A Sub Inspector of Police is not automatically entitled to protection under Section 197 of Cr.P.C. unless specific conditions related to their official duties are met.

J U D G M E N T

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The petitioner herein is the complainant in C.C. No.1603 of 2014 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram. He is aggrieved by Annexure-II order passed by the learned Magistrate, as per which, the court below refused to take cognizance as against the 7th accused in the crime for want of prosecution sanction under Section 197 (1) of the Cr.P.C.

2. The allegation as per the prosecution case is that, the petitioner had filed a Suit before the Civil Court and obtained an order of injunction in his favour. The defendants in the Suit were restrained from interfering with the peaceful possession and enjoyment of the petitioner over the property owned and possessed by him. On 06.09.2011, by violating the order of injunction, accused Nos.1 to 6 are alleged to have trespassed into the residential home of the de facto complainant and threatened him as well as his workers and forced them to demolish the car shed, which was built by him. The 7th accused, who was the then territorial Sub Inspector of Police, is alleged to have aided and abetted accused Nos.1 to 6.

3. The petitioner filed C.M.P. No.2618 of 2011 before the learned Magistrate. The sworn statements of the petitioner and the witnesses were recorded and the learned Magistrate took cognizance of the offence under Sections 143, 147, 447, 348 and 427 read with Section 149 of the Indian Penal Code as against accused Nos.1 to 6. However, owing to the failure of the petitioner herein to produce prosecution sanction under Section 197 of the Code of Criminal Procedure, cognizance was not taken as against the 7th accused.

4. Sri.Sooraj T. Elenjickal, the learned counsel appearing for the petitioner, submitted that the 7th respondent, at the relevant point of time, was working as a Sub Inspector of Police, Peroorkada Police Station, belonging to the Kerala Subordinate Police Service. The power to dismiss or remove the officer such as the 7th respondent has been conferred, under the relevant provisions in the Kerala Police Act and Rules, upon the IG, DIG, AIG and the Superintendent of Police. It is urged that the 7th respondent is, therefore, not a public servant not removable from office save with the previous sanction of the State Government and hence, the benefit of sub clause (b) of Section 197 cannot be claimed by him. He would point out that the notification dated 16.12.1977 issued by the Government would also not apply in the instant case as the prosecution has no case that the 7th respondent was charged with the maintenance of public order. To substantiate his contention, the learned counsel would rely onSarojini v. Prasannan [ 1996(2) KLT 859 ], wherein a Division Bench of this Court had occasion to hold that a Sub Inspector of Police cannot claim benefits under Section 197 (1) of the Cr.P.C. Reliance is also placed on a decision of this Court inHarikumar B. v. Suresh @ Karuppooru Suresh and Another [ 2014 (2) KHC 632 ], wherein a learned Single Judge of this Court had occasion to consider the same question and it was held that the protection under Section 197 cannot be availed by a Sub Inspector of Police.

5. The learned counsel would then argue relying on a decision of the Apex Court inK.Kaalimuthu v. State [ (2005) 4 SCC 512 ] that the question relating to sanction is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. The question may arise at any stage of the proceeding. It is submitted that the question whether sanction is necessary or not may have to be determined from stage to stage. He would also refer to the decisions of this Court in Venkitachalam K.R. and others v.State and Another [ 2011 (4) KLT 222 ] andAbdul Rahiman v. State of Kerala and Another [ 2018 (1) KHC 19 ] and contended that the question of sanction can be raised at any time and even at the stage of framing of charges.

6. I have heard the learned Government Pleader. Though noti