'Torture' Not Part Of Police's Official Duty, No Sanction Required To Prosecute For Such Acts: Kerala High Court
Manju Elsa Isac
2 Dec 2024 9:45 AM IST
The Kerala High Court has held that a Magistrate Court can take cognizance in case of custodial torture by police office, without prior sanction of the State Government under Section 197(1) of CrPC.
Justice K. Babu reasoned that a Police Officer torturing a man in a police station cannot be treated as part of official duty, thus not requiring sanction to prosecute.
“How can we say that the act of a Police Officer physically torturing a man at the Police Station is to be treated as part of his official duty? The fundamental test appears to be that the accused can reasonably claim that what he did was by virtue of his office. The accused/ revision petition cannot claim that what her did was by virtue of his office.”
The allegation was that the Sub Inspector of Nilambur Police Office Station called the complainant to the station and physically assaulted him. A lady had given a complaint in the station that the complainant accused her in a public place. The complainant alleged that he was called to the station and was physically and verbally assaulted by the officer. The complainant's sister was also working in the same station at the time as a constable. The complainant said that when his sister tried to stop the police officer from assaulting, the sister was also assaulted. She was pregnant at the time.
The complainant said that the police officer fisted on his chest, hit his head against the wall and kicked his abdomen and chest. He got himself admitted to a Taluk Hospital. The discharge summary showed that he had pain in his abdominal area, contusion in his forehead and tenderness in his abdomen. The sister's discharge summary showed that she had pain in right lower part of abdomen
An FIR was registered in the police station in this matter the same day itself but it was labelled a 'false case' after the investigation by Deputy Superintendent of Police. At this point, the complainant filed a private complaint before the Jurisdictional Magistrate. The police officer accused was then booked for offences under Section 294 (b) (uttering obscene words), 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapon or means), 341 (wrongful restraint) of IPC.
The officer challenged the Magistrate taking cognizance of the offence saying that there was no sanction of Government under Section 197(1) of Cr.P.C. The Magistrate dismissed the challenge. The officer approached the High Court.
For context, as per Section 197 of Cr.PC, a court cannot take cognizance of an offence done by an officer of certain forces having the charge of maintenance of public duty for acts done while discharging his official duty without the sanction of State Government. By a notification, issued by the Kerala State in 1977 such immunity is given to members of Kerala Police having the duty of maintenance of public order.
The High Court observed that the alleged acts would not fall within the range of his official duties. It said,
"The fundamental test appears to be that the accused can reasonably claim that what he did was by virtue of his office. The accused/revision petitioner cannot claim that what he did was by virtue of his office. It is the quality of the act that is important. The alleged acts, at any rate, would not fall within the scope and range of his official duties. Therefore, he is not entitled to the protection contemplated under Section 197 Cr.PC."
Accordingly, the petition was dismissed.
Case No: Crl. Rev. Pet. 86 of 2015
Case Title: C. Alavi v The State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 766
Click Here To Read/ Download Order
