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2014 DIGILAW 246 (KER)

Harikumar v. Suresh

2014-03-14

P.D.RAJAN

body2014
ORDER : P.D. Rajan, J. This petition is filed under section 482 of Code of Criminal Procedure (for short 'Code') to quash Annexure E complaint pending before Judicial First Class Magistrate II, Nedumangad by invoking inherent powers. The first respondent filed a complaint against the petitioner for offences punishable under Section 341 and 323 I.P.C. and under Section 3(1)VIII, IX, X and 3(2)VII of the Scheduled Caste and Scheduled Tribe Prevention of Atrocities Act, 1986. But the learned Magistrate took cognizance for offence punishable under Section 341, 323 I.P.C. alone. While petitioner was working as the Sub Inspector of Police, Nedumangad Police Station, the first respondent filed a complaint against him for an incident occurred during the discharge of his official duty. According to the petitioner proper sanction from the State Government is necessary for taking cognizance of the offence and if trial is proceeded without sanction, it is a mere abuse of the process of court. 2. The allegation of the first respondent before the Judicial First Class Magistrate II, Nedumangad was that on 17.2.2007 at 6.15 pm, he was travelling in a motor cycle, when he reached at Kacheri junction in front of Nedumangad Police Station, petitioner rushed towards him calling obscene words, obstructed the motor cycle and thereafter assaulted him and he sustained injuries. Subsequently, he was arrested and produced before court and as per the direction of the learned Magistrate, he was treated in the Government Fort Hospital, Kottakkakam. For the aforesaid incident, first respondent filed Annexure E complaint before Judicial First Class Magistrate Court II, Nedumangad. In the circumstance, petitioner approached this court to invoke the inherent jurisdiction. 3. Learned counsel appearing for the petitioner contended that cognizance of the offence was taken by the learned Magistrate without a sanction under Section 197 Cr.P.C. Petitioner was admitted in a hospital at the relevant time, due to the act of the 1st respondent which is clear from Annexure C wound certificate and for that incident Annexure D FIR was registered against him. The allegations show that false and frivolous complaint was filed to wreck personal vengeance against him. The allegations show that false and frivolous complaint was filed to wreck personal vengeance against him. Learned counsel relied on decisions reported in Sankaran Moitra v. Sadhna Das and another ( 2006(4) SCC 584 ), Moosa Vallikkadan v. State of Kerala and another ( 2010(3) KLT 437 ), Balachandran and others v. State of Kerala and others ( 2012(3) KHC 328 ) and Rizvan Ahmed v. Jammal Patel (2001 KHC 636). 4. Learned Public Prosecutor contended that whether the petitioner was in discharge of his official duty is a matter of evidence. No duty certificate or any other related documents were produced along with this petition to show that he was discharging his official duty and charged with maintenance of public order at the relevant time. Without furnishing those details, petitioner is not entitled to get the benefit of Section 197 Cr.P.C. 5. Before analysing the respective contentions, I wish to advert to the relevant section. Section 197 is an exception to the common rule that any person having knowledge of the commission of an offence may set the law in motion even though he is not personally affected. This section, as a matter of policy, impose limitations on the unfettered powers of the Magistrate under Section 190 Cr.P.C. In order to attract 197 Cr.P.C, it is necessary that accused person must have committed the offence while acting or purporting to act in the discharge of his official duty. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" under section 197(1) of the Code is very relevant. This protection is given to any person who is or was a Judge, or Magistrate or a public servant not removable from his office save by or with sanction of Government accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Therefore the Government employees (both State and Central) mentioned under section 197(1)(a)(b) of the Code if their employment is in connection with affairs of Union or State Governments while alleged to have committed any offence are entitled to get this protection. Therefore the Government employees (both State and Central) mentioned under section 197(1)(a)(b) of the Code if their employment is in connection with affairs of Union or State Governments while alleged to have committed any offence are entitled to get this protection. The members of armed forces are protected under Section 197(2) of the Code and this protection has been extended under Section 197(3) of the Code to the members of the force charged with the maintenance of public order where ever they may be serving, the state Government may by issuing a notification, specify such class or category as mentioned under section 197(3) of the Code. 6. The relevant portion of the Section 197 Cr.P.C. reads thus:- "Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction - (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government, provided xxxxxxx (omitted) (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply o such class or category of the members of the Forces charged with the maintenance of public order, as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression " Central Government" occurring therein, the expression "State Government" were substituted. (3A) xxxxxxx (omitted) (3B) xxxxxxx (omitted) (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held". 7. The object behind Section 197 of the Code is to guard some proceedings against a public servant by obtaining permission of the Government or superior officer for prosecution. The verdict of the constitution bench of the Apex Court in K.Satwant Singh v. State of Punjab ( AIR 1960 SC 266 ) is very relevant which held as follows. (Supreme Court criminal Digest Vol.iv-11321) "Some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe and offence punishable under Section 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. Supreme Court has no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences. H was not prosecuted for any offence concerning his act of certification. He was prosecuted for abetting the accused to cheat. His offence was not one committed by him while acting or purporting to act in the discharge of his official duty. Therefore provisions of Section 197 of the Code are inapplicable even if H be regarded as a public servant who was removable from his office by the Governor-General in Council or a Provincial Government". 8. The question regarding when Government sanction was called for, the object, nature and scope of Section 197 Cr.P.C. was explained by Apex Court in Puk Raj v. State of Rajasthan (1973 SCC Crl. 944) ibid (11308). It was held as follows:- "The intention behind Section 197 of Cr.P.C. is to prevent public servants from being unnecessarily harassed. 8. The question regarding when Government sanction was called for, the object, nature and scope of Section 197 Cr.P.C. was explained by Apex Court in Puk Raj v. State of Rajasthan (1973 SCC Crl. 944) ibid (11308). It was held as follows:- "The intention behind Section 197 of Cr.P.C. 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 the execution of duty. There must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of the performance of his duty. The mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction. Facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case. It would be open to the accused to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197 Cr.P.C.". 9. It would be open to the accused to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197 Cr.P.C.". 9. The first leading decision of the Apex Court on this point was held in Shree Kantiah Ramayya Munipalli v. State of Bombay ( 1955 (1) SCR 1177 : AIR 1955 SC 287 ) in which their Lordships relied the decision of the Privy Council in H.H.B. Gill v. King ( AIR 1948 PC 128 ) (six Judges Bench). The question of sanction under section 197 (1) Criminal Procedure Code (1898) came up before Privy Council in H.H.B. Gill's case (supra) Lord Simonds discussed the difference between Section 270 of the Government of India Act 1935 and Section 197(1) of Code of Criminal Procedure 1898, in which the term " while acting or purporting to act in the discharge of his official duty" was considered. In this decision, Privy Council approved two decisions of the Federal Court reported in Hori Ram Singh's case (AIR 1939 FC 43) and Hectors case (AIR 1944 FC 66) and held as under:- "The words "in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown" in section 270, Government of India Act 1935, have precisely the same connotation as the words in Section 197(1) 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. No temporal meaning should be given to the words in Section 197 while acting, etc'. It is therefore impossible to differentiate between the two sections. "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge receiving a bribe, though the officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. Thus a Judge neither acts nor purports to act as a Judge receiving a bribe, though the officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. A public servant charged with an offence under Section 120B read with Section 161, Penal Code cannot justify his act of receiving bribe as an act done by him by virtue of the office that he held. No sanction under Section 197 is therefore necessary for the institution of proceedings against a public servant or an offence under Section 120B read with Section 161, Penal Code". Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged of the authorities, their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited in Hori Ram Singh's case, think it sufficient to say that in their opinion no sanction under Section 197 (new) of the Code of Criminal Procedure was needed". Again in Amrik Singh v. State of Pepsu [ AIR 1955 SC 309 ] Apex Court held that it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) Cr.P.C., nor every act done by him while he is actually engaged in the performance of his official duties, so that, if questioned, it could be claimed to have been done by virtue of the office. It is only when the act complained of is directly connected with his official duties that sanction is necessary." 10. Now the question is whether the protection under section 197 of the Code is extended to all category of officers or it ensure the dignity of high placed Government servants alone. For this I may refer the 41st Law Commission Report, in which they discussed the object and scope of Section 197 of the Code as follows. 15.115." the object being to enable the more important categories of public servants performing onerous and responsible functions to act fearlessly by protecting them from false, vexatious or mala fide prosecutions. 15.121. For this I may refer the 41st Law Commission Report, in which they discussed the object and scope of Section 197 of the Code as follows. 15.115." the object being to enable the more important categories of public servants performing onerous and responsible functions to act fearlessly by protecting them from false, vexatious or mala fide prosecutions. 15.121. " The public servants now protected by section 197 are, broadly speaking, those Government servants in the higher grade with more responsible and onerous duties to perform and hence requiring to be protected from vexatious prosecutions which would be highly detrimental to the administrative work of Government. There is, in our opinion, no need to extend this protection to other categories of Government servants. (underlined by me). 15.125. Sub-section (2) of section 197 may be retained - Sub-section (2) empowers a Government not only to determine the person by whom the manner in which, and the offence or offences for which, the prosecution of the public servant is to be conducted, but also to specify the Court before which the trial of the public servant is to be held. It is presumably to ensure that the dignity of high-placed Government servant is maintained and that he is not compelled to undergo the embarrassment of a trial by junior and inexperienced magistrates. There appears to be no harm in retaining the sub-section without any modification". Therefore the intention of the legislature is to ensure the dignity of high placed Government servants and he is not compelled to be embarrassed of a trial by junior magistrates. In this context, in Matajog Dobey v. HC Bhari ( AIR 1956 SC 44 ) the Apex Court held that Article 14 does not render Section 197 Cr.P.C. 'ultra vires' as the discrimination is based upon a rational classification. However, under section 197, there is a distinction between public servants removable by or with the sanction of the Government and removable by lesser appointing authority. The Government by virtue of such delegation of powers to subordinate officers has given power to remove certain officers by Government in another way through that authority. Therefore, it is the policy of the legislature to make protection to such category of officers alone. The Government by virtue of such delegation of powers to subordinate officers has given power to remove certain officers by Government in another way through that authority. Therefore, it is the policy of the legislature to make protection to such category of officers alone. This provision has been interpreted by the Federal Court in Afzalur Rahman v. Emperor (AIR 1943 FC 18): 1943(44) Crl.LJ 466 and held that "The appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences". The object of Section 197(1) clearly is to save public servants from frivolous prosecution. 11. In Bhagavan Prasad Srivastava v. N.P. Misra ( AIR 1970 SC 1661 ), apex court held as follows:- "It is not the "duty" which requires examination so much at the "act" because the official act can be performed both in the discharge of an official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional set-up, the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition is above the law, and every official from the highest down to the lowest is under the same responsibility for every act done without legal jurisdiction as any other citizen. In construing Section 197 Cr.P.C., therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties". 12. A three Judge bench decision in Nagraj v. State of Mysore ( AIR 1964 SC 269 ) held as follows:- "12. It is clear that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under Sections 127 and 128 of the Code and in so doing committed some offence complained of, the Court will not entertain the complaint unless it appears that the State Government had sanctioned the prosecution of the police officer. If the allegations in the complaint do not indicate such facts, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person. 13. The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police officer complained of appears to come within the provisions of Sections 127 and 128 of the Act. This can be either when the accused appears before the Court and makes such a suggestion or when evidence or circumstances prima facie show it. The mere suggestion of the accused will not, however, be sufficient for the Court to hold that sanction was necessary. The Court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under Sections 127 and 128 of the Code. (underlined by me). 14. It is contended for the appellant that if the question of sanction is not decided in the very first instance when a complaint is filed or when the accused alleges that he could not be prosecuted for the alleged offences without the sanction of Government in view of Section 132 of the Code, the protection given by this section will be nugatory as the object of giving this protection is that the police officer be not harassed by any frivolous complaint. There may be some such harassment of the accused, but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. There may be some such harassment of the accused, but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. Just as a complaint is likely to omit mentioning the facts which would necessitate the sanction of Government before he can prosecute the accused, the accused too is likely to make such allegations which may lead to the rejection of the complaint for want of sanction. It is well settled that the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. 15. In this connection reference may be appropriately made to the observations of this Court in connection with prosecution to which the provisions of Section 197 of the Code apply. In Matajog Dobey v. H. C. Bhari, 1955-2 SCR 925 : ((S) AIR 1956 SC 44 ) it was said at p. 935 : (of SCR) : (at p. 50 of AIR) : "The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case." It follows, therefore, that the contention that a police officer cannot be prosecuted without the sanction from the State Government for an offence which he alleges to have taken place during the course of his performing the duties under Chap. IX of the Code cannot be accepted. His mere allegation will not suffice for the purpose and will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complaint". (underlined by me) 13. IX of the Code cannot be accepted. His mere allegation will not suffice for the purpose and will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complaint". (underlined by me) 13. In P. Arulswami v. State of Madras ( 1967(1) SCR 201 : AIR 1967 SC 776 ), it is held that "it is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted". In B.Saha v. M.S. Kochar ( 1979 (4) SCC 177 ) Apex Court held that for the application of Section 197 of the Code, there must be direct and reasonable nexus between the offence committed and the discharge of official duty. 14. In K. Kalimuthu v. State ( 2005(4) SCC 512 ) Apex Court held that the protection given under Section 197 of the Code is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. 15. In Sankaran Moitra v. Sadhana das and another [ 2006(4) SCC 584 ] the Apex court held that if the act complained of is an offence, it must necessarily be not in execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is, in the discharge of an official duty. 16. In Romesh Lal Jain v. Nagindar Singh Rana [AIR 2006 SC 336] An order of sanction in terms of Section 197 Cr. P. C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the Court cannot consider the same at a later stage. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the Court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined. The question as to whether an order of sanction would be found essential would, thus, depend upon the facts and circumstances of each case. In a case where ex facie no order of sanction has been issued when it is admittedly a pre-requisite for taking cognizance of the offences or where such an order apparently has been passed by the authority not competent therefor, the Court may take note thereof at the outset. But where the validity or otherwise of an order of sanction is required to be considered having regard to the facts and circumstances of the case and furthermore when a contention has to be gone into as to whether the act alleged against the accused has any direct nexus with the discharge of his official act, it may be permissible in a given situation for the Court to examine the said question at a later stage. (Paras 37, 42) 17. In M.J. George P.C. v. S.I. of Police, Anthikad [ 1983 KLT 349 ], this Court held as follows: "There is nothing in the provisions of the Kerala Police Act or the rules requiring previous sanction of the Government before a D.I.G. Of Police or Inspector General of Police could remove from service a Sub Inspector of Police. In M.J. George P.C. v. S.I. of Police, Anthikad [ 1983 KLT 349 ], this Court held as follows: "There is nothing in the provisions of the Kerala Police Act or the rules requiring previous sanction of the Government before a D.I.G. Of Police or Inspector General of Police could remove from service a Sub Inspector of Police. It is thus clear that a Sub Inspector of Police, though a public servant, is not one who is "not removable from his office save by or with the sanction of the Government." Therefore, the provision in sub-s(1) of Section 197 of the Code does not apply in the case of prosecution launched against a Sub Inspector of Police under the State Government." This decision was followed by this court in Muhamed v. Sasi ( 1985 KLT 404 ) and held that head constables and police constables are not public servants mentioned under section 197(1) of the Code and sanction is not required to prosecute them. Therefore the decision in M.J. George v. S.I of Police, Anthikkad ( 1983 KLT 349 ) and in Muhammed v. Sasi ( 1985 KLT 404 ), are accepted and I can conclude that Sub Inspector of Police, Head Constable and Constable of Kerala police are not public servants removable from office save by or with the sanction of the Government and sanction is not required to prosecute them even if the act were done while acting or purporting to act in discharge of their official duties. 18. Therefore, the intention of the legislature under section 197(1) of the Code is to ensure the dignity of the highly placed Government servants save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty alone is protected. In order to attract 197 (1) of the Code, two things must co-exist. Firstly, the person must be a public servant not removable from office save by or with the sanction of Government. Secondly the act must have been committed by such a person acting or purporting to act in the discharge of his official duty. Therefore, it is clear that Section 197(1) and 197(2) of the Code are independent of each other. The second condition is common in Section 197(1)(2). Secondly the act must have been committed by such a person acting or purporting to act in the discharge of his official duty. Therefore, it is clear that Section 197(1) and 197(2) of the Code are independent of each other. The second condition is common in Section 197(1)(2). This means that the officers of the Government in higher grade vested with more responsible and onerous duties has to be protected from vexatious prosecution which would be detrimental to their administrative work. There are public servants removable by lesser authority by virtue of delegation of power by Government to subordinate officers. Therefore, in my opinion, those officers removable by lesser Government authority are not protected under section 197(1) of the Code. Petitioner was the Sub Inspector of police, Nedumangad at the relevant time. Though he is a public servant, but not one removable by Government under section 197(1) of the Code and no sanction of the Government is necessary to prosecute him there is no need to extend this protection to the Sub Inspector of police. 19. The petitioner contended that on 17.2.2007, there was a political agitation organised by the CPM in protest to the escalation of price of food grains. On that day, after 6 pm, the petitioner was on duty at Kacheri Junction with other policemen. At that time, first respondent came there in a motorcycle bearing registration No. KL 16A 2629 at Satram Junction in a rash and negligent manner and hit against the petitioner, as a result, he sustained serious injury. Immediately, he was removed to Taluk Headquarters Hospital, Nedumangad and for that incident, Nedumangad Police registered Crime No. 141/2007 of Nedumangad Police Station under Section 332 I.P.C. Annexure A3 is the wound certificate. Annexure A4 is the FIR. Since he is discharging official duty as per a public order, he is entitled to get the protection under section 197(2) and 197(3) of the Code. But no documents are produced by the petitioner to show that he was discharging public duty according to a public order. 20. Now I wish to consider whether the petitioner was charged with the maintenance of any public order. But no documents are produced by the petitioner to show that he was discharging public duty according to a public order. 20. Now I wish to consider whether the petitioner was charged with the maintenance of any public order. Learned counsel for the petitioner brought a Government notification dated 6.12.1977, which reads as follows:- "In exercise of the powers conferred by Sub-section (3) of section 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Kerala hereby direct that the provisions of sub-section (2) of the said section shall apply to all members of the Kerala State Police, charged with the maintenance of public order". " Explanatory Note "S.197 of the Criminal Procedure Code affords protection from false, vexatious or malafide prosecutions to some categories of public servants in the shape of 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 the discharge of their official duties. The members of the Armed Forces of the Union are also protected. Government consider 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". 21. From the above explanation given by the State Government, it is clear that the members of the Kerala Police Force, who are charged with maintenance of public order are also given protection under Section 197(3) of the Code. This must have expressly been made in the explanatory note in order to avoid confusion between public order and law and order. Under Section 197(3) of the Code, the officers charged with public order alone is protected and not the person in charge of law and order. Therefore the notification issued under Section 197(3) of the Code is to get the benefit of Section 197(2) of the Code alone. Therefore, I am of the view that delegation of such power is restricted to public order alone. If petitioner claims the protection under the above notification dated 6.12.1977, it is necessary that petitioner must be a police officer defined in the Kerala Police Act and charged with the maintenance of public order at the relevant time. Therefore, I am of the view that delegation of such power is restricted to public order alone. If petitioner claims the protection under the above notification dated 6.12.1977, it is necessary that petitioner must be a police officer defined in the Kerala Police Act and charged with the maintenance of public order at the relevant time. Protection of the notification issued under section 197 (3) was considered by the Apex Court in Romesh lal Jain v. Naginder Singh Rana and others [AIR 2006 SC 336] and held that the above notification has no application to the facts of the case. Further more petitioner was Sub Inspector of Police at the time of filing complaint and for his removal Government sanction is not necessary. 22. In Muhammed v. Sasi [ 1985 KLT 404 ], this Court explained the word "Law and order" and "public order" and observed as follows: "It is clear from the explanatory note to the Notification that the State Government considered that the members of the Kerala Police Force "who are charged with the maintenance of public Order" are also in need of the protection. It is clear that the State Government was not entitled to extend the protection to all the members of the Kerala Police Force without any discrimination. In fact it was not extended to all. section 197 (3) has to be read with Section 197(2). The power delegated is to extend the benefits under Section 197 (2) alone. The restriction is that the State Government can extend the protection only to a particular class or category of officers charged with maintenance of public order. That means the authority under the delegated power cannot be extended to any category of officers other than those specified therein. In fact the notification issued by the State Government was only within that restriction. Maintenance of public order is different from maintenance of law and order, "Public order" is an expression having wide connotation. It differs from law and order in relation to the reach of an act upon society. If the act affects only specified individuals, the problem created may only be law and order. But if it affects the tempo of the community life, it is prejudicial to maintenance of public order. It differs from law and order in relation to the reach of an act upon society. If the act affects only specified individuals, the problem created may only be law and order. But if it affects the tempo of the community life, it is prejudicial to maintenance of public order. Those who are responsible for national security or public order may have to be the sole judges to decide in any particular instance what national security and public order requires. That may be the reason why protection was intended to be given to them against vexatious prosecutions in preference to others. The accused persons in this case are only police officers attached to a local police station. There is nothing to show that they were charged with maintenance of public order. The notification was evidently not intended to give a blanket protection to all police personnel. If that be the case, the accused are not persons entitled to the protection under Section 197(2). They are only members of the Kerala Police Force charged with maintenance of law and order. Sanction required as per the notification read with Sections 197(2) and (3) is not applicable in their case." 23. The Constitution Bench of the apex court in Ram Manohar Lohia v. The State of Bihar and another ( AIR 1966 SC 740 ) discussed public order and held as follows in para 48: "Reliance is first placed upon a decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar, (AIR 1950 FC 59). The Constitution Bench of the apex court in Ram Manohar Lohia v. The State of Bihar and another ( AIR 1966 SC 740 ) discussed public order and held as follows in para 48: "Reliance is first placed upon a decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar, (AIR 1950 FC 59). Reference is also made to Romesh Thapar v. State of Madras, 1950 SCR 594 at p. 598 : ( AIR 1950 SC 124 at p. 127), where this Court dealing with the same subject matter also observed: "........"Public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established.....it must be taken that "public safety is used as a part of the wider concept of public order....." and referring to Entry in List III (Concurrent List) of the 7th Schedule of the Constitution which includes the "security of a State" and "maintenance of public order" as distinct topics of legislation, observed- "........The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are circulated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind." 49."....."Public order" is synonymous with public safety and tranquillity: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State..." 51. ...................... Does the expression "public order" take in every kind of disorders or only some of them ? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community of the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under R. 30 (1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances". 24. The expression 'public order' has a distinct implication and wide connotation. It always differs from law and order in a society. What I have to say is that each factual situation will have to be considered meticulously, and determine the question whether the acts affect individuals only a public at large. If it affect individual only, then it is a matter of law and order, but if it affects the community at large and there is a threat to the security of the State, it becomes a matter of public order. Evaluating the nexus between the offence alleged and the official duty by analysing the evidence brought on record cannot be done at the initial stage. The incidents responsible for the security of the society must be identified and those officers attending National security or public order may have to be protected. That may be the reason why such a provision has been made under section 197(3) of the Code. Petitioner has not produced any document to show that he was in charge with maintenance of public order. Therefore, benefit of the notification 197(2) and (3) of the Code is not eligible to the petitioner's case. 25. That may be the reason why such a provision has been made under section 197(3) of the Code. Petitioner has not produced any document to show that he was in charge with maintenance of public order. Therefore, benefit of the notification 197(2) and (3) of the Code is not eligible to the petitioner's case. 25. Petitioner is undoubtedly a public servant governed by the Kerala Police Act, but I am of the opinion that he is not a public servant not removable from his office save by or with the sanction of the Government. A person accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty alone is protected under section 197(1) of the Code. Petitioner has failed to produce relevant documents to get the benefit granted to the officers of the Kerala police force according to the notification issued under section 197(3) of the Code. In the absence of such documents, mere suggestion alone is not sufficient to extend the protection on the basis of "public order". The mere fact that the petitioner (accused) raised a defence that the act done in execution of duty would not sufficient to thrown out a case for want of sanction, but during the course of judicial enquiry or evidence during trial any facts coming to the light can establish want of sanction. It is well settled that the jurisdiction of the court come from the averment made in the complaint and not from what is stated by the accused. 26. Trial court took cognizance of the offence and issued process against the petitioner. The facts and circumstances show that this is not a fit case to invoke the inherent jurisdiction under section 482 of the Code at this stage. Petitioner is directed to approach the trial court for his defence contention with supporting documents regarding his claim. The contention advanced by the petitioner is a matter of evidence and if such a claim is put forward by the petitioner during trial with supporting documents like Government order or any other orders issued by superior officer, or entry in the general diary, learned Magistrate shall consider that application and dispose it of in accordance with law. There is no merit in the petition and it is accordingly dismissed.