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2018 DIGILAW 470 (ORI)

Rabinarayan Behera v. State of Orissa

2018-04-25

D.P.CHOUDHURY

body2018
ORDER 25.04.2018 Heard learned counsel for the petitioner and learned counsel for the informant. 2. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case because the petitioner was the I.I.C., Town P.S., Balasore while the F.I.R. was lodged by the present complainant who have committed theft in the house of Shri L.N. Ray Choudhury the then J.M.F.C., Balasore. According to him, the complainant was peon attached to Shri Choudhury and in absence of Shri Choudhury, the complainant has committed theft in his house. The petitioner received the F.I.R. against the present complainant and proceeded with the investigation. While he interrogated the complainant, visited the spot and took him to custody, the complainant falsely alleged about the use of obscene language and assault on the person of the complainant. 3. Learned counsel for the petitioner further submits that the allegations by the present complainant are absolutely false to get rid of the police case and he has examined only his colleagues-process server under Section 202 Cr.P.C. 4. Learned counsel for the petitioner further submits that in the case lodged against the present complainant, the charge sheet was submitted and the complainant is facing trial in C.T. Case No.1001 of 2004. According to the information, this case is still pending being not disposed of. Since the petitioner has performed his duty and in course CRLMC No.2573 of 2007 of duty, the allegation has been cropped in, he is protected under Section 197 of Cr.P.C. and in this case, without any sanction for prosecution, the cognizance of offence has been taken by the learned Magistrate. On that ground only, the order of taking cognizance should be quashed. 5. Learned counsel for the informant submits that the initial statement of the complainant and the statement of the witnesses recorded under Section 202 Cr.P.C. amply prove that the petitioner, in performing his duty, has exceeded the limit and as such he has assaulted the complainant with use of obscene language. He fully supports the order of taking cognizance of offence and at the same time he admits that the case against the present complainant is running before the concerned Court. 6. Considered the submissions of the learned counsel for the respective parties. He fully supports the order of taking cognizance of offence and at the same time he admits that the case against the present complainant is running before the concerned Court. 6. Considered the submissions of the learned counsel for the respective parties. Went through the L.C.R. No doubt the complaint petition and the statement of the witnesses clearly show that the complainant was attached to Shri L.N. Ray Choudhury, JMFC, Balasore and in absence of the Magistrate, theft committed in his house. The complainant was kept in charge of guard duty of the Magistrate’s house. 7. After the F.I.R. was lodged, the present petitioner being O.I.C. of the concerned P.S. came to the spot, i.e., house of the J.M.F.C. and interrogated the complainant. The statement shows that during interrogation this petitioner used obscene language and also after giving slap, dragged him into the jeep. It is also not out of the mention that the complainant has been already facing the trial in that case being named in charge sheet. So, it cannot be said that Act complained of has no nexus with performance of duty by the petitioner-Police Officer who is public servant. 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 aforesaid decisions, it is clear that sanction for prosecution under Section 197 Cr.P.C. is necessary if act complained of is purportedly performed in due discharge of duty by public servant. Even if excess of duty having nexus with duty discharge is protected. Admittedly in this case no sanction has been obtained to prosecute the petitioner, who is a police officer. Section 197 Cr.P.C. clearly shows that two ingredients must be proved to attract Section 197 Cr.P.C. The first ingredient is that the public servant must have discharged his duty while alleged act occurred or act complained of has got nexus with performance of duty. The second ingredient is that petitioner is removable by the sanction of the State Government or Central Government as case may be. The second ingredient is that petitioner is removable by the sanction of the State Government or Central Government as case may be. In the instant case, since the act of complained of has got nexus with the performance of duty and as per the circular of the State Government Section 197 Cr.P.C. applies to the police officers of the State, where he is to be removed only by the sanction of the State Government, thus, the petitioner is protected under Section 197 Cr.P.C. 11. So far as occurrence concerned, learned counsel for the petitioner submits that while the complainant was produced before the Magistrate in C.T. Case No.1001 of 2004 on 29.7.2004, he has complained no ill-treatment before the police while he is in custody. The complaint case has been filed subsequently alleging about the occurrence on 27.7.2004. If at all the occurrence as such allegedly took place, he could have ventilated same before the Magistrate while he was produced before the Magistrate on duty. So, the allegation of the present complainant against the present petitioner prima facie has no leg to stand. 12. In terms of the above discussion, the order of taking cognizance of offence being vulnerable and learned Magistrate has not applied his judicial mind to all the facts while taking cognizance of offence, same being abuse of process of the Court is liable to be quashed and the Court do so. The CRLMC is disposed of accordingly. The interim order passed earlier stands vacated. The L.C.R. and copy of this order be sent to the learned trial Court immediately. Urgent certified copy of this order be granted on proper application. CRLMC disposed of.