Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 601 (ORI)

Pradipta Kumar Choudhury v. Bhagaban Sahoo

2010-08-23

S.C.PARIJA

body2010
ORDER 23.8.2010 — Sri A.R. Majhi and associates enter appearance for opposite party and files Vakalatnama in Court today, which be kept on record. Heard learned counsel for the parties. This revision application has been filed by the accused-petitioner under Section 401 read with Section 397 Cr.P.C. challenging the order of cognizance dated 26.3.2010 passed by the J.M.F.C., Chandbali, in I.C.C. No. 10 of 2010, taking cognizance of offences under Sections 294/341/323/379/506 IPC. Learned counsel for the accused-petitioner submits that the informant-opposite party lodged an F.I.R. on 13.3.2010 which was registered as Chandbali P.S. Case No. 16 of 2010, under Section 376 IPC against the accused Ratnakar Sahu. In pursuant to the said F.I.R. registered under Section 376 IPC, the accused Ratnakar Sahu was arrested on 14.3.2010 and was sent for medical examination. The victim lady was also sent for medical examination. The medical examination report suggested that the allegation of rape is not made out. In connection with the said FIR the informant-opposite party had been pressurizing the petitioner, who is the IIC, Chandabali Police Station, to make out a report so as to substantiate the allegation of rape made in the FIR against the accused Ratnakar Sahu and having failed to influence the course of investigation, the informant-opposite party has filed complaint petition before the J.M.F.C., Chandbali, which was registered as I.C.C. No. 10 of 2010. It is submitted that the learned Magistrate on the basis of the allegations made in the complaint petition and the initial statement of the complainant-opposite party has mechanically proceeded to take cognizance of offences under Sections 294/341/323/379/506 IPC against the accused petitioner. The main contention of learned counsel for the petitioner is that as the petitioner is a public servant and in absence of prior sanction as required under Section 197 (1) Cr.P.C., the impugned order of cognizance is not sustainable in law. It is further submitted that the allegation made in the complaint are absurd, inherently, improbable and do not prima facie constitute any offence or make out any case against the petitioner. It is further submitted that the allegation made in the complaint are absurd, inherently, improbable and do not prima facie constitute any offence or make out any case against the petitioner. Learned counsel appearing for the complainant-opposite party with reference to the date and time of arrest of the accused Ratnakar Sahu and his medical examination, submits that the petitioner as the I.O. has not carried out the investigation in a fair and proper manner and every attempt has been made by the petitioner to help the accused Ratnakar Sahu. Accordingly, it is submitted that the order of cognizance passed by the learned Magistrate on the basis of the materials on record, is proper and justified and no interference is warranted. Coming to the question regarding requirement of sanction for prosecution under Section 197(1) Cr.P.C., it is now well settled that protection given under Section 197 of the Code is to protect responsible public servants against the institutions of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. Section 197(1) of the Code reads as under: “197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a)in the case of person who is employed or, as the case may be was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government: (b)in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.” xxxxxxxx So far public servants are concerned the cognizance of any offence by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence alleged to have been committed, was in discharge of the official duty. The section not only specified the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, no Court shall take cognizance of such offence except with the previous sanction. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. In the present case, as the act complained of are alleged to have been committed by the present petitioner as a public servant in discharge of his official duty or in dereliction of the same, the protection envisaged under Section 197(1) Cr.P.C. is attracted and the impugned order of cognizance cannot be sustained in absence of prior sanction of the appropriate Government. In view of the above, the impugned order of cognizance dated 26.3.2010 passed by the J.M.F.C., Chandbali, in I.C.C. No. 10 of 2010 is hereby quashed. CRLREV is accordingly allowed. CRLREV allowed.