Custodial torture by police cannot be protected under Section 197 Cr.P.C; however, acts performed in discharge of official duty require sanction for prosecution.

O R D E R

The petitioners, who were the Sub Inspectors of Police of Hosdurg Police Station, have filed this petition under Section 482 Cr.P.C for quashing Annexure-A6 order dated 14.09.2018 of the Judicial First Class Magistrate Court-I, Hosdurg leading to the registration of C.C.No.1251/2018 of that court.

2.​ The above crime was registered by the Judicial First Class Magistrate-I, Hosdurg after recording the sworn statement of the second respondent herein, who is the accused No.1 in Annexure-A2 crime registered by the S.I of Police, Hosdurg in respect of the commission of the crime under Section 332 I.P.C and Section 3(1) of the Prevention of Damage to Public Property Act, 1984. When the first accused in the said crime was produced before the learned Magistrate on 24.12.2017, he complained that the petitioners herein manhandled him while he was taken to the police station in a jeep from a place called Arangadi where he was waiting for participating in the marriage of his cousin. The learned Magistrate sent the second respondent to District Hospital, Kasaragod and subjected him to medical examination. Thereafter, the statement of the second respondent was again recorded on 08.01.2018. In the above statement, the second respondent reaffirmed his earlier complaint about the act of the petitioners subjecting him to physical torture inside the police jeep on 24.12.2017. The learned Magistrate also recorded the sworn statement of the Doctor who examined the second respondent, and got the certificate issued by the above Doctor marked in evidence. After considering the above sworn statements of the second respondent and the other witness, the learned Magistrate came to the conclusion that there were sufficient grounds to proceed against the petitioners for the commission of offence under Section 323 read with Section 34 I.P.C, and accordingly, took the case on file as C.C.No.1251/2018 and issued summons to the petitioners. It is the above order which is under challenge in this proceedings.

3.​ Notice of this petition was duly served on the second respondent. He did not choose to appear or to file any counter affidavit.

4.​ Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the State of Kerala.

5.​ The incident involved in this case has its origin from Annexure-A1 crime registered by the Hosdurg police on 03.12.2017 in connection with the commission of offence under Sections 143, 145, 147 and 153 I.P.C read with Section 149 I.P.C, and Section 117(e) of the Kerala Police Act, 2011. According to the petitioners, the second respondent and four other accused attempted to paint the electric post leading to Neelangara Temple with green paint on 03.12.2017, and the police party led by them intervened and tried to prevent them from doing the above act since it might have resulted in communal flare up. At that time, the second respondent and his henchmen allegedly prevented the police party from white washing the above electric posts which they had painted with green paint. It is in connection with the above incident that Annexure-A1 FIR was registered. Thereafter, on 24.12.2017, the petitioners along with the police party are said to have tried to arrest the second respondent and another person involved in Annexure-A1 crime while they were standing by the side of the road at Arangadi. At that time, the second respondent allegedly pushed down an Assistant Sub Inspector by name Raveendran of Hosdurg Police Station, whereas the other accused threw a stone against the police jeep smashing its windshield glass causing a loss to the tune of Rs.5,000/-. Thereafter, the second respondent’s associate took to his heels and escaped from that place. However, the police party led by the petitioners are said to have apprehended the second respondent and took him to the police station. It is, at the time of the above journey from the place of occurrence of the above said crime to the Hosdurg Police Station, that the pet