Kerala HC: No Sanction Needed for Custodial Torture Cases

The Kerala High Court has ruled that a Magistrate Court can take action on cases of custodial torture by police officers without needing prior approval from the State Government, as stipulated under Section 197(1) of the Code of Criminal Procedure (CrPC).

The Single Judge Bench of Justice K. Babu held that torturing an individual in a police station cannot be considered an official duty of a police officer.

The bench stated, “Can these acts be treated as acts in the discharge of his official duty? 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 fundamental test appears to be that the accused can reasonably claim that what he did was by virtue of his office. The accused/ revision petition cannot claim that what he did was by virtue of his office”.

On 28.07.2008, the Sub Inspector of Nilambur Police Office Station (Accused) received a petition from Smt. Daisy Mathai against the Complainant, alleging public abuse. The Accused summoned the Complainant to the police station at 4:30 pm, where he was asked to wait for Daisy Mathai and her husband, who arrived later that night. In the Accused's cabin, the Accused verbally abused the Complainant with foul language and physically assaulted him. The Complainant's sister, a Woman Police Constable at the station, attempted to intervene and stop the assault.

The Complainant reported that the police officer punched him in the chest, slammed his head against the wall, and kicked his abdomen and chest. He was admitted to the hospital, where the discharge summary indicated abdominal pain, a forehead contusion, and abdominal tenderness. His sister, employed as a Woman Police Constable at the station, intervened to stop the assault but was also assaulted. She experienced abdominal pain, which was later documented.

A First Information Report (FIR) was filed the same day but was later dismissed as a false case following an investigation by the Deputy Superintendent of Police. Subsequently, the Complainant lodged a private complaint with the Jurisdictional Magistrate, leading to the police officer being charged under sections 294(b) (uttering obscene words), 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapon or means), and 341 (punishment for wrongful restraint) of the Indian Penal Code (I.P.C.).

The Accused contested the Magistrate's cognizance of the case, arguing the absence of government sanction under Section 197(1) of the Cr.P.C. The Magistrate rejected this argument, prompting the officer to appeal to the High Court. As per Section 197 of the Cr.PC, courts are not allowed to initiate proceedings against officers of certain forces who are responsible for maintaining public duties for actions taken while performing their official duties without prior approval from the State Government. In 1977, Kerala State issued a notification granting such immunity to members of the Kerala Police tasked with maintaining public order.

Thus, after due consideration of the case, these were the observations of the Court:

“The fundamental test appears to be that the accused can reasonably claim that what he did was by virtue of his office. The accused/revision petitioner cannot claim that what he did was by virtue of his office. It is the quality of the act that is important. 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 197Cr.PC.”

Consequently, the Revision Petition was dismissed.

Case Details: C. Alavi v The State of Kerala and ors CRL.REV.PET NO. 86 OF 2015

Advocates for Petitioners: Adv. Babu S. Nair, Adv. Smitha Babu

Advocates for Respondents: Public Prosecutor Sri G Sudheer & Sri. P Jayayram