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2013 DIGILAW 405 (ORI)

Prasanta Kumar Rout v. Gourahari Sethy

2013-09-24

B.R.SARANGI

body2013
JUDGMENT Dr. B.R.Sarangi, J. Petitioner nos.1 & 2, who were working as Tahasildar and Record Keeper in Kanika Tahasil respectively, have challenged the order dated 14.02.2003 passed by the learned J.M.F.C., Pattamundai in I.C.C. Case No.4 of 2003 taking cognizance under Sections 323/294/34 IPC and U/S 3 of P.A. Act for S.C. & S.T. Act against them. 2. The petitioners assail the impugned order dated 14.02.2003 on two counts, namely, at the time of taking cognizance by the learned J.M.F.C. there was no previous sanction of the State Government as required under Section 197 Cr.P.C. and that the duty with regard to issuance of certificate and other related dues had not been assigned to petitioner no.1 rather the same was given to Mr. Surendra Nath Rout, O.A.S, who was working as Addl. Tahasildar and so far as petitioner no.2 is concerned, on the date of alleged occurrence he was not present in the office and had been to the Office of the Deputy Director of Printing Stationary and Publication, Orissa vide letter No.223 dated 02.04.2003 to receive the diary and calendar for the year 2003 pursuant to order No.113 dated 04.01.2003 of petitioner no.1. Therefore, frivolous allegations have been made against opposite party no.2 for which he seeks for quashing of the impugned order dated 14.02.2003 passed by the learned J.M.F.C., Pattamundai in I.C.C. Case No.4 of 2003. 3. The short fact of the case is that on 06.01.2003 the opposite party went to the Office of the petitioner no.1, i.e. Tahasildar, Kanika to enquire about the grant of valuation certificate of his land which he had applied on 11.11.2002. When he requested Petitioner no.1 to issue the aforesaid certificate as it was urgent in nature, petitioner no.1 got angry and scolded him. Petitioner no.2 also gave him a neck push on the direction of petitioner no.1. Due to such assault and illegal act of the petitioners, the opposite party-complainant lost his social prestige and filed the complaint case. 4. Heard Mr. Nanda, learned counsel for the petitioners. Though notice was issued to the opposite party and it was made sufficient, none appeared for him. Since none appeared for the opposite party, the matter was heard on the basis of the materials available on record in the interest of justice, equity and fair play, as it is the case of the year 2003. Though notice was issued to the opposite party and it was made sufficient, none appeared for him. Since none appeared for the opposite party, the matter was heard on the basis of the materials available on record in the interest of justice, equity and fair play, as it is the case of the year 2003. After hearing the learned counsel for the petitioners and on perusal of records, it appears that while petitioner no.1 was working as Tahasildar in Kanika Tahasil, the opposite party appeared before him for getting a valuation certificate in respect of his land. The allegation that petitioner no.1 got angry and directed petitioner no.2 to give a neck push to the opposite party and scolded him is bereft of any record. Rather vide Office order No.2432 dated 09.10.2001 petitioner no.1 allotted the work of issuance of Miscellaneous Certificates and other related duties to Surendra Nath Rout, OAS, who was working as Additional Tahasildar, Kanika for administrative exigencies. Therefore, the case records of all miscellaneous certificates were pending before the Additional Tahasildar and not before petitioner no.1 as per the Office Order No.1030 dated 06.05.2002. Hence there was no occasion for the opposite party to come before petitioner no.1 and request him for the valuation certificate. On the date of occurrence three persons, namely, Narahari Nayak, Dhaneswar Nayak and Sk. Amiruddin had been issued with Miscellaneous Certificates by the Additional Tahasildar. So far as petitioner no.2 is concerned, on the date of occurrence he was not present in the office and was assigned the duty to receive the diary and calendar for the year 2003 as evident from letter No.223 dated 02.04.2003 of the Office of the Deputy Director of Printing Stationary and Publication, Orissa. 5. In this factual backdrop of the case in hand, it is found that in order to cause harass such frivolous petition has been filed by the opposite party and apart from the same, it is further revealed that Criminal Misc. Case bearing No.12 of 2002 under Section 107 Cr.P.C. as a encroacher of Government land against the opposite party is pending before petitioner no.1. On enquiry, it is found that there was serious breach of peace between the parties and the opposite party was creating nuisance preventing the other members for drainage of water and preparing to attack them. Case bearing No.12 of 2002 under Section 107 Cr.P.C. as a encroacher of Government land against the opposite party is pending before petitioner no.1. On enquiry, it is found that there was serious breach of peace between the parties and the opposite party was creating nuisance preventing the other members for drainage of water and preparing to attack them. Petitioner no.1 being satisfied that there is serious breach of peace, initiated the aforesaid proceeding under Section 107 Cr.P.C. called for the show cause from the opposite party. Since the opposite party did not appear in spite of receipt of notice, on 23.09.2002 opposite party no.1 issued N.B.W. against him. Pursuant to the N.B.W., the local police arrested the opposite party and produced him before petitioner no.1 in police custody. Considering his bail application, petitioner no.1 allowed him to go on bail with a direction to keep peace in the area till completion of the enquiry. On the prayer of the opposite party, he was allowed to file show cause by 16.11.2002 on which date he filed his show cause. Then the matter was posted to 30.11.2002 for hearing. On that date the opposite party filed a time petition for adjournment of hearing and accordingly the matter stood posted to 28.12.2002 for hearing. When the opposite party did not appear on 28.12.2002 and no step was taken on his behalf, again N.B.W. was issued against him posting the matter to 03.01.2003 for his production. On 03.01.2003 since the N.B.W. was not executed, the matter was further posted to 20.03.2003 and on that date the O.I.C. Rajkanika Police Station was reminded for execution of the N.B.W. This being the position and a matter of judicial record, it is quite improbable that the opposite party against whom N.B.W. was pending, would come to the office of the petitioners for enquiry about the valuation certificate of his land. 6. 6. In view of the aforesaid facts and circumstances, it is apparently clear that the opposite party with an ulterior motive in order to cause harassment to the petitioners, approached the learned court below by filing I.C.C. Case No.4 of 2003 and learned J.M.F.C. Pattamundai took cognizance for the offence under Sections 323/294/34 IPC and U/S 3 of P.A. Act for S.C. & S.T. in the absence of sanction from the authority as required under Section 197 Cr.P.C. More so, the allegations made by the opposite party with regard to issue of certificate has nexus with discharge of official duty by the petitioners. It is seen that petitioner no.1 has delegated his responsibility in favour of the Additional Tahasildar to issue of certificate. But, without causing any proper enquiry the learned Magistrate has taken cognizance for the offence alleged which cannot be sustained. Without taking prior sanction the cognizance taken is bad in law in view of the judgment delivered by this Court in Sarat Chandra Panda Vrs. State of Orissa and another, 2013(II) OLR 374 wherein the cases of Sri Sankarsana Vrs. State reported in 2011(Supp.II) OLR 1011= (2011) 50 OCR 843, Debasis Panigrahi Vrs. State of Orissa and another, 2009(II) OLR 504 and Anjani Kumar Vrs. State of Bihar & another, AIR 2008 SC 1992 have been referred. In view of such position since no sanction was obtained as required under Section 197 Cr.P.C. before taking cognizance which is mandatory in nature, the order taking cognizance passed by the learned J.M.F.C., Pattamundai in I.C.C. No.4 of 2003 cannot be sustained. 7. Apart from the above technical ground, on merits also it is found that the duty of issuance of certificate has not been assigned to petitioner no.1 to rather such power has been delegated to Additional Tahasildar, who on the alleged date has disposed of three applications and issued certificates to the applicants. There is no valid and justifiable reasons and the materials available on records do not indicate why the opposite party goes to petitioner no.1 when the Addl. Tahasildar has been entrusted with the obligation of issuing the certificate nor does it transpire whether the opposite party has applied for the same and asked for grant of certificate on the very same day. Tahasildar has been entrusted with the obligation of issuing the certificate nor does it transpire whether the opposite party has applied for the same and asked for grant of certificate on the very same day. The background of filing the I.C.C. Case can be traced to the initiation of the 107 Cr.P.C. Proceeding against the opposite party by the petitioner in which N.B.W. has been issued to the opposite party with a view to demoralized the petitioner in due discharge of his official function in accordance with law. So far as petitioner no.2 is concerned, on the date of occurrence he was not present in the office rather he had been to the Office of the Deputy Director of Printing Stationary and Publication, Orissa to receive the diary and calendar for the year 2003. 8. In that view of matter, it is apparently clear that in order to just malign the petitioners, I.C.C. case No.4 of 2003 has been filed which has no basis at all. 9. Therefore, in my considered view, the ends of justice demands that in order to prevent the abuse of the process of court, the power conferred under Section 482 Cr.P.C. has to be invoked in the present case. Accordingly, in exercise of such power, the order dated 14.02.2003 passed by the learned J.M.F.C., Pattamundai in I.C.C. case No.4 of 2003 taking cognizance is hereby quashed. 10. Accordingly, the CRLMC is allowed.