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2017 DIGILAW 909 (ORI)

Ramesh Chandra Bissoi v. State of Orissa

2017-08-21

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner in CRLMC No. 2110 of 2004 namely Ramesh Chandra Bissoi was the S.I. of Police and the Second Officer of Jeypore Sadar Police Station and the petitioner in CRLMC No.1829 of 2004 namely Pramod Kumar Panigrahi was the Officer in charge of Jeypore Sadar Police Station and both the petitioners have challenged the impugned order dated 09.08.2004 passed by the learned S.D.J.M., Jeypore in 1.C.C. Case No.65 of 2004 in taking cognizance of the offences punishable under sections 323, 354, 294, 406, 506, 34 of the Indian Penal Code and issuance of process against them. Since both the CRLMC applications arise out of the same case and the impugned order in both the cases is also the same, with the consent of the parties, the CRLMC applications were heard analogously and the same are disposed of by this common judgment. 2. The opposite party no.2 Chandra Nag filed the complaint petition against the petitioners and one Maidar Ganda stating therein that one self help group of his Village Parsanput Bayaguda brought a tractor on lease basis for one year from co-accused Maidar Ganda for Rs.7500/- (rupees seven thousand five hundred only) per month and paid Rs.20,000/- (rupees twenty thousand only) as advance and in that respect an agreement was executed between the S.H.G. organizer and co-accused Maidar Ganda, the owner of the vehicle on 01.10.2003 but in the month of December 2003, the co-accused Maidar Ganda forcibly took away his vehicle without adjusting the rest amount and the agreement could not be worked out. The members of the self help group approached the co-accused Maidar Ganda for return of the rest of the amount as per the agreement but he did not return the same rather scolded them and threatened them for which the complainant along with others reported the matter on 16.01.2004 before the Officer in charge, Sadar Police Station, Jeypore but no action was taken thereon. On 24.07.2004 the complainant along with other members of the self help group reported the matter to the Collector, Koraput and also to the Superintendent of Police, Koraput. On 24.07.2004 the complainant along with other members of the self help group reported the matter to the Collector, Koraput and also to the Superintendent of Police, Koraput. It is further stated in the complaint petition that on 27.07.2004 at about 4.00 p.m. both the petitioners called the complainant and others to the Sadar Police Station, Jeypore and scolded them in filthy language and forcibly took a written paper from them to the effect that there was no dispute between the self help group organization and co-accused Maidar Ganda and all the accounts had been subsided between the parties. It is stated that at that point of time co-accused Maidar Ganda was present in the Sadar Police Station and he left the Police Station and went to the village. It is further stated in the complaint petition that on the same day at about 9.00 p.m., both the petitioners and co-accused Maidar Ganda came to the village, called the complainant and others and verified all the documents regarding the original agreement which was executed between the self help group organization and the co-accused and original R.C. Book of the tractor and other related papers and forcibly took away the same. It is further stated in the complaint petition that when the complainant and one Suvadra Nag protested, the petitioners scolded them, attempted to assault the complainant, caught hold of tuft of the hairs of Suvadra Nag and assaulted her. The petitioner Ramesh Chandra Bissoi and co-accused Maidar Ganda also allegedly assaulted the complainant for which the villages protested. The matter was reported on 28.07.2004 to the Collector, Koraput and S.P., Koraput but no action was taken thereon for which the complaint petition was filed. 3. The learned S.D.J.M., Jeypore on receipt of the complaint petition, took cognizance of the offences under sections 379, 323, 354, 494, 406, 506, 34 of the Indian Penal Code on 03.08.2004 and posted the case for inquiry as contemplated under section 202 of Cr.P.C., during course of which the complainant examined two witnesses namely Suvadra Nag and Bhagabati Pujari. 3. The learned S.D.J.M., Jeypore on receipt of the complaint petition, took cognizance of the offences under sections 379, 323, 354, 494, 406, 506, 34 of the Indian Penal Code on 03.08.2004 and posted the case for inquiry as contemplated under section 202 of Cr.P.C., during course of which the complainant examined two witnesses namely Suvadra Nag and Bhagabati Pujari. After perusing the statement of the complainant, the statements of the witnesses recorded under section 202 of Cr.P.C. and also the documents filed by the complainant, the learned S.D.J.M., Jeypore was of the opinion that there are sufficient ground for proceeding under sections 323, 354, 294, 406, 506, 34 of the Indian Penal Code against the petitioners and accordingly issued summons against them so also against the co-accused Maidar Ganda for commission of the offence under section 379 of the Indian Penal Code. 4. Mr. Debasish Pattanaik, learned counsel appearing for the petitioner Ramesh Chandra Bissoi strenuously contended that the petitioner was the Second Officer of Jeypore Sadar Police Station and he had accompanied the Officer in charge on the relevant day to the spot and whatever overt act has been allegedly done by the petitioner, the same was in performance of the official duty and therefore, the learned S.D.J.M., Jeypoe should not have passed the impugned order without obtaining sanction for prosecution under section 197 of Cr.P.C. Mr. Niranjan Lenka, learned counsel appearing for the petitioner Pramod Kumar Panigrahi also emphatically contended that the act alleged against the petitioner has got reasonable nexus with the official duty and therefore, the impugned order passed without the sanction from the competent authority is liable to be set aside. Mr. Niranjan Lenka, learned counsel appearing for the petitioner Pramod Kumar Panigrahi also emphatically contended that the act alleged against the petitioner has got reasonable nexus with the official duty and therefore, the impugned order passed without the sanction from the competent authority is liable to be set aside. Mr. Gopinath Mishra, learned counsel appearing for the complainant Chandra Nag on the other hand vehemently opposed the contentions raised by the learned counsels for the petitioners and contended that prima facie case for taking cognizance of the offences and issuance of process is clearly made out on the basis of the complaint petition coupled with the bare reading of the initial statement and statements of witnesses recorded under section 202 of Cr.P.C. and the act complained of against the petitioners has got no nexus with the performance of their official duties and therefore, under no stretch of imagination, it cannot be said that there was requirement of sanction under section 197 of Cr.P.C. for proceeding against the petitioners and therefore, the impugned order passed by the learned S.D.J.M., Jeypore does not suffer from any infirmity and accordingly, inherent power under section 482 of Cr.P.C. should not be invoked to interfere with the same. Mr. Prem Kuamr Patnaik, learned Addl. Government Advocate appearing for the State also supported the impugned order. 5. The necessity of sanction under section 197 of Cr.P.C. from the competent authority before taking cognizance of an offence and proceeding against a public servant, is to protect the responsible public servant from vexatious criminal proceeding for the offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty in the capacity of such public servant. If it is prima facie found that the act or the omission for which the accused public servant was charged had reasonable connection with the discharge of his official duty, the applicability of section 197 of Cr.P.C. cannot be denied. The threat of prosecution against a public servant by instituting fabricated criminal case demoralizes him to perform his duty without fear and favour and without succumbing to the pressure of unscrupulous elements. Therefore, sanctioning authority has got a duty to protect the innocent public servants from uncalled for prosecution. In the case of Abdul Wahab Vs. The threat of prosecution against a public servant by instituting fabricated criminal case demoralizes him to perform his duty without fear and favour and without succumbing to the pressure of unscrupulous elements. Therefore, sanctioning authority has got a duty to protect the innocent public servants from uncalled for prosecution. In the case of Abdul Wahab Vs. State of Bihar reported in (2001) 20 OriCriR(SC) 1, it is held that previous sanction of the competent authority being a pre-condition for the Court in taking cognizance of the offence, if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter to taking cognizance, and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In the said case, the appellant who was the Sub-Divisional Magistrate had been directed to be present with the police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and as such the provisions of section 197(1) apply to the case and there being no sanction, the cognizance taken by the Magistrate is bad in law. In the case of Gouri Shankar Prasad Vs. State of Bihar reported in 2000 SCC(Cri) 872, it is held that section 197 of Cr.P.C. embodies one of the exceptions to the general rules laid down in section 190 of Cr.P.C., that any offence may be taken cognizance of by the Magistrates enumerated therein. In that case, the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from the Government land and in exercise of such duty, he is alleged to have committed the acts which formed the gravamen of the allegations contained in the complaint lodged by the respondent. In that case, the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from the Government land and in exercise of such duty, he is alleged to have committed the acts which formed the gravamen of the allegations contained in the complaint lodged by the respondent. Hon’ble Court held that it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant and the appellant is entitled to the immunity from criminal proceedings without sanction provided under section 197 Cr.P.C. In the case of P.K. Pradhan Vs. State of Sikkim reported in 2001 SCC(Cri) 1234, it is held that the legislative mandate engrafted in sub-section (1) of section 197 of Cr.P.C. touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance. There must be 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 a Court has to 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 official duty, though, possibly in excess of the needs and requirements of the situation. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. In case of Sangram Vs. Niladri Dhir reported in (2012) 52 OriCriR 362, it is held that all Magistrates are to exercise power of cognizance in complaint case against public officer with due care and caution, especially, in cases were complaints are lodged against police officers for alleged excess act committed by them in course of due discharge of their official duty. A number of complaint cases are lodged against police officers only because action is taken by the police either to investigate, apprehend or prosecute an accused and in such circumstances, the accused persons acting through their family members relatives and/or villagers by filing complaints and in such circumstance, the Court before whom such complaints are lodged must act with due care and caution and in appropriate case may also seek assistance of the District Superintendent of Police. The Magistrate should enquire from the complainant as to whether the police officers against whom, the complaints are being lodged had any connection with any official duty, which was being discharged by the police officer or not at the time of alleged incident. The Magistrate taking cognizance on compliant has to give specific finding regarding the applicability or otherwise of section 197 Cr.P.C. which is mandatory. In the case in hand, it appears that both the petitioners had been to the spot after the reports were lodged at Sadar Police Station, Jeypore and also representations were made before the Collector, Koraput as well as Superintendent of Police, Koraput. After going through the complaint petition as well as the statements of the complainant and two witnesses, it prima facie appears that both the petitioners were performing their official duty and at the spot, they called the complainant and others and verified all the documents regarding the original agreement which was executed between the self help group organization and the co-accused, original R.C. Book of the tractor and other related papers. Even if certain overt acts alleged to have been committed at the spot by the petitioners is held to be in excess of the needs and requirements of the situation but it cannot be said that there was no reasonable connection between the act complained of and the performance of official duty. If the discharge of official duty in the context of the case is narrowly construed, strict necessity of each and every part of the duty discharged is assessed with an eagle eye and it is held that the petitioners should not have done certain acts or should not have exceeded a particular limit then the concept of protective umbrella to an honest and sincere officer performing his public duty to the best of his ability would be frustrated. It may be very easy for a complainant to bring certain accusation against a public servant mixing it with his official duty if he is otherwise aggrieved against such public servant for obvious reason. It may be very difficult to read the mind of the complainant in such circumstances. If the Court gives latitude to the complainant and takes cognizance of offences upon baseless and unfounded accusations and proceed mechanically against the public servants who are performing their official duties then they may hesitate to take a bold step where even the situation might demand. Since the materials available on record indicate that the petitioners have gone to the spot in performance of their official duties and in due discharge of their official duties, some excesses alleged to have been committed, even in that event also, the requirement of sanction as contemplated under section 197 of Cr.P.C. is necessary. The learned Magistrate while passing the impugned order on the compliant petition has not given any finding regarding the applicability or otherwise of section 197 Cr.P.C. which is mandatory as per the decision rendered by this Court in the case of Sangram (supra). In absence of any sanction from the competent authority, the order of taking cognizance and issuance of process against the petitioners cannot be sustained in the eye of law. In view of the above discussions, I am of the view that the impugned order passed by the learned S.D.J.M., Jeypore is nothing but abuse of process of law which needs intervention of this Court under its inherent jurisdiction. In view of the above discussions, I am of the view that the impugned order passed by the learned S.D.J.M., Jeypore is nothing but abuse of process of law which needs intervention of this Court under its inherent jurisdiction. Accordingly, both the CRLMC applications are allowed and the impugned order is set aside.