Orissa High Court
K. Tarini Charan Prusty @ Tarini vs State Of Odisha And Another .... ... on 8 May, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2639 of 2019
K. Tarini Charan Prusty @ Tarini .... Petitioner
Charan Prusty
Mr. B.K. Routray, Advocate
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. T.K. Praharaj, ASC
Mr. S. Pattanaik Advocate for O.P. No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:08.05.2023
1.Instant petition under Section 482 Cr.P.C, is at the behest of the petitioner questioning the correctness, legality and judicial proprietary of the impugned orders dated 2nd August, 2012 passed in ICC Case No.35 of 2011 vide Annexure-4 and dated 11th June, 2019 in Criminal Revision Petition No.29 of 2013 under Annexure-5 on the grounds inter alia that it is not tenable in law with a consequential direction to the learned J.M.F.C., Aska to take cognizance of the alleged offences and to proceed against opposite party No.2.
2. The petitioner is the complainant in 1CC Case No.35 of 2011 which is filed in the court of learned J.M.F.C., Aska alleging that on 22nd October, 2011, he was called to the local PS and was asked to return an amount of Rs.2.9 lac allegedly received from one Bhanjani Bhuyan, wife of late Sibaram Bhuyan in the year 2008 and when such liability was denied, he was abused by opposite party No.2 in unparliamentary language, slapped and assaulted by kick blows and confined in the lock-up of the PS for two days compelling him to return the amount and in course of CRLMC No.2639 of 2019 Page 1 of 9 K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another events, was demanded Rs.50,000/- as a condition to release him, which was arranged and paid in part. With such allegation in the complaint, 1CC Case No.35 of 2011 was registered. After receipt of the said complaint, the learned J.M.F.C., Aska examined the petitioner under Section 200 Cr.P.C. and held enquiry in terms of Section 202 Cr.P.C. and thereafter, passed the impugned order dated 2nd August, 2012 by not taking cognizance of the offences due to want of sanction under Section 197. The aforesaid order vide Annexure-4 in 1CC Case No.35 of 2011 was challenged before the court of learned Additional Session Judge, Aska in Criminal Revision Petition No.29 of 2013 which was disposed of on 11th June, 2019 vide Annexure-5 confirming the need of sanction. The decision of the learned courts below on sanction is questioned by the petitioner on the ground that considering the conduct of opposite party No.2, it was not necessary as the mischief committed by him cannot said to be within the purview of official duty.
3. Heard Mr. Routray, learned counsel for the petitioner, Mr. Praharaj, learned ASC for the State-opposite party No.1 and Mr. Pattanaik, learned counsel for opposite party No.2.
4. Learned J.M.F.C., Aska and also the Sessions court reached at a conclusion that considering the allegations in the complaint and the fact that opposite party No.2 was on duty at the relevant point of time, in order to prosecute him, sanction under Section 197 Cr.P.C is required. However, Mr. Routray, learned counsel for the petitioner would submit that the manner in which opposite party No.2 conducted himself and ill-treated the petitioner in connection with a transaction allegedly between the latter and a 3rd party, it cannot by any stretch of imagination be held as a part of his official duty and therefore, sanction under Section 197 Cr.P.C could not have been demanded by the learned CRLMC No.2639 of 2019 Page 2 of 9 K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another J.M.F.C., Aska which was again confirmed in revision. Mr. Routray, learned counsel for the petitioner refers to the following decisions, such as, Satyanarayan Dash Vrs. Rankanidhi Sethi 2013(II) OLR 717; Smt. Sumati Nayak Vrs. State of Odisha and Another 2022 (II) OLR 921 and Pranab Kumar Pradhan and Another Vrs. State of Orissa and Another 2016 (I) OLR 855 to contend that opposite party No.2, for the alleged acts done by him, while dealing with the petitioner, cannot be related to the discharge of any official duty which is clearly objectionable and hence, therefore, he cannot avail any such immunity under Section 197 Cr.P.C.
5. In response to the above, Mr. Pattanaik, learned counsel for opposite party No.2 submits that the learned J.M.F.C., Aska did not commit any error or illegality in not taking cognizance of the alleged offences but demanding sanction in view of the fact that opposite party No.2 was on duty and the alleged acts have been committed by him during and in course of official duty and the same was confirmed in revision. A preliminary objection has been raised by Mr. Pattanaik on the ground that the petition under Section 482 Cr.P.C. cannot be entertained as a second revision against the order of the learned Additional Sessions Judge, Aska. On merits of the case, Mr. Pattanaik, learned counsel for opposite party No.2 submits that even if the excess is committed by opposite party No.2 since it was while discharging his official duty, rightly, therefore, sanction was justly demanded, which a statutory requirement. As a counter, Mr. Routray, learned counsel for the petitioner submits that for the gross illegality committed by the learned courts below, inherent jurisdiction under Section 482 Cr.P.C. should be exercised to set it right in the interest of justice.
CRLMC No.2639 of 2019 Page 3 of 9K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another
6. On the point of maintainability and exercise of jurisdiction under Section 482 Cr.P.C., host of citations including the decision of the Apex Court in Madhu Limaye Vrs. State of Maharashtra AIR 1978 SC have been pressed into service by the both the sides. In the decision (supra), Supreme Court held that inherent jurisdiction under Section 482 Cr.P.C. may be exercised to quash interlocutory orders even when the bar under Section 397(2) Cr.P.C applies depending on the facts of each particular case. However, in the instant case, the order of the learned J.M.F.C., Aska was challenged in revision and thereafter, the petitioner knocked the doors of this Court seeking its indulgence invoking inherent jurisdiction under Section 482 Cr.P.C. when the need of sanction to prosecute opposite party No.2 was confirmed. It is not a case where challenge is, whether, inherent jurisdiction may be invoked against any interlocutory order when alternate remedy to be available. Rather, the question appears to be, since revision was disposed of by the learned Sessions court, whether, the petitioner can again challenge it and maintain the proceeding under Section 482 Cr.P.C. in the garb of a second revision? It is well settled that inherent power under Section 482 Cr.P.C. can be exercised, not as second revision but under special circumstances, as the jurisdiction being an extra-ordinary one, if there is any gross and palpable error apparent on the face of the record, which is likely to lead to miscarriage of justice. The law is equally settled that such power is not exercisable to circumvent the bar under Section 397(3) Cr.P.C. However, in the case at hand, the challenge to the impugned orders is based on the foundation that there has been gross illegality committed by the courts below in demanding sanction under Section 197 Cr.P.C. before proceeding against opposite party No.2 when it was not necessary and therefore, inherent jurisdiction under Section 482 Cr.P.C. is invoked and hence, it cannot be treated as a second revision.
CRLMC No.2639 of 2019 Page 4 of 9K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another Considering all the decisions placed reliance on including the celebrated case of Madhu Limaye (supra), it has to be understood that inherent power under Section 482 Cr.P.C. is not to limit or affect the special jurisdiction of the Court to make such order as may be necessary to prevent abuse of process of law or otherwise to secure the ends of justice and at the same time, not to bypass or overreach the legal bar prescribed in Section 397(3) Cr.P.C. Therefore, since the petitioner has challenged the decision of both the courts below for having demanded sanction under Section 197 Cr.P.C. on the premise that the mischief committed by opposite party No.2 does not form part of any official duty, the Court is of the view that such a question needs adjudication to ascertain as to if the jurisdiction under Section 482 Cr.P.C. can be invoked for any such error or illegality committed by the courts below which might lead to gross injustice.
7. As to the allegation in the complaint (Annexure-1), it is made to appear that the petitioner had been summoned to the local PS and it was at the instance of opposite party No.2, who compelled him to pay back the borrowed amount of Rs.2.9 lac, which he had to oblige under compulsion despite having no liability and during that time, the alleged mischief was committed with the demand of Rs.50,000/- as bribe followed by payment of Rs.10,000/- and threat to implicate him in a criminal case, if the rest amount was unpaid.
8. In Satyanarayan Dash (supra), the complainant alleged that he and his son were kept in a PS Hazat and the accused OIC of the PS allegedly confined them for nearly two days before being forwarded to the local court in a false case and considering such conduct, this Court reached at a conclusion that sanction under Section 197 Cr.P.C. was not necessary. In a similar situation, this Court in Smt. Sumati Nayak (supra), had the occasion to hold that CRLMC No.2639 of 2019 Page 5 of 9 K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another sanction under Section 197 Cr.P.C., in the peculiar facts and circumstances of the case, not to be required considering the peculiar nature of misconduct of the official. In the case at hand, the incident took place on 24th October, 2011 and on 24th November, 2011, the matter was intimated to the Superintendent of Police, Ganjam when the police did not respond and a day later, on 25th November, 2011, the complaint was filed. It has been claimed that the local PS was informed but no action was taken and at last, on 24th November, 2011, the matter had to be reported to the Superintendent of Police, Ganjam. To the demand of Rs.2.9 lac, as it is made to reveal from Annexure-1, the petitioner was summoned by opposite party No.2, who, at the relevant point of time, was the IIC of the PS. Mr. Routray, learned counsel for the petitioner submits that opposite party No.2 did not have any business to entertain such demand of a 3rd party. It has been alleged that the petitioner was confined and assaulted so also his wife who had been to the PS and under compulsion, they had to part with Rs.2.9 lac and paid to the party who had approached the PS. A demand of Rs.50,000/- as bribe is alleged against opposite party No.2 and as per complaint, an amount of Rs.10,000/- was paid initially. Whether a case was registered at the instance of third party in connection with which the petitioner had been called to the PS is not revealed from the record. According to Mr. Routray, learned counsel for the petitioner, the matter was reported to the Orissa Human Rights Commission, Odisha which entertained the same and disposed it of vide Annexure-6 with a direction to the Superintendent of Police, Ganjam to request opposite party No.2 to refrain from being involved in such matters which do not fall within his jurisdiction. It is, thus, made to appear that the petitioner was summoned to the PS since he had allegedly borrowed a loan CRLMC No.2639 of 2019 Page 6 of 9 K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another advanced for an amount of Rs.2.9 lac and for its refund and in that connection, the alleged excess said to be committed.
9. Section 197 Cr.P.C. provides protection to public servants for the alleged acts done by them while discharging official duty. In order to enjoy such immunity, it must be shown that the public servant committed such an act in due discharge of his official duty though the acts may be excess but having reasonable nexus with discharge of such duty and if the acts complained of by no means connected with any duty, the immunity under Section 197 Cr.P.C cannot be availed of. Both the learned courts below held that since opposite party No.2 is a public servant and he was on duty, when the mischief was committed, so, therefore, sanction under Section 197 Cr.P.C. to be necessary. It is not being drawn to the attention of the Court, if the petitioner was summoned by opposite party No.2 in connection with any such case registered against him. It is rather made to suggest that opposite party No.2 while entertaining grievance of a third party called the petitioner to the PS and thereafter, compelled the latter to refund the money. If a case is registered and in course of enquiry or investigation, any such excess is committed by a police officer, while discharging official duty, protection under Section 197 Cr.P.C. may be claimed. However, if there is no such cause of action revealed, the kind of action alleged cannot be justified and all the more when, a police officer has no business to meddle with a dispute of civil nature and summon one of the parties to the PS to sort it out. If Annexure-6 is gone through, the Orissa Human Rights Commission, Odisha indicted the intervention of opposite party No.2 and found it to be beyond his jurisdiction especially when the dispute related to a monetary transaction between the petitioner and his lender and consequently, instructed the Superintendent of Police, Ganjam to direct opposite CRLMC No.2639 of 2019 Page 7 of 9 K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another party No.2 not to indulge himself in such matters. The allegation against opposite party No.2 is that he, at the instance of the alleged creditor, summoned the petitioner and thereafter, confined the latter at the PS and compelled him to pay back the money which he had to oblige. In absence of any report lodged by the lender about commission of any cognizable offence, opposite party No.2 did not have authority to summon the petitioner in order to settle the matter which was none of his business. Merely for the reason that opposite party No.2 was the OIC of the concerned P.S that by itself cannot be a reason to demand sanction, if such is the ground situation. Had it been a case registered at the PS for any criminal offence alleged against the petitioner and in course of investigation, opposite party No.2 committed the alleged mischief, in such an event, for the excess committed, demand of sanction under Section 197 Cr.P.C. would have been asked for. In absence of any such material on record to show that during and in course of any such enquiry and investigation that the petitioner was summoned by opposite party No.2, the Court is of the considered view that the alleged mischief may not be held to have been committed while discharging any official duty. The Court is of the conclusion that the learned courts below were required to enquire as to if opposite party No.2, while on duty, entertaining any criminal complaint or report, committed such excess before deciding in favour of sanction or whether, it was a case of civil dispute simpliciter so realized by the Orissa Human Rights Commission, Odisha as made to appear from Annexure-6. The Court is quite conscious of the fact that false allegations are often made against officials to prevent and dissuade them from dealing with matters in enquiry or investigation as a part of official duty, who are to be protected from being unduly harassed but at the same time, the excess committed by them for all the wrong reasons cannot CRLMC No.2639 of 2019 Page 8 of 9 K. Tarini Charan Prusty @ Tarini Charan Prusty Vrs. State of Odisha and Another be countenanced. So, therefore, in the ultimate analysis, the Court is of the view that the learned courts below were needed to examine the above aspect before reaching at a decision on sanction.
10. Accordingly, it is ordered.
11. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned orders dated 2nd August, 2012 passed in ICC Case No.35 of 2011 vide Annexure-4 and dated 11th June, 2019 in Criminal Revision Petition No.29 of 2013 under Annexure-5 are hereby quashed with a direction to the learned J.M.F.C., Aska to hold further enquiry in the light of the discussion made herein above vis-à-vis the need of sanction under Section 197 Cr.P.C. to criminally prosecute opposite party No.2 and thereafter, to pass necessary order as per and in accordance with law.
(R.K. Pattanaik) Judge TUDU THAKURD Digitally signed by THAKURDAS TUDU AS TUDU Date: 2023.05.09 18:15:00 +05'30' CRLMC No.2639 of 2019 Page 9 of 9