Back
2025 Supreme(Online)(Ker) 32338
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Judge, J
Petitioners are forest officials – Appellant
Versus
2nd respondents – Respondent
Crl.M.C.Nos.65 and 86 of 2025 | Crl.M.C.Nos.73, 74 and 85 of 2025
For the Appellants/Petitioners: Advs. Babu S. Nair
For the Respondents: Thomas J Anakallungal, Sreelakshmi Sabu
Cognizance against public servants must follow procedural protections to ensure fair judicial process under applicable laws.
Headnote:(A) Kerala Forest Act - Sections 27(1)(d), 27(1)(e)(ii), 27(1)(e)(iii), 27(1)(e)(iv), 47C, 47G, BNSS - Sections 223(1), 223(2) - Crl.M.C.Nos.65, 86, 73, 74 and 85 of 2025 - Allegations of torture during custody of accused - Cognizance taken by Magistrate without following the procedure prescribed in Section 223 - High Court quashes lower court's orders due to procedural violation. (Paras 3, 10, 12, 17)
(B) Public Servant - Protection in prosecution - Difference of procedure under Section 223(1) and 223(2) BNSS for complaints against public servants detailed - Proceedings quashed for violation of procedure with directions to adhere to mandated protocols in future. (Paras 9, 15)
Facts of the case:
The respondents complained of torture during custody by forest officials following their arrest for forest-related offences. Complaints were made post-interaction with counsel, prompting judicial scrutiny.
Findings of Court:
The court found that the Magistrate failed to provide the necessary procedural guarantees as required by BNSS, leading to quashing of earlier cognizance and direction for fresh proceedings.
Issues: The main issue addressed was whether the Magistrate adhered to the procedural requirements under Section 223(2) of BNSS while taking cognizance of the complaints against public officials.
Ratio Decidendi: The court reiterated that public servants must be afforded the opportunity under Section 223(2) to respond to complaints against them, emphasizing that due procedure is vital for the credibility of judicial processes, especially in allegations of torture.
Result: Crl.M.C.Nos.73, 74 and 85 of 2025 are allowed and lower court's cognizance overruled; Crl.M.C.Nos.65 and 86 of 2025 directed for continuation under the proper procedure.
| Table of Content |
|---|
| 1. allegations of torture during custody were raised by accused. (Para 1 , 2) |
| 2. arguments regarding procedural failures in cognizance process. (Para 4 , 5 , 6) |
| 3. court's determination on procedural mandates under section 223. (Para 9 , 10 , 12) |
| 4. clarification on the requirements for cognizance against public servants. (Para 15) |
| 5. final ruling to quash prior cognizance due to procedural violations. (Para 17) |
ORDER
Petitioners are forest officials, the 1st petitioner being the Divisional Forest Officer, Marayoor Forest Division and the 2nd petitioner, the Range Forest Officer. Three crimes were registered at the Marayoor Forest Range as O.R.Nos.1, 2 and 3 of 2024 for offences under Sections 27 (1)(d), 27(1)(e)(ii), 27(1) (e)(iii) and 27(1)(e)(iv) read with Sections 47C and 47G of the Kerala Forest Act against certain persons including the 2nd respondents herein. As the facts in Crl.M.C.Nos.65 and 86 of 2025 are slightly different from those in Crl.M.C.Nos.73, 74 and 85 of 2025, the two sets of cases are dealt with separately.
Crl.M.C.Nos.73, 74 and 85 of 2025
Pursuant to the registration of O.R.Nos.1,2 and 3 of 2024, Vinod, the 5th accused in O.R.No.1 of 2025, was arrested and his confession statement recorded on 14.11.2024. During his confession, Vinod revealed the names of Sarath @ Siva, Soorya, Suresh and Liju @ Jithu as participants in the crime. Thereafter, the 1st accused Sarath was taken into custody on 18.11.2024. In the confession statement of Sarath recorded on 19.11.2024, he mentioned about the involvement of others named Manoj, Rajesh and Jaleel. Thereupon, Manoj, Rajesh and Jaleel were arrested on 21.11.2024. After recording their arrest the accused were produced before the Judicial Magistrate of First Class, Devikulam and remanded to judicial custody. While so, the petitioners sought the custody of Sarath, Manoj and Rajesh for the purpose of interrogation. The learned Magistrate allowed the prayer and granted custody from 04.12.2024 to 09.12.2024. On completion of the custody period the accused were produced before the Magistrate on 09.12.2024. Later in the day, after meeting their lawyer, the accused complained to the Magistrate that they were subjected to extreme harassment and physical torture by the petitioners.
The Magistrate thereupon directed the accused to be taken for medical examination. After returning from the hospital, Sarath, Manoj and Rajesh submitted written complaints to the Magistrate. The Magistrate accepted the complaints and recorded the sworn statements of the accused on 21.12.2024. Based on the complaints and the sworn statements, the Magistrate took cognisance of the offences punishable under Sections 115(2), 118(1), 120(1), 127(2), 194 and 351(1) read with Section 3(5) of the BNS and issued summons to the petitioners. The cases were thereupon numbered as C.C.Nos.613, 612 and 614 of 2024 on the files of the Judicial Magistrate of First Class, Devikulam.
Crl.M.C.Nos.65 and 86 of 2025
The 2nd respondent in Crl.M.C.No.65 of 2025 is the 4th accused in O.R.No.1 of 2024 and was arrested on 14.11.2024. While continuing in judicial custody, the 2nd respondent submitted a complaint alleging physical torture while he was in the custody of the petitioners. Thereupon, the Magistrate issued notice under Section 223 (1) of BNSS to the petitioners.
2. The 2nd respondent in Crl.M.C.No.86 of 2025 is the 5th accused in O.R.No.3 of 2024. He was arrested on 21.11.2024 and at the request of the petitioners, the 2nd respondent was given to their custody from 23.11.2024 to 26.11.2024. Subsequently, the 2nd respondent submitted Annexure B complaint to the Magistrate on 17.12.2024, and the Magistrate issued notices to the petitioners under Section 223 (1) of B NSS .
3. Heard Advs.Babu S. Nair for the petitioners, Thomas J Anakallungal and Sreelakshmi Sabu for the accused. Adv.Nagaraj Narayanan, the Special Government Pleader (Forest) appeared for the State.
4. Learned counsel for the petitioners made the foll
