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2001 DIGILAW 475 (ORI)

AMBIKA PRASAD DAS v. BABITA JALLI

2001-11-05

P.K.TRIPATHY

body2001
P. K. TRIPATHY, J. ( 1 ) IN this application under Sec. 482 of the Code of Criminal Procedure (in short the Code) petitioner prays for quashing of the cognizance order dated 27/4/2000 in I. C. C. No. 34 of 1999 of the Court of J. M. F. C. , Khallikote on the ground of false and frivolous case having been instituted against the petitioner because he was the Officer-in-charge of Khallikote Police Station by the date of occurrence and had taken action in Khallikote P. S. Case No. 100 of 1999 registered inter alia under Section 395, I. P. C. where the husband of the opposite party is an accused along with others. His further ground is that sanction under Sec. 197 of the Code is needed to prosecute him. Complainant is the opposite party in this case. ( 2 ) IT appears from the complaint that allegation has been made against the petitioner on the ground that on 21/8/1999 at about 7 P. M. petitioner forcibly trespassed into her residence on the plea of search of one Rajesh Nail (a criminal involved in several cases} and when opposite party pleaded her ignorance about acquaintance with such Rajesh Naik, as alleged in the complaint she was abused with obscene language and also the petitioner made her naked by pulling her saree. Learned Magistrate undertook an inquiry under Sec. 202 of the Code in which four witnesses were examined. The first three witnesses gave their statement relating to outraging of her modesty and the fourth witness made statement regarding payment of bribe by him to the petitioner. After perusing such statement, along with the initial statement of the opposite party on 27/4/2000 learned Magistrate took cognizance of the offence without considering as to whether a sanction was necessary as required under Sec. 197 of the Code when one of the witnesses in course of enquiry told that the petitioner was in uniform. ( 3 ) IT is stated by the petitioner that since the opposite party, her husband and several other villagers resisted the search and arrest of the wanted criminals, therefore, Khallikote P. S. Case No. 100 of 1999 has been registered against them for the offence under Secs. 147. 148, 395, 2 16 (A), 364, 353, 333, 307, 149. ( 3 ) IT is stated by the petitioner that since the opposite party, her husband and several other villagers resisted the search and arrest of the wanted criminals, therefore, Khallikote P. S. Case No. 100 of 1999 has been registered against them for the offence under Secs. 147. 148, 395, 2 16 (A), 364, 353, 333, 307, 149. I. P. C. and Section 7 of the Criminal Law Act and this case has been foisted on 15/9/1999 as a counter blast to the said proceeding. ( 4 ) THE provision in Section 197 of the Code is there to grant protection of law to Judges, Magistrates and Public Servants who are not removable from service, without the sanction of the Government, if such person is made an accused of offence alleged to have been committed by him while acting or purporting to act in the discharge of their official duty. In such cases, concerned Court should take cognizance if there is sanction of prosecution. Of course, it is the settled position of law that the public servant doing any act which cannot be treated in due discharge of duty then such public officer cannot get protection of Section 197 of the Code. ( 5 ) ON perusal of the LCR it is seen that the complaint was filed on 15/9/1999 though allegedly the occurrence took place on 21/8/1999. In the complaint it has been stated that on 22/8/1999 the complainant lodged a written report before the Superintendent of Police Ganjam who was present at Khallikote Police Station and since no action was taken, therefore. she filed the complaint. It seems that learned J. M. F. C. did not consider that aspect properly inasmuch as in a case of this nature, the contention of the complainant regarding lodging of F. I. R. should have prompted the Magistrate to follow the procedure provided in Section 210 of the Code and keeping in view the nature of the duty which the petitioner performs, He should have called for a report from the Superintendent of Police to know the truth or otherwise in the above averments in the complaint. If that should have been done then learned Magistrate could have found out if there was a genuine delay or fake explanation to validate a false complaint. If that should have been done then learned Magistrate could have found out if there was a genuine delay or fake explanation to validate a false complaint. Apart from that, report of the Superintendent of Police would have indicated if the alleged action of the petitioner has or has not the protection of Section 197 of the Code. Petitioner has only filed xerox copy of the F. I. R. in Khallikote P. S. Case No. 100 of 1999. No further document in that context has been produced for due consideration. Nonetheless the said F. I. R. gives sufficient indication that the plea of the petitioner is not without any substance. ( 6 ) UNDER the given facts and circumstances, while setting aside the order of cognizance because the inquiry being not conducted properly, this Court directs the J. M. F. C. , Khallikote to direct the complainant to produce a copy of the F. I. R. which she filed before the Superintendent of Police and whether or not she would file the same the concerned Superintendent of Police shall be called upon to submit a report, if any such F. I. R. was received and if so what action was taken on that F. I. R. and thereafter to consider the statement of the complainant and witnesses and the provision of law under Section 197 of the Code at the time of considering whether cognizance of the offence be taken or not. The Criminal Misc. Case is accordingly allowed. Petition allowed.