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2002 DIGILAW 279 (ORI)

Prahallad Charan Sahoo v. Md. Imdad Sariff

2002-05-08

L.MOHAPATRA

body2002
JUDGMENT L. MOHAPATRA, J. — This application under Sec. 482, Cr.P.C. has been filed for quashing of the proceeding in I.C.C. No. 4/1999 pending in the Court of learned J.M.F.C., Surada. 2. From the record it appears that the aforesaid complaint was filed by the opp. party on the allegation that the complain¬ant is the owner of the Telephone bearing No. 77182. He received a bill for the month of September. 1997 for an amount of Rs. 769/- which according to him was due to excess meter reading and wrong billing. Accordingly, he intimated the Accounts Officer, Berhampur T.D.M. for necessary verification and rectification of the bill. No action having been taken at the end of the Accounts Officer and the telephone line having been disconnected, the complainant along with his brother went to the telephone exchange to enquire about the wrong billing and the disconnection. The petitioner is stated to be working at that time as J.T.O., in Surada Telephone Exchange. When the opp. party along with his brother met the petitioner and enquired about the disconnection, it is alleged that the petitioner abused them in filthy language and also stated that he could enhance the bill from Rs. 40,000/- to Rs. 50,000/-.It is further alleged that the petitioner sudden¬ly caught hold of the shirt collar of the complainant and dragged him out and threatened to assault. Initial statement of the com¬plainant was recorded and an enquiry under Sec. 202, Cr.P.C. was taken up where the brother of the complainant who is said to be present at the time of the incident was also examined. On consid¬eration of materials, the learned Magistrate by order dated 6.4.1999 took cognizance of offences under Secs. 294 and 233 of the Penal Code. 3. Shri Samal, learned counsel appearing for the petition¬er challenges the order taking cognizance as well as the proceed¬ing on two grounds. (I) so far as offence under Sec. 323 is concerned, no case has been made out and therefore the learned Magistrate was not justified in taking cognizance in respect of the said offence. (2) In absence of order of sanction under Sec. 197, Cr.P.C. the learned Magistrate could not have taken cogni¬zance for the offence as the petitioner at the relevant time being a Government Officer was discharging his official duties. 4. Shri Mohanty, learned counsel appearing for the opp. (2) In absence of order of sanction under Sec. 197, Cr.P.C. the learned Magistrate could not have taken cogni¬zance for the offence as the petitioner at the relevant time being a Government Officer was discharging his official duties. 4. Shri Mohanty, learned counsel appearing for the opp. party submitted that in exercise of jurisdiction under Sec. 482, Cr.P.C. this Court is not required to assess the evidence col¬lected during enquiry under Sec. 202, Cr.P.C. and come to a dif¬ferent conclusion. If a prima facie case is made out. this Court should decline to exercise the inherent power. He further submit¬ted that act alleged has no nexus with discharge for official duty and therefore, sanction under Sec. 197, Cr.P.C. is not at all required and the learned Magistrate was justified in taking cognizance in absence of an order of sanction. 5. In support of the contention advanced by Shri Samal, reliance is placed on some decisions of the Apex Court. The Apex Court in a decision reported in 2001 Vol. 6 Supreme Court Cases 704 (P.K. Pradhan v. State of Sikkim) held that in order to determine whether sanction under Sec. 197 (1) is necessary or not, it must be found out as to whether the act complained of is an offence and whether act is done in discharge of official duty or not. The Apex Court further held there must be a reasonable connection between the act and the official duty. It does not matter that the act exceeds what is strictly necessary for the discharge of the official duty, since that question would arise only after when the trial proceeds. But no sanction is required where there is no such connection and the official status fur¬nishes only the occasion or opportunity for the acts. The claim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases the question of sanction should be left open to be decided in the main judgment after conclusion of trial. The claim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases the question of sanction should be left open to be decided in the main judgment after conclusion of trial. More or less similar view has been taken by all other decisions cited by Shri Samal reported in 2000 (2) OLR (SC) 394 (Gauri Shankar Prasad v. State of Bihar and another) and by this Court in a decision reported in 2001 (I) OLR 260 (Sanjeeb Kumar Marik v. Bal Gopal Mishra and another). Much reliance was placed by Shri Samal on a decision of the Apex Court reported in (2000) 8 Supreme Court Cases 500. In the said case the appellant public servant appointed a Duty Magistrate had been directed to remove an en¬croachment. A dispute was between two sets of Mohammedan resi¬dents, one set complaining against the other about the encroach¬ment of the property belonging to the mosque and the appellant as the Circle Inspector, on the basis of a complaint had inquired into the matter and arrived at a finding that the situation at the site was volatile for which order under Sec. 144, Cr.P.C. had been promulgated. In spite of several requests since the encroach¬ment did not vacate, the appellate was appointed as Duty Magis¬trate for removing encroachment. On the date fixed for removal of encroachment when the appellant arrived at with armed force several miscreants armed with weapons started hurling stones and as the situation became out of control, after giving due warning, the appellant gave orders for opening fire and dispersed the mob. On account of such firing, one died and two others were injured. On these factual background, the question was raised whether the appellant had exceeded in discharge of official duty to such an extent that sanction was not necessary. The Apex Court on consid¬eration of the facts held under such circumstances even if there has been some excess in discharge of official duty. The act complained of has a nexus with discharge of official duty and accordingly sanction under Sec. 197(1), Cr.P.C. is necessary. The facts of the present case are completely different than that of the decisions of the Apex Court stated above. The act complained of has a nexus with discharge of official duty and accordingly sanction under Sec. 197(1), Cr.P.C. is necessary. The facts of the present case are completely different than that of the decisions of the Apex Court stated above. So far as the present case is concerned, the complainant along with his brother had gone to find out as to why the telephone line had been dis¬connected. There was no reason for the petitioner to abuse them in filthy language. From reading of the complaint as well as the statement of the complainant and witness No. 1, there appears to be no nexus between the act complained of and discharge of offi¬cial duty. In this connection, another decision of the Apex Court reported in A.I.R. 2001 S.C. 2547 (P.K. Pradhan v. The State of Sikkim) may be referred to. The Apex Court in the said decision held that the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty. What a Court has to find out is whether the act and the official duty are so interrelated that one can postulate reasona¬bly that it was done by the accused in the performance of offi¬cial duty, though, possibly in excess of the needs and require¬ments of situation. While considering the facts of the present case, I find that there was neither any requirement nor the situation was such that it was necessary for the petitioner to use such filthy language. Accordingly, I am of the view that the act complained of has absolutely no nexus with the discharge of official duty and no sanction is necessary before taking cogni¬zance. 6. Coming first question raised by the learned counsel for the petitioner is that no offence under Sec. 323 of the Penal Code is made out. The complaint allegations and the evidence of P.W.1 may be referred to. In the complaint, it is specifically alleged that the petitioner caught hold of the collar of the com¬plainant, dragged him out and threatened to assault. The complaint allegations and the evidence of P.W.1 may be referred to. In the complaint, it is specifically alleged that the petitioner caught hold of the collar of the com¬plainant, dragged him out and threatened to assault. Though such an allegation is made in the complaint, the complainant in his ini¬tial deposition has not whispered a word about it. Whereas his brother who has been examined as witness No. 1 has stated that the petitioner caught hold of the collar of the complainant and threatened to assault. Since the complainant himself is complete¬ly silent about such allegation made in the complaint, I am of the view that a prima facie case under Sec. 323 of the Penal Code is not made out. Accordingly, this application is allowed to the following extent. The order taking cognizance dated 06.04.1999 stands quashed so far as it relates to offence under Sec. 323 of the Penal Code is concerned. The case shall proceed as if cogni¬zance has been taken under Sec. 294 of the Penal Code. Modified order passed.