Police cannot claim exemption saying assault of accused is part of official duty: Kerala High Court

A police officer accused of assaulting a citizen at a police station cannot claim protection from prosecution under Section 197 of the Code of Criminal Procedure (CrPC), the Kerala High Court held recently [C Alavi v State of Kerala & anr]..Justice K Babu observed that acts of physical torture and abuse by a police officer has no connection to his official duties to claim such protection, since Section 197 of CrPC only protects public servants in respect of acts part of their official duties. The Court made the observation while dismissing a plea filed by a policeman against a trial court's decision to take cognisance of a private complaint filed against him on allegations that he tortured a man who was summoned to a police station. "How can we say that the act of a Police Officer physically torturing a man at the Police Station is to be treated as part of his official duty? The alleged acts, at any rate, would not fall within the scope and range of his official duties. Therefore, he is not entitled to the protection contemplated under Section 197 CrPC," the Court said..How can we say that the act of a Police Officer physically torturing a man at the Police Station is part of his official duty?Kerala High Court.The petition before the Court was filed by a Sub-Inspector (SI) posted at the Nilambur Police Station and stemmed from an incident that took place in 2008. The policeman is alleged to have summoned a man to the station after a woman accused the latter of publicly abusing her. After the man reached the station, the police officer allegedly used abusive language and assaulted him by hitting his head against a wall, kicking him in the abdomen and chest, and punching his chest. The man’s sister, a woman police constable at the same station, tried to intervene to no avail.The same day, the Assistant Sub Inspector of Police, Nilambur filed a case against the SI. However, the Deputy Superintendent of Police eventually filed a “false case” report.Aggrieved, the man (complainant) who was allegedly attacked by the policeman, pursued a private complaint before a magistrate. The magistrate took cognizance of the complaint and the officer was charged under Sections 294(b) (obscene words), 323 (causing hurt), 324 (causing hurt with dangerous means), and 341 (wrongful restraint) of the Indian Penal Code (IPC). The accused SI challenged this development before the High Court. .His counsel argued that the magistrate erred in taking cognizance without prior government sanction under Section 197 CrPC since the officer was discharging official duties and thus entitled to protection.Section 197 makes it necessary for prior sanction to be obtained from the government for prosecuting public servants for acts done in the discharge of official duties. However, the complainant countered that acts of assault were unrelated to the officer’s official duties and fell outside the ambit of Section 197. .The Court agreed with the complainant's stance. It added that the accused cop would also not be protected by a 1977 notification issued by the Kerala government to protect police officers for acts done to maintain public order or as part of law enforcement. The Court, therefore, rejected the police officer's petition and upheld the magistrate's decision to frame charges against him. The High Court concluded that the police officer was not entitled to the protection provided under Section 197 of CrPC..Advocate Babu S Nair and Smitha Babu represented the petitioner. Public Prosecutor G Sudheer appeared for the State. The complainant was represented by advocate P Jayayram..[Read Order]