Orissa High Court
Nirupama Dey vs Chaitanya Dalua And Anr. on 17 October, 2003
Equivalent citations: 2004CRILJ704, 2003(II)OLR569
Author: A.S. Naidu
Bench: A.S. Naidu
ORDER A.S. Naidu, J.
1. This Criminal Misc. Case has been filed invoking inherent jurisdiction of this Court under Section 482, Cr.P.C. by the petitioner whose complaint petition, filed against two public servants, has been dismissed under Section 203, Cr.P.C. in absence of sanction as required under Section 197. Cr.P.C.
2. For appreciating the contentions, the necessary facts in gist may be stated as follows :
The petitioner filed a complaint case in the court of the learned S.D.J.M., Bhadrak against the opposite parties who are police officers alleging therein that on October 12, 1998 at about 9 P.M. the accused persons came on a motor cycle to her house during the absence of her father, knocked at the door, forcibly entered into the house giving her a push and searched for her uncle Makhanlal Das. It is alleged that when they failed to trace out said Makhanlal, opposite party No. 1 accused the petitioner in filthy language, caught hold of her left hand and tore the front-portion of her wearing dress. It is also alleged that opposite party No. 2 forcibly closed her mouth when she started to shout. However, hearing hue and cry, her mother along with her sisters reached the spot and on their protest, the accused persons damaged two earthen water-posts, kicked at the rice pot and left the spot threatening the petitioner to kill her if she would dispose the incident before anybody. The said complaint petition was registered as I.C.C. No. 429 of 1998. The learned S.D.J.M. after recording initial statement of the complainant inquired about the matter under Section 202, Cr. P.C., recorded the statements of two witnesses and thereafter issued process against the opposite parties after taking cognizance of the offence under Sections 427, 354, 294 and 448, I.P.C. The opposite parties appeared and filed a petition to reconsider the order directing issue of process and to recall the said order mainly on the ground that both the accused being public servants and the incident having occurred during the due discharge of their official duty in connection with Bhandaripokhari P. S. Case No. 363 of 1998 while they had gone to the house of the complainant in search of accused Makhanlal Das who happens to be the material uncle of the complainant. The order taking cognizance of the alleged offences in absence of sanction as mandatorily required under Section 197, Cr. P.C., is not just and proper.
3. The learned S.D.J.M. by his order dated 22-4-1999 recalled the order taking cognizance and dismissed the complaint petition under Section 203, Cr. P.C. on the ground that no sanction under Section 197, Cr. P.C. had been obtained by the complainant. The said order of the S.D.J.M. was challenged by the petitioner before the learned Additional Sessions Judge, Bhadrak in Crl. Revision No. 38 of 1999. The revisional Court also confirmed the finding of the trial Court and dismissed the revision by its order dated 6-9-1999. The present petition has been filed invoking inherent jurisdiction of this Court challenging the aforesaid two orders.
4. Learned counsel for the petitioner at the very inception submitted that unless the orders impugned are set aside, great injustice would be done to the petitioner inasmuch as she has no other remedy. According to the learned counsel, the orders impugned amount to abuse of process of law and need to be interfered with in exercise of inherent powers conferred upon this Court under Section 482, Cr.P.C.
5. Mr. Palit, learned counsel for the opposite parties at the other hand submitted that both the opposite parties are admittedly Government employees being police officers. They entered into the house of the petitioner in search of one Makhanlal Das, who is admittedly an accused in Bhandaripokhari P. S. Case No. 363 of 1998. They had reliable information that the said accused who was avoiding arrest, was harbouring in the house of the petitioner. Thus, all that they did, they had only entered into the house of the petitioner which was while discharging their official duty and was within their rights to search for an accused. According to Mr. Palit, while discharging their duty if due to some altercation or otherwise and/or resistance caused, it was required to apply force, the same would be inter-mingled with due discharge of official duty, and in absence of sanction under Section 197, Cr.P.C., the learned Magistrate cannot proceed against the opposite parties who are admittedly public servants. Mr. Palit also fairly submitted that as to whether sanction under Section 197, Cr.P.C. is necessary or not depends upon the facts and circumstances of each case. In support of his contention, he relied upon the decisions in the case of Bhagwan Prasad Srivastava v. N. P. Mishra, AIR 1970 SC 1661 : (1970 Cri LJ 1401) and in the case of Premjit Mohananda v. Mohanpani Karua, (1995) 80 Cut LT 302 : (1996 Cri LJ 836).
6. I have heard learned counsel for both the parties in extenso and perused the materials available. The object and purpose of Section 197, Cr. P.C. is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The efficiency of a public servant demands that he should be free to perform his official duty fearlessly and without any favour. The apprehension that there is possibility of public servants facing prosecution at the instance of private parties to whom annoyance or injury may have been caused while discharging their legitimate duties would hamper their efficiency. In short, Section 197, Cr. P.C. provides an unbrella of protection to a public servant to facilitate effective and unhampered performance of their official duty. Section 197, Cr. P.C. thus, mandatorily requires a prior sanction of superior authority before any prosecution is launched against a public servant. To put it in short, it is not the 'duty' performed by a public servant which requires examination, but the act performed while discharging his official duty as well as dereliction of it. It has been observed by the Supreme Court in the case of Bhagwan Prasad Srivastava (1970 Cri LJ 1401) (supra) as follows :
"Broadly speaking, with us no man, whatever his rank or condition, is above the law and every official from the highest down to the Lowest is under the same responsibility for every act done without legal justification as any other citizen. In construing Section 197, Cr. P.C., therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties."
It is, thus, not every offence committed by a public servant that requires sanction for prosecution under Section 197(1), Cr. P.C. nor even every act done by him while he is actually engaged in the performance of his official duties. But if the act complained of is directly concerned with his official duties, and, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; irrespective of whether it was in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not be considered at the stage of the grant of sanction, which must precede the institution of the prosecution.
7. On the basis of aforesaid analysis the moot point that needs consideration is whether a particular act done by a public servant in the discharge of his official duty is directly concerned with his official duties, substantially depends on facts to be determined on the circumstances of each case. The principle embodied in Section 197, Cr. P.C. is well discussed in the case of Premjit Mohananda (1996 Cri LJ 836) (SC) (supra). In paragraph 3 of the said decision this Court observed :
"The principle embodied under Section 197, Cr. P.C. is well established. The difficulty, however, lies in its application to the facts of a given case. Before the provision of Section 197, Cr. P.C. is invoked, two conditions must be first fulfilled :
(i) the public servant is not removable from his office except by or with the sanction of the State Government or the Central Government, as the case may be; and
(ii) he is accused of any offence alleged to have been committed by him.
After these two pre-conditions are satisfied a further enquiry is necessary to be made as to whether the alleged offence was committed by the public servant while acting or purporting to act in the discharge of his official duty. It is in this connection that the expression "purporting to act in the discharge of official duty" assumes importance. This expression is neither to be too narrowly interpreted nor too widely. The narrow interpretation will make it altogether otiose inasmuch as it is no part of an official duty -- never can it be -- the official duty to commit an offence. It is not the 'duty' which requires scrutiny so much as the 'act' because the official act can be performed both in the discharge of official duty as well as dereliction of it. If it is too widely construed, every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed would come within its sweep which should be avoided."
8. I also had the occasion of examining the object of Section 197, Cr. P.C. in the case of Sukumar Panigrahi v. State of Orissa, (2001) 20 OCR 473 : (2001 Cri LJ 1912) and held that the object of Section 197, Cr. P.C. is to guard against vexatious proceedings against public servants and to secure the opinion of the superior authority as to whether it is desirable that there should be a prosecution against such public servant. Section 197, Cr. P.C. is an exception to the general rule covered by Section 190, Cr. P.C. and bars the jurisdiction of the Court to take cognizance of the offence unless there is an order according sanction for prosecution of the public servant by the Government. The section, thus, is substantially one in the nature of restraint against taking cognizance of the offences against a public servant unless and until there is a prior sanction of the Government. But then, all these depends upon the act which was performed by a public servant. If such act is inter-mingled with official duty, then Section 197, Cr. P.C. provides an umbrella of protection. At the other hand, if the act has no nexus with the official duty discharged at a particular moment, then the protection under Section 197, Cr. P.C. shall not be available. Whether a particular act was done while discharging the official duty is a question of fact and is also a defence on the merits which would have to be investigated at the trial and should not arise at the stage of grant of sanction.
9. In the case of Raj Kishore Swain v. Smt. Ranjan Moharana, (2003) 24 OCR 535 : (2003 Cri LJ 2095) this Court came to the conclusion that sanction under Section 197, Cr. P.C. for initiation of a prosecution should be insisted upon then it is found that nexus between the discharge of the public duty and the offending actor the omission must be inseparable. In the case of Abdul Wahab Ansari v. State of Bihar, AIR 2000 SC 3187 : (2000 Cri LJ 4631) the Supreme Court opined that the provision in Section 197, Cr. P.C. can be invoked at any stage of the proceeding from the stage of cognizance till the conclusion of the trial and even in the appellate stage.
10. Examining the facts of the present case in the light of the decisions referred to above and after scrutinising the two statements recorded under Section 202, Cr.P.C. by the court below, the irresistible conclusion is that both the opposite parties entered into the house of the petitioner while discharging their official duty and the alleged act committed by them were in due discharge of their duty. Reading of the complaint petition and the statements recorded also reveals that there are certain addition and super-addition to the actual facts so as to initiate vexatious proceeding. There are ineonsistancies in the statements and according to me, the two dutiful public servants need not be asked to suffer agony of criminal trial and harassment in producing defence witnesses and facing vaxatious litigation. Both the courts below have properly appreciated the facts and have rightly come to the conclusion that in the facts and circumstances of the case the prosecution should fail in absence of sanction as required under Section 197, Cr. P.C. I do not find any reason to differ from the conclusion. Accordingly, the Criminal Misc. case is dismissed.