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2025 Supreme(Online)(KER) 6129
HIGH COURT OF KERALA
G. GIRISH, J
A.L.ABHILASH – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6461/2019
A.RAJASIMHAN, SMT.V.S.SANGEETHA, SRI. SANGEETHARAJ N.R.
Custodial torture allegations must be raised promptly; failure to do so undermines credibility. Protection under Section 197 applies if acts are within official duty parameters.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 and Section 197 - Quashing of proceedings - Petitions filed by a former Sub Inspector to quash custodial torture allegations - The learned Magistrate found a prima facie case against the petitioner, but the petitioner contended that no sanction under Section 197 was required for prosecution - The court held that the alleged acts were within the scope of official duty and that the complainants failed to raise their allegations at the first opportunity, thus supporting the petitioner's claim. (Paras 1-10)
(B) Custodial Torture - The court emphasized that custodial torture cannot be considered an act done in the discharge of official duty, but if the officer acted within the parameters of duty, Section 197 protection may apply. (Paras 8-10)
Facts of the case:
The petitions were filed to quash proceedings initiated against a Sub Inspector based on complaints of custodial torture by two prisoners who were arrested for attempted theft. The complaints were made after a delay, raising questions about their credibility.
Findings of Court:
The court found that the initiation of proceedings against the petitioner lacked the necessary sanction under Section 197, leading to the quashing of the proceedings.
Issues: The main issues were whether the allegations of custodial torture were credible and whether the petitioner required sanction under Section 197 for prosecution.
Ratio Decidendi: The court ruled that the failure of the complainants to raise their allegations at the first opportunity undermined their claims, and the acts attributed to the petitioner were within the scope of his official duties.
Result: Petitions allowed; proceedings quashed.
C O M M O N O R D E R
Both these petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.PC’) by the former Sub Inspector of Eloor Police Station to quash the proceedings in C.C.Nos.716/2018 & 242/2019 on the files of the Judicial First Class Magistrate Court-I, Kalamassery, initiated by the learned Magistrate upon the complaints preferred by two prisoners by name Manoj and Prasad alleging custodial torture.
2. The aforesaid complainants are the accused in Crime No.1435/2017 of Eloor Police Station, registered in connection with the commission of offence under Section 511 of 379 read with Section 34 of the Indian Penal Code, 1860,(in short, ‘IPC'). As per the allegations in Annexure-A1 First Information Report registered in connection with the above crime, the above complainants (second respondent in these petitions) attempted to commit theft of the battery of a Torus lorry parked by the side of container road at about 11:30 pm on 14.12.2017. It is further stated thereunder that when the de facto complainant in the above crime raised a hue and cry, the offenders took to their heels. Subsequently, on the same night, the present complainants (second respondent in these petitions) were arrested and remanded to judicial custody. Thereafter, while they were being detained in District Jail, Ernakulam, they preferred undated complaints before the Superintendent of Prison which were forwarded to the Jurisdictional Magistrate. It is stated in the aforesaid complaints (Annexure-A2) that they had disclosed about the custodial torture perpetrated upon them by the Sub Inspector and other Police personnel of Eloor Police Station, to the Jail officials when they asked why they were found limping. Thereafter, the complainants are said to have been sent for treatment at the General Hospital, Ernakulam.
3. The learned Magistrate, after recording the sworn statements of the complainants and one witness, and after perusing the treatment records from the hospital concerned, arrived at the finding that a prima facie case has been brought out against the petitioner herein that he, along with some unidentifiable Policemen, subjected the complainants to custodial torture. It has been further observed in the aforesaid orders that the petitioner is not entitled for the protection of Section 197 Cr.PC since the alleged act is completely unconnected with the discharge of his official duty as a public servant.
4. In the present petitions, the petitioner would contend that the learned Magistrate went wrong in holding that the sanction under Section 197 Cr.PC is not required for the prosecution initiated against the petitioner.
5. Pursuant to the notice served in these petitions, the respondents (respondent no.2 in these cases) appeared through their counsel and filed counter affidavits affirming their allegation of custodial torture at the instance of petitioner. However, the learned counsel for respondent no.2 did not choose to appear, or advance any arguments at the time when the case was posted for hearing.
6. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the first respondent.
7. The complaint against the petitioner pertains to the alleged custodial torture perpetrated upon the second respondent in these petitions consequent to their arrest in the night of 14.12.2017 for the alleged act of attempted theft committed on the same night. It is pertinent to note that no complaint of custodial torture was raised at the time when they were produced before the learned Magistrate for the purpose of remand. There is no explanation offered by the complainants for their failure to raise the complaint of custodial torture at the first instance when they were having the opportunity to disclose such incidents before the Jurisdictional Magistrate. On the other hand, it is after two days that the complainants opted to submit the complaint before the learned Magistrate through the Superinten
