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2017 DIGILAW 579 (ORI)

Sasanka Sekhar Samanta v. State of Orissa

2017-05-15

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The petitioner no.1 Sasanka Sekhar Samanta who was the Inspector, DCRB –cum- Inspector-in-charge, Special Squad, Bolangir, petitioner no.2 Anand Kumar Khuas who was the Lance Naik, Headquarters Bolangir and petitioner no.3 Sheikh Nabi who was the Driver, Reserve Police, Bolangir have filed this application under section 482 of the Criminal Procedure Code challenging the impugned order dated 22.08.2005 passed by the learned Sub-divisional Judicial Magistrate, Patnagarh in I.C.C. Case No. 66 of 2004 in taking cognizance of offence under sections 394/34 of the Indian Penal Code and issuance of process against them. 2. The petitioner no.1 lodged the first information report before the officer in charge of Khaprakhol police station, on the basis of which Khaparkhol P.S. Case No.74 of 2003 was registered on 05.12.2003 under sections 143/147/294/506/379/353/149 of the Indian Penal Code and section 47(a) of the Bihar and Orissa Excise Act against seven persons including Smt. Nandini Sahu, opposite party no.2. It is stated in the first information report that while the petitioners and other police officials proceeded towards village Dhandamunda getting reliable information about the sale of foreign liquor, they found one person was selling foreign liquor in a temporary shed in front of his house. The police officials entered into the shed and found that person was in possession of foreign liquor bottles and selling the same to the public. On being asked, he gave his identity as Goura Chandra Sahu and confessed to be selling foreign liquor without any license or authority. On search, number of liquor bottles was found from the possession of that person which was seized in presence of the local witnesses. When the seizure list was prepared, the said Goura Chandra Sahu and others did not sign the seizure list rather they challenged the police party in a loud voice and hearing their hullah, other villagers came there and joined them and they gheraoed the police and abused them in filthy language and snatched away the seized articles from the possession of the police. Since the said Goura Chandra Sahu and his wife Nandini Sahu (opposite party no.2) were in possession of foreign liquor without any licence or authority and selling the same to the public and they along with others formed an unlawful assembly and created obstruction in the due discharge of the police officials, the FIR was lodged. 3. Since the said Goura Chandra Sahu and his wife Nandini Sahu (opposite party no.2) were in possession of foreign liquor without any licence or authority and selling the same to the public and they along with others formed an unlawful assembly and created obstruction in the due discharge of the police officials, the FIR was lodged. 3. On completion of investigation, charge sheet was submitted in Khaprakhol P.S. Case No.74 of 2003 on 27.12.2003 under sections 143/147/294/506/379/353/149 of the Indian Penal Code and section 47(a) of the Bihar and Orissa Excise Act against the opposite party no.2 Smt. Nandini Sahu and others. 4. A complaint petition was filed by the opp. Party no.2 Smt. Nandini Sahu on 10.12.2003 before the Sub-divisional Judicial Magistrate, Patnagarh against the petitioners and others for which the I.C.C. Case No.78 of 2003 was registered. It is the case of the complainant-opposite party no.2 that on 05.12.2003 night at about 1.30 p.m., the petitioners and other accused persons came together, entered inside her house and demanded to give liquor on the plea that they wanted to go Harishankar for picnic. The complainant denied having any liquor for which there was exchange of words between them and petitioner no.3 Sheikh Nabi gave a push to the complainant on the back for which she fell down on the ground. Then the petitioners threatened her to kill, confined her in her house and forcibly opened the almirah of the complainant and took away Rs.3,320/- despite her protest. When the husband of the complainant raised protest and other witnesses intervened, the petitioners and other accused persons left the spot. 5. The learned S.D.J.M., Patnagarh sent the complaint petition to the officer in charge, Khaprakhol police station, on the basis of which Khaparkhol P.S. Case No. 06 of 2004 was registered on 06.01.2004 under sections 354/395 of the Indian Penal Code. After completion of investigation, on 22.08.2004 final report was submitted by the Investigating Officer indicating therein that such a case was instituted by the complainant to harass the police officials. On receipt of such final report, the learned S.D.J.M., Patnagarh issued notice to the opposite party no.2 who filed a protest petition. On receipt of such protest petition, the learned Magistrate recorded the statement of the complainant under section 200 Cr.P.C., conducted inquiry under section 202 of Cr.P.C. during course of which, witnesses were examined by the opposite party no.2. On receipt of such final report, the learned S.D.J.M., Patnagarh issued notice to the opposite party no.2 who filed a protest petition. On receipt of such protest petition, the learned Magistrate recorded the statement of the complainant under section 200 Cr.P.C., conducted inquiry under section 202 of Cr.P.C. during course of which, witnesses were examined by the opposite party no.2. On perusal of the complaint petition, statement of the complainant, statements of the witnesses and the records of the G.R. Case No.11 of 2004 and G.R. Case No.312 of 2003, the learned Magistrate on 24.06.2005 came to hold that the petitioner no.1 as per the direction of the Superintendent of Police, Bolangir was performing the official duty along with police constables and the complainant–opposite party no.2 alleged against them showing indecent conduct of outraging her modesty and looting her money. It was further held that as per the settled principle of law, sanction under section 197 of Cr.P.C. is required to take cognizance against a public servant and the complainant has not brought the matter to the notice of the S.P., Bolangir nor moved the competent authority for sanction of prosecution against the petitioners. It was further held that in absence of any sanction from the competent authority, cognizance cannot be taken against the accused persons as the petitioner no.1 was working as Inspector of Police under S.P., Bolangir and a public servant at the time of alleged occurrence. Accordingly, the learned S.D.J.M. directed the complainant-opposite party no.2 to produce the sanction order from the competent authority to prosecute her case against the accused persons. While the matter was pending like that and the advocate for the complainant sought for time to obtain the sanction order, a different Presiding Officer joined and passed the impugned order dated 22.08.2005, inter alia, holding that there is no proof that the accused persons were discharging their public duties at the relevant time and the complainant may file the sanction order at a later stage of hearing, if it is proved that the accused persons had gone to the house of the complainant as public servant for excise raid. Accordingly, the learned S.D.J.M., Patnagarh took cognizance of offence under sections 394/34 of the Indian Penal Code and issued process against the petitioners and dismissed the complaint case so far as other accused persons are concerned. 6. Mr. Accordingly, the learned S.D.J.M., Patnagarh took cognizance of offence under sections 394/34 of the Indian Penal Code and issued process against the petitioners and dismissed the complaint case so far as other accused persons are concerned. 6. Mr. B.S. Dasparida, learned counsel appearing for the petitioners contended that the impugned order suffers from non-application of mind and the petitioners are the police officials and on the date of occurrence, they were performing their official duties during course of which they detected the commission of offence under section 47(a) of the Bihar and Orissa Excise Act and when they seized the liquor bottles, there was protest by the complainant-opp. Party no.2 and others for which an F.I.R. was lodged by the petitioner no.1 and just as a counterblast to the said F.I.R., the opposite party no.2 filed the complaint petition. He further contended that when the learned Magistrate after perusing the complaint petition, the initial statement of the complainant and the statements of the witnesses recorded under section 202 Cr.P.C. and the records of G.R. Case No.11 of 2004 and G.R. Case No.312 of 2003 came to hold that the petitioners were performing their official duty along with other police constables and sanction of the competent authority to prosecute them is necessary, by passing the impugned order the learned Court has reviewed its own order which is not permissible in the eye of law. It is further contended that since the alleged offences have been committed in due discharge of the official duties, the petitioners are entitled to protection as envisaged under section 197 of Cr.P.C. The sanction for prosecution being mandatory in nature and the same having not been taken, the impugned order of taking cognizance is not sustainable in the eye of law and therefore, it should be set aside. 7. Learned counsel for the State Mr. Chitta Ranjan Swain, learned Additional Standing Counsel on the other hand supported the impugned order of cognizance passed by the learned S.D.J.M., Patnagarh. 8. Mr. Gouranga Behari Jena, learned counsel appearing for the opposite party no.2 submitted that the matter has been amicably settled between the parties in the meantime. 9. 7. Learned counsel for the State Mr. Chitta Ranjan Swain, learned Additional Standing Counsel on the other hand supported the impugned order of cognizance passed by the learned S.D.J.M., Patnagarh. 8. Mr. Gouranga Behari Jena, learned counsel appearing for the opposite party no.2 submitted that the matter has been amicably settled between the parties in the meantime. 9. Considering the submissions made by the learned counsels for the respective parties and looking at the materials available on record and the documents filed by the learned counsel for the petitioners, it prima facie appears that the petitioners and other police officials had been to the house of opposite party no.2–complainant on the relevant day where they detected that the husband of the complainant was dealing with sale of foreign liquor without any authority and accordingly they seized the same. It also appears that when the seizure list was prepared, the opposite party no.2, her husband and others created disturbance and abused the police officials in filthy language and prevented them from due discharge of their lawful duty for which a first information report was lodged on 05.12.2003 by the petitioner no.1 before the officer in charge of Khaprakhol police station against the complainant and others. 10. Five days after the lodging of the first information report, the opposite party no.2 came up with a complaint petition alleging that the petitioners and others entered inside her house and forcibly took away Rs.3,320/- after assaulting her when she denied to give them liquor bottles. It also prima facie appears that when the complaint case was forwarded for registration of the F.I.R., it was duly investigated and after completion of investigation, it was found to be a false case which was filed just to harass the police officials and accordingly final report was submitted. 11. It appears that when the notice was issued to the complainant after receipt of the final report, the complainant filed a protest petition and after recording the statement of the complainant and conducting the inquiry under section 202 of Cr.P.C. and after perusing all the relevant records including the G.R. Case records, the learned S.D.J.M. was of the view that the petitioners were performing their official duty on the relevant day and sanction for prosecution from the competent authority is necessary. 12. 12. Protection of sanction as envisaged under section 197 of Cr.P.C. serves a very salutary purpose, viz., it protects the honest and sincere officer in the performance of their official duty and prevents demoralization of such officer against threat of frivolous and malicious prosecution leading to harassment. "Official duty" implies that the act or omission should have been done in discharge of the duty. Once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction. Existence of reasonable connection between the act complained of and the discharge of official duty is necessary. Law is well settled that the protection given under section 197 of Cr.P.C. is not a cloak for doing the objectionable act. The excesses committed by the public servant during the performance of official duty are also protected under section 197 of Cr.P.C. It is the duty of the Court to find out whether the act done by the public servant and the official duty are so inter- connected/inter-related that one can postulate reasonably that it was done by the accused in performance of the official duty, though possibly in excess of the needs and requirements of the situation. (Ref:- Sudarsan Dash -Vrs.- Smt. Sarojini Mohapatra reported in (2017) 66 Orissa Criminal Reports 635). 13. In this case when the learned S.D.J.M., Patnagarh on 24.06.2005 came to hold that at the relevant time the petitioner no.1 along with the police constables were performing their official duties as per the direction of S.P. and a Special Squad was formed to conduct raid in the house of the complainant to unearth illegal possession of foreign liquor and in absence of the sanction from the competent authority, cognizance cannot be taken and therefore directed the complainant–opposite party no.2 to produce the sanction order from the competent authority to prosecute her case against the petitioners and other police officials, he should not have passed the impugned order dated 22.08.2005 giving a complete somersault to the earlier order dated 24.06.2005. The learned counsel for the petitioners is right in his submission that the impugned order dated 22.08.2005 amounts to review of the earlier order dated 24.06.2005 passed by the learned S.D.J.M., Patnagarh which is not permissioble in the eye of law. 14. The learned counsel for the petitioners is right in his submission that the impugned order dated 22.08.2005 amounts to review of the earlier order dated 24.06.2005 passed by the learned S.D.J.M., Patnagarh which is not permissioble in the eye of law. 14. On the materials available on record, I am satisfied that the petitioners were performing their official duty on the relevant day and the act complained of due to which the offence is stated to have been committed appears to have been committed by the petitioners while acting or purporting to act in the discharge of their official duty. Even though the allegations are of commission of excesses by the petitioners, in my humble view, the petitioners cannot be prosecuted without sanction from the competent authority. Sanction for prosecution under section 197 Cr.P.C. by the appropriate authority was necessary prerequisite in the case before taking cognizance of the offence. 15. Resultantly, the impugned order suffers from non-application of mind and is hereby set aside. Accordingly, the CRLMC application is allowed.