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2017 DIGILAW 699 (ORI)

Sailendra Kumar Dwivedi v. State of Orissa

2017-07-10

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. This is an application under section 482 of Cr.P.C. filed by the petitioner Sailendra Kumar Dwivedi, ex-B.D.O., Dhamnagar in challenging the impugned order dated 16.04.2004 passed by the learned S.D.J.M., Bhadrak in G.R. Case No.1278 of 2003 in taking cognizance of the offences under sections 341/323/294/34 of the Indian Penal Code and issuance of process against him. 2. The first information report was lodged by one Rabinarayan Sutar before the Officer in charge of Dhamnagar Police Station, Dhamnagar on 06.12.2003, on the basis of which Dhamnagar P.S. Case No.119 of 2003 was registered under sections 341/323/294/34 of the Indian Penal Code against the petitioner as well as co-accused Birendra Jena and Ramesh Chandra Mohapatra. 3. The prosecution case as per the first information report is that on 05.12.2003 when the informant along with others had come to the office to the B.D.O. to complain before the Central Enquiry Committee regarding the irregularities committed in the developmental works of the Gram Panchayat, they found that the door of the office was closed and they waited on the verandah and at that time, the petitioner who was the B..D.O. came outside and asked the informant and others regarding the reasons for coming to the office. When he was told that they have come to complain before the Central Enquiry Committee, the petitioner told them that ultimately all the complaints would be dealt by him and he asked the co-accused persons to oust the informant and others from the office by using filthy language and accordingly, the co-accused persons assaulted them. On completion of investigation, the investigating officer submitted charge sheet on 06.04.2004 under sections 341/323/294/34 of the Indian Penal Code against the petitioner and the co-accused persons namely Siria @ Ramesh Ch. Mohapatra and Birendra Kumar Jena. None appears on behalf of the petitioner. On going through the averments made in the application under section 482 of Cr.P.C., it is stated that the statements of Achyutananda Behera and Manaranjan Rout who are the eye witnesses to the occurrence would indicate that neither the petitioner was present at the spot nor instructed the other co-accused persons to assault the informant and his associates by using obscene language and therefore, the learned Magistrate should not have taken cognizance of such offences. It is further stated that the impugned order was passed in a mechanical manner and there are contradictions in the statements recorded under section 161 of Cr.P.C. vis-a-vis the contents of the first informant report. It is further stated that the ingredients of the offences under sections 323/341 of the Indian Penal Code are not attracted and since the petitioner was a public servant and sanction as contemplated under section 197 of Cr.P.C. having not been taken, the impugned order is liable to be set aside. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel for the State has produced the case diary and placed the first information report as well as the statements available on record. In the first information report, specific accusation has been leveled against the petitioner not only to have used filthy language such as ‘Sala Maghia’ and also asking the co-accused persons to assault the informant and his colleagues but also it is further mentioned that as per the instruction of the petitioner, the co-accused persons assaulted the informant. In the first information report, it is mentioned that Sk. Ajgar Ali and Hadibandhu Patra were present at the relevant point of time and they had seen the occurrence. Sk. Ajgar Ali was examined by the police and he completely corroborated the version of the informant made in the first information report. Similarly, Hadibandhu Patra has also corroborated the version made in the first information report. The statements of the two witnesses namely Achyutananda Behera and Manaranjan Rout no doubt indicate that the petitioner asked the informant and his colleagues to wait and no overt act has been alleged against the petitioner but when the version of the informant in the first information report is corroborated by at least two witnesses who according to the informant were present at the time of occurrence, it cannot be said that the investigating officer has committed any illegality in submitting charge sheet against the petitioner. The evidentiary value of the witnesses who were named in the first information report as eye witnesses to the occurrence so also the other witnesses on whose statements, the petitioner relied upon will be assessed during course of trial. The evidentiary value of the witnesses who were named in the first information report as eye witnesses to the occurrence so also the other witnesses on whose statements, the petitioner relied upon will be assessed during course of trial. So far as sanction part is concerned, law is well settled that abusing in filthy language in a public office by a public servant is no part of the official duty and instigating others to assault the persons including the informant who had come to the office of B.D.O. with their genuine grievances to meet the Central Enquiry Committee cannot be said to be in due discharge of the official duty. It is no part of official duty to commit an offence. Public servant is not entitled to indulge in criminal activities. An offence arising out of official position but not having any reasonable connection with the official duties does not require any sanction under section 197 of Cr.P.C. In the backdrop of the aforesaid legal position and examining the facts and circumstances of the case, I am of the view that no sanction under section 197 of Cr.P.C. is necessary for taking cognizance of the offences. 4. In view of the state of affairs, when prima facie case is made out against the petitioner on the basis of the first information report as well as on the basis of the statements of the two witnesses who were named in the first information report as eye witnesses, I find no illegality or impropriety in the impugned order of the learned Magistrate. 5. Accordingly, the CRLMC application being devoid of merits stands dismissed.