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2013 DIGILAW 242 (ORI)

Sarat Chandra Panda v. State of Orissa

2013-07-26

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. Sarangi, J. The petitioner in this application under Section 482, Cr.P.C. assails the order dated 29.10.2002 passed by the learned S.D.J.M., Jajpur in I.C.C.Case No. 153 of 2002 taking cognizance of the offence under Sections 504/323, IPC against him and order dated 30.4.2004 rejecting the petition of the petitioner to reconsider the order of cognizance. 2. Opposite party no.2 being the complainant filed a complaint before the learned S.D.J.M., Jajpur on 26.4.2002 which was registered as I.C.C Case No. 153 of 2002. The learned Magistrate by order dated 29.10.2002 recorded the initial statement of the complainant under Section 202, Cr.P.C. along with one co-victim Harihar Singh. The petitioner (accused no.1) was working as Tahasildar, Dharmasala, whereas accused no.2 was working as R.I. in the same Tahasil. Allegation has been made against the accused no.2 that he demanded money from the complainant and his brother Harihar as a condition precedent for sanction of cyclone relief in their favour. Allegation as against accused no.1 (the present petitioner), was that he uttered abusive words at the complainant and his brother and gave assault to the complainant when the complainant had been to his office to report against accused no.2 and also to ventilate their grievances in the matter of cyclone relief. On the basis of such allegations and materials available on record, on being prima facie satisfied that a case under Section 504/323, IPC is made out, the learned S.D.J.M. took cognizance of the offence against the petitioner and another Nilamani Biswal. Thereafter, the petitioner again moved a petition on 8.4.2003 to reconsider the matter of cognizance as against him. However, the learned Magistrate by order dated 30.4.2004 rejected the said petition on the ground that the act complained against the accused-petitioner has no nexus with the discharge of his official duty nor the same can be said to have been committed in excess of discharge of his official duty. 3. Though this CRLMC has been filed challenging the order of cognizance dated 29.10.2002 and the order dated 30.4.2004 rejecting the petition for reconsideration of the order of cognizance, learned counsel for the petitioner in course of hearing submitted a memo stating that he does not want to press the prayer so far as quashing of the order dated 30.4.2004 is concerned. 4. 4. To substantiate his contention, Mr.P.R.Chhatoi, learned counsel for the petitioner submitted that cognizance could not have been taken against the petitioner as no sanction under Section 197, Cr.P.C. has been taken before passing the impugned order and more so, the alleged act has been committed by the accused-petitioner while working as Tahasildar, Dharmasala in due discharge of his official function and therefore, the impugned order of cognizance without getting sanction cannot be sustained. In support of the said contention, he has relied upon the judgment of this Court in Ramakanta Sahoo v. Suresh Prasad Panda, 2012 (II) OLR 725 , (2012) 53 OCR 317. Apart from the same, it is further urged that no successive application could have been filed for the self-same cause of action. Since complaint filed earlier on 14.2.2002 had been dismissed, on the basis of the subsequent complaint petition dated 27.4.2002 in Annexure-2 no cognizance could have been taken by the learned Magistrate. It is further urged that on the date of occurrence the petitioner was not present but he has been falsely implicated. With the aforesaid grounds, learned counsel for the petitioner seeks for quashing of the impugned order of cognizance. 5. Repelling the aforesaid contention of the learned counsel for the petitioner, Mr.N.P.Parija, learned counsel appearing for the opposite party no.2 contended that the accused-petitioner has committed the act not in due discharge of public function as a public servant and therefore, sanction under Section 197, Cr.P.C. is not required. Relying upon the judgment of the apex Court in the case of Assistant Collector of the Customs, Bombay and another v. L. R. Melwani and another, 1970 SC 962, he submitted that there is no bar for filing of successive application and that so far as the contention raised that the accused-petitioner was not present on the date of occurrence, he submitted that it is a plea of alibi, which cannot be decided in an application under Section 482, Cr.P.C. 6. Mr. Zaffrulah, learned Addl. Standing Counsel appearing for the State, submits that since there are two separate orders, the present petition under Section 482, Cr.P.C. challenging both the orders in a single petition is not maintainable. 7. Mr. Zaffrulah, learned Addl. Standing Counsel appearing for the State, submits that since there are two separate orders, the present petition under Section 482, Cr.P.C. challenging both the orders in a single petition is not maintainable. 7. In the above backdrop, it is now to be considered whether this Court can interfere with the impugned order of cognizance dated 29.10.2002 passed by the learned SDJM, Jajpur in ICC Case No. 153 of 2002. 8. In view of the aforesaid pleadings of the parties, it is now to be considered whether the petitioner has acted in due discharge of his official function or not on the date of occurrence and on that score whether the impugned order can be sustainable or not. 9. On perusal of the complaint petition, it appears that the complainant made allegation against the R.I., who is to cause enquiry to find out the eligibility of the complainant to get the benefit of cyclone relief before the petitioner while he was discharging the duty in the capacity of Tahasildar, who is the superior officer of the R.I.. That apart, power has been vested on the Tahasildar to sanction the amount as cyclone relief provided he receives a report from the concerned R.I., who has to cause a spot enquiry for the purpose. Therefore, there is nexus between the act complained of and due discharge of official duties by the accused-petitioner in the capacity of Tahasildar, who is a public servant. Consequently, sanction as required under Section 197, Cr.P.C. is very much necessary before taking cognizance of the offences against the petitioner. This Court while dealing with a similar matter in Ramakanta Sahoo (supra) has taken note of the judgments of the apex Court reported in Anjani Kumar v. State of Bihar and another, AIR 2008 SC 1992 and of this Court in Debasis Panigrahi v. State of Orissa and another, 2009(II) OLR 504 and Sri Sankarsana Behera v. State of Orissa, 2011 (Supp.II) OLR 1011, (2011) 50 OCR 843 and come to a conclusion that if the act or omission was done by the public servant while discharging his duty, then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. The contentions raised in the complaint petition, make it clear that the complainant approached the accused petitioner in the capacity of Tahasildar seeking cyclone relief for their dilapidated house. The nexus of due discharge of official function as Tahasildar, which is inherently attached to the post, is apparently clear and as such, the accused-petitioner is not individually or personally responsible for the same. On the other hand, if in due discharge of his official function, he has done some act or omission as a public servant, in that case sanction under Section 197, Cr.P.C. is mandatory. For better appreciation, paragraphs 4 and 5 of the judgment in Ramakanta Sahoo (supra) is quoted below: “4. Having heard learned counsel for both the parties, perusing the pleadings and on perusing the judgments relied upon by the petitioner referred to herein above, it appears that the scope and ambit of the protection granted under Section 197, Cr.P.C. to a public servant, has repeatedly been reiterated by the Hon’ble Supreme Court in various judgments as well as in the case of Anjani Kumar (Supra). In the said case the Hon’ble Supreme Court came to hold that once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. It is further noted in the said judgment that if it is prima facie, found that the act or omission for which the accused was charged which has a reasonable connection with the discharge of his duty then it must be held to be official, to which applicability of Section 197, Cr.P.C. cannot be disputed. 5. The aforesaid principle laid down by the Hon’ble Supreme Court was reiterated by a Division Bench of this Court in the case of Debasis Panigrahi (supra) as well as in the case of Sri Sankarsana Behera (supra) and the said issue is no longer res integra. It is revealed from the complaint petition that although it was contended that the work carried out was inferior but the actual work was being carried out on public road and the petitioner in his official capacity was acting as executants “though the actual work has been carried out by the Junior Engineer”. It is revealed from the complaint petition that although it was contended that the work carried out was inferior but the actual work was being carried out on public road and the petitioner in his official capacity was acting as executants “though the actual work has been carried out by the Junior Engineer”. Therefore, applying the principles laid down by the Hon’ble Supreme Court as well as the Division Bench of this Court in the cases referred to hereinabove, I am of the considered view that the impugned order of cognizance suffers from grave illegality since sanction under Section 197, Cr.P.C. was mandatory in the instant case and the same had not been obtained prior to passing of order of cognizance”. 10. Applying the same analogy in the present case this Court is of the opinion that, since no sanction has been obtained as required under Section 197, Cr.P.C., which is mandatory in nature, the cognizance taken against the accused-petitioner is not sustainable. 11. So far as the other pleas taken in the application are concerned, the same are not required to be considered at this stage as the order of cognizance suffers from grave illegality as no sanction under Section 197, Cr.P.C. which is mandatory in nature, has been obtained prior to passing of the same. Accordingly, the impugned order of cognizance dated 29.10.2002 passed by the learned S.D.J.M, Jajpur in ICC No. 153 of 2002 is quashed. The CRLMC is accordingly allowed. CRLMC allowed.