Kerala High Court
Midhun. M vs State Of Kerala on 31 July, 2026
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W.P.(Crl.)No.658/2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 31ST DAY OF JULY 2026 / 9TH SRAVANA, 1948
WP(CRL.) NO. 658 OF 2026
PETITIONER:
MIDHUN. M​
AGED 27 YEARS​
S/O. MOHANAN,
RANDILAPPA, KOLLENGODE. P.O,
PALAKKAD DISTRICT,
PIN - 678506
BY ADVS. ​
SRI.K.R.RAJKUMAR​
SHRI.JAGADEESH LAKSHMAN​
SHRI.AROMALUNNI M.S.​
SRI.R.K.RAKESH​
SHRI.SREERAM OJAS​
SMT.SREELAKSHMI P.S.
RESPONDENTS:
1 STATE OF KERALA​
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
HOME (J) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,
PIN - 695001
2 DINOOP​
CPO 5963, KOLLENGODE POLICE STATION,
CHITTUR TALUK,
PALAKKAD DISTRICT,
PIN - 678506
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3 KAILASAM​
CPO, KOLLENGODE POLICE STATION,
CHITTUR TALUK PALAKKAD DISTRICT,
PIN - 678506
4 JIJO​
CPO, KOLLENGODE POLICE STATION,
CHITTUR TALUK PALAKKAD DISTRICT,
PIN - 678506
5 VINEETH​
CPO, KOLLENGODE POLICE STATION,
CHITTUR TALUK PALAKKAD DISTRICT,
PIN - 678506
6 RAJESH​
S.I. OF POLICE, KOLLENGODE POLICE STATION,
CHITTUR TALUK
PALAKKAD DISTRICT,
PIN - 678506
SMT. NEELANJANA NAIR, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 29.07.2026, THE COURT ON 31.07.2026 DELIVERED THE
FOLLOWING:
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JUDGMENT
The order dated 27.08.2025 of the Judicial First Class Magistrate
Court-I, Chittoor directing the complainant in C.M.P No.5822/2019 on
the files of the said Court to produce the sanction from the Government
under Section 197 Cr.P.C to proceed against the accused arraigned in
that petition, is under challenge in this writ petition filed under Article
226 of the Constitution of India.
2.​ The petitioner who was working as a Sepoy in the Indian
Army, is alleged to have been subjected to severe physical assault by
the respondents who were Civil Police Officers and Sub Inspector of
Kollemgode Police Station on 05.01.2019 at the premises of Kollemgode
Temple while he was attending the ‘Aarattu’ festival there. The
petitioner was taken to the District Hospital, Palakkad and admitted
there by 11:30 p.m on 05.01.2019. After his discharge from the
hospital on 07.01.2019, he filed a complaint before the Superintendent
of Police, Palakkad against the aforesaid physical torture meted out to
him by the S.H.O and Civil Police Officers of Kollemgode Police Station.
The Commanding Officer of the petitioner is also said to have requested
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the District Police Chief to take the necessary action. However, the
police, instead of taking any action on the complaint of the petitioner,
registered an F.I.R against him on 13.01.2019 in respect of the offences
under Sections 341, 323 and 353 r/w Section 34 I.P.C alleging that he
along with certain others physically assaulted the police party and
caused obstruction to the discharge of their official duty at about 8:30
p.m on 05.01.2019. Realising that the petitioner may not get justice
from the police, he is said to have filed a complaint before the learned
Magistrate against the commission of the offences under Sections 341,
323, 324, 325 and 352 r/w Section 34 I.P.C upon him by the
respondents 2 to 6 herein. The learned Magistrate took cognizance of
the offences, and proceeded with the enquiry under Section 200 Cr.P.C
by examining the petitioner and four witnesses as CW1 to CW4. At that
juncture, the learned Magistrate came to the conclusion that sanction
under Section 197 Cr.P.C was required for taking cognizance against the
respondents 2 to 6 and directed the petitioner to produce the sanction
order from the Government. The petitioner challenged the aforesaid
verdict by filing Crl.R.P No.14/2022 before the Sessions Court,
Palakkad. The learned Sessions Judge, after going through the
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impugned order, found that the learned Magistrate had not applied his
judicial mind on the facts of the case since there were no discussions
about the materials on record. It was further observed in that order
that the learned Magistrate did not consider the aspect whether the
alleged offences were committed by the respondents 2 to 6 herein, in
discharge of their official duty. Accordingly, the case was remitted back
to the learned Magistrate to take fresh decision on the matter. It is
thereafter that the learned Magistrate passed the impugned order
reiterating his earlier finding that sanction under Section 197 Cr.P.C was
required to take cognizance of the offences alleged against the
respondents 2 to 6, and accordingly, directed the petitioner to produce
the sanction from the Government. In the meanwhile, the petitioner
had approached the Government seeking sanction under Section 197
Cr.P.C for taking cognizance against the offences alleged to have been
committed by respondents 2 to 6. The aforesaid request of the
petitioner was rejected by the Government vide Ext.P8 order stating the
reason that the petitioner got injured in a fight between two factions
during the percussion orchestra performed during the course of
‘Aarattu’ festival at Kollemgode, and that none of the police personnel
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on duty had assaulted him. It is in the aforesaid circumstances that the
petitioner has approached this Court with this writ petition for quashing
Ext.P7 order of the learned Magistrate and Ext.P8 order of the
Government, and for a direction to the learned Magistrate to proceed
with the case by deferring the question as to the requirement of
sanction under Section 197 Cr.P.C to the trial stage.
3.​ Though notices were duly served to respondents 2 to 6,
they did not choose to appear before this Court or to prefer any
counter.
4.​ Heard the learned counsel for the petitioner, and the
learned Public Prosecutor representing the State of Kerala.
5.​ The fact that the petitioner sustained substantial physical
injuries at the hands of the offenders in the night of 05.01.2019 at the
festival site of Kollemgode temple, is undisputed. The specific case of
the petitioner is that the 6th respondent, who was the S.I of Police,
Kollemgode and the respondents 2 to 5, who were Civil Police Officers
associated with the above police station, mounted severe physical
assault upon him at the premises of the Kollemgode Temple at about
8:00 p.m on 05.01.2019, while he was attending the ‘Aarattu’ festival of
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the temple. The aforesaid allegation is narrated in his statement as
CW1 before the learned Magistrate. The statements of the other
witnesses examined as CW2 to CW4, appear to have confirmed the
above version of the petitioner. Though the Kollemgode Police
registered Ext.P5 F.I.R against the petitioner alleging that he had
physically assaulted the police and obstructed their official duty at
about 8:30 p.m on 05.01.2019 at the premises of Kollemgode Temple,
the aforesaid F.I.R is seen to have been registered only on 13.01.2019,
after the petitioner preferred a complaint before the District Police
Chief, Palakkad against the alleged assault of the police personnel upon
the petitioner. Apparently, the delayed registration of the above F.I.R
against the petitioner partakes the character of a counterblast in
defence against the complaint preferred by the petitioner. At any rate,
the respondents 2 to 6 are not expected to cause physical harm upon a
person not involved in any violence under the pretext of the discharge
of their official duties though they were entitled to apply reasonable
and minimum force for maintaining law and order at the festival site.
6.​ As far as a case instituted otherwise than on Police report is
concerned, the Magistrate is expected to have taken cognizance at the
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moment when he decides to record the sworn statement of the
complainant and to proceed with the enquiry under Section 200 Cr.PC.
In the case on hand, the learned Magistrate had already adopted the
above course of procedure and examined the complainant and three
witnesses as CW1 to CW4. Thus, virtually the learned magistrate had
taken cognizance of the offence alleged by the petitioner herein in the
complaint filed by him. Still, it is open to the court below to look into
the question whether the cognizance so taken is barred under Section
197 Cr.PC. But, in the peculiar facts and circumstances of this case, the
question whether the respondents 2 to 6 resorted to the physical
violence upon the petitioner in discharge of their official duty is a
matter which could be ascertained only after evaluating the evidence in
detail. This is especially so in view of the fact that there occurred an
unexplained delay of about nine days in registering a crime against the
petitioner in connection with the alleged act of assaulting the Police
personnel and obstructing them from the discharge of the official duty.
As already stated above, the contention of the petitioner that the
aforesaid crime was registered against him in retaliation of the act of
the petitioner preferring a complaint before the District Police Chief
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against the unjustified physical violence perpetrated upon him by the
respondents 2 to 6, cannot be ignored. All the above aspects could be
scrutinised by the court below, only at the stage of trial.
7.​ In P.K. Pradhan v. State of Sikkim represented by the
Central Bureau of Investigation [(2001) 6 SCC 704] the Hon’ble
Supreme Court has held as follows:
“15. ….. In order to come to the conclusion whether claim of the
accused, that the act that he did was in course of the performance of
his duty was reasonable one and neither pretended nor fanciful, can be
examined during the course of trial by giving opportunity to the defence
to establish it. In such an eventuality, the question of sanction should
be left open to be decided in the main judgment which may be
delivered upon conclusion of the trial.”
8.​ The same view has been followed in Devinder Singh &
Ors. v. State of Punjab through CBI [(2016) 12 SCC 87] wherein
it has been held that whether sanction is necessary or not may have to
be determined from stage to stage and material brought on record
depending on the facts of each case, and the question of sanction can
be considered at any stage of the proceedings. It is further observed
thereunder that in some cases it may not be possible to decide the
question effectively and finally without giving opportunity to the
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defence to adduce evidence. In Om Prakash and Others v. State of
Jharkhand [2012 (12) SCC 72], the Hon’ble Supreme Court
observed as follows on the point of the stage at which the question of
sanction under Section 197 Cr.PC would be considered.
“41. The upshot of this discussion is that whether sanction is
necessary or not has to be decided from stage to stage. This question
may arise at any stage of the proceeding. In a given case, it may arise
at the inception. There may be unassailable and unimpeachable
circumstances on record which may establish at the outset that the
Police Officer or public servant was acting in performance of his official
duty and is entitled to protection given under S.197 of the Code. It is
not possible for us to hold that in such a case, the Court cannot look
into any documents produced by the accused or the public servant
concerned at the inception. The nature of the complaint may have to be
kept in mind. It must be remembered that previous sanction is a
precondition for taking cognizance of the offence and, therefore, there
is no requirement that the accused must wait till the charges are
framed to raise this plea. …”
9.​ Having regard to the peculiar facts and circumstances of
this case as stated above, I am of the view that it is too premature for
the Trial Court to decide at this stage as to whether the respondents 2
to 6 are entitled for the protection of Section 197 Cr.PC for their alleged
acts of subjecting the petitioner to severe physical torture. The court
below shall decide the aforesaid aspect in the further course of trial of
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the case after looking into the evidence as to whether there existed any
reasonable nexus between the official duty claimed by the respondents
2 to 6, and their alleged act of thrashing the petitioner.
In the result, the writ petition stands allowed as follows:
(i)​ Ext P7 order dated 27.08.2025 of the Judicial First Class
Magistrate Court-I, Chittoor, in C.M.P.No.5822/2019
directing the complainant therein to produce sanction from
the Government, is hereby set aside.
(ii)​The court below is directed to proceed with the aforesaid
complaint as per law by relegating the issue as to whether
the case required sanction under Section 197 Cr.PC., or
not, to the stage after the completion of the evidence.
(iii)​It is made clear that the court below shall proceed with the
complaint untramelled by Ext P8 order dated 02.12.2025 of
the Government.
​ ​ ​ ​ ​ ​ ​ ​ (sd/-)
G. GIRISH, JUDGE
jsr/DST
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APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE PRIVATE COMPLAINT FILED
BY THE PETITIONER BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-I, CHITTUR, NUMBERED
AS CMP NO. 5822/2019, DATED 30.07.2019,
WITHOUT DOCUMENTSEXHIBIT P2 THE TRUE COPY OF THE DISCHARGE CERTIFICATE
ISSUED BY THE DISTRICT HOSPITAL, PALAKKAD TO
THE PETITIONER, DATED 07/01/2019EXHIBIT P3 THE TRUE COPY OF THE COMMUNICATION DATED
23/02/2019 ISSUED BY MAJOR S.P. MISHRA,
COMMANDANT OF THE PETITIONER, TO THE DISTRICT
POLICE CHIEF, PALAKKADEXHIBIT P4 THE PHOTOGRAPH EVIDENCING THE INJURIES
INFLICTED UPON THE PETITIONEREXHIBIT P5 THE TRUE COPY OF THE FINAL REPORT IN CC NO
409/2019 OF THE JUDICIAL FIRST-CLASS
MAGISTRATE COURT, CHITTUR, PALAKKAD IN CRIME
NO. 27/2019 OF KOLLENGODE POLICE STATION,
PALAKKAD DISTRICT, DATED 25.07.2019EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 07/03/2024
IN CRIMINAL REVISION PETITION NO. 14 OF 2022
OF THE SESSIONS DIVISION COURT, PALAKKADEXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 27-08-2025
IN CMP NO. 5822 DATED 2019 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT I, CHITTUREXHIBIT P8 THE TRUE COPY OF THE ORDER NO.
J2/564/2025/HOME DATED 02/12/2025 OF THE 1ST
RESPONDENT
