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2001 DIGILAW 486 (ORI)

SOMNATH DIXIT v. PRATIMA SAHU

2001-11-05

P.K.TRIPATHY

body2001
JUDGMENT : P.K. Tripathy, J. - In this application u/s 482, Code of Criminal Procedure Petitioner has prayed to quash the order of cognizance and issue of process in I.C.C. No. 196 of 1996 of the Court of S.D.J.M., Bhubaneswar. Opposite party No. 1 is the complainant in that case. 2. It is alleged in the complaint that on 3.6.1996 at about 7 P.M. Petitioner along with other four co-accused persons came to the residence of opposite party No. 1 and forcibly trespassed into her premises, criminally intimidated and abused her in filthy language and in that process one of the accused persons snatched away a gold chain from her neck. It is alleged in the complaint and not disputed by the Petitioner that by then the Petitioner was the O.I.C. of Balianta Police Station. 3. It appears from the L.C.R. that on receipt of the complaint, an inquiry was conducted by the learned S.D.J.M. in accordance with the provision in Section 202, Code of Criminal Procedure, during which three witnesses were examined by the complainant and on perusal of the same learned S.D.J.M. was satisfied about existence of a prima facie case for the offences punishable under Sections 448/294/379/506/34, I.P.C. Keeping in view the nature of the allegation against the Petitioner, learned S.D.J.M. recorded that sanction u/s 197, Code of Criminal Procedure is not necessary as a condition precedent to take cognizance and accordingly issued the process. 4. Argument was heard at length on 12.4.200 I when Petitioner raised the following contentions in support of the prayer, viz: (i) materials in the complaint and the statement of witnesses examined u/s 202, Code of Criminal Procedure are not consistent to prove a prima facie case against the Petitioner for any of the offences punishable under Sections 448, 379, 294 or 506, I.P.C. (ii) the complaint has been instituted with false and fabricated allegation at a belated stage and the delay has not been explained; and (iii) the Petitioner being. a police officer is entitled to protection u/s 197, Code of Criminal Procedure in view of the ratio in the case of Kartikeswar Nayak v. Satyabadi Mallik (1994) 7 OCR 326. 5. a police officer is entitled to protection u/s 197, Code of Criminal Procedure in view of the ratio in the case of Kartikeswar Nayak v. Satyabadi Mallik (1994) 7 OCR 326. 5. Opposite party No. 1 advanced argument supporting the impugned order and stating that there exists a prima facie case, there is nothing on record to show that the complaint is based on falsity or fabricated version and that the act complained against the Petitioner being not in due discharge of duty or purported duty, therefore, the cited ratio and. protection u/s 197, Code of Criminal Procedure is not available to him. 6. On 12.4.2001 after advancing the argument, on the proposal of the Petitioner for compounding the offence by effecting a compromise (as the offences under Sections 448, 379 and 506, I.P.C. are compoundable in nature), they took time to explore a possibility of compromise. In view of that, the case was adjourned to 19.4.2001 and this Court passed the following order in that respect: In view of that, the case is adjourned till 19.4.2001. On that date the case is listed at the top of the list for admission. It is made clear to the parties that in the event of failure of a compromise between the parties, in view of the aforesaid argument, judgment shall be pronounced on that date (19.4.2001) without further adjourning the matter. On 19.4.2001 neither of the parties appeared nor was any intimation given to this Court if the parties have affected a compromise. Thus, on 19.4.2001 order was passed to reserve judgment. 7. So far as it relates to the aforesaid first two contentions rose by the Petitioner, after perusal of the statements of the witnesses and the complaint, this Court does not find any glaring contradiction or inconsistency so. as to doubt the sub-stratum of the allegations constituting the offences. Similarly, there is no circumstance existing on record to make out a case of false and fabricated allegation made by opposite party No.. 1 purposefully or mischievously against the Petitioner. Though learned Counsel for the Petitioner contended that because of Petitioner's action against the husband of the opposite party No. 1, against whom several criminal cases are pending, as a reaction and with emotive to harass him this case has been falsely foisted. 1 purposefully or mischievously against the Petitioner. Though learned Counsel for the Petitioner contended that because of Petitioner's action against the husband of the opposite party No. 1, against whom several criminal cases are pending, as a reaction and with emotive to harass him this case has been falsely foisted. But the Petitioner has not substantiated that contention for due consideration in as much as not a scrap of paper has been filed to show or suggest that the husband of opposite party No. 1 indulged in any crime or criminal cases of which the Petitioner has conducted the investigation or was in seizing of the investigation at the relevant time or before that. Far the reasons indicated above, the argument on the aforesaid two aspects is not acceptable. 8. So far as the sanction u/s 197, Code of Criminal Procedure is concerned, it has been held in the above-cited case that: CODE of CRIMINAL PROCEDURE, 1973 Section 197 Requirement of an act which is contrary to. the very duties of a public servant cannot be said to be one in discharge of his official duty-In order to attract Section 197, the Act complained of must have been committed in the course of discharge of official duty-Even if any excess is committed in discharge of duty, that excess would relate to official duty in the sense that it was professed to be so and it was meant to convey to the mind of another that he was acting under the authority of the office. (Quoted from the placate) A prima facie view of the complaint and the statements of witnesses do not show or suggest that the alleged act was committed by the Petitioner acting or purporting to act in the discharge of official duty or in excess. of such official duty. Under Such circumstance, learned S.D.J.M. was correct in his approach in not demanding for a sanction as a pre-condition for taking cognizance of the offence and the issue of process against the Petitioner. Under such circumstance, the application u/s 482, Code of Criminal Procedure bears no merit and is accordingly dismissed. Final Result : Dismissed