2012 (9) SCALE 617:2012 (7) SLT 455) Further it is not necessary to issue notice to the accused at the pre-cognizance stage of the proceedings. The accused has no role to play at the pre-cognizance stage and has no right of hearing under Section 202 Cr.P.C. The role of accused would come into play only after taking cognizance under Section 202 Cr.P.C. by issuing process to the accused under Section 204 Cr.P.C. The legal position was settled by various decisions of the Apex Court right from the year 1963 onwards (Smt..Nagawwa v. Veeranna AIR 1976 SC 1947; 1976 Cr LJ 1533, Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430: 1963 (2) Cr. LJ 397, S.S.Khanna (Dr) v. Chief Secretary, Patna AIR 1983 SC 595: (1983) 2 SCC 42 : 1983 Cr LJ 1044). At the pre-cognizance stage, no notice need be issued to the accused (Sunil Metha v. State of Gujarat 2013 (9) SCC 209 : (2013) 3 SCC (Cri) 881).
3. Whether sanction is required under Section 197 Cr.P.C. and whether there is compliance of the said requirement, if it is found required under Section 197 Cr.P.C. is a mixed question of law and fact and when it requires adjudication, the jurisdiction under Section 482 Cr.P.C. cannot be exercised.
Both the Crl.M.Cs fail, dismissed.
