Kerala HC upholds conviction of 4 policemen in custodial torture case

Custodial Torture Image Courtesy::newindianexpress.com

The Kerala High Court has refused to vitiate a trial holding 4 policemen Ezhukone Police Station guilty of custodial torture, on the ground that no sanction was sought under section 197 of Code of Criminal Procedure (CrPC). The bench of Justice Mary Joseph held that sanction under section 197 of Code of Criminal Procedure (CrPC) is contemplated only when acts of the public servant are bonafide and connected with the discharge of his official duty.

The accused policemen raised an appeal that though they were public servants, cognisance was taken by the trial court and they were prosecuted without getting the sanction from the State Government as contemplated under Section 197 Cr.P.C., and therefore, the process of taking cognisance and conduct of trial are vitiated.

The complainant alleged that on February 8, 1996 the accused policemen of Ezhukone Police Station, assaulted him and inflicted injuries on his body after forcibly taking him from his home to the Police Station.

The court held that Sanction contemplated under Section 197 Cr.P.C is meant to afford protection to a public servant while acting or purporting to act in the discharge of his official duty. Therefore, a public servant concerned while acting or purporting to act in the discharge of his official duty is entitled to protection envisaged under Section 197 Cr.P.C., if something untoward happened in the course.

The court cited Om Prakash and Others V. State of Jharkhand and another [(2012) 12 SCC 72] whereby the Supreme Court held that, “The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.”

The court concluded that the act allegedly committed by the public servant must have some reasonable nexus with the discharge of his official duty and must not merely be a cloak for doing an objectionable act. Juxtaposing this observation with the facts and circumstances of the case, the court held that the complainant was taken to the police station merely because he had made a demand for wages to one Veerasenan who happens to be a kin of one of the accused policemen. The case registered against the complainant, in the guise of which he was brought to the police station, was that the policeman (accused no.3) was wrongfully restrained and was prevented from discharging his official duties by the complainant. The trial court even acquitted the complainant after appreciating evidence and deemed it to be a false case against him.

The court also perused the evidence against the convicted policemen and concluded that the injuries found on the body of the complainant were caused by the policemen in question.

“From the above narrations, it is indicated that the complainant was brought to the Police Station by the accused not for any legal pursuit or in exercise by the policemen of any of their lawful authority. For the mere reason that the Policemen arrived there in a Departmental vehicle during hours of their official duty, and took the complainant alongwith them to the Police Station, it cannot be said that, they were discharging their official duties,” the court held.

The court further held thus,

“Sanction contemplated under Section 197 Cr.P.C is not meant to protect a public servant dealing with the life or personal liberty of a man out of purview of law or procedure established by law…Sanction as a protective measure is incorporated in Cr.P.C to save a public servant acting bonafidely without exceeding the jurisdictional limits and also duly exercising the authority recognized by law.”

The court stated that the convicted policemen cannot take the advantage of Section 197 Cr.P.C after committing mischievous acts under the guise of lawful discharge of official duties as in the case on hand. It further stated that merely because the incident occurred within the Police Station and during the course of discharge of official duty by the Policemen, will not legalise it, if it turns out as an exercise of excess power by them for illegal gain.

“Viewed in the above perspective, the accused in the case on hand can only be taken to have exercised their authority for committing some illegal acts, under the guise of exercise of lawful discharge of their official duties and therefore are not liable to be afforded with the protection envisaged under Section 197 Cr.P.C. Sanction contemplated under the above provision is not intended to safeguard illegal acts,” held the court.

The court thus found no error in the findings of the trial court that the accused policemen were guilty of offences under sections 323, 324 and 34 of the IPC.

The complete order may be read here: