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2001 DIGILAW 213 (ORI)

K. D. BAJPAI, I. P. S. v. K. C. MISHRA

2001-05-08

R.P.DAS

body2001
B. P. DAS, J. ( 1 ) - This is an application under section 482 of the Code of Criminal Procedure to quash the order of the learned S. D. J. M. , Koraput, passed in I. C. C. No. 5 of 1991 taking cognizance of the offence under sections 341, 323 and 504 of the Indian Penal Code (in short the I. P. C.) against the petitioner. ( 2 ) THE brief facts leading to this application are as follows: The petitioner is a member of the Indian Police Service and while serving as the Deputy Inspector General of Police (South Western Range) at Sunabeda in Koraput district, on 3-2-1991 was residing in a quarter in the H. A. L. Township as a neighbour of one K. S. Venkateswaran, the Deputy General Manager (P and A) of the Koraput Division of Hindustan Aeronautics Limited. In the morning of 3-2-1991 a large number of workers of H. A. L. started a Dharana in front of the residence of the aforesaid Venkateswaran under the leadership of the present opposite party, namely, K. C. Misra, who was a dismissed employee of the H. A. L. On that day at about 4 p. m. the situation at the Dharana place became tense and the mob under the leadership of the aforesaid K. C. Misra (hereinafter called the complainant) started shouting slogans demanding their re-employment, and the said Venkateswaran was threatened to be killed and his residential bungalow was to be burnt if their demands would not be conceded. When Venkateswaran along with two of his colleagues wanted to go out of his residence, they were gheraoed by the complainant and others and Venkateswaran was threatened to be killed. This formed the basis of G. R. Case No. 78/91 pursuant to a report lodged by the aforesaid Venkateswaran. Although some police officers including the Inspector of Police with two sections of A. P. R. force were present at some distance to maintain law and order, they did not take any action immediately in fear of retaliation. When the law and order situation was worsened and the petitioner apprehended violence, he asked the Inspector of Police R. K. Patnaik to persuade and bring the leader of the agitating mob, i. e. , K. C. Misra, to his residential office. When the law and order situation was worsened and the petitioner apprehended violence, he asked the Inspector of Police R. K. Patnaik to persuade and bring the leader of the agitating mob, i. e. , K. C. Misra, to his residential office. The Inspector and the complainant came to the residential office of the petitioner who asked the complainant to restore peace in the area. But instead of coming to terms, the complainant told the petitioner that he would continue his slogans and would also execute threats if their demands were not fulfilled. He also started giving inflamatory speeches and some time thereafter the complainant was arrested and the mob was dispersed without applying any force. On 4-2-1991 when the complainant was produced before the learned S. D. J. M. , Koraput, in G. R. Case No. 78/91 he complained of ill-treatment while in police custody but did not disclose the name of the police officer who is treated him. He also stated that he had sustained bleeding injury for which the learned Magistrate directed medical examination of the complainant opposite party by the C. D. M. O. The medical report reveals scratch/abrasion on the left arm and behind the right ear of the complainant. On 6-2-199 1 the opposite party complainant filed a complaint petition before the learned S. D. J. M. , Koraput, which came to be registered as I. C. C. No. 5 of 1991, making allegations against the petitioner. Initial statement of the complainant was recorded, and thereafter in the enquiry under section 202, Cr. P. C. statements of two witnesses on behalf of the complainant were also recorded. Considering the allegations in the complaint petition, and considering the initial statement of the complainant and the statements of the witnesses recorded in the enquiry u/s. 202, Cr. P. C. , the learned Magistrate took cognizance of the offence under Sections 323, 341 and 504, I. P. C. against the petitioner. The petitioner challenged the aforesaid order in Criminal Misc. Case No. 1019 of 1991 and raised several questions including the one that the essential ingredients of the offence for which cognizance had been taken did not exist. The question of maintainability of the complaint petition against the petitioner without the sanction as required under section 197, Cr. P. C. was also raised. Case No. 1019 of 1991 and raised several questions including the one that the essential ingredients of the offence for which cognizance had been taken did not exist. The question of maintainability of the complaint petition against the petitioner without the sanction as required under section 197, Cr. P. C. was also raised. This Court remanded the matter to the trial with the following observation: I permit the petitioner to appear before the learned S. D. J. M. Kotaput on 2nd March, 1998, and raise all possible grounds in support of his plea that it would not be legal and proper to proceed against him further, and! or that the ingredients of offences in respect of which cognizance has been taken do not exist. If such a motion is made by the petitioner on the aforesaid date the learned S. D. J. M. , Koraput shall consider the same in accordance with law. T In terms of the aforesaid order, the learned S. D. J. M. upon hearing the petitioner passed an order which was challenged in Criminal Misc. Case No. 196 of 1994 and this Court by judgment dated 31-10-1995 set aside the order of the learned Magistrate dated 12-8-1993 being contrary to the earlier direction of this court and ultimately remitted the matter back to the learned S. D. J. M. for a fresh consideration keeping in view the observations of this Court in the earlier Criminal Misc. Case No. 1019 of 1991. The learned S. D. J. M. by order dated 21-3-1996 found that the contentions raised by the petitioner were devoid of any merit and accordingly dismissed the application so filed by the petitioner challenging the order taking cognizance against him. Though the petitioner took a plea that as the occurrence took place while he was discharging his official duty, he is protected under section 197, Cr. P. C. and sanction is required to proceed against him, the trial court observed that the act so alleged against the petitioner does not bear such relation to the duty so that the accused could lay a reasonable claim that he did it in the course of his performance of the duty. P. C. and sanction is required to proceed against him, the trial court observed that the act so alleged against the petitioner does not bear such relation to the duty so that the accused could lay a reasonable claim that he did it in the course of his performance of the duty. Ultimately the learned S. D. J. M. held that the act complained of such as assaulting, unlawful restraining and abusing the complainant, had no connection with the discharge of petitionerts official duty and concluded that the petitioner was not entitled to the protection so granted under Section 197, Cr. P. C. ( 3 ) THE facts remain that the complainant was the leader of the mob which started a Dharana in front of the residence of an officer of the H. A. L. and that the complainant was an accused in G. P. Case No. 78,191 which arose out of the same incident. It is also a fact that the petitioner was functioning as the D. I. G. of police on the date of occurrence. ( 4 ) SHRI Nayak, learned counsel for the petitioner, has raised two contentions, namely, (i) the essential ingredients of the offences for which cognizance had been taken do not exist and (ii) the petitioner being a Govt. servant is entitled to the protection available under section 197, Cr. P. C. ( 5 ) LET me examine the second question first, as in case it is held that the petitioner is not entitled to the protection under section 197, Cr. P. C. , then only there would be necessity to go into the first question. servant is entitled to the protection available under section 197, Cr. P. C. ( 5 ) LET me examine the second question first, as in case it is held that the petitioner is not entitled to the protection under section 197, Cr. P. C. , then only there would be necessity to go into the first question. ( 6 ) DEALING with the second question, I may refer to a decision in N. K. Ogle v. Sanwaldas alias Sanwalmal Ahuja, wherein the apex Court relied upon its earlier Constitution Bench decision in Matajog Dubey v. H. C. Baar, which enunciated that where a power conferred or a duty is imposed by statute or other wise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. In that case the Court was considering the allegation that the official, authorised in pursuance of warrant issued by the income Tax Investigation Commissioner in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put, the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him mercilessly causing injuries and for such act a complaint had been filed against the concerned public officer. The Court, however, came to hold that such a complaint cannot be entertained without a sanction of the competent authority as provided under section 197, Cr. P. C. The Court had observed that before coming to a conclusion whether the provisions of section 197, Cr. P. C. will apply, the Court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim that he did it in the course of the performance of his duty. The apex, Court in Suresh Kumar Bhikamchand Jam v. Pandey Ajay Bhushan and Ors. The apex, Court in Suresh Kumar Bhikamchand Jam v. Pandey Ajay Bhushan and Ors. relying open Matajog Dubeyts case (supra) and bearing in mind the legislative mandate engrafted in subsection (i) of section 197, Cr. P. C. debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned held that the said provision is a prohibition imposed by the statute from taking cognizance and as such the jurisdiction of the Court in the matter of taking cognizance and, therefore, a Court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the concerned Government servant. Therefore, in order to attract the provision of section 197, Cr. P. C. there should be some evidence to indicate or suggest that the act was committed by the petitioner was in due discharge of his official duty. Here, from the complaint petition, it is disclosed that there was a Dharana, was conducted by the opposite party complainant in which about 400 tribal and Harijan workers of H. A. L. had participated and that a criminal case has been initiated against the complainant and some others for delivering inflamatory speeches which aroused the sentiments of the tribal and Harijan workers to commit the offences like attacking the house of the D. G. M. and assaulting him. Though the question of sanction was raised by the petitioner before the learned Magistrate, the same has not been dealt with in its proper perspective and the learned S. D. J. M. has come to the conclusion that the petitioner is not entitled to the protection under section 197, Cr. P. C. which is incorrect and not sustainable in law. ( 7 ) IN view of the decision referred to above, there is no scinula of doubt that the petitioner is entitled to the protection under section 197, Cr. P. C. The allegations so made might be in excess of performance of official duty but they cannot be said to be totally unconnected with the official duty or cannot be held to be not income of performance of official duty. His further not disputed that the petitioner is not removable from his office except by or with the sanction of the State Government. His further not disputed that the petitioner is not removable from his office except by or with the sanction of the State Government. The requirement of obtaining sanction for prosecution of the petitioner being mandatory and admittedly no sanction having been taken, the impugned order taking cognizance against the petitioner cannot be sustained. ( 8 ) IN above view of the matter, there is no necessity to go into the first question. ( 9 ) IN the result, the impugned order of the learned S. D. J. M. , Koraput, taking cognizance against the petitioner in I. C. C. No. 5 of 1991 is bad and is accordingly set aside. The criminal misc. case is allowed accordingly. Petition allowed.