Research › Search › Judgment

Orissa High Court · body

2000 DIGILAW 79 (ORI)

ASHOK DALWAI v. RADHANATH PRADHAN ALIAS BULU

2000-02-09

P.K.TRIPATHY

body2000
ORDER P.K. Tripathy, J. - Heard. On consent of the parties this case is disposed of at the stage of hearing on admission. 2. Both the above two applications u/s 482, Code of Criminal Procedure have been separately filed by the two accused persons in I.C.C. No. 32 of 1993 of the Court of S.D.J.M., Bhawanipatna with the prayer to quash the order of cognizance. Accused No. 1 - Sri Ashok Dalwai has filed Criminal Misc. Case No. 751 of 1996 and accused No. 2 - Smt. Arati Ahuja has filed Criminal Misc. Case No. 905 of 1996. Analogous hearing of both the Criminal Misc. Cases is taken up as desired by the parties and this common judgment shall abide the result in both the cases. 3. On 28.8.1993 Petitioner Ashok Dalwai, the then Collector of Kalahandi was holding grievance cell and the other officers including Smt. Arati Ahuja, the then Sub-Collector of Bhawanipatna Subdivision were present in that grievance cell. The complainant-opposite party had gone there to put-forth his grievance in that grievance cell. At about 3.45 P.M. when he was called inside the officer to put-forth his grievance there occurred an incident in which according to the complainant not only he was scolded by the Petitioners but also on the direction of the Collector, Petitioner Arati Ahuja along with the peon of the Collect orate detain him and thereafter he was handed over to the police. For the self-same occurrence two reports were lodged in Bhawanipatna. One by the Tahasildar against the present opposite party and other by the opposite party against the present Petitioners. Two cases were registered by the police on the basis of such information. It is stated by learned Counsel for the Petitioners that the report submitted by the Tahasildar resulted in submission of a charge-sheet against the opposite party for the offences under Sections 448/294/353/34, I.P.C. read with Section 7 of the Criminal Law Amendment Act vide G.R. Case No. 377 of 1993 and that case ended with the conviction of the opposite party as per the judgment and conviction order dated 26.2.1994 passed by the C.J.M., Bhawanipatna. Learned Counsel for the Petitioners files a Xerox copy (true copy attested by him) of that judgment. Learned Counsel for the Petitioners files a Xerox copy (true copy attested by him) of that judgment. In that connection, learned Counsel for the opposite party while not disputing correctness of the Xerox copy of the judgment, states that an appeal preferred by the opposite party against the order of conviction is still pending. The Xerox copy of the said judgment filed by the Petitioner is kept in record. So far as the F.I.R. lodged by the complainant/opposite party- is concerned, the Officer-in-charge submitted final report on the ground that the allegation is false. In the meantime (before filing of final form) the complainant filed I.C.C. No. 32 of 1993 in which after undertaking an enquiry u/s 202, Code of Criminal Procedure learned S.D.J.M. On 20.9.1995 passed the impugned order taking cognizance of the offences under Sections 341, 342, 294 and 352/34, I.P.C. and directed to issue processes against the Petitioners. 4. Learned Counsel for the Petitioners, during the course of hearing argues only on the point of want of sanction u/s 197, Code of Criminal Procedure and does not argue the point relating to the alleged legal lacuna due to non-compliance of the provision u/s 210, Code of Criminal Procedure 5. Learned Counsel for the Petitioners argues that the allegation in the complaint and the statement thereof go to show that the complained act was done by them while in seizing of duty and in due discharge of the duty. Learned S.D.J.M. therefore could not have taken cognizance of the offences in the absence of sanction u/s 197, Code of Criminal Procedure because both the Collector and the Sub-Collector are coming within the category of officers who are squarely protected u/s 197, Code of Criminal Procedure Learned Counsel for the opposite party, on the other hand, argues that though the Petitioners were in office discharging public functions at the time of the occurrence but the act complained against them was not done by them in discharge of their official duty, therefore, in this case sanction u/s 197, Code of Criminal Procedure is not required and accordingly the impugned order is not liable to be interfered with. 6. In the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors. 6. In the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors. 1998 S.C. Cases (Cri.) 1, the facts before the apex Court was that on the basis of the decision of the Jalgaon Municipality when the unit of Anti-Encroachment Department of Municipality had gone to demolish the unauthorized encroached construction the Collector-cum-District Magistrate, Sub-Divisional Magistrate, Superintendent and Additional Superintendent of Police reached at the spot and prevented the unit from demolishing the structures. The President of the Municipality arrived at the spot and protested against the action of the said four officers. In reaction to that as alleged, the above said four officers assaulted, threatened and manhandled him and also pointed a revolver. The President of the Municipality, thus, filed a complaint against the officers. The Chief Judicial Magistrate, Jalgaon after recording statements of the complainant and witnesses took cognizance of the offence under Sections 353, 332, 323, 504 and 506/34, Indian Penal Code against three officers. Learned C.J.M., discharged the Superintendent of Police on the ground of lack of sanction and also did not take cognizance of the offence u/s 307, I.P.C. The remaining three officers' prayer to recall the order of issue of process on the ground of want of. sanction u/s 197, Code of Criminal Procedure was turned down by the learned. C:J.M. Thereafter, they moved for the same relief by filing Criminal Writ Petition in the Bombey High Court (Aurangabad Bench). The complainant also filed a Criminal Revision against the order of discharge of the Superintendent of Police. The High Court allowed the Criminal Writ Petition and dismissed that Criminal Revision. Against that the complainant approached the Apex Court. C:J.M. Thereafter, they moved for the same relief by filing Criminal Writ Petition in the Bombey High Court (Aurangabad Bench). The complainant also filed a Criminal Revision against the order of discharge of the Superintendent of Police. The High Court allowed the Criminal Writ Petition and dismissed that Criminal Revision. Against that the complainant approached the Apex Court. After hearing the parties and considering several leading judgments in the context of requirement of sanction u/s 197, Code of Criminal Procedure and at what stage of the Criminal Proceeding such issue can be raised and decided, their Lordship have been pleased to hold that: ...The legislative mandate en grafted in Sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on, process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which is does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings. Their Lordships further held that: The question of applicability of Section 197, Code of Criminal Procedure and the consequential ouster of jurisdiction of the Court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority. (Quoted from paragraph 24) After analyzing the facts and the laws their Lordships ultimately held that: 25. Considering the facts and circumstances of the case, it prima facie appears to us that the alleged acts on the part of the Respondents were purported to be in the exercise of official duties. Therefore, a case of, sanction u/s 197 Code of Criminal Procedure has been prima facie made out. Whether it was unjustified on the part of the Respondents to take recourse to the actions alleged in the complaint or the Respondents were guilty of excesses committed by them will be gone into in the trial after the required sanction is obtained on the basis of evidences adduced by the parties. At this stage, such questions are not required to be considered because the accused have not yet led evidence in support of their case on merits. Learned Counsel for the Petitioner also relies on the case of Panchanan Gantayat v. Haribandhu Das and Ors. Vol. 85 (1998) CLT 513 and N.K. Ogle v. Sanwaldas alias Sanwalmal Ahuja (1999) 16 OCR (SC) 530, in support of the contention that the Petitioners are protected u/s 197, Code of Criminal Procedure and cognizance in the absence of sanction is liable to be quashed. 7. Mr. Dillip Kumar Misra, learned Counsel for the opposite party, puts a strenuous effort to persuade this Court to accept his contention that the act complained against the Petitioners do not come within the scope of protection which has been provided in Section 197, Code of Criminal Procedure According to him, it was not within the duty of the officers in the grievance cell to detain the opposite party and therefore the prima facie case u/s 341/34, I.P.C. existing against the Petitioners are not entitled to the protection u/s 197, Code of Criminal Procedure 8. Mr. Mr. D.P. Dhal, learned Counsel for the Petitioner is, however, firm in his submission that when the opposite party created a scene in the grievance cell only because he was not offered a chair to sit, it became necessary for the Petitioners who were also the District Magistrate and Sub-divisional Magistrate to hand over the wrong doer Le., the opposite party to the police and got him detained there was no intention to wrongfully restrain the opposite party. 9. Keeping in view the aforesaid submissions, the provision of law and ratio in the above stated citations it is to be ascertained if the act complained of can be clothed with, the official duty of the Petitioners. In that respect the complainant has made a little prevaricating statement at different stages. However, this Court at this stage does not take into consideration such contradiction so as to doubt the truthfulness of the allegations. But the fact remains that in the F.I.R. lodged by the complainant he has stated that the incident occurred while the complainant protested the action of the Collector in keeping him standing for five minutes and not offering him a chair to sit. In that F.I.R. he has not mentioned about any obscene language said to have been used by any of the Petitioners. In the complaint he has stated that while he entered into the room of the Grievance Cell, though he was allowed to remain standing for four to five minutes, Collector did not hear him on his grievance and during that time entertained other persons coming to the Grievance Cell. When the protested to that and requested the Collector to hear him then he was misbehaved and occurrence of detaining him was done. In his complaint petition as well as F.I.R. and also in the initial statement the complainant has stated that the Collector sharply reacted to his behavior and wanted to teach a lesson and that is why asked the Peon and Sub-Collector to detain him so as to hand him over to the police. At this juncture, if the facts and circumstances would be viewed properly from the available materials it cannot be said that the aforesaid action of the Collector and the other Petitioner was devoid of discharging any official duty. At this juncture, if the facts and circumstances would be viewed properly from the available materials it cannot be said that the aforesaid action of the Collector and the other Petitioner was devoid of discharging any official duty. In other words, the aforesaid conduct of the Petitioners was covered by their due discharge of official duty because of the unpleasant situation which developed therein. 10. After coming to the aforesaid factual finding from the materials, which aspect was not properly considered by the S.D.J.M., this Court finds that the act alleged against the Petitioners are squarely covered by Section 197,Code of Criminal Procedure Learned S.D.J.M. in the impugned order has failed to take into consideration the requirement of want of sanction. On the other hand, for the reasons best known to him, learned S.D.J.M. has taken cognizance of the offence under Sections 294/34, I.P.C. though the complainant no where alleged or stated about use of obscene words or doing of any obscene act by any of the Petitioners. 11. Since the act of detaining the opposite party to hand over him to police for the disturbance caused by him was done by the Petitioners while discharging their official duty in the Grievance Cell and when the Petitioners are undisputedly public servants not removable from their offices without the sanction of the Government, thus, the protection provided u/s 197, Code of Criminal Procedure is available in their favor, cognizance of the offences against the Petitioner without the requisite sanction of the Government is bad in law and therefore the cognizance order is quashed. 12. Accordingly, both the Crl. Misc. Cases are allowed. Final Result : Allowed