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2018 DIGILAW 367 (ORI)

Gadadhar Panda v. Daitary Das

2018-04-06

D.P.CHOUDHURY

body2018
JUDGMENT : D.P. CHOUDHURY, J. 1. Challenge has been made to the order of taking cognizance dated 06.03.2006 for commission of offence under Sections 294/323/506 of the Indian Penal Code and issuance of process against the petitioner by the learned J.M.F.C., Jajpur Road in I.C.C. No.44 of 2006. 2. Mr. A. Mohanty, learned counsel for the petitioner submits that complainant filed the complaint against the petitioner, who was a S.D.O, Telephone, Jajpur Road, District-Jajpur on the allegation that on 24.02.2006 at 10.45 A.M. the complainant asked the petitioner for a SIM Card as the petitioner was on duty by then. According to him, it was alleged that the complainant when asked about the SIM Card, the petitioner allegedly asked for Rs.1,000/-to which the complainant objected. Then, the petitioner allegedly abused him in obscene language and threatened him to go out and simultaneously pushed him out. As such the complainant allegedly was insulted and became threatened. 3. Mr. Mohanty, learned counsel for the petitioner further submits that the episode as narrated by the complainant is totally false as at that time the petitioner had attended the meeting with the General Manager in his chamber as per Annexures-4 and 5. He further submits that since the alleged occurrence took place during discharge of duty by the petitioner, as per Section 197 of Cr. P. C. sanction is necessary to prosecute the petitioner. As there is no order of sanction, the impugned order of taking cognizance of the offence against the petitioner who is a public servant, suffers from infirmity and illegality. 4. Learned counsel for the opposite party has not appeared at the time of hearing. 5. Considered the submissions of the learned counsel for the petitioner and perused the copy of the complaint and other materials on record. The impugned order dated 06.03.2006 is as follows:- “6.3.06 Perused the statement of the complainant recorded U/s.200 Cr.P.C. and the statement of witness U/s.202 Cr.P.C. along with the complaint petition. I found there is a prima facie case U/s.294/323/506/ IPC against the accused person to face trial. Hence cognizance of the offence U/s.294/323/506 IPC is taken. Issue summons to the accused persons on both ways. The complainant is directed to file the requisites on 1.3.06 positively for issuance of summons.” 6. No doubt the aforesaid order was passed in a complaint filed by the complainant. Hence cognizance of the offence U/s.294/323/506 IPC is taken. Issue summons to the accused persons on both ways. The complainant is directed to file the requisites on 1.3.06 positively for issuance of summons.” 6. No doubt the aforesaid order was passed in a complaint filed by the complainant. The complaint petition clearly shows that the petitioner was on duty at his office but the complainant went to the office and asked for a BSNL SIM Card. On approach by the complainant, the petitioner asked for payment of Rs.1,000/-to which the complainant objected but the petitioner after abusing him in obscene language pushed the complainant outside the room. In view of the above facts, it can be only said that the petitioner was a public servant at that time and discharging his duty. It is not made clear from the complaint that the petitioner asked for Rs.1,000/-as bribe. It is also not clear from the complaint that the complainant uttered obscene language in a place visible to the public. There is nothing found from the complaint that the petitioner threatened the complainant with any gesture or he got any injuries on his body. Thus, it is not well visible to find out a prima facie case, because all the ingredients of Sections 294/323/506 of IPC are not proved. 7. In the case of Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi 1 and another, (2012) 53 OCR (SC) -924, the Hon’ble Apex Court in paragraph 29 has held as follows: “29. 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 done in the discharge of 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 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. The protection given under Section 197 of the Code 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 (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 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.” 8. In Sankaran Moitra v. Sadhna Das and another, (2006) 4 SCC 584 , the Hon’ble Supreme Court in paragraphs 22 and 23 has observed as follows: “22. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question. 23. xxxx But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code. We cannot therefore accede to the request to postpone a decision on this question. 23. xxxx But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code. Going by the principle, stated by the Constitution Bench in Matajog Dobey v. H.C.Bhari (1955) 2 SCR 925 , it has to be held that a sanction under Section 197(1) of the Code of Criminal Procedure is necessary in this case.” 9. In the decision reported in Rakesh Kumar Mishra v. State of Bihar and others, (2006) 1 SCC 557 , the Hon’ble Apex Court in paragraph 18 has observed as follows: “18. Section 197(I) provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government, and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government.” 10. With due regard to the decisions, it is clear that if the act complained of has got nexus with the due discharge of duty by the public servant and the petitioner can be removed only by the sanction of the State Government or Central Government as case may be, sanction under Section 197 Cr.P.C. to prosecute the public servant is mandatory. As it appears, the petitioner is removable by the order of the Hon’ble President and the act complained of against him has nexus with the duty performed by the public servant. Thus, the order of taking cognizance is hit by the Section 197 of Cr.PC. 11. As it appears, the petitioner is removable by the order of the Hon’ble President and the act complained of against him has nexus with the duty performed by the public servant. Thus, the order of taking cognizance is hit by the Section 197 of Cr.PC. 11. In view of the above discussion, in the instant case, since the order of sanction to prosecute the petitioner is not filed, the order of taking cognizance and issuance of process are wrong and illegal. Also, it appears that all the ingredients of offences are yet to be proved for which otherwise the impugned order is illegal. Hence, the order of taking cognizance for the offences and issuance of process against the petitioner being abuse of the process of the Court, are hereby quashed. In the result, the CRLMC is allowed. The interim order dated 23.02.2007 passed in Misc. Case No.2407 of 2006 stands vacated.