Illegal detention beyond the prescribed period is not an act connected with the discharge of official duties and does not warrant protection under Section 197 Cr.P.C.

ORDER :

1. Petitioners in above Crl. M.C. are the accused Nos. 1 to 3 in C.C. No. 34 of 2012 on the file of the Judicial First Class Magistrate Court-I, Hosdurg, Kasaragod, which was registered on the basis of a private complaint submitted by the 1st respondent herein as C.M.P. No. 2437 of 2011. Crl. M.C. No 4148/2016 is filed by the accused 1 and 3 therein and Crl. M.C. No. 4079/2016 is filed by the 2nd accused. The offences alleged against the petitioners in the aforesaid private complaint are under Sections 323 and 342 read with Section 34 IPC. But as per Annexure-A2 order passed by the Judicial First Class Magistrate Court-I, Hosdurg, cognizance was taken for the offences punishable under Section 343 read with Section 34 IPC.

2. The allegations in the private complaint, which is produced as Annexure-A1 is as follows:

The 1st respondent’s husband, who is a person conducting a small jewellery shop in a room of an old building situated near Uppala Railway Station, found missing since 11.11.2008. She got the information that her husband was taken into custody by police. Initially, she and her relatives contacted Manjeswaram Police Station and enquired as to whether her husband is detained or not and it was informed that they have not arrested any such person. Later, she received information that her husband along with another person was detained by the Sub Inspector of Police, Kannur Town Police Station. It was also informed that he was arrested on the basis of a statement made by a person arrested for stealing certain gold ornaments, to the effect that he had sold certain ornaments to the husband of the 1st respondent. Even though, the relatives of the 1st respondent approached the Kannur Police, the petitioners herein, who were police officers of Kannur police station, have not revealed any information as to the detention of her husband. On 13.11.2008 itself she forwarded a complaint through fax to the Chairman of Human Rights Commission, Home Secretary, Thiruvananthapuram and DGP, Thiruvananthapuram. It was also stated by the 1st respondent that the husband of the petitioner was detained by the police and manhandled. Later, the husband of the 1st respondent was produced before the learned Magistrate concerned on 15.11.2008 upon recording of his arrest by the police. The 1st respondent alleges that apart from the illegal detention of her husband, he was also subjected to assault while in custody by the police and accordingly Annexure A1 complaint was submitted before the Judicial First Class Magistrate-I, Kasaragod, as against the petitioners herein, who are the police officials of the police station concerned.

3. This Crl. M.C. is filed praying for an order to quash all further proceedings in the above private complaint mainly on the ground that the learned Magistrate has taken cognizance of the offence under Section 343 read with Section 34 IPC without obtaining sanction as contemplated under Section 197 of Cr.P.C. It is the case of the petitioners that the petitioners being public servants, are entitled for protection as contemplated Under Section 197 Cr.P.C.

4. Heard Sri. I.V. Pramod, learned counsel for the petitioners, Sri. Sudheer Gopalakrishnan, learned Public Prosecutor and Sri. M. Harisharma, learned counsel for the 1st respondent.

5. Basic contention that is raised by the learned counsel for the petitioners is regarding the lack of sanction as contemplated under Section 197 Cr.P.C. On the other hand, the learned counsel appearing for the 1st respondent contended that the learned Magistrate has taken cognizance for the offences under Section 343 read with Section 34 IPC, which deals with illegal detention of the husband of the 1st respondent. The learned counsel placed reliance upon Annexure-R1(A) in Crl. M.C. No. 4079/2016, which is a commission report produced by him along with the objection submitted by the 1st respondent. The said report was filed by the Advocate Commissioner appointed by Judicial First Class Magist