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2018 DIGILAW 481 (ORI)

Debi Prasad Dash v. State of Orissa

2018-04-30

S.K.SAHOO

body2018
JUDGMENT : S.K. Sahoo, J. The petitioner Debi Prasad Dash has filed this application under section 482 of Cr.P.C. to quash the impugned order dated 03.01.2009 passed by the learned S.D.J.M., Puri in I.C.C. Case No. 450 of 2008 in taking cognizance of the offences under sections 294, 323, 342, 506/34 of the Indian Penal Code. The complaint petition was filed by Opp. Party No.2 Rangani Behera. 2. Mr. Bikram Pratap Das, learned counsel for the petitioner contended that on the basis of the first information report lodged by one Ranjukta Rout of village Alikia on 02.12.2008 before the officer in charge, Sadar police station, Puri, Puri Sadar P.S. Case No.212 of 2008 was registered under sections 341, 323, 294, 354, 506, 325/34 of the Indian Penal Code against Kartika Behera, the son of the opposite party no.2 and others. There was long standing civil dispute between the family of the informant Ranjukta Rout and family of the opposite party no.2. In connection with that case, the co-accused Bijayani Malla, S.I. of police, Sadar police station who is accused no.2 in the complaint petition and other police officials had been to the house of the opposite party no.2 and searched for the son of the opposite party no.2 and brought the opposite party no.2 to the police station for interrogation. It is further contended that on a plain reading of the complaint petition, it appears the main allegations have been leveled against accused nos.2 to 7. The allegation against the petitioner as per the complaint petition who was the officer in charge, Sadar police station, Puri is that when the accused no.2 brought the opposite party no.2 to the police station, the petitioner abused her, asked her about the whereabouts of her son and when she pleaded ignorance, she was given a slap and pushed into the police hazat. She further alleged that the petitioner caught hold of the tuft of her hairs. 3. It is argued on behalf of the petitioner that the petitioner was discharging his public duties and the opposite party no.2 was called to the police station during course of investigation of a case which was lodged against her son for which the complaint petition has been falsely instituted by the opposite party no.2. 3. It is argued on behalf of the petitioner that the petitioner was discharging his public duties and the opposite party no.2 was called to the police station during course of investigation of a case which was lodged against her son for which the complaint petition has been falsely instituted by the opposite party no.2. It is further argued that assuming but not admitting that there were excesses committed by the petitioner against the needs and requirements of the situation in discharging the public duties, in view of the provisions of section 197 Code of Criminal Procedure, the prosecution against the petitioner is not maintainable without sanction from the Government. 4. There is no dispute that the petitioner was the officer in charge of Sadar police station, Puri at the relevant point of time. There is also no dispute that one first information report was lodged by one Ranjukta Rout on 02.12.2008 against the son of the complainant. In the complaint petition, the date of occurrence has been shown to be 02.12.2008. It appears from the complaint petition that the petitioner had not been to the house of the complainant and the complainant was brought to the police station by accused no.2 and she was interrogated by the petitioner regarding the whereabouts of her son. It is alleged that during course of such interrogation, the offences are alleged to have been committed. 5. In case of Sangram Keshari Behera Vs. Niladri Dhir reported in (2012) 52 Orissa Criminal Reports 362, it is held that all the Magistrates are to exercise power of cognizance in complaint case against public officer with due care & caution, especially, in cases where 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 complaint has to give specific finding regarding the applicability or otherwise of section 197 of Cr.P.C. which is mandatory. 6. In case of Abdul Wahab Ansari Vs. State of Bihar reported in (2001) 20 Orissa Criminal Reports (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 of 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) of Cr.P.C. apply to the case and there being no sanction, the cognizance taken by the Magistrate is bad in law. 7. In 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. 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. 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. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. 6. In case of Anjani Kumar Vs. In such eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. 6. In case of Anjani Kumar Vs. State of Bihar reported in (2008) 40 Orissa Criminal Reports 463, it is held as follows:- “11. 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 from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon 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 public servant concerned. 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 public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.” 7. In case of Gauri 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. 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. 8. 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. 8. In case of State of Orissa through Kumar Raghvendra Singh Vs. Ganesh Chandra Jew reported in 2004 (1) OLR 621, it is held as follows:- “10....So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.” 9. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.” 9. Since the learned Magistrate while proceeding with the complaint case and issuing process against the petitioner has not kept in view the requirements as enumerated in the above citations and he seems to have acted in a mechanical manner so far as the petitioner is concerned and it cannot be said that the act complained of against the petitioner has got no reasonable nexus with his official duty and even if it is taken that the petitioner has possibly acted in excesses of the needs and requirements of the situation but the claim of the petitioner that the act alleged was in discharge of official duty cannot be said to be pretended or fanciful and therefore, in absence of any sanction as required under section 197 of Cr.P.C. to prosecute the petitioner from the competent authority, I am of the humble view that continuance of the proceedings by the prosecution would amount to abuse of the process of law and therefore, I am inclined to accept the prayer made in this application and accordingly, invoking the inherent power under section 482 of Cr.P.C., I direct quashment of the impugned order dated 03.01.2009 passed by the learned S.D.J.M., Puri in I.C.C. Case No. 450 of 2008 so far as the petitioner is concerned. 10. Accordingly, the CRLMC application is allowed.