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2012 DIGILAW 488 (ORI)

lalit Mohan Panda v. State of Orissa

2012-11-06

B.K.NAYAK

body2012
JUDGMENT B. K. NAYAK, J. Orders dated 06.07.2011 taking cognizance of the offence under Sections 387/34 of the IPC and order dated 30.04.2012 framing charge for the said offence passed by the learned SDJM, Gunpur in G.R. Case No. 11 of 2011 have been challenged in this application under Section 482, Cr.P.C. 2. The petitioners are both A.S.I. of Police, who have been implicated in the aforesaid G.R. Case, arising out of Gunupur P.S. Case No. 8 of 2011, registered on the basis of FIR dated 17.01.2011 lodged by the Sub-Inspector of Police of Rayagada Police Station. The prosecution case is that the informant in course of his investigation of Rayagada P.S. Case No. 6 dated 13.01.2011 under Sections 364/395 of the IPC came across one Dhanapati Jani, an accused in the said case, in the afternoon of 16.01.2011 while the said accused was coming to Rayagada n a Bolero vehicle along with some other co-accused persons. The informant detained the said accused person at Ram Mandir Square at Rayagada. On his interrogation and search he recovered the stolen cash of Rs. 9,00,500/- from accused Dhanapati Jani along with his mobile phone. In course of interrogation, the said accused stated that he was going to Ramnaguda side to give Rs. 6,00,000/- to one Simanchal Majhi. There was conversation with Simanchal over telephone who told that he was coming to Rayagada by a hired Indica Car. The informant there from proceeded to Ramnaguda side and on the highway near Kolnara, he detected the Indica Car and detained the same and co-accused-Simanchal Majhi was nabbed. Besides Simanchal Majhi the present two petitioners were also found sitting in the Indica Car along with Home Guard, Jayadev Korkaria. On interrogation Simanchal Majhi stated that while he was coming to Rayagada on that day at about 2.00 P.M. at Ramnaguda Check Gate his vehicle was stopped ,by the two petitioners, A.S.ls of Police, who came to know that he (Simanchal Majhi) along with others looted about Rs. 20,00,000/- and therefore, the two petitioners demanded from him Rs. 6,00,000/- as their share with threats that if not paid he would be booked in criminal case and harassed like anything and would also face dire consequences. 20,00,000/- and therefore, the two petitioners demanded from him Rs. 6,00,000/- as their share with threats that if not paid he would be booked in criminal case and harassed like anything and would also face dire consequences. Simanchal Majhi stated to them that he did not have the cash with him at that time which was with Dhanapati Jani (co-accused) at Rayagada and he offered to pay the petitioners at Rayagada if he is taken to that place. The petitioners, therefore, accompanied him in the very same Indica Car and proceeded to Rayagada to collect the amount demanded by them. It is also stated in the FIR that the driver of the Indica Car and Home Guard also corroborated the statement of Simanchal Majhi. The informant therefore drew up the FIR, on the basis of which Gunupur P.S. Case No.8 of 2011 was registered against the present petitioners. After investigation charge-sheet was submitted against the present petitioners under Section 387/34 of the IPC for which cognizance was taken by the learned SDJM and Charge was also framed against the petitioners for the very, same offence. 3. Learned counsel for the petitioners has raised two contentions, Firstly, the petitioners being police officers (public servants) Within the meaning of Section 197, Cr.P.C. and since in course of patrol duty they detected the dacoit, Simanchal Majhi, the alleged offence was committed by them while they were discharging their official duty and no sanction from the State Government having been obtained, no cognizance could have been taken against them. Secondly, the materials on record including the FIR do not make out prima facie a case under Section 387, IPC though at best they would constitute an offence under Section 385/34 of the IPC. 4. Section 197, Cr.P.C., is meant for providing protection to public servants for anything done in exercise or purported exercise of their official duty from false, vexatious and malicious prosecution. To avail the protection it must be shown that the act complained of was done in discharge of official duty of the public servant though it may be in excess of discharge of such duty. The true test is that the act or occurrence complained of must have a nexus with the discharge of the public duty. To avail the protection it must be shown that the act complained of was done in discharge of official duty of the public servant though it may be in excess of discharge of such duty. The true test is that the act or occurrence complained of must have a nexus with the discharge of the public duty. It has been held in the case of Raj 2003 (I) OLR 284 Kishore Swain and Another v. Smt. Ranjan Moharana; (2003) 24 OCR 535 that sanction under Section 197, Cr.P.C. for initiation of a prosecution should be insisted upon when it is found that nexus between the discharge of the public duty and the offending act or the omission must be inseparable. 5. The Apex Court in the case of choudhury Parveen Sultana v. State of West Bengal & Anr.; (2009) 42 OCR (SC) 535 held as follows: “The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava's case (supra) holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197, Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastav's case (supra), the underlying object of Section 197, Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197, Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses of misuse of authority, no protection can be demanded by the public servant concerned." 6. Hence, in respect of prosecution for such excesses of misuse of authority, no protection can be demanded by the public servant concerned." 6. In the present case it is submitted by the learned counsel for the petitioners that in course of their patrol duty, the petitioners apprehended Simanchal Majhi, an accused in Rayagada P.S. Case No.6 of 2011, which is a dacoity case, and the allegations, if any, against them are false and motivated. There is however, no material on record to show that the petitioners were either investigating Rayagada P.S. Case No. 6 of 2011 in which Simanchal Majhi is stated to have been one of the accused persons or that in course of their patrol duty they apprehended Simanchal Majhi in the aforesaid dacoity case. The FIR lodged against the petitioners shows that both the petitioners were ASls of Ramnaguda Out Post under Gunupur Police Station. Therefore, it cannot be said that two ASls belonging to a different police station were investigating the dacoit case of Rayagada Police Station. Assuming for the sake of argument that the petitioners were performing patrol duty, in course of which they came to know that Simanchal Majhi as one of the accused persons, who along with others committed dacoity in respect of Rayagada P.S. Case, their demand of Rs. 6,00,000/- out of the booty under the threat of prosecution or dire consequences, if the demand was not met cannot be said to have any nexus with discharge of their official duty or in excess of discharge of such duty. 7. 6,00,000/- out of the booty under the threat of prosecution or dire consequences, if the demand was not met cannot be said to have any nexus with discharge of their official duty or in excess of discharge of such duty. 7. I, therefore, find no merit in the first contention raised by the learned counsel for the petitioners that the cognizance could not have been taken against the petitioners for want of sanction under Section 197, Cr.P.C. Learned counsel for the petitioners relies on decisions reported in 2001 (I) OLR 238 ; Satyabadi Padhi v. Nepal Chandra Kar, 2003 (II) OLR 569 ; Nirupama Dey v. Chatanya Dalua and another, (1999) 16 OCR (SC) 530; 1999 (II) OLR (SC) 33 N.K. Ogle v. Sanwaldas, AIR 1956 SC 44 ; Matajog Debey v. H.C. Bhari and AIR 1998 SC 2379; State of Bihar v. Kamala Prasad Singh and some other decisions, which only reaffirmed the principle that there must be a reasonable connection between the act and the official duty, even if the act exceeds what is strictly necessary for the discharge of duty: In some of those cases sanction under Section 197, Cr.P.C. was held to be a necessary because on facts it was found that the acts complained or were done in discharge of official duty. Therefore, those decisions will not benefit the petitioners in any manner. 8. As regards the second contention that ingredients of offence under Section 387 of the IPC have not been prima facie made out, it is necessary to see the gravamen of the offence under Section 387, IPC. Section 387, IPC runs as under: "387. Putting person in fear of death or of grievous hurt, in order to commit extortion-Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." As per the above definition the accused must put or attempt to put any person in fear of death or of grievous hurt to that person or to any other in order to the committing of extortion. Unless there is threat to cause death or grievous hurt, Section 387, IPC will not be attracted. Unless there is threat to cause death or grievous hurt, Section 387, IPC will not be attracted. The allegations in the FIR and the statements of witnesses reveal that the petitioners threatened Simanchal Majhi of dire consequences and to harass him by implicating him in criminal case for which he agreed to pay them Rs. 6,00,000/- as demanded. These threats may have the tendency of causing fear of injury, but not fear of death or grievous hurt. Therefore, the alleged offence will be one under Section 385/34 of the IPC and not under Section 387/34 of the IPC. 9. In the light of discussions made above, the impugned order of cognizance under Section 387/34 of the IPC and the order framing charge under Section 387/34 of the IPC against the petitioners in G.R. Case No. 11 of 2011 are quashed. The learned S.D.J.M., Gunpur is directed to take cognizance under Section 385/34 of the IPC against the petitioners in the said G.R. Case and proceed accordingly. The CRLMC is accordingly disposed of. CRLMC disposed of.