Judgment : Petitioner fourth accused in C.C.5/2006 on the file of Judicial First Class Magistrate Court-I, Sulthan Batheri (originally C.C.9/2004 on the file of Judicial First Class Magistrate II, Sulthan Batheri) filed this petition under section 482 of Code of Criminal Procedure to quash the cognizance taken as against him contending that being a Police Officer he is entitled to the protection under section 197(3) of Code of Criminal Procedure and cognizance could have been taken only on a sanction as provided under section 197(2) of the Code. Petitioner contended that while he was working as Sub Inspector of Police, Sulthan Batheri, there was a complaint that 800 members of Adivasi Gothra Mahasabha criminally trespassed into Ambukkuthi, within the reserve forest area of Muthanga Wild Life Sanctuary, on 5.1.2003 and out of them 300 persons later spread to Thakarappadi and another group to Ponkuzhi within the Wild Life Sanctuary, Muthanga. The members of Gothra Maha Sabha were armed with deadly weapons and created a fierce atmosphere by erecting check post and prevented the movement of forest officials. Forest fire broke out on 17.2.2003 at Thakarappadi near the occupied area of the adivasis. When the forest officials went there, they were captured and illegally detained. They were released only on 18.2.2003, at the intervention of District Administration. Crime 71/2003 of Bathery Police Station was registered for the offences under section 143, 147, 148, 447, 341, 324, 353 and 365 read with section 149 of Indian Penal Code and section 3(i)(ii) of PDPP Act. It is also contended that as decided, evicting members of the Gothra Maha Sabha from the Wild Life Sanctuary started at 6.30 a.m on 19.2.2003 at Thakarappadi. During the course, a fierce fight broke out between the members of the Gothra Maha Sabha and the police. Several police officials sustained injuries. Crime 78/2003 was registered for the offence under sections 143, 147, 148, 109, 120B, 332, 353 and 307 read with section 149 of Indian Penal Code. An isolated group of adivasi abducted three officials. One of them was seriously injured and abandoned in the forest. The two others were detained. Crime 77/2007 was registered for the offences under sections 143, 147, 148,342,357 and 364 read with section 149 of Indian Penal Code. It is contended that second respondent was 43rd accused in that crime. An isolated group of adivasi abducted three officials. One of them was seriously injured and abandoned in the forest. The two others were detained. Crime 77/2007 was registered for the offences under sections 143, 147, 148,342,357 and 364 read with section 149 of Indian Penal Code. It is contended that second respondent was 43rd accused in that crime. It is also alleged that in the attempt to rescue the detenues, adivasis killed one police constable and seriously injured the other. In the operation one adivasi was killed in the police firing. Crime 79/2003 was registered for the offences under section 143, 144, 145, 147, 148, 506 (ii), 353, 109 and 120B read with section 149 of Indian Penal Code. The second respondent was the third accused in that Crime. Crime 80/2003 was registered under section 143, 145, 147, 148, 120B, 109, 342, 364, 307 and 302 read with section 149 of Indian Penal Code. The second respondent was 41st accused in that crime. Second respondent was arrested on 22.2.2003 in connection with the said three crimes. He was produced before the Magistrate who remanded him to judicial custody. Annexure 1 complaint was filed by the second respondent before Judicial First Class Magistrate, Sulthan Bathery alleging that the five accused including the petitioner, committed offences under section 341, 342, 323 and 324 read with section 34 of Indian Penal Code. Learned Magistrate after conducting an inquiry under section 202 of Code of Criminal Procedure took cognizance of the offence under section 341, 342, 323 and 324 read with section 34 of Indian Penal Code in C.C.9/2004. It is that cognizance which is sought to be quashed by filing this petition. 2. Case of the petitioner is that the acts alleged against the petitioner are discharging his official duty as Sub Inspector and therefore he is entitled to the protection provided under section 197 (3)of Code of Criminal Procedure as held by the Apex Court in Sankaran Moitra v. Sadhna Das and another (2006) 4 CC 584. 3. Learned counsel appearing for the petitioner and second respondent, the complainant before the learned Magistrate, were heard. 4. 3. Learned counsel appearing for the petitioner and second respondent, the complainant before the learned Magistrate, were heard. 4. Learned counsel appearing for the petitioner pointed out that a reading of Annexure 1 complaint makes it absolutely clear that entire acts alleged against the petitioner were, even if were committed, in discharge of his official duty or in any case purporting to be in discharge of his official duty and therefore petitioner is entitled to the protection provided under section 197 of the Code and as the learned Magistrate could not have taken cognizance against the petitioner without sanction as provided under section 197 (2) of the Code the cognizance taken is to be quashed. 5. Learned counsel appearing for the second respondent argued that petitioner is not an officer who could be removed only by or with the sanction of the Government and therefore he is not entitled to the protection provided under sub section (1) of 197 of the Code. Learned counsel further argued that eventhough Explanatory Note to SRO 1211/77 issued by the Government under section 197(3) of the Code provides that members of Kerala Police Force are to be protected and Notification is therefore issued applicable only to members of Kerala State Police and to officers like Sub Inspector of Police, who are only members of Kerala Subordinate Services, and hence petitioner he is not entitled to the benefit of said Notification. Learned counsel then argued that even if petitioner is entitled to the protection, the offences alleged against him were not committed either in discharge of his official duty or purporting to be in discharge of his official duty. Learned counsel also argued that allegations raised in the complaint if appreciated properly, would show that it is in respect of two incidents, the first one when petitioner was taken from the office where he was discharging his duty, to the police station and later what transpired within the lock up of the police station. It was argued that even if the first could be said to be purporting to be in discharge of his official duty, the second incident cannot be in discharge of his official duty or purporting to be in discharge of his official duty. It was argued that even if the first could be said to be purporting to be in discharge of his official duty, the second incident cannot be in discharge of his official duty or purporting to be in discharge of his official duty. Learned counsel relying on the decision of the Supreme Court in Unnikrishnan v. Alikutty (2000(3) KLT 483)and Raj Kishor Roy v. Kamleshwar Pandey and another (2002) 6 SCC 543) argued that a Sub Inspector of Police is not entitled to torture an accused while in police custody and as the allegation is that he was beaten up mercilessly while in custody, the said Act can neither be in discharge of his official duty nor purporting to be in discharge of his official duty and therefore no sanction is necessary. Learned counsel argued that in any case question whether the acts alleged were committed in discharge of his official duty or purporting to be in discharge of his official duty could be decided only after recording the evidence and therefore the question of sanction is to be left open to be decided after recording the evidence, as has been done by the Apex Court in P.K. Pradhan v. State of Sikkim (2001) 6 SCC 704) and Raj Kishor Roy v. Kamleshwar Pandey and another (2002) 6 SCC 543).Learned counsel also argued that though the three Judges Bench in Sankaran Moitra's case (supra) laid down the principles to be applied, the decisions in Unnikrishnan's case (supra) and Raj Kishor Roy's case (supra) were not considered and in the light of the said decisions, petition can only be dismissed. 6. Learned counsel appearing for the petitioner pointed out that in Sankaran Moitra's case (supra) the Constitution Bench had considered the question whether cognizance could be taken in a case where sanction under section 197(1) of Code of Criminal Procedure is necessary and it was declared that as it is a condition precedent for taking cognizance, without sanction, cognizance cannot be taken. Learned counsel also pointed out that in the light of the Constitution Bench decision in Sankara Moitra's case (supra) which was delivered after discussing the entire law, the cognizance taken can only be quashed holding that sanction is necessary. 7. Learned counsel also pointed out that in the light of the Constitution Bench decision in Sankara Moitra's case (supra) which was delivered after discussing the entire law, the cognizance taken can only be quashed holding that sanction is necessary. 7. A reading of Annexure 1 complaint shows that the allegations raised by the second respondent is that on 22.2.2003 at about 10 a.m. while second respondent was attending his office, the District Institute of Education Training, Bathery, petitioner along with other police men came there and forcibly took him into custody and beat him in the presence of the members of the staff and the general public and thereafter took him to the police station. It is also alleged that after he was taken to the police station and kept in the lock up, he was tortured mercilessly. It is on that basis, a complaint was filed alleging that petitioner as well as the other accused committed the offences under sections 341, 342, 323 and 324 read with section 34 of Indian Penal Code. 8. It cannot be disputed that second respondent was taken into custody by the petitioner in his capacity as the Sub Inspector of Police. Petitioner was then brought to the police station. The said act could only be in discharge of his official duty, when second respondent was involved in three crimes registered by the police involving serious offences. The next allegation is that while second respondent was detained in the police lock up he was again tortured and injuries were inflicted. The question is whether this would be either in discharge of his official duty or purporting to be in discharge of his official duty. 9. The argument of the learned counsel appearing for the second respondent relying on the decision in Unnikrishnan's case is that it cannot be either in discharge of his official duty or purporting to be in discharge of his official duty. The Honourable Supreme Court in Unnikrishnan's case (supra) considered the question whether a police officer who assaults a prisoner inside a lock up can be said doing it in discharge of his authority or in exercise of his duty. It was held that it will not be in discharge of his authority or in exercise of his official duty, unless he establishes that he did such acts in his defence or in defence of others or any property. It was held that it will not be in discharge of his authority or in exercise of his official duty, unless he establishes that he did such acts in his defence or in defence of others or any property. It was also held that a policeman keeping a person in the lock up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority. On that basis it was held that Sub Inspector of Police in that case is not entitled to the protection provided under section 197 of Code of Criminal Procedure. The Honourable Supreme Court in Raj Kishor Roy's case (supra) considered the decision in Unnikrishnan's case and held that under section 197 of Code of Criminal Procedure, no protection has been granted to a public servant, if the act complained of is not in connection with the discharge of his duty or in exercise of his duty. Though these decisions were not considered by the Constitution Bench in Sankaran Moitra's case (supra), all other cases were elaborately considered. The following dictum in Rizwan Ahmed Javed Shaikh v. Jammal Patel (2001) 5 SCC 7) was quoted with approval. "The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer while acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected." Their Lordships has also taken note of the decision in Shreekantiah Ramayya Munipalli v. State of Bombay (1995(1) SCR 1177) where the scope of Section 197 was explained as:- "It is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning." Their Lordships after analysing the earlier decisions held:- "But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197 (1) of the Code could not be attracted." The Honourable Supreme Court in Pukhraj v. State of Rajasthan (AIR 1973 SC 2591) held:- "While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant." Therefore what is to be considered is whether the acts alleged against the petitioner were committed either in discharge of his official duty or purporting to be in discharge of his official duty. The importance is not on the nature of the act alleged, but whether the act alleged is done in discharge of his official duty or in purport of discharge of his official duty. If the act alleged is done either in discharge of his official duty or purporting to be in discharge of his official duty, the officer is entitled to get the protection as provided under section 197 (2) of Code of Criminal Procedure. 10. As stated earlier, the allegations in the complaint is to the effect that second respondent was taken into custody while he was attending his office and taken to the police station and while so he was beaten and tortured. Even if it is taken that petitioner is guilty of the acts which could only be in dereliction of his duty or in excess of the duty it cannot be disputed that it was done in discharge of his official duty or in any event purporting to be in discharge of his official duty. The question then is whether a distinction could be found in respect of the incident that allegedly took place in the police lock up. Though torturing an accused in custody cannot be justified and is never part of the official duty of a police officer, it cannot be said that the alleged act is not in discharge of his official duty as a Police Officer. It is also to be born in mind the very purpose of providing protection under section 197(2) of Code of Criminal Procedure is to protect a public servant from prosecuting for an act either done while discharging his official duty or purporting to be done in discharge of his official duty. It is also to be born in mind the very purpose of providing protection under section 197(2) of Code of Criminal Procedure is to protect a public servant from prosecuting for an act either done while discharging his official duty or purporting to be done in discharge of his official duty. Therefore if the act done is in discharge of his official duty, as it could only be, he is entitled to the protection provided under section 197(2) of Code of Criminal Procedure. There is no confusion with regard to the two sets of acts alleged in the complaint. It does not mean that if petitioner has committed those acts he cannot be prosecuted. He can be prosecuted only with the sanction as provided under section 197(2) of Code of Criminal Procedure. 11. Then the question is whether petitioner being a Sub Inspector of Police is entitled to the protection provided under section 197 (2) of the Code. Admittedly petitioner is not entitled to the protection provided under section 197(1) of the Code. He is claiming protection by virtue of sub section (3) of Section 197 of Code of Criminal Procedure and the Notification issued by the Government of Kerala by S.R.O No.1211/1977 dated 6.12. 1977, in exercise of the powers conferred by sub section (3) of Section 197 of the Code. By the Notification provisions of sub section (2) of Section 197 shall apply to all members of the Kerala State Police, charged with maintenance of public order. The argument of the learned counsel appearing for the second respondent is that the protection so afforded is only to members of Kerala State Police, and petitioner being a member of Kerala State Subordinate Service and not Kerala Police Service, is not entitled to the protection. Reliance was placed on the decision of this Court in M.J. Gorge v. S.I. of Police, Anthikad (1983 K.L.T 349). Reliance was placed on the decision of this Court in M.J. Gorge v. S.I. of Police, Anthikad (1983 K.L.T 349). In that case the learned Judge while considering whether Sub Inspector of Police is entitled to the protection under sub section (1) of Section 197, holding that a Sub Inspector of Police is not a member of Kerala Police Service but a member of Kerala Subordinate Police Service held that under the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, a Sub Inspector could be removed from service by an officer of the rank of Deputy Inspector General of Police and hence he is not an officer who could be removed only by the State Government as provided under sub section (1) of Section 197 of Code of Criminal Procedure. The question whether the Sub Inspector is a member of Kerala State Police was not considered in that decision, though there is a reference that Sub Inspector of Police is not a member of Kerala Police Service but a member of Kerala Subordinate Service. 12. Explanatory Note to S.R.O.1211/1977 reads:- "Section 197 of Criminal Procedure Code affords protection from false vexatious or mala fide prosecution to some categories of public servants in the shape of a requirement of previous sanction of the government concerned, when such public servants are accused of an offence, alleged to have been committed while acting or purporting to act in discharge of their official duties. The members of the armed forces of the union are so protected. Government consider that that members of the Kerala Police force who are charged with the maintenance of public order are also in need of similar protection, the notification is issued to achieve this objective. (underline supplied)." The notification provides that the provisions of sub section (2) of Section 197 of Code of Criminal Procedure shall apply to "all members of the Kerala Police force charged with maintenance order." The protection so provided is not for all members of Kerala State Police Service, so as to exclude members of the Kerala Subordinate Service but all members of the Kerala State Police. If that be so, the argument of the learned counsel appearing for the second respondent that the said Notification is not applicable to a Sub Inspector of Police cannot be accepted. If that be so, the argument of the learned counsel appearing for the second respondent that the said Notification is not applicable to a Sub Inspector of Police cannot be accepted. As the Sub Inspector of Police is definitely a member of the Kerala State Police, the protection of Section 197(2) is available to him. 13. The question whether protection provided under the Notification is available to a Sub Inspector is settled by various decisions of this court including in Muhammed v. Sasi (1985 KLT 404), Sarojini v. Prasannan (1996 (2) KLT 859, Sunil Kumar v. State of Kerala (2007(4) KLT 359), Moosa Vallikkadan v. State of Kerala (2010(3) KLT 437). Petitioner being a Sub Inspector of Police is entitled to the protection provided under sub section (2) of Section 197 of Code of Criminal Procedure by virtue of S.R.O. 1211/1977. Hence learned Magistrate could not have taken cognizance of the offence against the petitioner without a sanction provided under sub section (2) of Section 197 of Code of Criminal Procedure. Cognizance taken against the petitioner can only be quashed. Petition is allowed. Cognizance taken against the petitioner in C.C.9/2004 by Judicial First Class Magistrate II, Sulthan Bathery now pending as C.C.5/2006 on the file of Judicial First Class Magistrate Court-I, Sulthan Batheri is quashed. It is made clear that on getting sanction under section 197(2) of Code of Criminal Procedure, petitioner could be prosecuted.