UNNI RAJAN v. STATE OF KERALA

learned counsel for the 2nd respondent with a plea Crl.M.C.NO. 4105 OF 2011 6 that those are documents to be brought in evidence during the defence and it cannot be looked into at this stage. Having due regard to the nature of the case, I find that Annexures 3 and 4 cannot be so rejected as if documents in defence because the very case of the 2nd respondent is that he had complained about the assault when produced before the Magistrate. The fact that the 2nd respondent was examined by the Medical Officer was also not disputed. If so, these documents should have been produced along with the complaint in support of the alleged plea of assault. Therefore, in my opinion those documents cannot be rejected as if documents in defence of the prosecution. Those documents would primafacie show that the 2nd respondent had sustained no injury and there was no complaint of Crl.M.C.NO. 4105 OF 2011 7 assault when produced before the Magistrate after the arrest on 7/8/2010. Petitioner is entitled to rely on such documents in a petition assailing the order taking cognizance to establish that the allegations in the complaint are not true because there was suppression of those material documents by the 2nd respondent.

#6. The learned counsel for the petitioner in support of his argument that the offence alleged in Annexure-I was said to have been committed while discharging the duties and therefore sanction is required, relied upon the decisions reported in Sankara Moitra v. Sadhna Das & Anr. (AIR 2006 SUPREME COURT 1599), Abdul Wahab Ansari v. State of Bihar and another (AIR 2000 SUPREME COURT 3187), State through the CBI v. B.L.Verma Crl.M.C.NO. 4105 OF 2011 8 and Another (1997 KHC 1508), Sunil Kumar v. State of Kerala (2007 (4) KLT 359), Baby M.P., Sub Inspector of Police v. State of Kerala (2009 KHC 4448), Moosa Vallikkadan v. State of Kerala (2010 (3) KLT 437) and Viswambharan v. State of Kerala (2010 (4)KLT 875). Per contra, the learned counsel for the 2nd respondent relied upon the decisions in Prakash P., I.P.S. v. State of Kerala and Another (2011(2) KHC 1), Centre for Public Interest Litigation and another v. Union of India and Another [(2005) 8 SCC 202], Choudhury Parveen Sultana v. State of West Bangal and Another [(2009) 3 SCC 398] and State of M.P. v. Awadh Kishore Gupta and Others [(2004) 1 SCC 691].

#7. I have gone through the precedents cited from either side. In Sankara Moitra v. Sadhna Das Crl.M.C.NO. 4105 OF 2011 9 & Anr. (Supra) referring to earlier decisions in AIR