Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 394 (ORI)

Satyanarayan Dash v. Rankanidhi Sethi

2013-09-19

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. SARANGI, J. In this application, the petitioner who is a Police Officer, seeks to quash the order dated 19.6.2002 passed by the learned SDJM, Banki taking cognizance of the offence under Sections 204, 294, 342, 506, IPC in ICC No. 11 of 2001. 2. Opposite Party as complainant, filed a complaint case bearing ICC No. 11 of 2001 before the learned S.D.J.M., Banki stating that on 18.8.2000 at about 8.00 P.M. he lodged a written report at Banki Police Station regarding a occurrence, which happened on the same day at 1.00 P.M. on that day. At that time in absence of the Officer-in-charge, the Second Officer, namely, Maguni Charan Das received the report from him, registered the case as P.S Case No. 120 of 2000 against Rabindra Kumar Barik and others for the offence under Sections 447, 341, 323, 324, 354, 506/34 IPC and under Section 3 of the SC & ST (P.A.) Act and under Section 25/27 of the Arms Act and handed over a copy of the FIR to him. The complainant-opposite party and his son were sent to Banki hospital for treatment by the Second Officer with instruction to come to the police station on the next day at about 10 A.M. As per the direction of the Second Officer, the complainant opposite party went to the police station with his son. The O.I.C. told him to wait till he returned from village Dulanpur. At about 10 P.M., the OIC returned to the police station and scolded the complainant-opposite party stating "MAGHIA MADORCHOD EMITIKI KANA ETALA LEKHI CHHU MUN JEMITI KAHUCHHI SEMITI LEKHE" and directed his staff to place him in the hazat. Then the complainant-opposite party and his son were put in the hazat and after some time, the accused-petitioner called the complainant-opposite party to his office room and scolded him saying "MAGHIA KENTHU GOTE LEKHI ANICHHI". The accused-petitioner torn the earlier FIR lodged by the complainant-opposite party. The complainant-opposite party and his son were confined in the hazat from 19.8.2001 to 21.8.2001 and on the same day, i.e. on 21.8.2001 they were forwarded to the Court in a false case initiated at the instance of the persons against whom the FIR was lodged by the complainant. 3. Mr. D. Nayak, learned Sr. The complainant-opposite party and his son were confined in the hazat from 19.8.2001 to 21.8.2001 and on the same day, i.e. on 21.8.2001 they were forwarded to the Court in a false case initiated at the instance of the persons against whom the FIR was lodged by the complainant. 3. Mr. D. Nayak, learned Sr. Counsel appearing for the accused-petitioner submitted that the offence alleged in the complaint petition in Annexure-1 prima facie does not make out a case against the petitioner. Therefore, the learned Magistrate has committed error by taking cognizance vide impugned order dated 19.6.2002. He further submitted that the petitioner is a pubic servant and cognizance has been taken in absence of sanction under Section 197, Cr. P.C. as the Act done is coming within the purview of due discharge of official duty and the act so done does not amount to misutilization of his official power. Therefore, the impugned order taking cognizance by the learned SDJM need be quashed. In order to substantiate his contention, Sri Nayak has relied upon the judgments in Sarat Chandra Panda v. State of Orissa and another, 2013 (2) OLR 374 , Rohit Kumar , That v. State of Orissa and another, (2010) 46 OCR 614, 2010 (Supp.-I) OLR 209 Biswanath Hota and others v. State of Orissa and another (2009) 44 OCR 765, 2009 (Supp.-II) OLR 3171, N.K. Ogle v. Sanwaldas alias Sanwalmal Ahuja (1999) 16 OCR (SC) 530, 1999 (2) OLR (SC) 33. 4. Learned counsel appearing for the opposite party submitted that the order of cognizance is well within the jurisdiction of the learned Magistrate as the allegation made out a prima facie case against the petitioner. The act committed has no nexus with due discharge of official function. There is no reasonable connection between the act complained of and due discharge of official duty by the petitioner. Therefore, this Court may not interfere with the order passed by the learned Magistrate taking cognizance. Admittedly, in the absence of the petitioner, who was working as O.I.C., Banki Police Station, the complainant-opposite party lodged before the FIR and handed over the same to S.I. of Police Sri Maguni Charan Das. Therefore, this Court may not interfere with the order passed by the learned Magistrate taking cognizance. Admittedly, in the absence of the petitioner, who was working as O.I.C., Banki Police Station, the complainant-opposite party lodged before the FIR and handed over the same to S.I. of Police Sri Maguni Charan Das. On receipt of the same, P.S. Case was registered and copy of the FIR was handed over to the complainant-opposite party and the complainant-opposite party and his son were sent to Sub-Divisional Headquarters Hospital, Banki for treatment through Gramarakhi with instruction to come to the police station on the next date i.e. on 19.8.2000. In obedience to the said direction only, the complainant-opposite party and his son came to the police station on 19.8.2000 and the petitioner detained both the complainant-opposite party and his son in the police hazat and abused them in obscene language and kept them in the police hazat till 21st August, 2000, and thereafter forwarded them to the Court on the very same day. Being aggrieved by the inhuman conduct of the petitioner, the complainant-opposite party lodged the complaint before the learned SDJM, Banki vide Annexure-1 on 23.1.2001, which was registered as ICC Case No. 11 of 2001. 5. On the basis of the complaint lodged under Annexure-1, learned S.D.J.M., recorded the initial statement vide order No. 4 dated 1.3.2001 and directed for enquiry under Section 202, Cr. P.C. and recorded the statement of one Kuber Choudhury on 18.8.2001. On perusal of the initial statement of the complainant-opposite party and the statement of the witnesses recorded during enquiry under Section 202, Cr. P.C., learned Magistrate took cognizance of the offence vide order No. 31 dated 19.6.2002 against the petitioner under Sections 204, 294, 342, 506, IPC as the allegations made out a prima facie case. The impugned order taking cognizance also indicates that the accused-petitioner is a police officer and a public servant and as such, sanction under Section 197, Cr. P.C. is not necessary before proceeding against him as the act done by him does not come within the purview of official duty and he has done the act by misutilizing his power as a Police Officer. 6. In the judgment in Sarat Chandra Panda' (supra), cited by Mr. P.C. is not necessary before proceeding against him as the act done by him does not come within the purview of official duty and he has done the act by misutilizing his power as a Police Officer. 6. In the judgment in Sarat Chandra Panda' (supra), cited by Mr. Nayak, since the act complained of has nexus with official duty of the accused person, this Court held that the order taking cognizance of the offence is bad for want of sanction and accordingly quashed the order taking cognizance. 7. In Rohit Kumar That (supra) this Court held that the accused, who was a police officer, while performing his official duty in investigating a criminal case on an FIR disclosing cognizable offence, went to the house of the complainant in search of the accused. Though allegation has been made that the act committed by the petitioner exceeds his official duty, it cannot be said that it had no nexus with the performance of official duty of the petitioner. Therefore, this Court held that the order of cognizance and issuance of process is vitiated and accordingly, quashed the proceeding. 8. In Biswanath (supra) this Court held that the accused persons, who were police officers and discharging their official duties of maintaining law and order situation during the visit of the Hon'ble Chief Minister to Berhampur, is said to have committed the act against the lawyers of Ganjam District Bar Association in excess of discharge of official duties. Therefore, this Court held that the act complained of has a reasonable nexus with the discharge of their official duties and consequently, quashed the order of cognizance in absence of any sanction of the State Government under Section 197, Cr. P.C. 9. In N.K. Ogle (supra), the apex Court has held that the accused-appellant, who was discharging the duties of Tahasildar issued demand notice and subsequently attachment order. The complainant went in his scooter to the Tahasildar's office to object to the legality of the order, where the scooter was seized and subsequently auction was held. The complainant stated that the appellant forcibly kept his scooter and as such committed offence under Section 379, IPC and cognizance has been taken without any sanction. The complainant went in his scooter to the Tahasildar's office to object to the legality of the order, where the scooter was seized and subsequently auction was held. The complainant stated that the appellant forcibly kept his scooter and as such committed offence under Section 379, IPC and cognizance has been taken without any sanction. The apex Court held that the act complained of by the complainant against the Tahasildar had been committed in discharge of his official duty and therefore, no cognizance can be taken by any Court without prior sanction of the competent authority. 10. On consideration of the aforesaid judgments cited by Mr. Nayak, it appears that in all these cases the act done has got nexus with the official function. Therefore, criminal proceedings had been quashed as prior sanction under Section 197, Cr. P.C. had not been obtained by the time the order of cognizance was passed. The position of law no more remains res integra. It is settled law that the provisions contained in Section 197, Cr. P.C. makes it clear that no cognizance can be taken without prior sanction under Section 197, Cr. P.C. against a public servant, who 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. 11. In the case of Motajog Dobey v. H.C. Bhari, AIR 1956 SC 44 , the Constitution Bench held that whether sanction is to be accorded or not is a matter for the Government to consider. The absolute power to accord or withhold sanction conferred on the Government is irrelevant and foreign to the duty cast on the Court which is the ascertainment of the true nature of the act. In this respect, the Court has to see whether it can take cognizance of the case without previous sanction and for this purpose, the Court has to find out if the act complained against is committed by the accused while acting or purporting to act in the discharge of official duty. Once this is settled, the case proceeds or is thrown out. Once this is settled, the case proceeds or is thrown out. The Supreme Court further held that the offence alleged to have been committed must have something to do or must be related in some manner, with the discharge of official duty and no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the Court must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. 12. In Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and others, AIR 2001 SC 2198 , the Supreme Court reiterated the position with regard to the test to be applied to attract the applicability of Section 197 (3) Cr. P.C. The facts of the case in the decision rendered in the case of Sri Satyabadi Padh v. Nepal Chandra Kar and others, 2001 (1) OLR 238 are also similar to the facts of the present case, where the Court relied upon various earlier decisions of this Court more specifically, the decision of Kremjit Mohananda v. Mohanpani Karua and another, 1995 (2) OLR 284 in which it was held that a middle line which is adopted is that it is not every offence committed by a public servant in course of performance of his official duty which entitles him to the protection under Section 197, Cr. P.C. What comes under the protective umbrella is an act constituting an offence, which directly or reasonably connects with his official duty. 13. Referring to the judgments mentioned supra and considering the initial statement as well as enquiry conducted under Section 202, Cr. P.C. What comes under the protective umbrella is an act constituting an offence, which directly or reasonably connects with his official duty. 13. Referring to the judgments mentioned supra and considering the initial statement as well as enquiry conducted under Section 202, Cr. P.C. it is found that the act of the petitioner has no nexus with due discharge of official function as a public servant and more so, the act of the petitioner affecting the dignity of the complainant-opposite party a mounts to violation of Article 21 of the Constitution of India. Therefore, the act done by the petitioner does not come within the sweep of due discharge of official duty, rather, it amounts to misutilization of his power as a police officer for which sanction under Section 197, Cr. P.C. may not be required. 14. In view of the aforesaid facts and circumstances of the case, and the position of law, this Court is not inclined to interfere with the impugned order dated 19.6.2002 passed by the learned S.D.J.M., Banki in I.C.C. No. 11 of 2001 under Annexure-2 taking cognizance against the petitioner. Accordingly, the CRLMC fails and the same is dismissed. 15. Before parting, this Court may observe that since the complaint case is of the year 2001, learned SDJM, Banki shall do well to conclude the same as expeditiously as possible. CRLMC dismissed.