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2009 DIGILAW 636 (ORI)

BISWANATH HOTA v. STATE OF ORISSA

2009-08-17

B.P.RAY

body2009
JUDGMENT : B.P. Ray, J. - This is an application u/s 482 of the Code of Criminal Procedure (in short, "Cr.P.C") filed by the Petitioners with a prayer to quash the order of taking cognizance dated 7.3.2003 by the learned S.D.J.M., Berhampur in I.C.C. No. 20 of 2001 for offences committed under Sections 294/506/323/109/34 of the Indian Penal Code (in short, "I.P.C."). 2. The brief fact of the case is that the Petitioner No. 1 (since dead) was the D.I.G. of Police, Southern Range, Berhampur, Petitioner No. 2 was working as I.I.C., Baidyanathpur P.S., Petitioner No. 3 was working as S.I. of Police, Baidyanathpur P.S., Berhampur and Petitioner No. 4 was working as Sub-Collector, Berhampur. It is alleged that during the relevant point of time, the lawyers of Ganjam District Bar Association were on agitation protesting imposition of professional tax on lawyers. The Hon'ble Chief Minister of Orissa had to pay a visit to M.K.C.G. Medical College, Berhampur on 16.12.2000. On 15.12.2000, the members of the Ganjam Bar Association passed a resolution to make protest against the imposition of said professional tax, in front of the Hon'ble Chief Minister by demonstrating on the road at Berhampur through which the Hon'ble Chief Minister of Orissa had to pass on 16.12.2000. On receipt of the information, the LLC, Baidyanathpur P.S. intimated the members of the District Bar Association, Ganjam not to bring out any procession on the road for the said purpose in the absence of any permission u/s 30 of the Police Act. The district administration also made efforts to dissuade the members of the Bar Association not to go ahead with their resolution and requested them to refrain from creating any law and order situation during the visit of the Hon'ble Chief Minister. But about 200 members of the Ganjam Bar, without paying heed to such request of the district administration as well as the Police, on 16.12.2000 at about 10.00 A.M. came in a procession and gathered in front of the main gate of M.K.C.G. Medical College, Berhampur and gave slogans, in order to prevent the Chief Minister from entering into the Medical College and also engaged themselves in unlawful activities. For such impermissible acts of the members of the Ganjam Bar Association, Police registered number of criminal cases against them, as according to Police, such overt acts were attracting the ingredients of offences punishable under the Indian Penal Code and penal provisions under other criminal laws and cognizable in nature. One of such case is G.R. Case No. 1205 of 2000. Similarly, the members of the Bar also instituted a complaint case in question against the Petitioners in which cognizance has since been taken on 7.3.2003 by the learned S.D.J.M., Berhampur, for the offences as stated earlier, vide the impugned order and process has since been issued against the Petitioners. 3. Mr. Ashok Mohanty, learned Senior Counsel appearing for the Petitioners has strenuously urged that when the case instituted against the members of the Bar, such a G.R. Case No. 81 of 2001 has since been allowed to be withdrawn u/s 321 of the Gulab Chand Upadhyaya v. State of U.P. and Ors. 2002 (2) CCC 302 (Allahabad); Ram Kishun and Ors. v. State of U.P. 2006 (4) CCC 557 (Allahabad ); Superintendent of Police C.B.I. v. State of Kerala 2005 (4) CCC 128 (Kerala); Madhu Bala Vs. Suresh Kumar and others, ; Abdul Jahangir and Ors. v. State of Orissa and Ors. (2008 ) 18 OCR 207; Puma Chandra Sahoo v. Santi ' Sukanti and Anr. (2005) 30 OCR 268 ; Mohd. Yousuf v. Smt. Afraq Jahan and Anr. (2006) 33 OCR (SC) 345; Kanaksinh Hathisinh Jadeja and Others Vs. Blabhadrasinh Narendraisinh Jhala and Another considering the facts and circumstances in which the offences alleged to have been committed, continuance of the criminal proceeding in question against the present Petitioners, who are the responsible Officers of the Police Department and district administration is not at all desirable and as such, the order of cognizance deserves to be quashed, in exercise of the power u/s 482, Code of Criminal Procedure in the interest of justice. So also, it is submitted by him that in the absence of any sanction of the State Govt. u/s 197, Code of Criminal Procedure, the order of cognizance passed by the learned S.D.J.M. is unsustainable in the eye of law. 4. In response to the same, it has been contended by learned Counsel appearing for the opp. So also, it is submitted by him that in the absence of any sanction of the State Govt. u/s 197, Code of Criminal Procedure, the order of cognizance passed by the learned S.D.J.M. is unsustainable in the eye of law. 4. In response to the same, it has been contended by learned Counsel appearing for the opp. parties that withdrawal of the criminal cases against the members of the Bar is not a ground to quash the order of cognizance against the Petitioners as the criminal case against the Petitioners is in no way dependant on the fate of the said case. However, it is fairly submitted by them that when offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty, an order of cognizance of such offence without previous sanction of the Govt. is bad in the eye of law. But according to the opposite parties, since the act complained of has no nexus with the discharge of the official duties, the impugned order of cognizance cannot be found fault with in the absence of previous sanction of the State Government. 5. It is needless to say that Section 197, Code of Criminal Procedure has been implanted in the Code of Criminal Procedure to protect the responsible public servants against the institution of vexatious criminal proceeding for offences alleged to have been committed by them, while they are acting or purporting to act as public servants. The Legislature has implanted the same in the statute to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without any reasonable cause. But the protection has certain limits and is available only when the alleged act done by the public servant appears to have a reasonable connection with the discharge of the official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, a public servant acted in excess of his duty, but there is a reasonable connection between the act complained of and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of protection available to him u/s 197, Code of Criminal Procedure In the case of P. Arulswami Vs. The State of Madras the apex Court have held as under: ...It is not therefore every offence committed by a public servant that requires sanction for prosecution u/s 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. An office may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. 6. Coming to the case at hand, it appears that while the Petitioners were discharging their official duties of maintaining law and order situation during the visit of the Hon'ble Chief Minister, they are said to have committed the act in excess of discharge of their official duties. From the materials on record, it is seen that the act complained of has a reasonable nexus in discharge of their official duties. 7. In such premises, this Court is of the view that the impugned order of cognizance taken by the learned S.D.J.M., Berhampur and the process issued against the Petitioners, who are all public servants and said to have been committed the offence alleged during the course of discharge of their official duties, cannot be sustained in the absence of any sanction of the State Government u/s 197, Code of Criminal Procedure 8. In view of the above, the CRLMC is allowed. Consequently, the impugned order of cognizance passed in I.C.C. No. 20 of 2001 is quashed and the said criminal proceeding pending before the learned S.D.J.M., Berhampur is dropped. Final Result : Allowed