Kerala High Court Sets Aside Discharge Of Police Officials In Custodial Torture Case | No Sanction Needed For Brutal Assault Beyond Official Duty | Orders Trial Against SI And Women Constables
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath held that custodial torture by public servants cannot be shielded under the protective umbrella of Section 197 of the Criminal Procedure Code (Cr.P.C). The court directed the trial court to proceed with the prosecution of the accused police officials and one civilian co-accused, reversing their earlier discharge from the case. Specifically, the bench stated that acts of police brutality in custody “could have no reasonable connection with their official duties” and that a “pretended or fanciful claim" of such acts being committed in the course of official duty “cannot be entertained”. The directive came in partial allowance of a Criminal Revision Petition filed by the complainant challenging the trial court’s order discharging the accused on the ground of lack of sanction under Section 197 Cr.P.C.
The court concluded that the allegations made against the accused police officials, supported by medical records and witness statements, indicated a case of custodial torture that is outside the ambit of official functions. The bench ordered that charges be framed against accused Nos. 5 to 8 and that the trial proceed in accordance with the law.
The case originated from a private complaint filed by the petitioner, who was the complainant and alleged victim, before the Judicial First-Class Magistrate - II, Thiruvananthapuram, under CMP No.675/2007. The complaint was lodged against nine individuals, including both private citizens and police personnel. The accused were initially classified into different roles: accused Nos.1 and 2 were husband and wife, accused Nos.3 and 4 were their daughter and son-in-law respectively, and accused No.5 was a close companion of the family. Accused Nos.6 to 9 were serving police officers, specifically the Sub Inspector and Women Police Constables at Fort Police Station, Thiruvananthapuram.
According to the complaint, the petitioner belonged to the Hindu Thandan community, whereas the accused were from forward communities. The complainant worked as a housemaid in the residence of accused Nos.1 to 4. On 20 July 2006, she was accused by her employers of stealing nine sovereigns of gold. Despite her repeated assertions of innocence, the complainant was allegedly verbally abused, called by her caste name, and physically and mentally threatened. She was neither given food nor water and was confined to the house.
Subsequently, accused Nos.7, 8, and 9, who were Women Police Constables from Fort Police Station, arrived at the house and interrogated the complainant. She was allegedly coerced into confessing guilt. Later, she was taken to Fort Police Station where, according to her, accused No.6, the Sub Inspector, ordered that she be ‘dealt with properly.’ The complaint further detailed that accused Nos.7 to 9 took her to an inner room where she was beaten with canes and sticks, her head was hit against a wall, her neck was pressed, and she was stamped on the abdomen. She was dragged across the floor and caned from 5 p.m. to 8 p.m. Despite entreaties from her mother who was present outside the station, no relief was provided.
The complainant was eventually released after her parents were summoned to the police station and made to sign a statement indicating they had no complaint. The next day, she was admitted to the General Hospital, Thiruvananthapuram, and treated for injuries. The complaint alleged intimidation by accused Nos.7 to 9, who warned her against disclosing the incident.
The Magistrate conducted an enquiry under Section 202 Cr.P.C, recording sworn statements from the complainant and six witnesses. Upon finding sufficient grounds, the Magistrate issued process to the accused. As some of the charges were triable by a Sessions Court, the case against accused Nos.1 to 3 and 5 to 9 was committed to the Sessions Court, Thiruvananthapuram. The case was taken on file as S.C. No.1181/2009.
Before the trial court, accused Nos.1 to 4 filed Crl. M.P. No.1851/2016, accused No.5 filed Crl. M.P. No.627/2015, and accused Nos.6 to 8 filed Crl. M.P. No.1757/2015, all seeking discharge under Section 227 Cr.P.C. The trial court allowed all petitions, discharging the accused on 25 January 2017. It found no prima facie material against accused Nos.1 to 4. Regarding accused Nos.5 to 8, the trial court held that although there was material suggesting physical abuse, the acts were committed in discharge or purported discharge of official duties, hence protection under Section 197(2) Cr.P.C. applied.
The complainant challenged this discharge through a Criminal Revision Petition, arguing that the alleged acts, particularly the custodial torture, were not part of official duty and hence not protected by Section 197 Cr.P.C.
Justice Dr. Kauser Edappagath observed that "the act done by them in discharge of their official duty or purporting to be in discharge of their official duty" must have a "reasonable connection between the act and the official duty" for Section 197 of Cr.P.C to apply.
The court recorded that the complainant "was hospitalised on 21.07.2006 and treated as an inpatient till 03.08.2006", and "the medical records reveal that there were injuries on her body." The court further noted that "the trial court found in the impugned order that it is quite evident that the petitioner was brutally tortured, beaten and manhandled in the police station by the accused Nos.6 to 8 at the instruction of the accused No.5".
Citing precedent, the court stated: "It can never be said that a police officer acts or purports to act in discharge of his official duty when he inflicts custodial torture on an arrestee." The bench relied on judgements such as Devinder Singh v. State of Punjab, Kalimuthu v. State by DSP, G.C. Manjunath v. Seetaram, and P.P. Unnikrishnan v. Puttiyottil Alikutty, among others.
The court referred to the Constitution, noting: "Article 21 of the Constitution of India guarantees the right to life and personal liberty to every individual. This fundamental right includes protection from torture, inhuman or degrading treatment, and arbitrary detention."
It continued: "Custodial torture inflicted by a police officer without justification on an arrestee cannot be shielded under the protective mantle of Section 197 of Cr.P.C."
Furthermore, the bench noted: "There may be circumstances which may justify the use of force by the police while discharging their official duty. But that is not the case here." The court stated that "the custodial assault as alleged by the petitioner in detail in her complaint and sworn statement, can never be justified under the shelter of performance of official duty."
The judgment also recorded: "The courts must not lose sight of the fact that custodial torture is perhaps one of the worst kinds of crime in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society."
The court issued the following directive: "I hold that the discharge of accused Nos. 5 to 8 on the ground that the prosecution against them is bad for want of sanction under Section 197(1) of Cr.P.C. cannot be justified."
The bench stated: "Therefore, the impugned order to the extent it allows Crl. M.P. No.627/2015 and Crl. M.P. No.1757/2015 and discharging accused Nos. 5 to 8 is hereby set aside."
The court further directed: "The trial court is directed to frame charge against accused Nos. 5 to 8 for those offences attracted against them and proceed with the trial in accordance with the law."
An additional instruction was provided: "If the trial court finds that the offence presumably committed by them is not exclusively triable by the Court of Sessions, it shall follow the procedure contemplated under Section 228 (1)(a) of Cr.P.C."
Accordingly, the Criminal Revision Petition was "allowed in part as above."
Advocates Representing the Parties:
For the Petitioner: Sri. V. Sajith Kumar, Sri. Josie Mathew, Smt. Neena J Kalyan, Smt. Ammu M.
For the Respondents: Sri. E. C. Bineesh, Senior Public Prosecutor; Sri. A. S. Shammy Raj
Case Title: Sudha v. State of Kerala & Others
Neutral Citation: 2025: KER:42756
Case Number: CRL.REV.PET NO. 1130 OF 2017
Bench: Justice Dr. Kauser Edappagath
