Police Cannot Claim Exemption Saying Assault Of Accused Is Part Of Official Duty: Kerala HC
It has certainly become very rare that happens once in a blue moon to the best of my knowledge that one gets to rarely read the High Courts and Supreme Court coming down very heavily on the ruthless, remorseless and roguish manner in which police physically assaults anyone without any fear of being held accountable under the law of the land by virtue of having the blessings of political patronage of ruling elite in any State. How lawyers who are officers of the court were not just lathicharged right inside court premises rather even chairs had been thrown on them like a weapon by police on practising lawyers on October 29, 2024 in Ghaziabad in West UP something that did not happen with Pakistani dreaded terrorist like Mohammad Ajmal Amir Kasab nor with rapists or gang rapists or dacoits or murderers which is definitely a matter of profound concern was witnessed by all as news channels flashed them in prime time yet we see after more than a month neither the Supreme Court nor even the Allahabad High Court has taken suo motu cognizance which makes me hang my head in shame! If a child is slapped in school, we see Supreme Court takes suo motu cognizance but in Ghaziabad incident, we see nothing happening not even a whimper of protest from the Supreme Court itself which is definitely most disgusting to watch as lawyers are officers of court and this is thus a direct assault on the court itself!
Most recently, we saw how most courageously, most correctly and most convincingly, the Kerala High Court at Ernakulam in a most learned, laudable, landmark, logical and latest judgment titled C Alavi vs State of Kerala & Anr in Crl. Rev. Pet. No. 86 of 2015 and cited in Neutral Citation No.: 2024:KER:89173 and pertaining to Crime No. 446/2008 of Nilambur Police Station, Malappuram against the order/judgment dated 06.01.2015 in CC No. 322 of 2011 of Judicial Magistrate of First Class, Nilambur that came up for admission n 27.11.2024 and pronounced on same day minced absolutely just no words to hold in no uncertain terms most unequivocally that a police officer accused of assaulting a citizen at a police station cannot claim protection from prosecution under Section 197 of the Code of Criminal Procedure (CrPC). It must be added that the Single Judge Bench comprising of Hon’ble Mr Justice K Babu very rationally quipped that, “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 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 CrPC.” Absolutely right!
To put it differently, the Bench made it absolutely clear that acts of physical torture and so also abuse by a police officer has no connection to his official duties to claim such protection, since Section 197 of CrPC only protects public servants in respect of acts that are part of their official duties. It must be borne in mind that the Bench made this key observation while dismissing a plea that was filed by a policeman against a cognizance of a private complaint filed against him on allegations that he tortured a man who was summoned to a police station. What also must be noted is that the petition before the Court was filed by a Sub-Inspector (SI) posted at the Nilambur Police Station and stemmed primarily from an incident that took place in 2008.
The SI is alleged to have summoned a man to the station after a woman accused the latter of publicly abusing her. We must note that after the man reached the station, the police officer allegedly used abusive language and assaulted him by hitting his head against a wall, kicking him in the abdomen and chest and punching his chest. The man’s sister, a woman police constable at the same station tried to intervene but to no avail.
On the same day, the Assistant Sub Inspector of Police, Nilambur filed a case against the SI. However, the Deputy Superintendent of Police eventually filed a “false case” report. We see then that aggrieved by this, the man (complainant) who was allegedly attacked by the policeman, pursued a private complaint before a Magistrate. Of course, the Magistrate then while taking the right step in the right direction took cognizance of the complaint and the officer was charged under Sections 294(b) (obscene words), 323 (causing hurt), 324 (causing hurt with dangerous means) and 341 (wrongful restraint) of the Indian Penal Code (IPC).
It has to be definitely taken into account that the Kerala High Court concurred with the complainant’s stance that acts of assault were unrelated to the officer’s official duties and thus fell outside the ambit of Section 197. The Bench also for sake of clarity added stating that the accused cop would also not be protected by a 1977 notification issued by the Kerala State Government to protect police officers for acts done to maintain public order or as part of law enforcement. We thus see that the Kerala High Court rejected the police officer’s petition and upheld the Magistrate’s decision to frame charges against him. It is thus entirely in the fitness of things that the Kerala High Court very rightly concluded that the police officer was not entitled to the protection provided under Section 197 of Cr.PC.
At the very outset, this robust, rational, remarkable and recent judgment sets the ball in motion by first and foremost putting forth in para 1 that, “The revision petitioner, who was the Sub Inspector of Police, Nilambur Police Station, is the accused in C.C.No. 322 of 2011 on the file of the Judicial First Class Magistrate Court, Nilambur. The Calendar Case was registered based on a complaint filed by respondent No.2 alleging that on 28.07.2008, the revision petitioner committed the offences punishable under Sections 294(b), 323, 324 and 341 IPC.”
It is worth noting that the Bench notes in para 25 that, “Now, I shall consider the allegations levelled against the revision petitioner/accused. The complainant was summoned to the Police Station pursuant to a complaint filed by one Smt. Daisy Mathai. He reached the Police Station in response to the summons at 4.30 pm. He waited till the lady and her husband came there at 8.00 pm. The accused-Inspector also came there. He showered abusive words on the complainant. The accused mercilessly assaulted the complainant. He fisted on his chest. He hit his head against the wall. He also kicked on his abdomen and chest. The complainant’s sister, who was attached to the Police Station as a Woman Constable, tried to prevent the accused physically ill-treating him. The sister of the complainant was pregnant at that time. The accused-Inspector assaulted the woman police constable also. The Accident register-cum-wound Certificate dated 27.08.2008 prepared by the Medical Officer of Taluk Head Quarters Hospital, Nilambur recorded that the complainant complained of chest pain. The Wound Certificate was prepared at 8.45 pm on 28.07.2008. He was admitted in the hospital as an inpatient. The discharge summary, which is produced as Ext.R2(b) showed that he had pain in Right Eliac Region, contusion in the forehead and tenderness in the Right Eliac Fossa.”
Finally and far most significantly, the Bench then encapsulates in para 27 what constitutes the cornerstone of this notable judgment postulating that, “The facts in the present case are no way similar to the facts considered by the Supreme Court in Sankaran Moitra v. Sadhna Das and another (Supra) and Rizwan Ahmed Javed Shaikh (Supra) and the facts considered by this Court in Moosa Vallikkadan (Supra). It cannot be said that the acts alleged against the petitioner have a reasonable connection with his official duty. It is not that the acts alleged only exceeded what was strictly necessary for the discharge of the duty. A citizen was summoned to a Police Station on a complaint filed by a lady. He alleged that he was brutally ill-treated there by the Inspector. Can these acts be treated as acts in discharge of his official duty? 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 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 197Cr.PC. I find no reason to interfere with the impugned order. The revision petition stands dismissed.”
All told, one really fails to comprehend that why is Centre just not prepared to usher in police reforms as was recommended by none other than Apex Court itself in Prakash Singh vs Union of India case 18 years ago in 2006? On the contrary, Centre on its own initiative undertook major reforms in Army by launching Agniveer Yojana in 2022 for soldiers even though no court recommended it! We see that in this leading case, the Kerala High Court has made it pretty clear that police cannot claim exemption from being prosecuted by forwarding lame excuses like assault of accused formed part of the duty. It is high time and penal laws must be amended to punish most strictly those police personnel who indulge in torture or violence in any form on any person including the convicted persons. This will definitely go a long way in ushering accountability for police but most unfortunately we see that in the revised penal laws, the powers of the police have increased most sharply which will only serve to make them wield more power without any fixed responsibility!
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