Orissa High Court
Trilochan Barik vs Raghunath Bal on 29 April, 1991
Equivalent citations: 1991CRILJ2259
ORDER D.M. Patnaik, J.
1. The main question that arises in this revision against the order dated 29-6-87 passed by the S.D.J.M., Anandapur, in I.C.C. No. 11 of 1987 is whether sanction as required under Section 197, Cr.P.C. is necessary for prosecution of the Officer-in-Charge of Ghasipura Police Station.
2. The petitioner before this Court filed a complaint on 13-5-97 in the Court of S.D.J.M., Anandapur, alleging therein that on 8-5-87 at about 6 p.m. the opposite party went to the betal shop of the complainant installed at the Ghasipura bus-stand and without any rhyme or reason started abusing the complainant as "SALA, MAGHIA TO GANDIRE CHARBI HOIGALANI" and gave two slaps on the cheek of the complainant and a kick at the buttock and thereafter dragged him to the police station. It is alleged that the complainant suffered from bodily pain and was insulted and humiliated in presence of public. Hence the complaint under Sections 294/323, I.P.C.
3. The S.D.J.M. after recording the initial statement of the complainant, conducted an enquiry under Section 202, Cr.P.C. Two witnesses were examined on the side of the complainant on 10-6-87. The S.D.J.M. thereafter on the same day called for a report from the Officer-in-Charge of the said police station and asked the latter to submit a detailed report about the case. The report of the opposite party revealed that the complainant was involved in Ghasipura P.S. Case No. 38/87 dated 8-10-87 under Sections 379/506/294, I.P.C. and that after investigation, charge-sheet had been submitted against the complainant. After receiving this report, the S.D.J.M. came to the conclusion that the alleged occurrence took place during the course of investigation against the complainant and since the opposite party was the Investigating Officer, the alleged occurrence in the present case took place while the opposite party was discharging his duty as a public servant in investigating into the particular case. By the impugned order dated 29-6-87 the S.D.J.M. being satisfied that in a case of this nature sanction was necessary and in the absence of sanction, he declined to take cognizance and rejected the complaint petition under Section 203, Cr.P.C. as mentioned above.
4. Mr. D. P. Dhal, learned counsel for the petitioner, with reference to a number of decisions cited by him submitted that the act of the opposite party police officer in assaulting the petitioner in the manner stated above, was highly unwarranted and that such an act under no circumstance can be termed as an act connected with the discharge of the public duty of the opposite party.
It is idle to refer to all the decisions cited by Mr. Dhal. Suffice it to refer to the following decisions:
In the case reported in AIR 1979 SC 1841 : (1979 Cri LJ 1367), Section B. Saha v. M.S. Kochar, their Lordships were dealing with a case of customs officials who had allegedly committed the offence of criminal breach of trust by illegally tampering and breaking the seals of a consignment which was taken to their custody after seizure during the customs raid. The question of absence of sanction was raised before the trying Magistrate and the accused persons claimed discharge and the Magistrate resorting to the provisions under Section 197 of the Code discharged the accused persons for want of sanction. The Supreme Court in para 23 of the judgment held that the offence alleged against the accused persons was dishonest misappropriation or conversion of the goods by the accused persons. Their Lordships held that there could not be any dispute that the seizure of the goods by the accused persons and their being thus entrusted with the goods or dominion over them, was an act committed by them while acting in the discharge of their official duty. But the subsequent act of dishonest misappropriation or conversion of those goods by the accused persons which is the second necessary element of the offence of criminal breach of trust could not be said to have a 'bearing' such an integral relation with the duty of the accused persons so that they could genuinely claim that they committed it in the course of performance of their official duty.
But their Lordships were also conscious of situations in exceptional cases and, therefore, their Lordships in para 25 of the judgment held that what they observed should not be understood as an invariable proposition of law. The question, according to their Lord-ships, would depend on the facts of each case. In the peculiar facts and circumstances, in a case, it can be said that the act of criminal misappropriation or conversion complained of is so 'inseparably intertwined' with the performance of the official duty of the public officer, that, sanction under Section 197(1) of the Code for prosecution of the accused for an offence under Section 409, I.P.C. would be necessary. In the case referred to above their Lordships dismissed the appeal of the accused persons holding that the act of criminal breach of trust could not be said to be so integrally connected with the official act of the customs officers so that sanction was necessary.
5. The same proposition of law was also accepted in a decision of the Supreme Court reported in 1988 Cri LJ 419 : (AIR 1988 SC 257), Bakhshish Singh Brar v. Smt. Gurmej Kaur, where grievous injuries were inflicted by way of assault on the accused by the police officer during the course of investigation of an offence against the accused. It was held that it was not necessary for the police officer to conduct himself in a manner resulting in such consequences. Their Lordships held that it was no doubt necessary to protect the public servants in the discharge of their duties and that they must be made 'immune' from being harassed in criminal proceedings and prosecution and, that is, the rationale behind Sections 196 and 197, Cr.P.C. But according to their Lordships, it is equally important to emphasise that the rights of the citizens should be protected and no excesses should be permitted. In the case referred to above, their Lordships held that sanction was not necessary.
6. In a case of our own High Court reported in (1987) 64 Cut LT 659 : (1988 Cri LJ 1038), Abani Ch. Biswal v. State of Orissa, a similar matter relating to sanction under Section 197 of the Code for prosecution of a police officer came for decision. In the case referred to, the police officer against whom allegation of an offence under Section 504, I.P.C. was made, was the accused in the complaint case. It was alleged that while the complainant was detained by the said officer in the police station for three days in a G.R. case against him, the police officer hurled abuses in filthy languages like "Sala", "Chora", "Badmash" etc. The learned Sub-Divisional Judicial Magistrate took cognizance of the offence against which the said police officer came up in revision before this Court.
The Division Bench in that case following the decisions of the Supreme Court reported in AIR 1986 SC 345: (1986 Cri LJ 314), Balbir Singh v. D. N. Kadian and AIR 1973 SC 2591 : (1973 Cri LJ 1795), Pukharaj v. State of Rajasthan, held that the accusation made against the police officer that he had hurled abusive language at the complainant while the latter was in police lock-up, the act of the said police officer could not by any stretch of imagination, be said to have been done in course of the discharge of his official duty as it had no connection whatsover therewith, much less, reasonable.
7. In the present case at hand, the statements of the persons recorded under Section 202, Cr.P.C. prima facie disclose that the opposite party went to the shop of the petitioner and abused him in filthy language as mentioned above and also assaulted him as alleged and thereafter took him to the Ghasipura Police Station. The act of the opposite party at the relevant time was in no way connected with the investigation of the case. The S.D.J.M. has not taken note of the same and rather has held that the action of the opposite party in assaulting the petitioner was in due discharge of his official duty. This finding is incorrect in view of the proposition of law laid down by the Supreme Court in the decisions mentioned above.
8. The impugned order of the Magistrate does not indicate that he has disbelieved the statements of the witnesses examined by him under Section 202, Cr.P.C. Instead, the S.D.J.M. has only taken note of the report of the opposite party informing him that the petitioner had been charge-sheeted in a case for the alleged offences under Sections 506/294, I.P.C. When the S.D.J.M. has not disbelieved the statements of the witnesses examined during enquiry, I have no hestitation to hold that there is prima facie material to hold that the opposite party assaulted the petitioner in the manner stated above. This is sufficient to give direction to the Magistrate to issue process to the opposite party to face his trial.
9. Before parting with the case, I would like to point out that any observation made by me in disposing of this revision with regard to any factual aspect of assault should not in any way influence the Magistrate in dealing with the matter in accordance with law at his end.
10. In the result, the revision is allowed. The impugned order dated 29-6-87 is set aside. The S.D.J.M. is directed to issue process to the opposite party and proceed with the trial as it stood prior to 29-6-87 and dispose of the case within six months from the date of appearance of the party before him.