Orissa High Court
Rama Chandra @ Ramanandan Sahu vs Niranjan Rout And Anr. on 6 December, 1991
Equivalent citations: 1992CRILJ3041, 1992(I)OLR370
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. One of the sections of the Code of Criminal Procedure, be it of 1889 or 1973, the scope and ambit of which has repeatedly come for analysis before the Supreme Court and various High Courts is Section 197. That is because the section is intended as a protection against malicious implication of public servants. Presently we are concerned with the case under Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). This section is designed to facilitate an effective and unhampered performance by public servants of their official duty, by providing for scrutiny into the allegations against them by their superior authorities, and prior sanction for their prosecution is a condition precedent to the cognizance of cases against them by Courts so that they may be protected from 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 section has to be construed neither too narrowly nor too widely because in a strict sense the commission of an offence can never be a part of one's official duty.
2. Allegations here relate to an incident which purportedly took place on 13-3-1988. According to the petitioner, who was complainant in I. C. C. No. 14 of 1988 in the Court of Subdivisional Judicial Magistrate (hereinafter referred to as 'SDJM'), Champua, in village Jhumpura there is a bi-weekly market where the Adivasi people of the area sell fuel wood and wooden planks. On the alleged date of occurrence, opposite party No. 1 Niranjan Rout threatened some of those Adivasi people to put them in the lock-up for no ostensible reason. Out of fear, those Adivasis left the market leaving behind the wooden materials tike fuel and wooden planks. Opp. party No. 1 who is supposed to be a protector of life and property of the citizens, removed those wooden materials inside the compound wall of the Out-Post where he was stationed as Sub-Inspector of Police. Two labourers were engaged for removal of materials. After working for about five hours for removal of the materials, the labourers asked for their wages. Considering the amount paid at the rate of Rs. 4/- each, they demanded more. Instead of paying them the legitimate dues, opp. party No. 2 then posted as Officer-in-charge, Champua Out-Post, lost his temper and asked them to get out of the Out-Post premises. The labourers grudgingly left the Out-Post, and reported the incident to the local Sarpanch and the M. L. A. The said persons along with some prominent persons of the village went to the Out-Post for redressing the grievances of these labourers. But opp. party No. 1 got enraged on being questioned about his illegal acts, abused them and asked them to go out of the Out-Post. He threatened to take them to custody if they did not get out. After having failed in their attempt to lodge complaint with the Collector due to his absence, the complainant-petitioner and some others went to the Police Out-Post in the evening. By then opp. party No. 2 and the Forest Ranger were already present in the Police Out-Post. When the matter was being explained to them, opp. party No. 2 got suddenly irritated, abused them all and asked them to leave the Police Out-Post. During such exchange of words, opp. party No. 2 assaulted the complainant-petitioner by the butt-end of a gun as a result of which he sustained bleeding injury on his face. Many others were also assaulted. The M. L. A. was also abused in filthy language. Some of the villagers were detained in the Police Out-Post and were produced before the Magistrate on 14-3-1988. During the incident, while opp. party No. 2 was acting in inhumanly manner, Kegalhari Dehury requested him not to do so. Opp. party No. 1 gave him a kick blow and made him sit by force. He was also abused in obsene language. Opp. party No. 2 arrested the petitioner and seven others and brought them to custody at Champua Police Station. The victim persons were medically examined before they were forwarded to the Court of SDJM, Champua, They remained in custody till 25-3-1988, and were released on bail on the very day and after his release the petitioner filed the complaint on 28-3-1988 Initial statement was recorded on 29-3-1988. As revealed from the order of the learned SDJM, six witnesses were examined under the provisions of Section 202 of the Code. By order dated 12-8-1988, the learned SDJM refused to issue process on the ground that sanction of State Government was required. According to him, the acts complained of have got reasonable nexus between the acts of public servants, who are accused persons in this, case and the offence complained of. Ha, however, proceeded on the assumption that though the accused persons may have exceeded their limit at the time of discharging their duty, they have not committed any offence in their private capacity and in any view of the matter sanction of State Government is required for their prosecution under Sections 323/325, IPC. He also concluded that offence under Section 294, IPC was not made out.
3. According to the petitioner, the acts complained of had no nexus with any official duty. Therefore, the learned SDJM was not justified in his conclusion that sanction was necessary. It is also submitted that the learned SDJM without any material basis came to hold that offence under Section 294 was not made out. The learned counsel for the opposite parties, however, submitted that the background of fact as described by the petitioner is not correct and on the contrary the opposite parties were obstructed from performing their official duties and the mob which had come to the Police Station was in violent mood and demanded forcible entry into the residential quarter of opp. party No. 1. Many of them were under the influence of liquor and abused the officers in obscene words, and threatened to shoot arrows at them. A police constable and opp. party No. 1 sustained serious injuries. When police took counter action to disperse the mob, some of the persons participating in the mob were arrested. In that background, it is submitted that there is no illegality in the order of the learned SDJM. The offence alleged to have been committed had relation and nexus with the discharge of official duty and even if the act exceeds, what is strictly necessary for the discharge of the official duty, sanction is necessary.
4. The object of Section 197 of the Code is to guard against vexatious proceedings against certain categories of officials. It is no part of the requirement of law to set any of them above the common law. If he commits an offence, he has no peculiar privilege. It is only when one of his official acts is alleged to be an offence, the State-will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rule laid down in Section 190 that cognizance of any offence may be taken by the Magistrate enumerated therein. The basic requirement of Section 197, therefore, is that the delinquent officer must be discharging an official duty and the acts complained of were part thereof and, therefore, had close nexus or link with the same. No straight-jacket formula can be laid down as to the tests to be applied in such a case. But one thing is crystal clear. Official position should not be used as a cloak to defend the acts complained of. There must be a reasonable link and not a fanciful one. Following the view expressed in H.H.B. Gill v. The King : AIR 1948 PC 128 : Hori Ram Singh v. Emperor : AIR 1239 FC 43 ; and Baijnath v. State of M. P. AIR 1966 SC 220, I have similarly observed in Kailash Chandra Mahanta v, Ganeshwar Amanta, Officer-in-charge of Baria Police Station : 1990 (I) OLR 432. When it is established that the acts complained of were part of the official duty and function, the question of protection comes in. The use of the expression 'while acting' determines the nature of the act complained of. Each case has to be examined in the light of the offence alleged against the accused in order to ascertain whether Section 197 is applicable or not, whether he was acting or purporting to act in the discharge of his official duty. The privilege of immunity from prosecution without sanction is only extended to acts which can be shown to have been done in the discharge of official duty, or in purported exercise of such power. An offence arising out of official position but not purported to be a part thereof, does not require any sanction. 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. I had indicated this position in Kailash Chandra Mahanta's case (supra). Similar view was expressed by the Supreme Court in Bhagwan Prasad Srivastava v. N.P. Mishra : AIR 1970 SC 1661. The question whether sanction was necessary might have to depend upon from stage to stage having regard to the facts and circumstances of the case.
5. In the case at hand, the learned SDJM held that the essential ingredients of Section 294 were not made out. Considering the question whether the offence under Sections 323/325 was made out, it was held that even though the ingredients were made out, sanction for prosecution is necessary. Referring to the arrest of the petitioner and several others in G. R. Case No. 85 of 1988, who were released subsequently and the averments in the bail application, he held that this was a case where the action of the police can be justified under Section 149 of the Code.
6. I shall first deal with the question whether learned SDJM was justified in refusing to take cognizance under Section 294, IPC. A conspectus of the section makes it clear that it intended to prevent obscene acts being performed in any public place to the annoyance of others. No precise or arithmetical definition of the word 'obscene,' which would cover all possible cases, can be given. It will have to be judged on the facts of each case whether, in the context of its surroundings the questioned act is obscene or not. In Chandrakant v. State of Maharashtra, AIR 1970 SC 1390, it was held that the concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England, and what is considered in both countries as not harmful to public order and morals may be obscene in our country. In Kingslay Corporation v. Regents of University of New York : (1959) 3 Law Ed 2nd 1512 dealing with Lady Chatterley's lover case, the Supreme Court of United States of America upheld propagation of adultery as not offending freedom of expression. But Article 19(2) of our Constitution makes all the difference. None has attempted so far a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for.
7. The classic definition of 'obscenity', delivered by Cockburn C. J. in R. v. Hicklin (1863) L.R. 3 Q. B. 360; and which stood until the passing of certain legislature in England was 'The Test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall'. Though the observations were made in the context of a publication, the underlying idea is that obscenity is an act which has an irritating and/or immoral influence. The word 'obscene' in its ordinary sense denotes same thing which is indecent or disgusting (Per Fullagar, J. in R. v. Close (1948) V.L.R. 45). The words 'indecent' and 'obscene' convey the idea of offending against propriety, indecency being at the lower and obscenity at the upper end of the scale.
8. Life as lived by most of us is not of a hermit. It is not realistic to depict that which is not conducive to comparative common standard prevailing in the society of the day. Life itself is an intermixture of good and evil and of light and shadow. Obscenity is to be judged on the basis of the act itself. (See B.K. Adarsh v. Union of India and Ors. : AIR 1990 A.P. 100). The motive of the accused is Irrelevant. What is the effect of the act is the determinative factor. Though annoyance is an important ingredient of offence under Section 294, it being associated with mental condition has often to be inferred from proved facts. If there is sufficient indication of the fact that annoyance was caused, merely because it is not specifically stated or spoken by witnesses in evidence that would not be sufficient to infer non-commission of offence under Section 294. In any case, in the present case, the stage has not come for such threadbare analysis. At the stage of taking cognizance, the Court is concerned more with the existence of a prima facie case and not the possibility of conviction on the materials already on record. Therefore, the learned SDJM was not justified in making a threadbare analysis of the evidence to infer that no case under Section 294, IPC was made out. No basis has been indicated by him for the conclusion that the words used ware never obscene. The tests he applied for arriving refusal that the conclusion are not forthcoming from the order. Therefore, the take cognizance under Section 294, IPC is indefensible.
9. It may be necessary to refer to some of the decisions of this Court and the facts involved therein, so far as they relate to Section 294, IPC. In Abani Charan Biswal v. State and Anr. 1987 (II) OLR 425, 64 (1987) CLT 659, abusive language hurled at complainant while in police lock-up by the Officer-in-charge of the Police Station was held not to be an act in discharge of official duty. In Keshaba Jena v. Pradipta Kishore Das and Ors. ; 1989 (2) OCR 34, it was observed that no sanction was necessary where the police officer assaulted inside the police station even during investigation or where he abused a person.
10. So far as the conclusion that sanction under Section 197 of the Code was necessary even though the offence under Sections 323/325, IPC was made out is concerned, the learned SDJM has referred to various aspects of the case, the background facts and has to come to the conclusion that though the officer concerned by his act may have exceeded the needs and requirements of his official duty those were in discharge of his duty. In a case of this nature it is to be found out whether the act and the official duty are so inter-related that it would be difficult to separate them in which case protection under Section 197 of the Code is available. In Pranakrishna Swain v. Raghunath Singh and Ors. ; 1972 (2) CWR 457, a similar view was expressed by this Court. The learned SDJM on analysis has come to a finding that the accused persons were discharging official duty when the alleged occurrence took place and that even if it is accepted that the accused over-stepped the limits, they were integrally linked with official duty. In view of the analysis made by him it cannot be held that the conclusions are so unreasonable as to warrant interference while exercising revisional jurisdiction. Therefore, I am not inclined to interfere with the conclusions of the learned SDJM that sanction was necessary on the facts of the case, so far as offences under Sections 323/325, IPC are concerned. As indicated above, the facts of each case are to be considered before privilege of immunity from prosecution without sanction aspect is adjudicated. However, my non-interference shall not be construed expression of any opinion about merits of the case.
11. To sum up, my conclusions are :
The learned SDJM
(i) was not justified in not taking cognizance under Section 294, IPC. On the facts of the case no sanction is necessary under Section 197 of the Code for the offence under said section,
(ii) was justified in his conclusion that sanction under Section 197 of the Code is necessary so far as offences under Sections 323/ 325, IPC are concerned.
The revision application is accordingly disposed of. The learned SDJM shall now proceed with the matter in Accordance with law.