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2001 DIGILAW 258 (ORI)

Atko Kujur v. Mahalat Sa

2001-06-20

L.MOHAPATRA

body2001
JUDGMENT L. MOHAPATRA, J. — This application under Sec. 482, Cr.P.C. has been filed challenging the order dated 7.7.1994 passed by the learned S.D.J.M., Jharsuguda in I.C.C.No. 11 of 1994 taking cognizance of offence alleged to have been committed under Secs. 323/294/506, IPC as well as the order passed by the learned Additional Sessions Judge, Jharsuguda in Criminal Revision No. 62/17/36 of 1994-95-99 dismissing the same. 2. As it appears from the averments made in the petition the petitioner was working as Sub-Inspector of Police in Belpahar Police Station on the alleged date and at the time of occurrence. A complaint case was filed against the petitioner and the O.I.C. of Belpahar Police Station alleging that the complainant had reported against one Prafulla Sahani and some others who had criminally trespassed in his land and committed mischief and when he protested he was threatened with dire consequence. Though such a report was made by the complainant the O.I.C. of Belpahar Police Station refused to receive the complaint and complainant sought for intervention of the Superintendent of Police, Jharsuguda by filing a petition before him. The S.P. directed the complainant to report Belpahar Police Station on 24.2.1994 and accordingly the complainant alongwith his witness went to the Belpahar Police Station on 24.2.1994 at about 4 p.m. It is alleged that after the complainant and the witnesses came to the police station the present petitioner got enraged and abused the complainant in obscene words, caught-hold of his shirt collar, dealt slap and hackled him. It is also alleged that the O.I.C. abused the complainant in obscene language and attempted to give a slap to the complainant. 3. On the basis of such allegations the complaint having been filed the learned Magistrate took cognizance on 7.7.1994 after conducting an enquiry under Sec. 202, Cr.P.C. Said order was challenged by the petitioner in revision before the Additional Sessions Judge, Jharsuguda. The learned Additional Sessions Judge, Jharsuguda after perusal of materials available on record came to finding that prima facie case is made out against the petitioner. Another question was raised before the revisional Court with regard to absence of sanction under Sec. 197, Cr.P.C. Said contention was also turned down by the learned Additional Sessions Judge on the ground that the use of language as mentioned in the complaint petition is not a part of the duty of police officer. 4. Another question was raised before the revisional Court with regard to absence of sanction under Sec. 197, Cr.P.C. Said contention was also turned down by the learned Additional Sessions Judge on the ground that the use of language as mentioned in the complaint petition is not a part of the duty of police officer. 4. Before this Court only one point has been raised with regard to absence of sanction. It is stated by the learned counsel for the petitioner that in absence of sanction no Court can take cognizance of any offence against the petitioner who was working as Sub-Inspector of Belpahar Police Station. Section 197, Cr.P.C. prescribes that any person who is a public servant not removable from his service save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the dis¬charge of his official duty, no Court shall take cognizance of such offences except with previous sanction. This provision clearly prescribes that only when offence is alleged to have committed by a public servant in discharge of his official duty, the Court shall not take cognizance in absence of any sanction. Learned counsel for the petitioner relying upon a decision of this Court reported in 1991 (1) Crimes 629 (Ori.) (Anadi Charan Jena v. Bijaya Kumar Mohanty) submits that before prosecuting a public servant sanction under Sec. 197, Cr.P.C. is necessary. Reliance is also placed on a decision of this Court reported in (1999) 17 OCR 369 (Basant Kishore Swain v. Rama Chandra Moha¬patra) where this Court held that the Asst. Sub-Inspector of Police have been notified as public servants and sanction is necessary for prosecution of such officer. On facts of that case, the Court was of the view that protection under Sec. 197, Cr.P.C. was necessary. The facts alleged in the said case is that P.W.1 who is the son of complainant/informant was brought to the outpost from his house by the police officer for investigation in connection with theft of a gold-chain and was kept in police lock-up. Request of the complainant to release him went unheeded and in addition P.W.1 was allegedly abused in filthy language and was assaulted by a batton on different parts of the body. Request of the complainant to release him went unheeded and in addition P.W.1 was allegedly abused in filthy language and was assaulted by a batton on different parts of the body. Considering these facts this Court was of the view that since the act alleged took place during investigation of offence, it cannot be said that such act is not in discharge of official duty. Reliance is also placed on a decision reported in Judgment Today 2000 (Suppl. 1) SC 529 (Abdul Wahav Ansari v. State of Bihar and another). The apex Court in the said decision was of the view that the question of sanction under Sec. 197, Cr.P.C. can be raised and considered at any stage of the proceedings and further in considering the question whether or not sanction for prosecution is required, it is not necessary for the Court to confine itself to the allegations in the complaint and it can take into account all the materials on the record at the time when the question is raised and falls for consideration. Reliance is placed on a decision reported in 2001 (I) OLR 260 (Sanjeeb Kumar Marik v. Bal Gopal Mishra and another) where this Court held that if there is a coherent nexus between the act complained of as an offence and the duty of the public servant, sanction becomes necessary even if such act is in excess of his exact duty. In the said decision this Court considering the fact held that even if any excess was committed in discharge of his duty, that excess was plainly in relation to his official duty in the sense that it was professed to be so and it was meant to convey to the mind of the complainant that he was acting under the authority of his office. In the other decisions relied upon by the learned counsel for the petitioner the Courts are also of the same view as indicated above. 5. On analysis of the aforesaid decision the following questions emerged for consideration. (i) Whether the petitioner was discharging official duty at the time of commission of offence; and (ii) Whether the offence alleged is in discharge of official duty. 6. 5. On analysis of the aforesaid decision the following questions emerged for consideration. (i) Whether the petitioner was discharging official duty at the time of commission of offence; and (ii) Whether the offence alleged is in discharge of official duty. 6. Coming to the facts of the present case it appears that the complainant had gone to the Belpahar Police Station to lodge a report against one Prafulla Sahani and some others, namely Radhika and Mani Rana who had criminally trespassed to his land and committed mischief. Said report was refused to be accepted by the O.I.C. of Belpahar Police Station. Thereafter, the complain¬ant sought for intervention of the Superintendent of Police who directed him to report before the Belpahar Police Station on 24.2.1004. When the complainant went to the Belpahar Police Station on 24.2.1994 the O.I.C. asked him as to why he has been called and the present petitioner got enraged and abused the complainant in obscene words, caught-hold of his shirt collar, dealt slap and hackled him. With this background, it appears that the officer-in-charge as well as the present petitioner were not happy with the complainant as he had approached the S.P. alleging that the O.I.C. of the Belhapar Police Station did not receive the report. Conduct of the petitioner in abusing the complainant or catching hold of his shirt or dealing of slap is neither in course of investigation nor in discharge of official duty. At the relevant time, the petitioner was in the police station and may be doing his official duty. The allegations made in the complaint and the initial statement of the complainant and his witnesses clearly show that the conduct of the petitioner was not in discharge of official duty. I am, therefore, of the view that for such conduct of the petitioner no sanction under Sec. 197, Cr.P.C. is necessary. Facts of the case cited above by the learned counsel for the petitioner are clearly distinguishable and the question as to whether sanction is necessary or not depends upon the facts of each individual case. Questions of exceeding limits of official duty also does not arise in the present case as the petitioner was not the officer to interfere when the complainant had gone to lodge report before the O.I.C. of that police station. 7. I, therefore, do not find any merit in the application and the same is dismissed. Questions of exceeding limits of official duty also does not arise in the present case as the petitioner was not the officer to interfere when the complainant had gone to lodge report before the O.I.C. of that police station. 7. I, therefore, do not find any merit in the application and the same is dismissed. Application dismissed.