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2003 DIGILAW 615 (ORI)

Ananta Charan Nayak v. Anjali Sahu

2003-10-17

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — Invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioner has filed this petition praying to quash the order passed by the Sessions Judge, Dhenkanal in Criminal Revision No.44 of 1990 confirming an order passed by the S.D.J.M., Hindol in ICC No.16 of 1990 taking cognizance of an offence alleged against the petitioner under Section 500 of the Indian Penal Code. 2. According to the petitioner, the alleged commission of offence under Section 500 IPC is levelled against him while he was discharging the duties as an Executive Magistrate being in charge of law and order situation and as such he is protected by the umbrella provided under Section 197 CrPC and unless the impugned order is set aside it will not only prejudice the rights of the petitioner but will also amount to abuse of the process of law. 3. To appreciate the backdrop of the factual scenario, it is necessary to state the facts of the case, shorn of unnecessary details. In the district of Dhenkanal under Hindol Block there are two villages namely Mahulanda and Badanali which were at daggers drawn centering round the Sevapuja of Goddess ‘Brahmani Devi’. Several disputes were pending in different Courts includ¬ing Civil Courts for declaration of inter se rights of the par¬ties vis-a-vis the Sevapuja of the Deity. To avoid the breach of peace in the locality the petitioner, an Executive Magistrate, was deputed with police force to maintain law and order near the temple of the Deity in March, 1990. The opposite party filed a complaint before the S.D.J.M., Hindol alleging inter alia that the petitioner did not allow her to perform the Sevapuja of the Deity and when the opposite party protested the petitioner tauntingly asked her not to go the Temple and said that if she disobeyed the order, then Nepali Police would be directed to enter into her village and conse¬quently all the ladies of the village would give birth to Nepali children. According to the opposite party the said statement not only offended her, who was a respectable lady, but also was defa¬matory in nature. According to the opposite party the said statement not only offended her, who was a respectable lady, but also was defa¬matory in nature. The complaint petition filed by th opposite party was registered as ICC No.16 of 1990 and the learned SDJM by his order dated 12.4.1990 took cognizance of the offence under Section 500 IPC and directed issue of summons against the accused-petitioner. Against the said order of the SDJM, the petitioner preferred a Criminal Revision before the Sessions Judge, Dhenkanal, but as stated earlier the Sessions Judge confirmed the order of the SDJM solely on the ground that the materials on record revealed the presence of the petitioner at the spot and it was not within the official function of the petitioner to insult a lady, i.e. the complainant-opposite party. 4. Sections 129 and 130 of the Code of Criminal Procedure deal with dispersal of unlawful assembly by use of civil force. Under the provisions of the said Sections, an Executive Magistrate or any other officer mentioned in the said Sections may command an unlawful assembly or any assembly of five or more persons likely to cause a disturbance in a public place to disperse, and thereafter it would be the duty of the members of such assembly to disperse accordingly. The Sections further stipulate that if upon being so commanded, the unlawful assembly does not disperse, or if conducts itself in such a manner as to show any determina¬tion not to disperse, the Executive Magistrate or police officer referred to in the said Sections may proceed to disperse such assembly by applying force. Section 130 CrPC also authorises the Executive Magistrate assigned with the duty to maintain law and order to use armed forces to disperse the assembly if contingen¬cies arise. 5. Section 132 CrPC gives protection to any person against any act purported to have been done under Section 129 or 130 or 131 CrPC and stipulates that no prosecution against such person shall be instituted in any Criminal Court except with the sanc¬tion of the State Government. Sub-section (2) of Section 132 stipulates that no Executive Magistrate or Police Officer acting under Sections 129 to 131 CrPC in good faith shall be deemed to have thereby committed an offence. 6. Sub-section (2) of Section 132 stipulates that no Executive Magistrate or Police Officer acting under Sections 129 to 131 CrPC in good faith shall be deemed to have thereby committed an offence. 6. A cumulative reading of Sections 129, 130 and 132 CrPC leads to an irresistible conclusion that an Executive Magistrate specially deputed to a place for maintaining law and order situa¬tion is protected by the umbrella provided under Section 132 Cr.PC. 7. Mr. Naik, learned counsel appearing for the petitioner, submitted that the petitioner who was a public officer was also protected under Section 197 CrPC and the Courts below in the absence of any sanction as mandatorily required under Section 197 acted illegally and with material irregularity in taking cog¬nizance of the offence alleged against him and therefore the orders are not sustainable in law. 8. Mr. Swain, learned counsel appearing for the opposite party, at the other hand forcefully submitted that the overt act committed by the petitioner did not flow from discharge of his official duty and the Courts below have rightly arrived at the conclusion that the act alleged against the petitioner being in excess of the jurisdiction conferred upon the petitioner, the protection as provided under Section 197 is not available and thus the Courts below have committed no error in their orders. It is also submitted by him that the present Criminal Misc.Case is in the garb of circumventing the provision of the Code of Crimi¬nal Procedure prohibiting a second revision and it is therefore liable to be dismissed on that ground alone. 9. Mr. Naik countenancing the said argument of Mr. Swain submitted that the petitioner who is a public servant would be constrained to face the vexatious litigation unless the impugned orders are set aside. According to Mr. Naik, in the absence of necessary sanction under Section 197, the impugned order taking cognizance is devoid of any merit and unless the present Criminal Misc.Case is entertained and the impugned orders are set aside there will be clear abuse of the process of law and the petition¬er having no other remedy will be highly prejudiced. 10. After hearing the learned counsel for both sides and perusing the materials on record, I find that long standing dis¬putes were existing between the villagers of the aforesaid two villages with regard to performance of Sevapuja of the Deity. 10. After hearing the learned counsel for both sides and perusing the materials on record, I find that long standing dis¬putes were existing between the villagers of the aforesaid two villages with regard to performance of Sevapuja of the Deity. Restraint orders were also passed by the Civil Court competent to pass such orders. Admittedly on the alleged date of occurrence to avoid criminal breach of peace, police force was deployed and the petitioner who was an Executive Magistrate was in charge of the force. The opposite party has also admitted in the complaint petition filed by her before the S.D.J.M. that she along with some others wanted to proceed to the temple to perform Sevapuja. It is prima facie appears that in view of the prohibitory orders and in order to avoid breach of peace, the petitioner who was in charge of maintaining law and order prevented the opposite party from proceeding to the temple. Such act was clearly within the duty assigned to the petitioner. He being the Magistrate in charge of police force, an onerous duty was vested on him to see that unnecessary bloodshed was avoided. It was incumbent upon him to see that public peace and tranquillity was maintained at the spot and villagers of both the villages were prevented from resorting to criminal violence. 11. The allegations as spelt out in the complaint petition reveal that certain overt acts were committed in course of dis¬charge of official duty. The facts complained of were thus di¬rectly concerned with the official duties of the petitioner. The offence alleged to have been committed by the petitioner had some nexus with his official duty. The offending act cannot be said to be inseparable. Thus, according to me, the petitioner is protect¬ed under the umbrella of the provision of Section 197 and also Section 132 CrPC which are enacted for the purpose of protecting a public servant against vexatious litigation. The views ex¬pressed by me are also fortified by a catena of decisions of the Supreme Court as also this Court, i.e. AIR 1970 SC 1661 (B.P. Srivastava v. N. P. Mishra), 80 (1995) CLT 302 (Premjit Mahananda v. Mohanpani Karua), and 20 (2001) OCR 472 *(Sukumar Panigrahi v. State of Orissa). 12. The views ex¬pressed by me are also fortified by a catena of decisions of the Supreme Court as also this Court, i.e. AIR 1970 SC 1661 (B.P. Srivastava v. N. P. Mishra), 80 (1995) CLT 302 (Premjit Mahananda v. Mohanpani Karua), and 20 (2001) OCR 472 *(Sukumar Panigrahi v. State of Orissa). 12. For the reasons stated above, I have no hesitation to hold that both the Courts below have lost sight of the purpose of legislation and enactment of Sections 132 and 197 in the Code of Criminal Procedure and have acted erroneously and in excess of the jurisdiction conferred upon them. The petitioner, an officer of the Orissa Administrative Service, and an Executive Magistrate put in charge of maintaining law and order has to face the rigours of a vexatious litigation unless the order of cognizance is quashed at this stage. 13. Accordingly, I allow the Criminal Misc.Case. The im¬pugned orders of the Courts below are set aside. Consequently, the further proceedings in ICC No.16 of 1990 pending before the S.D.J.M., Hindol are quashed. Crl. Misc. Case allowed.