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2018 DIGILAW 151 (ORI)

BISHNU PRASAD SAHOO v. KALPANA MOHAPATRA

2018-02-02

D.P.CHOUDHURY

body2018
JUDGMENT : D.P. Choudhury, J. - This is an application under Section 482, Cr.P.C., 1973 to quash the order of taking cognizance dated 15.09.2005 passed by the learned S.D.J.M., Bhubaneswar in ICC Case No. 2918 of 2005 as well as the entire criminal proceeding initiated against the petitioners. Facts 2. The unravelled story of the case of prosecution is that the complainant is residing at Punam Gate, Kela Sahi over the case land for last 30 years. It is alleged, inter alia, that on 27.08.2005 at about 7.00 P.M. all of a sudden three accused persons, namely, Bhima Kantayat, Sarttosh Kantayat and Jayanti Kantayat without any reason abused the present complainant-opposite party and her husband in filthy language. Then the complainant informed the local police of Airfield Police Station. Since petitioner no. 1 was the I.I.C. of Airfield Police Station at that time and petitioner no. 2 was a police driver, it is alleged, inter alia, that the petitioners abused the complainant-opposite party in filthy language such as "SALI BEDHEITU BEDHA BESYA BRUTI KARUCHU" and demanded Rs. 3,000/- as bribe. When the complainant-opposite party protested the illegal activities, petitioner no. 2 caught hold of her left hand and pushed her right side breast and forcibly opened her saree and saya from the leg to belly side for sexual intercourse. It is further alleged that the present petitioners along with the three accused persons who have threatened earlier to the complainant-opposite party, pulled her saree and blouse and assaulted her with fist blows, for which she sustained injury on her body. So, the complaint was filed on 12.09.2005 before the learned S.D.J.M., Bhubaneswar and after recording the initial statement of the complainant, the learned S.D.J.M., Bhubaneswar took cognizance of the offence under Sections 354, 294, 506/34, IPC and issued process against all the accused persons including the present petitioners. Thereafter, the complaint was sent to different quarters including the office of the Hon'ble Chief Minister, Odisha. However, challenging the order of taking cognizance and issuance of process, the present CRLMC has been filed to quash the same. Submissions 3. Mr. Manoj Kumar Mishra, learned Sr. Thereafter, the complaint was sent to different quarters including the office of the Hon'ble Chief Minister, Odisha. However, challenging the order of taking cognizance and issuance of process, the present CRLMC has been filed to quash the same. Submissions 3. Mr. Manoj Kumar Mishra, learned Sr. Counsel for the petitioners submitted that the learned S.D.J.M., Bhubaneswar passed the order of taking cognizance only on the basis of the complaint and initial statement of the complainant whereas it is trite in law that whenever there is allegation against a police officer, before issuing process, inquiry under Section 202, Cr.RC. should be held. On the other hand, in absence of any enquiry under Section 202, Cr.P.C., 1973 and in absence of the statements of the witnesses, the order of taking cognizance is per se illegal. 4. Learned Sr. Counsel for the petitioners further submitted that in the instant case, the learned S.D.J.M., Bhubaneswar has erred in law by taking cognizance of the offence without there being sanction obtained from the State Government because the petitioners were allegedly in due discharge of official duty as they proceeded to the spot for investigation on the F.I.R. being lodged by the present opposite party. Since the police officers are only removable from Govt. Service by the order of the State Government and the alleged act complained of, has got nexus with the allegation made, sanction under Section 197, Cr.P.C., 1973 is mandatory. In support of his submission, he relied on the decisions reported in AIR 1992 SC 1815 (Punjab National Bank and others v. Surendra Prasad Sinha), (2009) 42 OCR 813 : CLT (2009) Suppl. Crl. 666 (Tapas Kumar Rath v. Harekrushna Pradhan) and 70(1990) CLT 201 (Anadi Charan Jena v. Bijay Kumar Mohanty). 5. Learned Sr. Counsel for the petitioners further contended that the complaint has been filed falsely to harass the police officers, who have discharged their duty and on perusal of the F.I.R. no offence is made out. The learned S.D.J.M, Bhubaneswar without application of judicial mind, has taken cognizance of the offence, which should be set aside. 6. In spite of notice, the complainant-opposite party did not appear. However, learned Addl. Standing Counsel submitted that the act complained of has no nexus with due discharge of duty for which sanction for prosecution is not necessary. The learned S.D.J.M, Bhubaneswar without application of judicial mind, has taken cognizance of the offence, which should be set aside. 6. In spite of notice, the complainant-opposite party did not appear. However, learned Addl. Standing Counsel submitted that the act complained of has no nexus with due discharge of duty for which sanction for prosecution is not necessary. He further submitted that the order of taking cognizance of the offence and issuance of process being legal and proper, the same should be affirmed. 7. The main point for consideration:- Whether the order of taking cognizance and consequently entire criminal proceeding are also liable to be quashed ? Discussions 8. It is admitted fact that the complaint was filed against five accused persons by the present complainant-opposite party in ICC No. 2918 of 2005 and the present petitioners are out of the said five accused persons. It is not in dispute that F.I.R. was lodged by the co-accused 1 to 3 as arrayed in the complaint petition before the police station where the present petitioner no. 1 was the I.I.C. of Airfield Police Station and the petitioner no. 2, was the driver of the police vehicle. 9. From the complaint, it appears that basing on the F.I.R. lodged by the accused nos. 1 to 3 as named in the complaint petition, the present petitioners being the police personnel came to the house of the complainant-opposite party and abused her in obscene language and demanded Rs. 3,000/-. It is alleged in the complaint that the present petitioners outraged the modesty by assaulting on her breast and pulling her saree and all the accused persons including the present petitioners also assaulted her. So, the complaint shows that while the petitioners had gone to discharge their official duty, such occurrence had taken place. 10. For the sake of brevity, the order passed by the learned Magistrate on different dates is quoted below : "12.9.2005- Complaint petition under section 447, 448, 323, 341, 354, 294, 506, 217/34, IPC is filed. Advocate Sri P.K. Swain and others and associates file power on behalf of the complainant. Register Put up on 13.9.2005 for initial statement. 13.9.2005- Initial statement of the complete is recorded on S.A No other witness is adduced today. No application for time is filed by the complete to adduce further evidence in the enquiry. Hence, the enquiry under section 200 Cr.P.C., 1973 is closed. Register Put up on 13.9.2005 for initial statement. 13.9.2005- Initial statement of the complete is recorded on S.A No other witness is adduced today. No application for time is filed by the complete to adduce further evidence in the enquiry. Hence, the enquiry under section 200 Cr.P.C., 1973 is closed. Put up on 15.9.2005 for orders. 15.9.2005- The case record is put up today for orders on the matter of taking cognizance. Perused the complaint petition and initial statement of the complainant recorded under section 200 Cr.P.C., 1973 The materials on record reveals a prima facie case for commission of offence under section 354,294,506/34, I.P.C. Hence, cognizance of offence under section 354,294,506/34, I.P.C is taken against the accused persons named in the complaint. Issue summons to the accused persons fixing 4.10.2005 for appearance. Complainant is directed to file requisites within a week hence." 11. The aforesaid orders show that basing on the complaint and initial statement of the complainant recorded under Section 200, Cr.P.C., 1973 cognizance of the offence was taken. In fact, no enquiry under Section 202, Cr.P.C., 1973 was held. Since the petitioners are public servants and serious allegation has been made by a woman, inquiry under Section 202, Cr.P.C., 1973 was inevitable. 12. In Prakash Singh Badal v. State of Punjab and others, (2007) 1 SCC 1 , the Hon'ble Apex Court have clearly held as follows : "20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity. 38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. 74...... This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. 74...... Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the quality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption." 13. With due respect to the aforesaid decision, it appears that protection under Section 197, Cr.P.C, 1973is available to the public servants, who performed their duties without fear and favour and without threaten of malicious prosecution and the act complained of should have got nexus with discharge of duty. 14. In State of Orissa Through Kumar Raghvendra Singh and others v. Ganesh Chandra Jew, (2015) 12 SCC 231 , the Hon'ble Apex Court at paragraph-7 has held as follows : "7. 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 of 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 of the protection. The question is not as to the nature of 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 act which is important and the protection of this section is available if the acts falls within the scope and range of his official duty...." 15. In Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi, (2012) 53 OCR (SC) 924 : (2012) 12 SCC 72 , the Hon'ble Apex Court at paragraph 32 has held as follows: "32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits ans 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 of the protection (Ganesh Chandra Jew). 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 of the protection (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so 6 page 7 integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood." 16. With regard to the aforesaid decisions, it appears that Section 197, Cr.P.C., 1973 is undoubtedly protecting the public servant if the act complained of is reasonably connected with the discharge of official duty and is not merely a cloak for doing the objectionable act. 17. The aforesaid decision of the Hon'ble Apex Court has also been followed in the recent judgment of the Hon'ble Supreme Court in D.T. Virupakshappa v. C. Subash, (2015) 61 OCR (SC) 512 : (2015) 12 SCC 231 . 18. Now adverting to the present case, there is allegation in the complaint against the present petitioners about visiting to the house of the complainant-opposite party on the F.I.R. being lodged by the co-accused 1 to 3 as arrayed in the complaint petition. If these petitioners and the co-accused persons entered to her house, abused her in filthy language and outraged her modesty by pushing her body for which she sustained simple injury on her person, but during the statement of the informant recorded under Section 200, Cr.R.C. she has changed her version by stating that the present petitioners along with 7-8 police personnel came to her house, they took away her in the police vehicle, and abused her in obscene language. There is discrepancy between her statement in the complaint petition and the initial statement, but however, the entire allegation seems to be triggered because of the report submitted by the co-accused 1 to 3 made in the complaint. There is discrepancy between her statement in the complaint petition and the initial statement, but however, the entire allegation seems to be triggered because of the report submitted by the co-accused 1 to 3 made in the complaint. Thus, the entry of the petitioners to the house of the complainant-opposite party and forcing her to sit in the police jeep is a part of the investigation as envisaged under Section 157, Cr.P.C., 1973 which appears to be duty of the police, the allegation touching may be said to be excessive acts, but that cannot allegation of the complainant in toto against the petitioners being emanated from due discharge of duty, they are protected under Section 197, Cr.P.C., 1973 in view of the decision so Hon'ble Supreme Court as discussed above. Conclusion 19. In terms of the above discussion, this Court is of the view that not only the order of taking cognizance without following the procedure of inquiry under Section 202, Cr.P.C., 1973 id bad out also there being no sanction under Section 197 Cr.P.C., 1973 the order of taking cognizance is equally invalid. On the other hand, the learned Magistrate has not applied his judicial mind to the fact of the case while taking cognizance of the offence and issuing process against the petitioners. Hence, the impugned order dated 15.09.2005 in taking cognizance of the offence under Sections 294/354/506/34 of IPC as well as the entire criminal proceeding in ICC Case No. 2918 of 2005 passed by the learned S.D.J.M., Bhubaneswar being vulnerable are liable to be quashed and the Court do so. 20. In the result, the CRLMC is allowed.