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2017 DIGILAW 1225 (ORI)

Padmalochan Mishra v. State of Orissa

2017-10-30

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. In this application under section 482 of Cr.P.C., the petitioner Padmalochan Mishra who was the J.E. (M.W.O) Office, East Coast Railways, Cuttack has challenged the impugned order dated 19.08.2004 passed by the learned J.M.F.C., Rural, Cuttack in G.R. Case No. 734 of 2004 in taking cognizance of offences under sections 341/294/323 of the Indian Penal Code and issuance of process against him. The said case arises out of Cuttack GRPS Case No. 40 of 2004. 2. It is stated by Mr. Ajit Kumar Choudhury, learned counsel for the petitioner that while the petitioner was discharging his official duty in the J.E. Office of M.W.O., East Coast Railways, Cuttack, he received a complaint on 04.06.2004 from one Maguni Swain, an employee of the said office against the informant I. L. William, Senior Clerk of the office regarding demand of illegal money of Rs.1,000/- for supply of store papers. On receipt of such complaint from Maguni Swain, the petitioner being in charge of the office, verified the official documents and came to know about some irregularities and manipulation of the store records and materials by the informant. After knowing the irregularities, the petitioner made correspondence with the higher authorities against the informant for such irregularities and on 29.06.2004 the petitioner also seized the store records of M.W.O. Office, East Coast Railways, Cuttack from the informant I. L. Willaim. Learned counsel further stated that on 30.06.2004 i.e. on the next date of the seizure of the records, the informant entered into the official chamber of the petitioner at about 9 a.m. and requested him to return the seized documents but the petitioner refused to oblige the same. The informant being aggrieved misbehaved with the petitioner and abused him in filthy language and also assaulted the petitioner, for which the petitioner lodged an F.I.R. against the informant before the officer in charge of GRPS East Coast Railways, Cuttack and accordingly GRPS Case No.39 of 2004 was registered on 30.06.2004 under sections 341/294/323/34 of the Indian Penal Code. It is contended that just as a counter blast to the said case, the informant has lodged the F.I.R. against the petitioner indicating therein that the petitioner abused him in filthy language and slapped him when he asked him to make a statement of records taken over and sign on it. It is contended that just as a counter blast to the said case, the informant has lodged the F.I.R. against the petitioner indicating therein that the petitioner abused him in filthy language and slapped him when he asked him to make a statement of records taken over and sign on it. Learned counsel for the petitioner contended that the submission of charge sheet and impugned order of taking cognizance is vitiated in the eye of law as the criminal proceeding is manifestly attended with malafide and is maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner due to official dispute. The learned counsel further submitted that the petitioner is a public servant and the offence alleged to have been committed in the discharge of his official duty and therefore, the learned Magistrate should not have taken cognizance of the offences and issued process against the petitioner without any valid sanction from the Government as required under section 197 of Cr.P.C. The learned counsel for the petitioner submits that the ingredients of the offences are not attracted and unless this Court invokes its inherent power under section 482 of Cr.P.C. and quash the impugned order, the petitioner will be seriously prejudiced. Mr.Chitta Ranjan Swain, learned counsel for the State opposed the submission made by the learned counsel for the petitioner and submitted that there is no illegality in the impugned order and therefore, the petition under section 482 of Cr.P.C. should be dismissed. 3. After perusing the documents annexed to the application under section 482 Cr.P.C. and the first information report, it appears that there was official dispute between the petitioner and the informant and there was some allegation against the informant regarding manipulation of store records and materials and in that connection the relevant documents have been seized by the petitioner which is apparent from Annexure-3 dated 29.06.2004. Further materials available on record indicates that on 30.06.2004 on the first information report submitted by the petitioner against the informant, GRPS Case No. 39 of 2004 was registered under section 341/294/323 of the Indian Penal Code and it is alleged that the informant misbehaved and manhandled the petitioner inside the office chamber of the petitioner. Further materials available on record indicates that on 30.06.2004 on the first information report submitted by the petitioner against the informant, GRPS Case No. 39 of 2004 was registered under section 341/294/323 of the Indian Penal Code and it is alleged that the informant misbehaved and manhandled the petitioner inside the office chamber of the petitioner. The F.I.R. which was lodged by the informant in the case was subsequent to that and the informant stated that he asked for a statement of the records taken over and sign on it for which the petitioner abused him in unparliamentary language and slapped him and also chased him to assault. No doubt it is alleged that during performance of the official duty, the petitioner has committed certain excesses but even then also in view of the settled position of law, sanction is necessary. It is held by the Hon’ble Supreme Court in the case of State of Orissa through Kumar Raghvendra Singh and Ors. –Vrs.-Ganesh Chandra Jew reported in (2004) 28 Orissa Criminal Reports 94 as follows:- “8. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.” Adverting to the background of the case, the nature of accusation alleged against the petitioner by the informant, it cannot be said that there is no reasonable connection between the alleged act done by the petitioner and the official duty and therefore, the learned counsel for the petitioner is correct in his submission that sanction from the competent authority is necessary. The offences are minor in nature and the petitioner and the informant were working in the same office and in the meantime, more than thirteen years have already passed and it is stated at the bar that informant had already retired from his service and therefore, in view of the available materials on record, I am of the considered view that the impugned order of taking cognizance is not sustainable in the eye of law. Accordingly, in order to prevent abuse of process and in the interest of the justice, invoking my inherent power under section 482 of Cr.P.C., I quash the impugned order dated 19.08.2004 passed by the learned J.M.F.C., Rural, Cuttack in G.R. Case No. 734 of 2004 in taking cognizance of the offences under sections 341/294/323 of the Indian Penal Code. Accordingly, the CRLMC application is allowed.