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2018 DIGILAW 551 (ORI)

Benudhar Nayak v. State of Orissa

2018-05-14

D.P.CHOUDHURY

body2018
JUDGMENT : D.P. CHOUDHURY, J. 1. This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “the Code”) to quash the order dated 7.12.2006 of taking cognizance of offences under Sections 323/294/34 of the India Penal Code, 1860 (hereinafter called as “the IPC”) passed by the learned J.M.F.C., Basudevpur in I.C.C.62 of 2002 against the petitioners and issuance of process against them. 2. Mr.Sundaray, learned counsel for the petitioners submitted that the petitioners were the then Officer-in-Charge of Basudevpur Police Station and a constable attached to the said police station respectively. According to him, the complainant (Manoj Kumar Panigrahi) had filed a complaint against the present petitioners before the learned Magistrate alleging that while the complainant was waiting at the outside Verandah of the Court on 3.10.2002 to get bail in G.R. Case No.1319 of 1993, the petitioners allegedly reached there, abused him in obscene language, took him forcibly to police station in the jeep and assaulted him and also committed criminal intimidation by threatening the complainant of dire consequence. Against the police, the complainant filed complaint case vide ICC No.62 of 2002 and the learned Magistrate conducted inquiry under Section 202 of the Code but having not found a prima facie case against the present petitioners, dismissed the complaint vide order dated 26.04.2003 under Section 203 Cr.P.C. 3. Mr.Sundaray, learned counsel for the petitioners submits that against the order dated 26.04.2003 passed by the learned Magistrate dismissing the complaint, the complainant approached the learned Ad hoc Additional Sessions Judge, Bhadrak by filing Crl. Rev. No.32 of 2003 and the learned Ad hoc Additional Sessions Judge, Bhadrak (Fast Track Court), vide judgment dated 20.03.2006, remanded the matter to the learned Magistrate for passing order afresh for reconsidering the provision of taking cognizance of offences. 4. Mr.Sundaray, learned counsel for the petitioners further contended that after remand of the case, learned Magistrate, without going into the materials available on record and being persuaded by the order dated 20.3.2006 passed in Crl. Rev. No.32 of 2003, took cognizance of the offences and issued process against the petitioners, who are public servant. 4. Mr.Sundaray, learned counsel for the petitioners further contended that after remand of the case, learned Magistrate, without going into the materials available on record and being persuaded by the order dated 20.3.2006 passed in Crl. Rev. No.32 of 2003, took cognizance of the offences and issued process against the petitioners, who are public servant. He challenged the said order stating that the learned Magistrate once has refused to take cognizance of offence, without further material available on record, should not have swayed away by the observation made by the Revisional authority and took cognizance of the offences as he has to apply his judicial mind to the materials available on record and take cognizance of the offences. 5. Mr.Sundaray, learned counsel for the petitioners further submitted that the learned Ad hoc Additional Sessions Judge also without application of his judicial mind to the fact of the case and the materials available on record, directed the learned Magistrate for de novo hearing of the order of taking cognizance. He has also not applied his mind whether the revision is maintainable against the order of refusal to take cognizance as the impugned one is an interlocutory order. Since the impugned order has been passed without application of judicial mind and based on no material, the same is clear abuse of process of Court and should be quashed. 6. Mr.Sundaray, learned counsel for the petitioners submitted that the petitioners, being public servants, had taken the complainant into custody and did interrogation as per the procedure prescribed in the Code and thereafter, he was forwarded to the Court for which the action, as alleged, has reasonable nexus with the discharge of duty of the petitioners who are public servant by then. Since the cognizance of the offences has been taken without seeking any sanction of the State Government to prosecute them, the impugned order of taking cognizance is barred under Section 197 of the Code. So on this ground also, the impugned order of taking cognizance is illegal and liable to be set aside. 7. Learned Additional Standing Counsel for the State submitted that the petitioners are public servants and the complainant, due to excess in the discharge of the duty by the petitioners, has filed this case. However, the impugned order of taking cognizance has been passed basing on the material and as such, the same cannot be said to be incorrect. 7. Learned Additional Standing Counsel for the State submitted that the petitioners are public servants and the complainant, due to excess in the discharge of the duty by the petitioners, has filed this case. However, the impugned order of taking cognizance has been passed basing on the material and as such, the same cannot be said to be incorrect. He supports the order passed by the Court below. 8. DISCUSSIONS It is admitted fact that the petitioners were police officers at that time. It is not in dispute that the learned Magistrate, after considering the complaint, initial statement of the complainant and the statement of the witnesses recorded under Section 202 of the Code, refused to take cognizance of the offence and dismissed the complaint under Section 203 Cr.P.C. It is also admitted fact that the complainant took shelter before the revisional Court against the order passed by the learned Magistrate refusing to take cognizance and the learned revisional Court remanded the matter to the learned Magistrate by setting aside the order dated 26.4.2003 for reconsideration of the same in the light of the observation made by him. 9. The LCR has been called for and from a perusal of the same, it appears that the complainant, while was waiting on the Verandah of the Court to get bail in G.R. Case No.1319 of 1993, the present petitioner no.1, being the O.I.C. of Basudevpur Police Station, picked up the complainant after abusing him in obscene language and then took him to Basudevpur Police Station. There also they abused him in obscene language and dealt slap. Thereafter, they forwarded him to the Court of the learned J.M.F.C., Basudevpur after which he was released on bail. It appears from the impugned order passed by the leaned Magistrate that the complainant was forwarded by the present petitioners in Basudevpur P.S. Case No.115 of 2002. So, essentially the petitioners have performed their duty in obedience to the duty assigned under the Code in Basudevpur P.S. Case No.115 of 2002. So, the concerned action has got reasonable nexus with the discharge of the duty by the police officers. It is reported 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. It is reported 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. 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.” 10. 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. 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. 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.” 11. 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.” 12. With due regard to the aforesaid decision, it is clear that the act complained of has got reasonable nexus with the discharge of duty by public servant, the protection would be available under Section 197 of the Code. Section 197 of the Code has got two ingredients, i.e, (i) the public servant must have acted allegedly, which has got close nexus in performance of the duty; and (ii) he would be only removed by order of sanction passed by the Central Government or State Government. 13. In view of the aforesaid provisions in the Code and the decisions of the Hon?bel Supreme Court in the above cited cases, it appears that in the instant case, since the act complained of whether assault or use of obscene language have been performed during discharge of official duty to arrest the complainant and forwarded him to the Court. Apart from this, as per circular of the State Government of 1981, Section 197 of the Code would apply to all police officers. Since the present petitioners are police officers and only removable under the sanction of the State Government and it is reiterated that their action, in the present case, has got reasonable nexus with the performance of the duty, the petitioners are protected under Section 197 of the Code. 14. The order passed by the revisional authority does not focus upon the lack of sanction under Section 197 of the Code to prosecute the petitioners. Moreover, the story of the complainant that he has come to Court seeking bail in G.R. Case No.1319 of 1993 and after filing the petition for surrender, he was waiting in the Verandah awaiting call for pressing the bail is improbable fact because a person under law when surrenders, cannot go beyond the Court room or Hazat till the bail is granted. 15. The impugned order 7.12.2006 against which the present CRLMC has been filed is as follows: “7.12.06. Advocate for complainant files hazira. Heard on the point of cognizance. In view of the judgment passed in Crl. Rev. No.32/03 by the Addl. Sessions Judge (F.T.C.II) noted in para-7 that there is no scope of denying of prima facie case U/s.323/294/34 IPC against the accused persons. Hence, cognizance of the offence U/s.323/294/34 IPC is taken against both the accused persons. Issue summons to the accused persons fixing 15.1.17 for appearance. In view of the judgment passed in Crl. Rev. No.32/03 by the Addl. Sessions Judge (F.T.C.II) noted in para-7 that there is no scope of denying of prima facie case U/s.323/294/34 IPC against the accused persons. Hence, cognizance of the offence U/s.323/294/34 IPC is taken against both the accused persons. Issue summons to the accused persons fixing 15.1.17 for appearance. Complainant is directed to file requisites without any practicable delay.” The aforesaid order is clear to show that being persuaded by order of the revisional authority, the learned Magistrate took cognizance of the offences. The revisional authority has asked for reconsideration of the material and passed necessary order. But the impugned order does not disclose that the matter was reconsidered basing on the material on record as produced by the complainant and then the learned Magistrate has found a prima facie case after which the cognizance of the offences was taken against both the accused persons. 16. In view of the aforesaid analysis, the Court is of the view that the impugned order dated 7.12.2006 passed by the learned J.M.F.C., Basudevpur in I.C.C.62 of 2002 lacks application of judicial mind and thus, the said order is an abuse of process for which the same is liable to be quashed and the Court do so. The CRLMC is disposed of accordingly. The LCR be sent back immediately to the Court concerned along with a copy of this judgment.