Orissa High Court
Sri Nilam Naik vs State Of Orissa And Anr. on 17 December, 1999
Equivalent citations: 2000(I)OLR222
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard further arguments and the case is disposed of in the following manner.
2. Petitioner is the complainant in I.C.C. No. 3/94 of the Court of JMFC, Khariar. O.P. No. 2 is the accused in that case. By the date of occurrence, O.P. No. 2 was the Officer-in-charge, Boden Police- station. It is alleged in the complaint petition that on 4.1.1994 when the complainant had gone to the police-station, he was misbehaved by the petitioner. When the matter was reported to the higher authorities on 6.1.1994, when the complainant was returning from the Block Office along with two companions, on the road in front of the Police-station, accused obstructed the way of the complainant, abused him in filthy language and took him to the police-station and assaulted him and thereafter wrongfully confined him in the lock-up till around 5.30 to 6 p.m.. When on his report the Superior Police Officer did not take any action against the opposite party petitioner filed the aforesaid complaint case. Learned JMFC, Khariar made an enquiry Under Section 202, Cr.P.C, and referring to the statement of the complainant and one witness examined in that enquiry, found a prima facie case for the offences Under Sections 294/323/341/342, IPC against opp. party and accordingly on 22.6.1994 he took cognizance of the offences and issued processes. The opposite party preferred Criminal Revision No. 37 of 1994 as against the order of taking cognizance and learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna vide his judgment dated 10.9.1997 allowed the revision by setting aside the order of cognizance on the ground that the overt act alleged against the opposite party (accused) is minor in nature, and he having been done that in due discharge of his official duty cognizance of the offences could not have been taken in the absence of sanction Under Section 197(3), Cr.P.C. read with the Home Department Notification No. 611 60 dated 24.12.1981. The complainant-petitioner has proposed this Court for interference challenging the aforesaid order to be unjust, improper and illegal.
3. After hearing the parties at length, this Court finds that learned Sessions Judge has failed in properly appreciating the facts and law and incorrectly recorded that cognizance order is bad due to want of sanction. The reasons in support of the aforesaid opinion of this Court is recorded as hereunder. There was not a scrap of paper available before the Sessions Judge to show or suggest that the opposite party did the alleged Act in due discharge of his official duty. Learned counsel for the opposite party argues that on the date and at the time of occurrence opposite party was serving as the Officer-in-charge of the police-station, In the complaint petition or in his statement petitioner has not stated that opposite party was not on duty. Hence it can be validly presumed that at the relevant time opposite party was on duty. Since such a presumption is available, findings and orders of the Sessions Judge is not improper or illegal. In support of his contention, learned counsel for the opposite party relies on the case of Anadi Charan Jena v. Bijaya Kumar Mohanty, 1990 (II) OLR 126. Facts in that case was that in spite of the informations given to the police-officer regarding smuggling of paddy, the accused- Police officer did not discharge his duty in apprehending the offenders but detained the complainant in police custody. Upon receipt of complaint petition and after enquiry Under Section 202, Cr.P.C, the S.D.J.M., Champua took cognizance of the offences Under Sections 220 and 221, IPC. In that context, this Court held that :
"According to the allegations made by the opposite party the petitioner in discharge of his official duty could have apprehended the smugglers and seized the goods acting under the provisions of Sections 220 and 221, IPC. He could not have done so in his personal capacity."
With the aforesaid reasonings and referring to Section 197. Cr.P.C. and Notification No. 61160-F dated 24.12.1981 issued by the Home Department it was held that taking cognizance of offences in the absence of sanction, is impermissible. Facts in this case are quite distinguishable inasmuch as the act alleged could have been done in personal capacity. When no material is available in the L.C.R. to show or suggest that the act alleged against the opposite party was done by him in discharge of official duty, he cannot get the protection of law in Section 197, Cr.P.C. or of the above referred Notification.
4. During the course of hearing, learned counsel appearing for the opposite party also could not say as to in discharge of which official duty opposite party committed the alleged act. He could not explain that in any manner. To justify his order for setting aside the order of cognizance, learned Sessions Judge has stated -
"4. In the instant case it appears that the offences are minor in nature and the Police Officer while discharging his official duty does something which is minor in nature, then the same cannot constitute that the Police Officer has acted excess and caused torture to a person. That apart on perusal of the initial statement, complaint petition and the evidence recorded, it appears that the petitioner was only gave some fist blows and slaps at the time of discharge of his official duty and abused him. Thus the sanction which is pre-requisite before taking cognizance and issue of process has not been complied in the instant case. In that view of the matter the revisional Court gets jurisdiction to interfere with the finding of the learned Magistrate."
At the cost of repetition, it is re-stated that there is not a scrap of paper or whisper anywhere to show or suggest that the alleged act was committed by the opposite party in discharge of his official duty. Even if it will be assumed that at the time of occurrence opposite party was in duty, he could not have the authority of law to drag innocent people to police-station and to assault them and detain in hazat for personal grudge. An act done not in discharge of duty but while in official duty has to be distinguished from an act done in discharge of or in the process of discharge of official duty. As it appears, learned Sessions Judge failed to distinguish the facts and circumstances in a systematic and proper manner.
5. For the reasons noted above, the impugned order of Sessions Judge is set aisde and the order in taking cognizance is restored. However, at the time of trial, if the opposite party shall advance the plea of want of sanction, that shall be considered by the Court on its own merit and notwithstanding anything stated in this judgment. The Criminal Misc. case is allowed accordingly.