Orissa High Court
Lakshmi Narayan Das vs State Of Orissa on 7 August, 2018
Equivalent citations: AIRONLINE 2018 ORI 265
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 2097 of 2010
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with G.R. Case No.156 of 2008
pending on the file of J.M.F.C., Aska.
-----------------------------
Lakshmi Narayan Das ......... Petitioner
-Versus-
State of Orissa
& Others ......... Opposite parties
For Petitioner: - Mr. Sidharth Prasad Das
For Opp. Party No.1: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
For Informants: - Mr. Pravash Chandra Jena
-----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
-----------------------------------------------------------------------------------------------------------------------
Date of Hearing: 23.07.2018 Date of Judgment: 07.08.2018
-----------------------------------------------------------------------------------------------------------------------
S. K. SAHOO, J. "Caste has killed public sprit. Caste has
destroyed the sense of public charity. Caste has
made public opinion impossible. Virtue has
become caste-ridden and morality has become
caste-bound. Caste is a state of mind. It is a
disease of mind. The teachings of the Hindu
religion are the root cause of this disease. We
2
practice casteism and we observe untouchability
because we are enjoined to do so by the Hindu
religion. A bitter thing cannot be made sweet.
The taste of anything can be changed. But
poison cannot be changed into nectar."
-Bharat Ratna Dr. Bhimrao Ramji Ambedkar
The petitioner Lakshmi Narayan Das is the retired
District Inspector of Schools, Aska and he has knocked at the
portals of this Court in challenging the order dated 16.01.2010 of
the learned J.M.F.C., Aska passed in G.R. Case No.156 of 2008 in
taking cognizance of offences under section 294 of the Indian
Penal Code and section 3(1)(x) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter
'1989 Act') and issuance of process against him. The said case
arises out of Aska P.S. Case No.109 of 2008.
2. On 30.04.2008 Smt. Ahalya Patra and others lodged
the first information report before the Inspector in charge of
Aska police station alleging therein that on that day at about
11.00 a.m. while they along with other Sikshya Sahayaks met
the petitioner in his office and asked him as to whether he had
been to meet the Director of Odisha Primary Education
Programme Authority (hereafter 'OPEPA'), the petitioner all on a
sudden got frowned and abused the informants and their
3
companions in filthy language such as, "you are low caste
people, Hadi, Pana, Dhoba and one would not get food if he
looks at you. We are Brahmin by caste and we have to change
our sacred thread if we touch you". So saying, the petitioner
spitted for two to three times and further told "you and your
husband Maghia, Sala. You are doing politics and your future
would be ruined. Nobody including no police station, Court and
even the Education Department can do anything and your lives
would be finished with the help of goondas". It is further stated
in the first information report that on many occasions, the
informants and others had met the petitioner who told them to
meet him alone separately in his house and after he would be
satisfied financially as well as physically, he would do the
needful. The petitioner demanded Rs.1,500/- from each of the
Sikshya Sahayaks even though they appealed before him that
they are poor persons and would not be in a position to arrange
money and requested him to complete the formalities. The
petitioner did not pay any heed to the request of the informants
rather made false allegation against them and threatened them
to see that they would not be able to undergo training. The
petitioner told that since the informants did not fulfill his
demand, he would not do any of their works so long as he was
4
holding the post of District Inspector of Schools and that he has
got connection with political leaders and he would see who would
help them. The petitioner further told the informants that he
would institute false criminal cases and the informants would be
sent to jail and no Scheduled Caste and Scheduled Tribe leader
would save them and if contingency arises, he would make their
service files go 'missing'.
On the basis of such first information report, Aska
P.S. Case No.109 of 2008 was registered under sections 294,
506 of the Indian Penal Code and section 3(1)(x) of 1989 Act.
After registration of the case by the Inspector in charge of Aska
police station, Sub-Inspector of Police P.K. Sahu was entrusted
with investigation of the case. He examined the informants,
visited the spot which was the office of D.I. of Schools situated
at Niranjan Nagar, Aska. On 15.05.2008 Sri B.P. Dehury, Deputy
Superintendent of police, Aska took up investigation of the case
as per the official order of the Superintendent of Police, Ganjam.
After verification of the case records received from the previous
investigating officer, the D.S.P. re-examined all the witnesses
and recorded their separate statements. He also visited the spot
and the case was supervised by Sri J. Mohapatra, S.D.P.O.,
Bhanjanagar. On 25.03.2009 the charge of investigation was
5
taken over by Sri B.K. Kamila, S.D.P.O., Aska who sent
requisition to the Tahasildar, Aska for obtaining caste particulars
of the petitioner as well as the informant party members and
received the reports. On completion of investigation, since prima
facie case was made out against the petitioner for commission of
offences under section 294 of the Indian Penal Code and section
3(1)(x) of 1989 Act, charge sheet was placed.
3. Mr. Sidharth Prasad Das, learned counsel appearing
for the petitioner emphatically contended that the criminal
proceeding has been instituted against the petitioner with
malafide intention. He placed reliance in a recent decision of the
Hon'ble Supreme Court in case of Dr. Subash Kasinath
Mahajan -Vrs.- The State of Maharashtra reported in
(2018) 70 Orissa Criminal Reports (SC) 566, wherein it is
held that in respect of offences under the Atrocities Act, to avoid
false implication, before F.I.R. is registered, preliminary inquiry
may be conducted by the D.S.P. to find out whether the
allegations make out a case under the Atrocities Act and that the
allegations are not frivolous or motivated. It is the contention of
the learned counsel that since no preliminary inquiry has been
conducted by the Designated Officer before the registration of
the first information report, the institution of the case is bad and
6
defective which goes to the root of the matter. Learned counsel
further pleaded that while the petitioner was working as Dist.
Inspector of Schools, Aska in the district of Ganjam in the year
2008, one Sikshya Sahayak namely Biswanath Sethy was the
President of Sikshya Sahayak Association of Aska Education
District. As per the notification of the Department of Schools and
Mass Education, Govt. of Odisha, there was restriction to transfer
the Sikshya Sahayaks from one centre to another but in
deviation to the same, the predecessor of the petitioner had
made some illegal transfers of Sikshya Sahayaks including the
said Biswanath Sethy in violation of Government guidelines. The
petitioner in his official capacity as D.I. of Schools, Aska reported
the illegal transfers to his departmental higher authority despite
protest and repeated threatening by some Sikshya Sahayaks
under the leadership of Biswanath Sethy. On 30.04.2008 at the
behest and leadership of Biswanath Sethy, some Sikshya
Sahayaks forcibly entered into the official chamber of the
petitioner and threatened him with dire consequences and to file
false case against him which was informed to the police by the
petitioner and consequently Aska P.S. Case No.110 of 2008 was
registered under sections 294, 506 read with section 34 of the
Indian Penal Code. It is contended that only to harass and
7
humiliate the petitioner, the false case has been foisted and the
police without investigating the case in a fair manner and
ignoring the material facts and particulars proceeded against the
petitioner and submitted charge sheet. It is argued that the
petitioner was not examined by any police officer in connection
with the alleged incident which reveals unfairness on the part of
the investigating agency and its indifference to arrive at the
truth. It is contended that since the petitioner was discharging
his duty as a public servant at the relevant point of time and the
alleged incident having been taken during the official hour in the
office of the petitioner, without obtaining sanction for
prosecution of the petitioner from the competent authority as
required under section 197 of Cr.P.C., the impugned order of
taking cognizance and issuance of process is not sustainable in
the eye of law. It is further contended that even though Rule 7 of
the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 (hereafter '1995 Rules') stipulates that an
offence under 1989 Act shall be investigated by a police officer
not below the rank of a Deputy Superintendent of Police but in
this case, Sri P.K. Sahu, S.I. of Police of Aska police station was
entrusted with the investigation of the case by the Inspector in
charge since the date of lodging of F.I.R. i.e. on 30.04.2008 and
8
he continued with the investigation till 15.05.2008 whereafter
the case was taken over for investigation by Sri B.P. Dehury,
Deputy Superintendent of Police, Aska and therefore, in view of
the defective investigation contrary to the mandates provided
under 1995 Rules, the criminal proceeding against the petitioner
is liable to be quashed. He placed reliance in the case of In Re:
Sessions Judge -cum- Special Judge, Cuttack reported in
(2002) 22 Orissa Criminal Reports 92. It is further argued
that the official chamber of the petitioner was not within the
public view and the contents of the first information report so
also the materials collected during course of investigation are
silent that any member of the public was present at the time of
commission of the alleged offence except the informants who
belonged to the SC and ST community and therefore, one of the
basic ingredients of the offence under section 294 of the Indian
Penal Code that the occurrence should happen in any public
place and also as per section 3(1)(x) of the 1989 Act, the offence
should take place within public view is conspicuously absent. It is
further contended that the basic ingredients of the offence under
section 3(1)(x) of the 1989 Act being absent in the F.I.R., this
Court should invoke its inherent power under section 482 of
Cr.P.C. to quash the proceeding. He relied upon the decision of
9
the Hon'ble Supreme Court in case of Gorige Pentaiah -Vrs.-
State of A.P. reported in (2008) 41 Orissa Criminal
Reports (SC) 614. It is further contended that some of the
signatories of the first information report were of Koli Caste and
one of them is Bauri and the first information report did not
disclose that the petitioner ever uttered such caste name and
there was never any occasion for the petitioner to know the
individual or collective caste of the informants particularly when
thousands of Sikshya Sahayaks were working under the
Education Department. It is further submitted that the official
documents of Director, Elementary Education, Odisha would
indicate that the petitioner had submitted the application forms/
biodatas of the informants earlier to the date of occurrence i.e.
on 12.02.2008 and 19.02.2008 and therefore, the genesis of the
offence is also a doubtful feature. It is further submitted that the
opposite party no.7 has filed Misc. Case No.497 of 2017 for
passing appropriate order in exonerating her to proceed further
in Aska P.S. Case No.109 of 2008 which shows that a malicious
prosecution has been instituted against the petitioner and
therefore, in view of the ratio laid down in case of State of
Haryana -Vrs.- Ch. Bhajan Lal reported in A.I.R. 1992 S.C.
604, the proceeding should be quashed. It is submitted that the
10
petitioner is now seventy years of age and he is suffering from
many ailments and since the criminal proceeding is vexatious
and it is a product of malice, if it is allowed to continue, it would
be an abuse of process of the Court.
Mr. Prem Kumar Patnaik, learned Addl. Government
Advocate on the other hand contended that the plea taken by
the petitioner relating to his false implication cannot be taken
into account at this stage which can be taken care of by the
learned trial Court at the appropriate stage. He contended that
even though at the initial stage, the S.I. of police was
investigating the case and he recorded the statements of the
witnesses but after the designated police officer as per Rule 7 of
1995 Rules took over charge of investigation, he re-examined all
the witnesses and ultimately charge sheet was submitted by the
competent police officer and therefore, there is no violation of
the provisions of 1995 Rules. It is further contended that the use
of obscene language and derogatory remarks are not the part
and parcel of official duty and therefore, no sanction for
prosecuting the petitioner is necessary. He argued that the
contents of the F.I.R. are corroborated by the statements of the
witnesses recorded during investigation which make out the
basic ingredients of the offences and there was no illegality in
11
passing the impugned order and therefore, the application filed
by the petitioner should be dismissed.
Mr. Pravash Chandra Jena, learned counsel appearing
for the informants submitted that the caste certificates obtained
by the investigating agency show that the informants are the
members of Scheduled Castes/Scheduled Tribes and the
petitioner is a member of General Caste. It is contended that the
manner in which the petitioner had used the obscene language
and passed derogatory remarks against the informants clearly
reveal his intention to humiliate them and since the public had
access to the office of the petitioner and the occurrence had also
taken within public view, there was every justification for the
investigating officer to submit charge sheet.
4. The Hon'ble Supreme Court delivered judgment in
the case of Dr. Subash Kasinath Mahajan (supra) on
20.03.2018. The occurrence in the present case took place on
30.04.2008.
It is the settled principle that when a law is declared
by the Supreme Court, it is the law as it always was and it does
not become law only from the date it was so declared. It is also
clear from the decision in Golak Nath & others -Vrs.- State of
Punjab reported in A.I.R. 1967 S.C. 1643, that it is only
12
within the competence of the Supreme Court to declare the law
declared by it to be prospective and that too only on
constitutional questions. (Ref:- Regional Director, E.S.I.
Corporation -Vrs.- P.B. Gupta reported in 2002 (I) Orissa
Law Reviews 250).
Since in Dr. Subash Kasinath Mahajan (supra),
while giving directions in the concluding paragraph, it was
observed that the directions are prospective, the contentions
raised by the learned counsel for the petitioner that since no
preliminary inquiry has been conducted by the designated police
officer before the registration of the first information report, the
institution of the case is defective, cannot be accepted.
5. The plea taken by the petitioner relating to the
reason for institution of the criminal proceeding is his reporting
to the departmental higher authority about the illegal transfers
of some of the Sikshya Sahayaks including one Biswanath Sethy,
President of Sikshya Sahayak Association of Aska Education
District was not taken in the petition under section 482 of Cr.P.C.
when it was filed on 05.08.2018. No document in that connection
was also annexed with the petition. Such plea was taken for the
first time by way of an additional affidavit filed on 28.07.2017.
Some xerox copies of the documents have been annexed to the
13
additional affidavit in that connection. Now the question falls for
consideration as to whether the belated plea taken almost after
seven years of the presentation of the case and the xerox copies
of the documents filed with the additional affidavit are to be
taken into consideration at this stage.
In case of State of Orissa -Vrs.- Debendra Nath
Padhi reported in (2005) 30 Orissa Criminal Reports (SC)
177, it is held that at the time of framing charge or taking
cognizance, the accused has no right to produce any material.
In case of Chiranjib Biswal -Vrs.- Bishnu Charan
Das reported in (2016) 63 Orissa Criminal Reports 1131, it
is held as follows:-
"8. Law is well settled that while making a
prayer for quashing an order taking cognizance
or quashing the entire criminal proceeding, an
accused cannot be permitted to use the material
which would be available to him only as his
defence. The trial Court should be left to
consider and weigh materials brought on record
by the parties for the purpose of marshalling and
appreciating the evidence. While invoking
inherent power under section 482 Cr.P.C. to
quash a criminal proceeding, the High Court
cannot look into any document relied on by the
accused which would require proof in accordance
with law and may be subjected to rebuttal
14
evidence. The Court has to strictly confine itself
to the allegation made in the first information
report and charge sheet or the complaint
petition and the statements collected under
sections 200 and 202 Cr.P.C. A mini trial at that
stage is impermissible. The acceptance of the
documents filed by the defence or consideration
of defence plea by the High Court under section
482 Cr.P.C. at the stage of cognizance would
certainly open flood gate for mini trial and
should be discouraged as it is not neither proper
nor legal."
In case of Sampelly -Vrs.- Indian Renewable
Energy reported in (2016) 65 Orissa Criminal Reports (SC)
583, it is held that it is well settled that while dealing with a
quashing petition, the Court has ordinarily to proceed on the
basis of averments in the complaint. The defence of the accused
cannot be considered at the stage. The Court considering the
prayer for quashing does not adjudicate upon a disputed
question of fact.
In case of R. Kalyani -Vrs.- Janak C. Mehta
reported in (2009) 42 Orissa Criminal Reports (SC) 162, it
is held that while exercising its inherent jurisdiction to quash a
criminal proceeding, save and except in very exceptional
15
circumstances, the Court should not look into any documents
relied upon by the defence.
In case of HMT Watches -Vrs.- M.A. Abida
reported in 2015 (I) Orissa Law Reviews (SC) 1012, it was
held that the High Court committed grave error of law in
quashing the criminal complaints filed by the appellant in respect
of offence punishable under section 138 of the N.I. Act in
exercise of powers under section 482 of the Code of Criminal
Procedure by accepting factual defences of the accused which
were disputed ones. Such defences, if taken before trial Court,
after recording of the evidence, can be better appreciated.
In case of Harshendra Kumar D. -Vrs.- Rebatilata
Koley reported in (2011) 48 Orissa Criminal Reports (SC)
861, it is held as follows:-
"21. In our judgment, the above observations
cannot be read to mean that in a criminal case
where trial is yet to take place and the matter is
at the stage of issuance of summons or taking
cognizance, materials relied upon by the
accused which are in the nature of public
documents or the materials which are beyond
suspicion or doubt, in no circumstance, can be
looked into by the High Court in exercise of its
jurisdiction under Section 482 or for that matter
in exercise of revisional jurisdiction under
16
Section 397 of the Code. It is fairly settled now
that while exercising inherent jurisdiction under
Section 482 or revisional jurisdiction under
Section 397 of the Code in a case where
complaint is sought to be quashed, it is not
proper for the High Court to consider the
defence of the accused or embark upon an
enquiry in respect of merits of the accusations.
However, in an appropriate case, if on the face
of the documents - which are beyond suspicion
or doubt - placed by accused, the accusations
against him cannot stand, it would be travesty of
justice if accused is relegated to trial and he is
asked to prove his defence before the trial court.
In such a matter, for promotion of justice or to
prevent injustice or abuse of process, the High
Court may look into the materials which have
significant bearing on the matter at prima facie
stage."
In view of the settled position of law, accepting the
defence plea and the documents in support of such plea taken at
a belated stage would not be proper and justified. There is
nothing on record that the informants acted at the behest of
Biswanath Sethy. It is needless to say that the petitioner would
get enough opportunity during course of trial to take such plea
and adduce evidence in that respect which would be adjudicated
by the learned trial Court in accordance with law.
17
6. Adverting to the contention raised by the learned
counsel for the petitioner relating to the absence of sanction
from the competent authority as required under section 197 of
Cr.P.C., even though it is not disputed that the petitioner was a
public servant and he was discharging his duty as a public
servant at the relevant point of time and the incident in question
took place during the official working hours in the office of the
petitioner but the vital question is whether the abusive words
allegedly hurled at the informants and threat given to them by
the petitioner has got any connection whatsoever with official
duty.
In case of Abani Chandra Biswal -Vrs.- State of
Orissa reported in Vol.64 (1987) Cuttack Law Times 659, a
Division Bench of this Court held that the public servant cannot
claim blanket privilege for all the acts and uncalled for over doing
while discharging any public duty. In that case judging the
accusation against the petitioner who was the officer in charge,
Komna Police Station in the district of Kalahandi that he had
hurled abusive language at the complainant while he was already
in the police lock-up, it was held that the action cannot by any
stretch of imagination, be said to have been committed in course
18
of discharge of official duty as it had no connection whatsoever
therewith much less, reasonable.
Abusing or threatening is no part of the official duty
of a government servant when general public approaches him in
connection with an official work which has been assigned to him.
A government servant is there to serve the people, look into
their genuine grievances and to act diligently with all patience
and he is paid for that. He has to set an example for others. It is
incumbent on a public servant to maintain decency and decorum
of the institution/post which he is serving. Public servant is
accountable and responsible for what he is advocating. It cannot
be lost sight of the fact that the petitioner was serving in the
Education Department and he was holding the post of District
Inspector of Schools. The languages which are allegedly used are
certainly not expected from an educated person. When the act
alleged and the official duty are so inter-related that one could
postulate reasonably that it was done by the accused
government servant in the performance of the official duty
though possibly in excess of the needs and requirements of the
situation, sanction under section 197 Code of Criminal Procedure
is required.
19
In case of Devinder Singh and Ors. -Vrs.- State
of Punjab reported in (2016) 64 Orissa Criminal Reports
(SC) 380, it is held as follows:-
"37. The principles emerging from the aforesaid
decisions are summarized hereunder:
I. Protection of sanction is an assurance to an
honest and sincere officer to perform his duty
honestly and to the best of his ability to further
public duty. However, authority cannot be
camouflaged to commit crime.
II. Once act or omission has been found to have
been committed by public servant in discharging
his duty, it must be given liberal and wide
construction so far its official nature is
concerned. Public servant is not entitled to
indulge in criminal activities. To that extent
Section 197 Code of Criminal Procedure has to
be construed narrowly and in a restricted
manner.
III. Even in facts of a case when public servant
has exceeded in his duty, if there is reasonable
connection, it will not deprive him of protection
under Section 197 Code of Criminal Procedure.
There cannot be a universal rule to determine
whether there is reasonable nexus between the
act done and official duty nor it is possible to lay
down such rule.
IV. In case the assault made is intrinsically
connected with or related to performance of
20
official duties, sanction would be necessary
under Section 197 Code of Criminal Procedure,
but such relation to duty should not be
pretended or fanciful claim. The offence must be
directly and reasonably connected with official
duty to require sanction. It is no part of official
duty to commit offence. In case offence was
incomplete without proving, the official act,
ordinarily the provisions of Section 197 Code of
Criminal Procedure would apply.
V. In case sanction is necessary, it has to be
decided by competent authority and sanction
has to be issued on the basis of sound objective
assessment. The Court is not to be a sanctioning
authority.
VI. Ordinarily, question of sanction should be
dealt with at the stage of taking cognizance, but
if the cognizance is taken erroneously and the
same comes to the notice of Court at a later
stage, finding to that effect is permissible and
such a plea can be taken first time before
Appellate Court. It may arise at inception itself.
There is no requirement that accused must wait
till charges are framed.
VII. Question of sanction can be raised at the
time of framing of charge and it can be decided
prima facie on the basis of accusation. It is open
to decide it afresh in light of evidence adduced
after conclusion of trial or at other appropriate
stage.
21
VIII. Question of sanction may arise at any
stage of proceedings on a police or judicial
inquiry or in course of evidence during trial.
Whether sanction is necessary or not may have
to be determined from stage to stage and
material brought on record depending upon facts
of each case. Question of sanction can be
considered at any stage of the proceedings.
Necessity for sanction may reveal itself in the
course of the progress of the case and it would
be open to accused to place material during the
course of trial for showing what his duty was.
Accused has the right to lead evidence in
support of his case on merits.
IX. In some case it may not be possible to
decide the question effectively and finally
without giving opportunity to the defence to
adduce evidence. Question of good faith or bad
faith may be decided on conclusion of trial."
The petitioner has presented an F.I.R. relating to the
occurrence in question, on the basis of which Aska P.S. Case
No.110 of 2008 was registered under sections 294, 506 read
with section 34 of the Indian Penal Code. In the instant case, the
allegation as per the prosecution case is that when the
informants who are Sikshya Sahayaks met the petitioner in his
office and asked him as to whether he had been to meet the
Director of OPEPA, the petitioner all on a sudden got frowned
22
and abused them in filthy language and threatened them
whereas the defence of the petitioner is that it was a case of
discharge of official duty and at the behest and leadership of one
Biswanath Sethy, some Sikshya Sahayaks forcibly entered into
his official chamber on the date of occurrence and threatened
him with dire consequences and to file false case against him. It
is not permissible for this Court at this stage to decide which
version is correct. Similarly, it is difficult to arrive at a prima
facie conclusion that the overt act allegedly committed by the
petitioner has got any connection with the discharge of official
duty much less, reasonable. It would be open to both the sides
to adduce their evidence at the stage of trial and the trial Court
shall decide the question whether there was any reasonable
nexus of the incident with the discharge of official duty by the
petitioner.
7. Coming to the next contention raised by the learned
counsel for the petitioner relating to infraction of Rule 7 of the
1995 Rules, it appears that even though at the initial stage, the
investigation was conducted by the Sub-Inspector of Police P.K.
Sahu but on 15.05.2008 Sri B.P. Dehury, Deputy Superintendent
of police, Aska took up investigation of the case as per the
official order of the Superintendent of Police, Ganjam and after
23
verification of the case records received from the previous
investigating officer, he re-examined all the witnesses and
recorded their separate statements. The case was supervised by
Sri J. Mohapatra, S.D.P.O., Bhanjanagar. On 25.03.2009 the
charge of investigation was taken over by Sri B.K. Kamila,
S.D.P.O., Aska who ultimately on completion of investigation
submitted charge sheet for commission of offences under section
294 of the Indian Penal Code and section 3(1)(x) of 1989 Act.
Learned counsel for the petitioner placed reliance in
the case of In Re: Sessions Judge (supra), wherein it is held
that any investigation made by a police officer below the rank of
the officer so provided in the statute is vitiated and a criminal
proceeding would be vitiated because of non-compliance with the
statutory provision.
In the instant case, after initial investigation by the
S.I. of police, the re-investigation has been done by the
competent designated police officers as per Rule 7 of 1995 Rules
and charge sheet was also submitted by the designated officer.
Therefore, it cannot be said that there is either any defect or
illegality in investigation or the criminal proceeding is vitiated
merely because at the initial stages, the investigation was
conducted not by a designated police officer. In case of H.M.
24
Rishbud -Vrs.- State of Delhi reported in A.I.R. 1955 S.C.
196, it was held that a defect or illegality in investigation,
however serious, has no direct bearing on the competence or the
procedure relating to cognizance or trial.
In view of the above discussions, the contention
raised by the learned counsel for the petitioner relating to
infraction of Rule 7 of the 1995 Rules is devoid of any merit and
deserves to be dismissed.
8. In order to make out an offence under section 294 of
the Indian Penal Code, the prosecution has to prove that (i) the
offender has done any obscene act in any public place or has
sung, recited or uttered any obscene song, ballad or words in or
near any public place and (ii) thereby has caused annoyance to
others. If the act complained of is not obscene or is not done in
any public place or the song sung, ballad recited or words
uttered is not obscene or not so sung, recited or uttered in or
near any public place or that it causes no annoyance to others,
the offence is not committed.
The meaning of the word 'obscene' in Black's Law
Dictionary, Oxford Advanced Learner's Dictionary, Collins Cobuild
English Dictionary etc. would leave no doubt that the word
'obscene' is connected with sex and extremely offensive under
25
contemporary community standards of morality and decency
grossly repugnant to generally accepted notions of what is
appropriate. The concept of 'obscenity' would differ from Country
to Country, State to State and even from region to region
depending on the standards of morals and contemporary society.
The word 'Maghia' stated to have been used by the
petitioner is no doubt an obscene word which means 'mother
fucker'.
'Public place' is one to which members of public have
free access without any hindrance or interference. Such place is
open to the use by public or they are accustomed to resort which
includes public offices also. The place to which the public have a
legal right of access and they habitually go and there is no
restricted entry to it would come within the purview of 'public
place'. If the entry is regulated by permission or is otherwise
restricted, it is not a 'public place'. However if the access of
public to a place is conditional upon payment and subject to
reasonable restriction or in other words there is no unlimited
right still then the same would come within 'public place'.
As regards the obscene act, the term 'public place' is
used in section 294(a) of the Indian Penal Code whereas for
obscene song, ballad or words, the term 'in or near public place'
26
is used in section 294(b) of the Indian Penal Code. The term 'in
or near public place' is much wider in its sweep than the term
'public place' as it encompasses even those areas which are in
the vicinity of public place meaning thereby that if the obscene
words uttered in a 'public place' is heard by someone who is in
the vicinity of the public place then offence under section 294 of
Indian Penal Code can be made out. The term 'in or near public
place' contained in section 294 (b) of the Indian Penal Code does
not literally mean that the abusive words should be uttered
necessarily in a place which is frequented by members of public.
If such utterances though made in private place but are audible
in a public place because of being in close vicinity to the private
place then in that eventuality also the offence under section 294
of the Indian Penal Code would be attracted. The said offence is
not only made out when an obscene act is committed to the
annoyance of others in any public place but also when the
accused utters words to the annoyance of others in or near any
public place.
In case of Ashok Kumar Mishra -Vrs.- State of
Orissa reported in (2013) 54 Orissa Criminal Reports 162,
it is held as follows:-
"5. A 'public place' must be held to be a place
which is open to the members of the public
27
though in some cases access to it by members
of the public may be on fulfilling certain
conditions but the right of access to such place
must not be limited to any determinate section
of public and the person in charge of the place
should have no right or discretion to deny access
to any member of the public as long as such
member is ready to fulfill the conditions attached
for access."
There cannot be any dispute that the office of the
D.I. of Schools, Aska is a public place. The contention of the
learned counsel for the petitioner that the spot was the official
chamber of the petitioner and no public was present at the
relevant time and therefore, it cannot be said that the place was
within public view, is not acceptable. There is nothing on record
that the occurrence took place in the official chamber of the
petitioner where there is any restricted entry. In fact, the
materials on records indicate as per the statements of the
informants that all the nine of them had been to meet the
petitioner in the office of the D.I. of Schools, Aska to ventilate
their grievances, during course of which the occurrence took
place. Therefore, I am of the humble view that prima facie case
under section 294 of the Indian Penal Code is made out.
28
So far as the offence under section 3(1)(x) of 1989
Act is concerned, it requires intentional insult or intimidation by
an offender who is not a member of Scheduled Caste or
Scheduled Tribe to a member of Scheduled Caste or Scheduled
Tribe with intent to humiliate him in any place within public view.
The F.I.R. indicates the presence of nine persons and even if one
is excluded in view of the filing of Misc. Case No.497 of 2017, it
makes no difference. Judicial notice can be taken regarding the
presence of the staff of the D.I. of Schools during the official
hour. The statements of the witnesses recorded during course of
investigation corroborate to the facts narrated in the first
information report. All the witnesses have stated regarding the
intentional insult and intimidation to them and they are the
members of Scheduled Castes/Scheduled Tribes. The non-use of
names of specific caste of some of the informants like 'Koli Caste'
and 'Bauri' by the petitioner makes a little difference. The tenure
and the context in which the language is stated to have been
used prima facie show the intention of the user to humiliate the
informants. Even if one makes remarks or utterances with a view
to humiliate a member of the Scheduled Caste or Scheduled
Tribe inside the building, he would be liable to be prosecuted
29
provided such remarks or utterances are either visible or audible
to the public.
In case of Swaran Singh -Vrs.- State reported in
(2008) 41 Orissa Criminal Reports (SC) 414, it is held as
follows:-
"28. It has been alleged in the FIR that Vinod
Nagar, the first informant, was insulted by
appellants 2 and 3 (by calling him a `Chamar')
when he stood near the car which was parked at
the gate of the premises. In our opinion, this
was certainly a place within public view, since
the gate of a house is certainly a place within
public view. It could have been a different
matter had the alleged offence been committed
inside a building, and also was not in the public
view. However, if the offence is committed
outside the building e.g. in a lawn outside a
house, and the lawn can be seen by someone
from the road or lane outside the boundary wall,
the lawn would certainly be a place within the
public view. Also, even if the remark is made
inside a building, but some members of the
public are there (not merely relatives or friends)
then also it would be an offence since it is in the
public view. We must, therefore, not confuse the
expression `place within public view' with the
expression `public place'. A place can be a
private place but yet within the public view. On
30
the other hand, a public place would ordinarily
mean a place which is owned or leased by the
Government or the municipality (or other local
body) or gaonsabha or an instrumentality of the
State, and not by private persons or private
bodies.
Learned counsel for the petitioner submitted that
basic ingredients of the offence under section 3(1)(x) of the
1989 Act being absent in the F.I.R., this Court should quash the
proceeding. He relied upon the decision of the Hon'ble Supreme
Court in case of Gorige Pentaiah -Vrs.- State of A.P.
reported in (2008) 41 Orissa Criminal Reports (SC) 614
wherein it is held as follows:-
"7. In the instant case, the allegation of
respondent No. 3 in the entire complaint is that
on 27.5.2004, the appellant abused them with
the name of their caste. According to the basic
ingredients of Section 3(1)(x) of the Act, the
complainant ought to have alleged that the
accused-appellant was not a member of the
Scheduled Caste or a Scheduled Tribe and he
(respondent No. 3) was intentionally insulted or
intimidated by the accused with intent to
humiliate in a place within public view. In the
entire complaint, nowhere it is mentioned that
the accused-appellant was not a member of the
Scheduled Caste or a Scheduled Tribe and he
31
intentionally insulted or intimidated with intent
to humiliate respondent No. 3 in a place within
public view. When the basic ingredients of the
offence are missing in the complaint, then
permitting such a complaint to continue and to
compel the appellant to face the rigmarole of the
criminal trial would be totally unjustified leading
to abuse of process of law."
The citation placed by the learned counsel for the
petitioner is no way helpful to him in the facts and circumstances
of the case. First of all, the instant case arises out of a first
information report and not a complaint petition. In case of Lalita
Kumari -Vrs.- Govt. of U.P. reported in (2014) 57 Orissa
Criminal Reports (SC) 1, it is held that registration of F.I.R. is
mandatory under section 154 of the Code, if the information
discloses commission of a cognizable offence and no preliminary
inquiry is permissible in such a situation. If the information
received does not disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted
only to ascertain whether cognizable offence is disclosed or not.
If the inquiry discloses the commission of a cognizable offence,
the F.I.R. must be registered. In cases where preliminary inquiry
ends in closing the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith and not later
32
than one week. It must disclose reasons in brief for closing the
complaint and not proceeding further. The police officer cannot
avoid his duty of registering offence if cognizable offence is
disclosed. Action must be taken against erring officers who do
not register the F.I.R. if information received by him discloses a
cognizable offence. The scope of preliminary inquiry is not to
verify the veracity or otherwise of the information received but
only to ascertain whether the information reveals any cognizable
offence.
In the instant case, the first information report
discloses commission of a cognizable offence. During course of
investigation, the Addl. Tahasildar, Aska submitted his report
dated 08.12.2009 which indicates that one of the informants
namely, Baruna Kumar Barua is 'Dhoba' by caste. The
Tahasildar, Aska submitted his report dated 09.12.2009 which
indicates that the informants namely, Ahalya Patra, Abanikant
Behera and Bhabani sankar Patra are 'Koli' by caste, informant
Prakash Chandra Das is 'Bauri' by caste and the petitioner is
'Brahmin' by caste.
List of Scheduled Castes notified (after
addition/deletion) as per the Constitution (Scheduled Castes)
Order, 1950, as amended vide Modification Order 1956,
33
Amendment Act, 1976 and the Constitution (Scheduled Castes)
Order (Amendment) Act 2002 No. 25 dated 27.5.2002 of
Ministry of Law, Justice and Company Affairs, read with The
Constitution (SCs) Order (Second Amendment) Act, 2002 No. 61
of 2002 dated 18.12.2002 of Ministry of Law & Justice
republished vide Notification No. 7797-I- Legis-5/2002-L dated
7.6.2003 of Law Deptt, Govt. of Orissa and, vide Gazette of India
No.381dt.30.8.2007, Gazette of India No.40 dt.18.12.2014,
Gazette of India No.7 dt.23.03.2015, Gazette of India No 27 dt
9.05.2016 & Gazette of India No 17 dated 01.05.2017 indicates
that 'Bauri' and 'Dhoba' are Scheduled Castes.
Similarly, list of Scheduled Tribes notified (after
addition/deletion) as per the Scheduled Castes and Scheduled
Tribes Order, 1950 as amended by Modification Order, 1956,
Amendment Act, 1976 and The Scheduled Castes and Scheduled
Tribes Order (Amendment) Act 2002 No. 10 dated 8.1.2003 of
Ministry of Law & Justice republished by the Notification No.
7799/ L dated 7.6.2003 of Law Department, Govt. of Orissa
indicates that 'Koli' is Scheduled Tribe. The petitioner is not a
member of Scheduled Caste or Scheduled Tribe.
First information report is not the encyclopedia or be
all and end all of the prosecution case. It is not a verbatim
34
summary of the prosecution case. The principal object to the first
information report is to set the criminal law into motion. Non-
mentioning of some facts or details or meticulous particulars is
not a ground to reject the prosecution case. The informant who
is a member of either Scheduled Caste or Scheduled Tribe while
presenting the first information report might not be aware to
mention his caste as well as the caste of the accused while
narrating the incident. Whether it would be proper and justified
not to register the case under section 3 of 1989 Act even though
cognizable offence and particularly, the ingredients of such
offence are prima facie made out, merely because of the non-
mention of the caste details of the accused as well as the
informant? The answer is emphatically 'No'. In the format of
formal F.I.R., in Column No.6, it is to be mentioned whether the
informant is S.C./S.T. It is the duty of the concerned police
officer while registering the F.I.R. to elicit from the informant
about his caste particulars. In the instant case, the same has not
been done and that part has remained blank. Even if the
informant/victim indicates in the F.I.R. that he/she is a member
of Scheduled Caste or Scheduled Tribe and the accused is not a
member of such caste or tribe, nonetheless it is the duty of the
investigating officer to ascertain the caste particulars of the
35
informant/victim so also that of the accused from the competent
authority. Where the first information report is registered, inter
alia, for commission of offence under section 3 of 1989 Act, the
non-ascertainment of the caste particulars of the
informant/victim as well as the accused during course of
investigation would result in causing grave prejudice to the
parties.
Therefore, I am of the humble view that the prima
facie ingredients of offence under section 294 of the Indian Penal
Code and in view of the caste particulars collected during course
of investigation, the ingredients of offence under section 3(1)(x)
of 1989 Act are attracted.
9. The submission of the learned counsel for the
petitioner that the petitioner had submitted the application
forms/biodatas of the informants earlier to the date of
occurrence i.e. on 12.02.2008 and 19.02.2008 and therefore,
the genesis of the offence is also a doubtful feature, cannot be
adjudicated at this stage. In spite of submission of application
forms/biodatas, why the informants had grievances for which
they approached the petitioner on the date of occurrence is not
within the scope of purview of this application under section 482
of Cr.P.C. to be decided.
36
10. The submission of the learned counsel for the
petitioner that the petitioner was not examined by any police
officer in connection with the alleged incident which reveals
unfairness on the part of the investigating agency is not correct.
When the S.I. of police was investigating the case, the
whereabouts of the petitioner could not be ascertained which is
noted in the case diary. When the S.D.P.O., Aska was
investigating the matter, the statement of the petitioner was
recorded on 09.07.2009 in which he highlighted about the filing
of Aska P.S. Case No. 110 of 2008.
11. There is nothing on record to show that a malicious
prosecution has been instituted against the petitioner or the
criminal proceeding is manifestly attended with malafide or it has
been instituted with an ulterior motive for wreaking vengeance
on the petitioner and with a view to spite him due to private and
personal grudge and therefore, the ratio laid down in case of Ch.
Bhajan Lal (supra) is not applicable.
12. The submission of the learned counsel for the
petitioner that petitioner is now seventy years of age and he is
suffering from many ailments, cannot be a ground to quash the
criminal proceeding. These aspects may be relevant for
determination of the quantum of sentence at the end of trial.
37
13. In view of the foregoing discussions, I am of the
considered opinion that the impugned order does not suffer from
any illegality and therefore, it would not be proper to interfere
with the same invoking the inherent powers under section 482 of
Cr.P.C. which is to be used sparingly and with circumspection
In the result, the CRLMC application being devoid of
merit, stands dismissed. Lower Court Record be sent back
immediately.
14. Before parting with the case, I must record my deep
sense of appreciation for the able assistance rendered by Mr.
Sidharth Prasad Das, learned counsel for the petitioner. He had
prepared the case minutely and presented it nicely and
discharged his duty as an officer of the Court to the best of his
ability.
..............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 7th August 2018/Pravakar/Sisir/Sukanta