The Kerala High Court observed that even if the police manhandle or illegally detain a person while doing their official duty, a sanction under Section 197(2) of the CrPC is required to prosecute the police personnel.

In that context, the Bench of Justice PG Ajithkumar observed that, "No doubt, even in a case where a person is taken into custody as part of duty and strictly in accordance with law, police have no authority to manhandle or detain him illegally. If manhandled or detained illegally, the erring police personnel are liable for prosecution. That does not mean that if such an act is done as part of official duty, no sanction is required to prosecute the police personnel."

These appeals were brought by the complainant before the Judicial Magistrate of the First Class-II. The Magistrate had convicted accused Nos. 1 to 4 under Sections 452, 341, and 323 read with Section 34 of the Indian Penal Code, 1860 (IPC). Accused Nos. 1 and 4, 2, and 3 separately appealed to the Additional Sessions Court (Adhoc)-II, which, on September 17, 2010, acquitted all the accused. The complainant challenged the legality of this judgment under Section 378(4) of the Code of Criminal Procedure, 1973 (CrPC).

The incident occurred at 7:00 p.m. on September 3, 1996. The complainant alleged that while he was at home with his brother and a neighbor, accused Nos. 1 to 3, along with an unidentified police constable, arrived in a jeep and attempted to arrest him. His wife and children intervened but were manhandled. The complainant was forcibly taken into the jeep and slapped by the first accused. On the way to the police station, he was allegedly tortured and released at 9:30 p.m.

The trial resulted in the conviction of the accused, but the appellate court overturned this, accepting the accused's argument that prosecution without government sanction under Section 197 of the CrPC was invalid.

The complainant's counsel argued that the arrest was illegal, the complainant and his family were assaulted, and the acts were not part of the accused’s official duties, thus no sanction was needed for prosecution. The defense contended that the complainant was taken for a medical examination related to another case, denying any manhandling or illegal detention, and asserted the need for sanction under Section 197(2) of the CrPC due to their official roles.

The High Court observed that, "Accused Nos.1 to 3 acted in the matter of taking the complainant to the police station on the instruction of the Circle Inspector. The same can be termed only as part of their official duty. In the light of the law laid down in the aforesaid decisions the accused are entitled to get protection enjoined in Section 197(2) of the Code."

In light of the same, it was held that the view taken by the appellate court was correct and legal. Therefore, the appeals failed and were dismissed.

Cause Title: Joji Joseph vs State of Kerala & Ors.

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Kerala High CourtJustice PG AjithkumarCrPC

Ananya Soni