V.T.JINU v. STATE OF KERALA

CRL.REV.PET NO. 15 OF 2018

1

2025:KER:30632

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 7 TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 CRL.REV.PET NO. 15 OF 2018 AGAINST THE ORDER DATED 11.08.2017 IN SC NO.321 OF 2016 OF HON’BLE PRINCIPAL SESSIONS COURT, KOTTAYAM PETITIONERS/ACCUSED:

1 V.T.JINU

HEAD CLERK ETTUMANOOR BLOCK PANCHAYATH ETTUMANOOR, KOTTAYAM DISTRICT

2 MS VIJAYAN

GENERAL EXTENSION OFFICER, ETTUMANNOR BLOCK PANCHAY ATH ETTUMANOOR, KOTTAYAM DISTRICT

BY ADVS.

SMT.K.G.MARY

SRI.ARUN P. ANTONY

RESPONDENTS/PETITIONERS:

1 STATE OF KERALA

REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERA LA PIN-682031

2 DEPUTY SUPERINTENDANT OF POLICE

DISTRICT CRIME BRANCH KOTTAYAM PIN-686001

3 SUB INSPECTOR OF POLICE

ETTUMANOOR POLICE STATION KOTTAYAM

OTHER PRESENT:

PP JIBU T S

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.03.2025, THE COURT ON 07.04.2025, DELIVERED THE FOLLOWING:

CRL.REV.PET NO. 15 OF 2018

2

2025:KER:30632

C R

A. BADHARUDEEN, J

============================

Crl.Rev. Petition No. 15 of 2018

==============================

Dated 7th day of April 2025

ORDER

This Crl. Rev. Petition has been led under Section 397 r/w 401 of the Code of Criminal Procedure (for short, “ Cr.P.C.”) to quash Annexure - VII charge dated 11.08.2017 frame d by the Special Court (Principal Sessions Court, Kottayam) under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)

Act, 1989 (hereinafter referred to as ‘the SC/ST PO Act’) in S.C.

No. 321 of 2016, pending therein.

CRL.REV.PET NO. 15 OF 2018

3

2025:KER:30632

2. Heard the learned counsel for the 2nd petitioner /2nd accused, since the 1st petitioner/1st accused is no more. Also heard the learned Public Prosecutor. Perused the r ecords produced along with the petition and also the Case Diary as such placed by the learned Public Prosecutor in detail.

3. In this matter, the prosecution alleges the co mmission of oences punishable under Sections 294(b), 465, 466, 474 r/w 34 of IPC as well as under Section 3(1)(x) of the SC/ ST PO Act by the accused. The specic allegation is that, the ac cused herein who are aware of the caste identity of the de facto com plainant as a member of the Scheduled Caste community, at about 05.00 p.m on 07.10.2013, used abusive words by calling her ca ste name with intention to humiliate her within public view. Fur ther allegation

CRL.REV.PET NO. 15 OF 2018

4

2025:KER:30632

is that they forged documents to hold that the de f acto complainant misappropriated some amount under 9 CB Bills, and the same resulted in suspension of the de facto complainant.

4. The rst point argued by the learned counsel fo r the 2nd petitioner is that, in this matter, in order to pro secute the 2nd petitioner/2nd accused sanction under Section 197 o f Cr.P.C. is necessary, since he is a public servant at the alle ged time of occurrence. Even though the prosecution applied fo r sanction, no sanction so far obtained and therefore, the entire proceedings is vitiated. In this connection, the learned counsel for the 2nd petitioner placed decision of the Apex Court report ed in 2023 KHC 6628 Amod Kumar Kanth v. Association of Victim of Uphaar Tragedy, where in the facts are as under:-

CRL.REV.PET NO. 15 OF 2018

5

2025:KER:30632

“An unfortunate and tragic incident led to a crimin al prosecution accused against 16 accused; in which 59 persons lost their lives and over 100 persons received seri ous injuries, while viewing a film sitting in the balcony of Uphaa r Theater. High Court has dismissed the petition filed by the appellant under S.482 of the Code of Criminal Proce dure, 1973. Said petition was filed against the order pass ed by the Additional Sessions Judge; wherein Sessions Judge confirmed the decision of Metropolitan Magistrate rejecting the closure report filed by the Central Bureau of Investigation. Closure report filed by the CBI was not accepted by the Magi strate, who instead took cognizance on the protest petition filed by the first respondent and cognizance has been taken f or offences under S.304A, S.337, S.338 of the Indian Pe nal Code, 1860 and the provisions under S.14 of the Cinematograph Act, 1952 read with the Rules. Presen t appeal is filed against the order of High Court dism issing

CRL.REV.PET NO. 15 OF 2018

6

2025:KER:30632

the petition filed under S.482 of the Code of Crimin al Procedure, 1973. Main issue for consideration was; whether said order upholding the order of the Magistrate ta king cognizance and issuing summons was illegal.”

5. In the said case, the apex Court held as under:- “ The most important question which must be posed a nd answered by the Court when dealing with the argument that sanction is not forthcoming is whether the officer wa s acting in the exercise of his official duties. It goes furth er. Even an officer who acts in the purported exercise of his offic ial power is given the protection under. S.197 of the Cr.P.C. This is for good reason that the officer when he exercises the power can go about exercising the same fearlessly no doubt with bona fides as public functionaries can act only bona fide. In f act, the requirement of the action being bona fide is not exp ressly stated in S.197 of the Cr.P.C., though it is found in many

CRL.REV.PET NO. 15 OF 2018

7

2025:KER:30632

other statutes protecting public servants from acti on, civil and criminal against them. Once we bear this cardin al principle in mind and judge the action or omission on the part of the appellant, we would think that it cannot be found that, having regard to the admitted facts, the appe llant was not acting in the discharge of his official functions . All that happened, under his oversight starting with his not ice which he issued on 28/07/1979, to the counter affidavit whi ch he filed in the writ petitions, the subsequent show cau se notice which he issued, and thereafter, finally on 24/12/19 79, wherein he directed the removal of a total of 62 ad ditional seats, all these acts were done in the exercise of his official duties. As we have already noted, even if it were to be treated as done in the purported exercise of his official dut ies, he would still stand protected from prosecution withou t sanction. This must not be confused with the questi on as to whether the appellant had committed any offence with which

CRL.REV.PET NO. 15 OF 2018

8

2025:KER:30632

he appears to have been indicted by the Magistrate issuing summons and the High Court upholding it. The fact that the appellant had taken a certain stand in the counter affidavit would not make his subsequent act of acting upon th e recommendations of a committee, an act which is not in the discharge of his official functions. The findings of t his Court which we have referred to in the decision (supra) w ould not mean that, if they are offences committed by the per sons including the appellant, they would not require san ction within the meaning of S.197 of the Cr.P.C. The subt le and nuanced distinction between the question as to whet her the offence has been committed and if an offence has been committed, whether a sanction is required for prose cuting a public servant who is alleged to have committed the same, must not be lost sight of. The learned Magistrate a nd the High Court would appear to have overlooked this distinction.

CRL.REV.PET NO. 15 OF 2018

9

2025:KER:30632

6. According to the learned counsel for the 2nd pet itioner, even in cases involving oences under the unamended SC/ST PO Act, prosecution sanction under Section 197 of Cr.P .C. is necessary to prosecute a public servant. In this regard, the learned counsel for the 2nd petitioner placed the decision of the Apex Court reported in 2021 KHC Online 6319 Indira Devi v. State of Rajasthan and Another , where in paragraph No.9, the Apex Court considered the necessity of sanction under Se ction 197 of Cr.P.C., where oences under Sections 3(1)(4), 3(1 5), and 3(5) of the SC/ST PO Act were alleged. In paragraph No.9, the Apex Court observed that:

“9. W e have given our thought to the submissions of learned counsel for the parties. S.197 of the CrPC seeks to

CRL.REV.PET NO. 15 OF 2018

10

2025:KER:30632

protect an officer from unnecessary harassment, who i s accused of an offence committed while acting or purporting to act in the discharge of his official duties and, t hus, prohibits the Court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a s pecial category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subraman ian Swamy v. Manmohan Singh (2012 KHC 4072: (2012) 3 SCC 64 : 2012 (1) KHC SN 29: 2012 (1) KLD 327: 2012 (2) SCALE 12 : 2012 (1) KLT SN 90 : AIR 2012 SC 118 5 : 2012 CriLJ 1519)]. The alleged indulgence of the officers in cheating, fabrication of records or misappropria tion cannot be said to be in discharge of their official d uty.

CRL.REV.PET NO. 15 OF 2018

11

2025:KER:30632

However, such sanction is necessary if the offence a lleged against the public servant is committed by him "whi le acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged o ffence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of om ission for which the accused was charged had a reasonable connection with the discharge of his duties. [See S tate of Maharashtra v. Dr. Budhikota Subbarao (supra)]. The real question, therefore, is whether the act commit ted is directly concerned with the official duty.

7. In this matter, as per Annexure - VII order, t he learned Special Judge framed charge for the oences punisha ble under Sections 294(b), 465, 466 and 474 r/w Section 34 of IPC against

CRL.REV.PET NO. 15 OF 2018

12

2025:KER:30632

accused Nos. 1 and 2 and also framed charge for the oence under Section 3(1)(x) of the SC/ST PO Act against them.

8. Since the 1st accused/1st petitioner is no more, his contention that he is not a member of either Schedu led Caste or Scheduled Tribe Community is of no signicance at p resent. It is not disputed that the 2nd petitioner is not a membe r of Scheduled Caste or Scheduled Tribe community. However, the question to be considered is whether, prima facie the oences for which the trial court framed charge are made out from the prosecuti on records.

While framing charge, the essentials to be conside red are well settled. In the decision reported in 2024 KHC OnLine 586 Sandeep G v. State of Kerala, this Court epitomized the parameters that would govern, when plea of discharge under S.227

CRL.REV.PET NO. 15 OF 2018

13

2025:KER:30632

of CrPC and framing of charge under S.228 of CrPC a re to be addressed, referring the Apex Court verdicts on the point and the same are as under:

(i) The trial Judge shall look into the materials c ollected by the investigating agency produced before the Cou rt, to see, prima facie, whether those materials would ind uce suspicious circumstances against the accused, so as to frame a charge and such material would be taken into acco unt for the purposes of framing the charge.

(ii) The trial Judge has to apply his judicial mind to the facts of the case, with reference to the materials produced by the prosecution, as may be necessary, to determi ne whether a case has been made out by the prosecution for trial on the basis of charge/final report.

CRL.REV.PET NO. 15 OF 2018

14

2025:KER:30632

(iii) Once the accused is able to demonstrate from the materials form part of the charge/final report at th e stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to su ggest that such material should not be considered or ignored b y the court at this stage.

(iv) At the stage of considering an application for discharge the court must proceed on an assumption t hat the materials which have been brought on record by the prosecution are true and evaluate said materials, in order to determine whether the facts emerging from the materials taken on its face value, disclose the exi stence of the ingredients necessary of the offence/s alleged.

(v) The defence of the accused not to be looked int o at the stage when the accused seeks discharge. The express ion "the record of the case" used in S.227 CrPC is to be und erstood

CRL.REV.PET NO. 15 OF 2018

15

2025:KER:30632

as the documents and objects, if any, produced by t he prosecution.

(vi) The primary consideration at the stage of fram ing of charge is the test of existence of a prima-facie ca se, and at this stage, the probative value of materials on rec ord shall not be evaluated.

(vii) At the stage of framing of charge, the court has to form a presumptive opinion to the existence of fact ual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the mat erial on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.

(viii) In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or in to a weighing and balancing of evidence and probabilitie s,

CRL.REV.PET NO. 15 OF 2018

16

2025:KER:30632

which are really the function of the trial Judge, a fter the trial.

(ix) At the time of framing charge, if there is sus picion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. In such case also charge needs to be framed to permit the prosecution to adduce evidence.

(x) If the evidence which the Prosecutor proposes t o adduce to prove the guilt of the accused even if fully acc epted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficien t ground for proceeding with the trial.

CRL.REV.PET NO. 15 OF 2018

17

2025:KER:30632

9. It is pointed out by the the learned counsel fo r the 2nd petitioner that, the allegation as to use of abusiv e words and calling of caste name of the de facto complainant b y the 2nd petitioner along with the 1st accused was raised as on 07.10.2013, but as per Annexure - II dated 05.10.2013, the 2n d petitioner lodged a complaint before the President, Ettumanur Block Panchayath regarding malpractices done between the Block Development Ocer (hereinafter referred as the BDO) and the de facto complainant in the matter of payment without quotation purchase. Thereafter, this case was foisted. The learned counsel also pointed out that apart from the version of de facto complainant, CW3 also given statement supporting th e prosecution. But no others in the oce supported the prosecution

CRL.REV.PET NO. 15 OF 2018

18

2025:KER:30632

case. He also pointed out that CW3 is a temporary employee later terminated from service and therefore her version a lso could not be believed. According to the learned counsel for the 2nd petitioner, in fact, the de facto complainant was s uspended from service, and charge memo also issued against her as brought out from Annexure A3 series, Annexure - IV charge memo and recommendation to transfer her also was made, though the nality of the disciplinary action not known to the 2nd pet itioner. The learned counsel for the 2nd petitioner also argued that in order to prove forgery, no scientic examination was conducted by sending the documents alleged to be forged and used as genu ine, but merely statements of witnesses alone are given emph asis in this regard. According to the learned counsel for the 2n d petitioner,

CRL.REV.PET NO. 15 OF 2018

19

2025:KER:30632

the prosecution materials available are quite insu cient to frame charge against the 2nd petitioner and therefore, challenge against Annexure - VII is liable to succeed.

10. The learned Public Prosecutor vehemently oppose d quashement of Annexure VII order. According to the learned Public Prosecutor, in the instant case, the allegat ions are not in connection with the discharge of the ocial duties of the 2nd petitioner and therefore, sanction under Section 19 7 of Cr.P.C. is not necessary. Even though the prosecution applie d for getting sanction under Section 197 of Cr.P.C., the result of the same is yet to be known. The learned Public Prosecutor has give n heavy reliance on the statements of CW s 1, 2, and 3 to substantiate that the allegations in the charge are specically made out, prima facie,

CRL.REV.PET NO. 15 OF 2018

20

2025:KER:30632

against the 2nd petitioner. Apart from that, the l earned Public Prosecutor has given much emphasis on the statements of CW s 15 to 25 to substantiate that there was fabrication of documents on the premise of a meeting on 07.10.2013, and the mat ter would require trial to prove the same.

11. As regards to sanction to prosecute a Governmen t servant, as per the unamended penal provisions of t he SC/ST PO Act and for the IPC oences, sanction under Section 197 of Cr.P.C is necessary when the oences alleged agains t the public servant are committed by him “while acting or purpo rting to act in the discharge of his ocial duty” and in order t o nd whether the alleged oence is committed while acting or pur porting to act in the discharge of his ocial duty, the yardstick to be followed is

CRL.REV.PET NO. 15 OF 2018

21

2025:KER:30632

to form a prima facie view whether the act of omiss ion for which the accused was charged had a reasonable connection with the discharge of his duties. In cases where the act or omission for which the accused was charged had a reasonable conn ection with the discharge of his duties, necessitating such an act or omission, then sanction is not necessary.

12. On perusal of the FI Statement given by the de facto complainant, it is stated that while she was worki ng in the Educational Department (Government High School, Ayy ankavu Kothamangalam), she was deployed as Lower Division Clerk in the Block Panchayath, Ettumanur. She dealt with the “Ge neral purchase fund seat” between 10.05.2012 to 22.10.201 3, and later, she started to deal with Census and BPL Sections. A ccording to

CRL.REV.PET NO. 15 OF 2018

22

2025:KER:30632

her, at about 5.00 p.m., on 07.10.2013, while she w as engaged in her ocial duties, Head Clerk V T Jinu of Ettumanoo r Block Panchayath and Sri. M S Vijayan, General Extention Ocer reached her room, and ashamed her by telling that s he was the keep of the BDO, and the specic allegation against the 2nd petitioner is that he ashamed the de facto complain ant by calling her caste name, and on uttering that, nobody would question if something done against her, since she was member of Scheduled Caste community. The further allegation is that th ey uttered that they would teach a lesson to the de facto complaina nt. When her additional statement was recorded thereafter by the Deputy Superintendent of Police, she reiterated the alleg ations, and it was

CRL.REV.PET NO. 15 OF 2018

23

2025:KER:30632

stated that the accused are not members of the Sche duled Caste or Scheduled Tribe community.

13. Supporting the statements of the de facto compl ainant, she also gave 164 statement before the Magistrate. The prosecution cited CW3 Mrs. Geetha Rajendran to support the stat ements of the de facto complainant. The statement of CW3 is t hat she worked as data entry operator on daily wages in between July 2013 to 22.11.2013, and she witnessed the occurrence as stated by the de facto complainant. Apart from that, prosecution re corded the statement of CW2 Sri. Renjit, who worked as the temporary driver of the President of the Panchayath. In his statement how he came to know about lodging of the complaint by the de facto complainant alleging the overt acts has been averre d. But he didn’t

CRL.REV.PET NO. 15 OF 2018

24

2025:KER:30632

know what exactly said or done by the accused. Inso far as the allegations under Sections 294(b) as well as under Section 3(1)(x)

of the SC/ST PO Act, these are the statements reli ed on by the prosecution. Coming to oences under Sections 465, 466, and 474 of IPC, heavy reliance has been given by the le arned Public Prosecutor witness statements of CW s 15 to 25, but the prosecution records in no way would suggest that th e alleged forgery and use of the same as genuine documents, e tc proved by getting expert opinion in any manner. CW15 is cited by the prosecution to prove that CW15 worked as the driver in block Panchayath to prove creation of false document to s how the evaluation meeting of ‘gramavikasanavaragosham’. C W16 is cited to prove that he conducted departmental enquiry aga inst the 1st

CRL.REV.PET NO. 15 OF 2018

25

2025:KER:30632

and the 5th witnesses and led report in this regar d, and also to prove that while encashing 9 CB Bills, Lower Divisi on clerk, Head Clerk and BDO failed to follow the procedure for mo ney transfer, and also to prove that the 1st witness misbehaved t o the President.

CW17 was cited to prove that there was no meeting o n 07.10.2013, and his signature was obtained in a bla nk paper. CW s 23 to 25 were also cited to prove that there was n o meeting on 07.10.2013. Since the prosecution records would th row light prima facie regarding the commission of the above o ences, the trial court framed Annexure -VII charge and procee ded with the trial, and in fact, the said order is under challen ge before this Court.

CRL.REV.PET NO. 15 OF 2018

26

2025:KER:30632

14. On scrutiny of the prosecution records, it coul d not be held that the trial court went wrong in framing cha rge for the oences stated in Annexure - VII order.

15. It is relevant to note that though this is a re vision petition led challenging Annexure - VII order fram ing charge, the learned counsel for the 2nd petitioner argued the necessity of sanction under Section 197 of Cr.P.C. In Indira Devi’s case (supra) itself, the Apex Court claried that the al leged indulgence of the ocers in cheating, fabrication of records, or misappropriation could not be said as acts in disch arge of their ocial duties. If so, the allegations of insulting and intimidating a member of the Scheduled Caste community and fabrica ting records to show conduct of a meeting are not matter s would come

CRL.REV.PET NO. 15 OF 2018

27

2025:KER:30632

within the ocial duties of a public servant and th erefore in order to prosecute the oender though he is a public serv ant, no sanction under Section 197 of Cr.P.C is necessary.

16. Holding so, no interference in the order impugn ed is necessary and thus the revision fails. Accordingly , the same stands dismissed.

The interim stay stands vacated.

Sd/-

A. BADHARUDEEN, JUDGE

RMV