Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 197 (ORI)

Sangram Keshari Behera v. Niladri Dhir

2012-04-16

I.MAHANTY

body2012
ORDER 16.04.2012 - Heard Mr. B.P. Dhal, learned counsel on behalf of Mr. S. K. Dash, learned counsel for the petitioner and Mr. A. Panda, learned counsel for complainant-opposite party. In this application under Section 482 Cr.P.C., the petitioner has sought to challenge the order dated 04.09.2001 passed in I.C.C. Case No.59 of 2001, whereby, the learned S.D.J.M., Karanjia has been pleased to take cognizance for the offences under Sections 448, 323, 354, 294 of I.P.C. against him. Learned counsel for the petitioner submits that the sole contention of the petitioner is that he is the Officer-in-Charge of Roruan Police Station in the district of Mayurbhanj and while he was on official duty on 20.08.2001 for execution of N.B.Ws against certain accused persons, the villagers of Kumbhirda, P.S. Roruan attacked the police party, damaged the vehicle and injured number of constables and police officer, for which reason the petitioner had filed an F.I.R., which was registered as Raruan P.S. Case No.47 dated 20.08.2001 under Sections 147, 148, 341, 323, 332, 294, 224, 225, 307, 379/149 I.P.C. read with Section 7 of Criminal Law Amendment Act. The opposite party, daughter of one accused person, namely, Pratap Dhir came to register the complaint case as I.C.C. Case No.59 of 2001 by filing complaint on 24.08.2001 alleging mis-behaviour and excessive action on the part of the police officer at the time of entry into the house of the complainant. It is further contended on behalf of the opposite party that even though the police were informed by the complainant that her father was not in the house, yet the police officer entered into the house and allegedly committed the offences as alleged. He further asserts that the steps taken by the police was not a part of the official duty. Hence, the order of sanction under Section 197 Cr.P.C. does not arise. He further submits that by the impugned order, cognizance of offences under Sections 448, 323, 354, 294, I.P.C. was taken, yet the trial Court had also fixed the enquiry under Section 202 Cr.P.C. to the following date i.e. on 21.09.2001 and no process had yet been issued against the petitioner. Hence, there was no cause of action for the petitioner to file the present application. Perused the Section 197 of Cr.P.C., which reads as follows: "197. Hence, there was no cause of action for the petitioner to file the present application. Perused the Section 197 of Cr.P.C., which reads as follows: "197. Prosecution of Judges and public servants - (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 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 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. [Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) wilt app1y. as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.]" From the facts enumerated hereinabove and from the FI.R., which was registered as Raruan P.S. Case No.47 dated 20.08.2001, it is clear therefrom that the petitioner, who was the O.I.C., Raruan P.S. had gone to the village Kumbhirda on 20.08.2001 for the purpose of execution of N.B.Ws. It is also revealed from the said F.I.R. that the police authority had to face the mob violence, when a number of villagers, 27 of whom have been named in the F.I.R. including the father and mother of the complainant has stated to have attacked the police authority, damaged the police vehicle and caused substantial injury to number of police personnels, who had gone to conduct such raid. This Court is constrained to take note of the fact that the public servants, who carry out their lawful task, are not only being physically threatened but also suffers injuries to their body and limbs and also Government property gets damaged. This Court is constrained to take note of the fact that the public servants, who carry out their lawful task, are not only being physically threatened but also suffers injuries to their body and limbs and also Government property gets damaged. Apart from the aforesaid dangers, they also face the possibility of being prosecuted by criminals/vested interest groups for their due discharge of public duty. On the fact •and situation that arise in this case, this Court is of the considered view that the complaint is nothing more than an attempt-by the accused persons to place the police personnel under pressure with the possibility of arrest and departmental action. Therefore, I find no justifiable reason as to why the trial Court shall take cognizance of the offences vide impugned order dated 4.9.2001 while at the time postponing the enquiry under Section 202 Cr.P.C. It is clear that Section 197 Cr.P.C. creates a bar on a Court from taking cognizance of such offences except without the previous sancti9n of the Government. In the case at hand, the learned Magistrate has taken cognizance without necessary sanction as mandate under Section 197 Cr.P.C. Therefore, this Court is of the considered view that such action on the part of the Magistrate is without sanction of law. Accordingly, the CRLMC is allowed and the order dated 4.9.2001 passed in I.C.C. Case No.69 of 2001 by the learned S.D.J.M., Karanjia is hereby quashed. . The facts that arise for consideration in the present case necessitate this Court to observe and issue direction to all Magistrates to exercise power of cognizance in complaint case against public officer with due care and caution, especially, in cases where complaints are lodged against police officers for alleged excess act committed by them in course of due discharge of their official duty. This Court has experienced that a number of complaint cases are lodged against police officers only because, action is taken by the police either to investigate, apprehend or prosecute an accused and in such circumstances, the accused persons acting through their family members, relatives and/or villagers by filing complaints and in such circumstance, the Court before whom such complaints are lodged, must act with due care and caution ,and in appropriate case may also seek assistance of the District Superintendent of Police. The Magistrate should enquire from the complainant as to whether the police officers against whom, the complaints are being lodged had any connection with any official duty, which was being discharged by the police officer or not at the time of alleged incident. It was seen that in various cases, when the Magistrate shall take cognizance on complaint do not give any finding whatsoever regarding the applicability or otherwise of Section 197 Cr.P.C. which is mandatory. Urgent certified copy of this order be granted on proper application. CRLMC allowed.