ABDULLA MUHAMMED Vs. PARAMASIVAN NAIR
HIGH COURT OF KERALA
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(1.)THIS revision petition is filed against the order in c. C. No. 199 of 1963 passed by the Ernakulam Sub Magistrate on the preliminary objection raised by the Circle Inspector of Police who is the accused in that case. The complainant's case is that on 12 31963 at about 8 P. M. when the car in which he was travelling was parked on the Shunmugham Road near the Ernakulam general Post Office the accused made his appearance suddenly and asked him to remove the car from the place forthwith and called him abusive names. The complainant pleaded inability to remove the car as the person who was driving the car had gone to purchase cigarettes. Again the accused abused him and when the complainant talked about taking legal action, he attempted to assault him. Then the accused arrested the complainant and asked two police constables to take him to the police station. He was taken to the North Police Station where the accused got him into the Sub Inspector's room and fisted him on the chest and hit him with a stick thereby committing the offences punishable under s. 294,504,506-1 and 323 I. P. C.
(2.)THE complaint was filed on 18 21963 after he was discharged from the hospital on the 17th. THE accused filed a petition in the trial court wherein he stated that since the allegations in the complaint relate to offences alleged to have been committed by him while acting or purporting to act in the discharge of his official duties; the court had no jurisdiction to take cognizance of the offence in the absence of Government sanction as provided for in S. 197 Criminal Procedure Code. In that petition he has referred to the case registered against the complainant as Crime No. 37 of 1963 of the Ernakulam Police Station under S. 290,353 and 224 I. P. C. read along with ss. 29 (d) and (m) and S. 52 of the Kerala Police Act (Act V of 1961 ). THE charge against the complainant is that he parked the car on the Shunmugham road near the Menaka THEatre at Ernakulam and caused obstruction, inconvenience and annoyance to the vehicular traffic and also to the pedestrians. When the accused in this case asked the complainant to remove the car and park it nearer to the side of the road as to cause no inconvenience to the public he failed to obey and when the accused attempted to remove the car to the road side, the complainant offered resistance and obstructed. THE accused then arrested the complainant and when the complainant tried to escape from the custody he was removed to the police station with the help of two police constables. Arguments were heard and relying on the decision of the Supreme Court in Matajog Dobey v. H. C. Bhari AIR. 1956 SC. 44 & the T. C. High Court in Appu Kesavan v. V. G. Parameswaran 1952 KLT. 419 the learned Magistrate held that as the accused was acting or purporting to act in the discharge of his official duties sanction was necessary and dismissed the complaint.
The only question to be decided is whether the alleged offences viz. , abusing and threatening to assault the complainant on the road and assaulting him in the police station can be said to have been committed by the accused while acting or purporting to act in the discharge of his official duties. The learned counsel for the complainant argued that the Magistrate was misled by relying on the T. C. decision in Appu Kesavan v. V. G. Parameswaran 1952 KLT. 419 which was dissented from in the subsequent Full Bench decision of the same court in Appran v. Mohamed Kunju 1953 Criminal Law Journal 966 (1953 klt. 57) and cited other decisions as well in support of his contention that the accused cannot be said to have acted or purported to have acted in the discharge of his official duties when he abused & assaulted the complainant. It is not necessary for me to go into those decisions when the matter is covered by the pronouncement of the Supreme Court in Matajog Dobey v. H. C. Bhari (AIR. 1956 S. C. 44) which is applicable to the facts of this case and which has been followed by this court in Krishna Pillai v. Sadasivan Pillai 1963 (I) Crl. L. J. 53. In the Supreme Court case a businessman complained that certain Income tax Officers and policemen, during a raid on his premises "held him down, assaulted him mercilessly, kicked and dragged him downstairs, put him in a police van and took him to the Thana where he was assaulted again before he was sent to the hospital. " In answer to the contention of the complainant that an act of criminal assault or wrongful confinement can never be regarded as an act done while acting or purporting to act in the discharge of official duties, their Lordships observed that "the belief that they had a right to get rid of the obstruction by binding down the complainants or removing them from the place might be mistaken, but, surely it could not be said that their act was necessarily mala fide & so entirely divorced from or unconnected with the discharge of their duty that it was an independent act maliciously done or perpetrated. They could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be well-founded or not" and held that it was an obvious case for sanction. It is further observed that "it may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject matter for enquiry during the proceedings; it would not make the act of removal improper or unlawful. "
In this case where there is no allegation that there was any case of previous misunderstanding or ill-will between the complainant and the accused and it cannot be disputed that the accused had the power to cause the obstruction to be removed and to arrest the complainant and take him to the police station it can justifiably be held that strong language or even force is not entirely unconnected with the exercise of such powers. The accused may have overstepped the bounds of propriety in using abusive language instead of strong language or in employing force to the extent of causing of slight hurt to the complainant. These acts if proved are no doubt reprehensible but they will not deprive the accused of the protection afforded by S. 197 Cr. P. C.
(3.)HENCE the order of the learned Magistrate is confirmed and the revision petition is dismissed. Dismissed.
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