GANESHAN K v. STATE OF KERALA

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTO HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 P. V . KRISHNAN, FATHER'S NAME NOT KNOWN TO THE PETITIONER, RTD. INTELLIGENCE OFFICER, (SPECIAL SQUAD) C/O. OFFICE OF INSPECTING ASSISTANT COMMISSIONER(INTELLIGENCE) COMMERCIAL TAXES, KANNUR, PIN - 670002 BY ADVS. LIJIN THAMBAN G.S.KRISHNAN KARTHA(K/2187/1999) AKSHARA K.V.(K/001001/2018) OTHER PRESENT: SRI. NOUSHAD K.A. (PP) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

08.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 3261 OF 2023 2 BECHU KURIAN THOMAS, J. =========================== Crl.M.C.No.3261 of 2023 ------------------------------------------------------- Dated this the 8th day of January 2024 ORDER Petitioner is a timber trader, against whom proceedings were initiated by the Intelligence Officer of the Commercial Taxes Department. The 2 nd respondent as the Intelligence Officer had conducted an enquiry into the allegations of petitioner attempting to evade tax. After conducting the enquiry, he forwarded the report to the Intelligence Officer, Intelligence Squad, Kannur for further investigation. While so, a private complaint was filed by the petitioner alleging offences punishable under Sections 465, 471 and 420 against the 2nd respondent, pointing out that he had manipulated the statements given by few of the witnesses and incorporated a statement, which had not been spoken to by the witnesses. Based on the above allegations, a private complaint was lodged by the petitioner as CMP No.5212/2019 before the Judicial First Class Magistrate Court, Kannur.

2. By an order dated 27.11.2019, the learned Magistrate found that the alleged act was done by the 2nd respondent in his official capacity and therefore, sanction under Section 197 Cr.P.C was is necessary to prosecute him and thus the learned Magistrate refused to take cognizance of the CRL.MC NO. 3261 OF 2023 3 offence. Challenging the aforesaid order, a revision petition was preferred by the petitioner before the Sessions Court, Thalassery. After a detailed consideration, the learned Sessions Judge dismissed the said revision by order dated 20.02.2023. This Crl.M.C. is preferred against the said order of the Sessions Judge.

3. I have heard Sri.Maitreyi Sachidananda Hegde, learned Counsel for the petitioner, Sri.K.A.Noushad, learned Public Prosecutor as well as Sri.Lijin Thampan, learned Counsel for the 2nd respondent.

4. The 2nd respondent is a retired Intelligence Officer of the Commercial Taxes Department. He is alleged to have incorporated certain statements during the course of enquiry purporting to have been made by certain customers of the petitioner. The statements were recorded in the official documents, while he was discharging his official duty. The learned Magistrate has specifically noticed that the alleged act was done by the accused in his official capacity and hence sanction is required. In the revision preferred by the petitioner, the learned Sessions Judge found in his detailed order, that statements were recorded by the 2nd respondent from two customers of the complainant by name ‘Madeena Saw Mill’, Kasargod and ‘King-wood Board’, Pilathara as part of his official duty. It was further held the 2nd respondent was acting in discharge of his official duty, while receiving and scrutinizing the statements of the two customers. Further the learned Sessions Judge noticed that, while recording the statement of witnesses during enquiry is allegedly done manually with pen which is stated to be a forgery. After referring to three possibilities, the learned Sessions Judge found that the protective umbrella of Section 197, ought to be accorded to CRL.MC NO. 3261 OF 2023 4 the accused as there is a reasonable nexus between the alleged act and in the discharge of his official duty. The learned Sessions Judge also proceeded to consider the effect of Section 79 of the Kerala Value Added Tax, 2003 and noted that no suit prosecution or suit, prosecution or other proceedings shall lie against any officer or servant of the government for any act done or purported to be done under the said Act, without the previous sanction of the Government. In the light of the above, statutory provision the learned Sessions Judgment was also of the view that sanction is required in the circumstances.

5. In the decision in Centre Public Interest Litigation and another vs. Union of India [2005 S SCC 202] it has been held that protection of Section 197 Cr.P.C. is available only when the alleged act is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act.

6. Admittedly statements were recorded by the 2nd respondent during the course of discharge of duties. Though committing forgery is not part of an official duty, still the very allegation is that forgery was committed while he was discharging his official duty. If the protective cover of Section 197 of Cr.PC and that of Section 79 of KVAT Act is not accorded to the 2 nd respondent, instances would arise where the officers of the Department could be alleged with various offences and the purpose of such protection would not be available to them. The scope, purport and intent of the Statute and the aforesaid provisions are intended to protect the officers from frivolous prosecutions. Apart from the above, two courts have concurrently taken a view that the sanction is necessary to prosecute the 2nd respondent. CRL.MC NO. 3261 OF 2023 5 Therefore, I am of the view that the scope of Section 482 Cr.P.C. being limited, cannot be invoked by the petitioner. Accordingly, I find no merit in this Crl.M.C and it is dismissed. jm/ BECHU KURIAN THOMAS JUDGE CRL.MC NO. 3261 OF 2023 6 APPENDIX OF CRL.MC 3261/2023 PETITIONER ANNEXURES Annexure1 Annexure2 Annexure3 A COPY OF THE COMPLAINT DATED 10.10.2019 SUBMITTED BEFORE JUDICIAL FIRST CLASS MAGISTRATE OF PAYYANUR A COPY OF THE ORDER DATED 27.11.2019 IN CMP NO. 5212/2019 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE OF KANNUR A COPY OF THE ORDER DATED 28.02.2023 IN CRL.REV. PET NO. 3/2020 BEFORE THE COURT OF SESSIONS, THALASSERY