Orissa High Court
Priya Ranjan Satpathy And Another vs Surendranath Mishra on 23 March, 2018
HIGH COURT OF ORISSA, CUTTACK
CRLMC NO.1856 OF 2007
In matter of an application under Section 482 of the Code of
Criminal Procedure.
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Priya Ranjan Satpathy & another ......... Petitioners
-Versus-
Surendranath Mishra .......... Opposite Party
For petitioners - M/s. S.K. Dash, A.K. Otta, S. Dash
& A. Dhalsamanta
For Opposite Party - M/s. K.P. Mishra, A. Senapati
& T.P. Tripathy
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P R E S E N T:
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Argument-29.01.2018: Date of Judgment-23.03.2018
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DR. D.P. CHOUDHURY, J. Challenge has been made to the order dated
3.7.2007 taking cognizance of the offences under Sections 341,
342, 323, 294, 506/34 of the Indian Penal Code (hereinafter
called 'IPC') and issuance of process against the present
petitioners in I.C.C. Case No.51 of 2006 by the learned Judicial
Magistrate, First Class, Pipili.
2. Mr. S.K. Dash, learned counsel for the petitioners
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submitted that the petitioners are Police Officers being posted at
Pipili Police Station, in the district of Puri at the relevant time,
i.e., on 15.8.2006. According to him, the opposite party lodged
complaint against the petitioners in the Court of the learned
J.M.F.C., Pipili, in the above noted complaint case alleging that
the then Inspector of Police, Manoranjan Mohanty has illegally
registered a case against one Lingaraj Mishra, Headmaster of
the High School and others following death of one Bapi Pradhan
on 9.6.2006 in an accident arising out of the fire work display on
the day of Champak Dwadashi. In spite of objection by the local
people for not registering the case on account of such accidental
death and in view of the settlement arrived at between the
owner of the absconding vehicle and the son of the deceased,
the succeeding Inspector-in-charge Dillip Mohanty registered a
case and sent the dead body for postmortem examination.
3. Mr. Dash further submitted that alleging about Police
atrocities, a mob led by the complainant-opposite party headed
a rally to give a Memorandum to the Director General of Police
and other authorities but the petitioners allegedly caught hold of
the complainant and dealt with fist blows. They also allegedly
put the complainant-opposite party inside the Police jeep. The
petitioners also allegedly assaulted the complainant-opposite
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party causing severe bleeding injury and also abused him in
obscene language as the grievance was made to senior officers
of the Police and to the Human Rights Commission. At the same
time, the complainant filed complaint making false allegations
against the petitioners. But the learned J.M.F.C., Pipili without
application of judicial mind took cognizance of the aforesaid
offences basing on the statement of the complainant and the
statement of the witnesses recorded under Section 202 of the
Cr.P.C.
4. Mr. Dash, learned counsel for the petitioners
submitted that the order of the learned Judicial Magistrate is
palpable wrong and erroneous because the petitioners even if
have committed such act as alleged against them, they are
closely connected with the discharge of duty for which the
previous sanction for taking cognizance as required under
Section 197 Cr.P.C. ought to have been considered before taking
cognizance of the offence by the learned Magistrate. According
to him, the act complained of having been close nexus with the
discharge of duty by the petitioners as Police Officers, they are
well protected under Section 197 of Cr.P.C. Moreover, there are
lot of discrepancies between the statement of witnesses and the
complainant for which prima facie case is far from proof. So, the
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learned counsel for the petitioners submitted to quash the
impugned order of taking cognizance and issuance of process
against the petitioners.
5. Mr. Dash, learned counsel for the petitioners while
making above submissions relied upon the decisions reported in
AIR 2015 SC 2022; D.T. Virupakshappa v. C. Subash,
(2012) 12 SCC 72; Om Prakash and Ors. v. State of
Jharkhand through the Secretary, Department of Home,
Ranchi-1 and Anr., AIR 2004 SC 2179; State of Orissa and
others v. Ganesh Chandra Jew, 2016 (I) OLR (SC) 338;
Prof. N.K. Ganguly v. CBI, New Delhi and AIR 1956 SC 44;
Matajog Dobey v. H.C. Bhari.
Apart from this, Mr. Dash also placed a notification
issued by the State Government where the protection under
Section 197 Cr. P.C. is applicable to all the Police Officers
appointed under the Orissa Police Act and under the Orissa
Special Armed Police Act if any of their act is complained of in
the Court of law.
6. DISCUSSIONS
Section 197 Cr.P.C. states as follows:
"197. Prosecution of Judges and public
servants - (1) When any person who is or
was a Judge or Magistrate or a public servant
not removable from his office save by or with
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the sanction of the Government is accused of
any offence alleged to have been committed
by him while acting or purporting to act in the
discharge of his official duty, no Court shall
take cognizance of such offence except with
the previous sanction-
(a) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence employed,
in connection with the affairs of the Union, of
the Central Government;
(b) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence employed,
in connection with the affairs of a State of the
State Government:
[Provided that where the alleged offence
was committed by a person referred to in
clause (b) during the period while a
Proclamation issued under clause (1) of article
356 of the Constitution was in force in a State,
clause (b) will apply as if for the expression"
State Government" occurring therein, the
expression "Central Government" were
substituted.]
[Explanation. - For the removal of
doubts it is hereby declared that no sanction
shall be required in case of a public servant
accused of any offence alleged to have been
committed under Section 166A, Section 166B,
Section 354, Section 354A, Section 354B,
Section 354C, Section 354D, Section 370,
Section 375, Section 376, Section 376A,
Section 376C, Section 376D or Section 509 of
the Indian Penal Code (45 of 1860).]
(2) No Court shall take cognizance of any
offence alleged to have been committed by
any member of the Armed Forces of the Union
while acting or purporting to act in the
discharge of his official duty, except with the
previous sanction of the Central Government.
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(3) The State Government may, by
notification, direct that the provisions of sub-
section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public order
as may be specified therein, wherever they
may be serving, and thereupon the provisions
of that sub-section will apply as if for the
expression "Central Government" occurring
therein, the expression "State Government"
were substituted.
[(3-A) Notwithstanding anything contained in
sub-section (3), no court shall take
cognizance of any offence, alleged to have
been committed by any member of the Forces
charged with the maintenance of public order
in a State while acting or purporting to act in
the discharge of his official duty during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force therein, except with the previous
sanction of the Central Government.
(3-B) Notwithstanding anything to the
contrary contained in this Code or any other
law, it is hereby declared that any sanction
accorded by the State Government or any
cognizance taken by a court upon such
sanction, during the period commencing on
the 20th day of August, 1991 and ending with
the date immediately preceding the date on
which the Code of Criminal Procedure
(Amendment) Act, 1991, receives the assent
of the President, with respect to an offence
alleged to have been committed during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force in the State, shall be invalid and
it shall be competent for the Central
Government in such matter to accord sanction
and for the court to take cognizance thereon.]
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(4) The Central Government or the State
Government, as the case may be, may
determine the person by whom, the manner in
which, and the offence or offences for which,
the prosecution of such Judge, Magistrate or
public servant is to be conducted, and may
specify the Court before which the trial is to
be held."
7. In the case of Matajog Dobey -V- H.C. Bhari; AIR
1956 SC 44 where Their Lordships at paragraph-17 of the said
judgment have observed in the following manner:
"17. Slightly differing tests have been laid
down in the decided cases to ascertain the
scope and the meaning of the relevant words
occurring in S. 197 of the Code; "any offence
alleged to have been committed by him while
acting or purporting to act in the discharge of
his official duty". But the difference is only in
language and not in substance.
The offence alleged to have been
committed must have something to do, or
must be related in some manner, with the
discharge of official duty. No question of
sanction can arise under S.197, unless the act
complained of is an offence; the only point to
determine is whether it was committed in the
discharge of official duty. There must be a
reasonable connection between the act and
the official duty. It does not matter even if the
act exceeds what is strictly necessary for the
discharge of the duty, as this question will
arise only at a later stage when the trial
proceeds on the merits.
What we must find out is whether the
act and the official duty are so inter-related
that one can postulate reasonably that it was
done by the accused in the performance of the
official duty, though possibly in excess of the
needs and requirements of the situation. In
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'Hori Ram Singh v. Emperor', AIR 1939 FC
43 at p.51 (B), Sulaiman, J. observes:
"The section cannot be confined to only
such acts as are done by a public servant
directly in pursuance of his public office,
though in excess of the duty or under a
mistaken belief as to the existence of such
duty. Nor is it necessary to go to the length of
saying that the act constituting the offence
should be so inseparably connected with the
official duty as to form part and parcel of the
same transaction".
The interpretation that found favour with
Varadachariar, J.in the same case is stated by him in these terms at page 56: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it". In affirming this view, the Judicial Committee of the Privy Council observe in 'Gill's case(A)' "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty .... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
AIR 1939 FC 43 (B) is referred to with approval in the later case of 'H.T. Huntley v. Emperor', AIR 1944 FC 66 (C) but the test laid down that it must be established that the act complained of was an 'official' act appears to us unduly to narrow down the scope of the protection afforded by S. 197, Criminal P. C. as defined and understood in the earlier case. The decision in - 'Albert West Meads v. The King', AIR 1948 PC 156 (D), does not carry us any further; it adopts the reasoning in 'Gill's case(A).'
8. It is reported in the case of State of Orissa and 9 others -V- Ganesh Chandra Jew; AIR 2004 SC 2179 where Their Lordships at paragraph-11 have observed in the following manner:
"........... Use of the expression, 'official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty."
9. In Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi 1 and another, (2012) 12 SCC, 72, the Hon'ble Apex Court at paragraph 32 has held as follows :
"32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh; AIR 1960 SC 266). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official 10 duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood."
10. It is reported in the case of D.T. Virupakshappa v. C. Subash; AIR 2015 SC 2022 where Their Lordships at paragraph-7 have observed in the following manner:
"7. In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 of CrPC, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary."
11. With due regard to the aforesaid decisions, it is very clear that Section 197 Cr.P.C. would be applicable if the act complained of is reasonably connected with the official duty performed by the public servant. So, there should be reasonable 11 nexus apart from any excess derived from the performance of duty is to be protected under Section 197 Cr.P.C. Of course, the official duty discharged by the public servant is one of the grounds of Section 197 Cr.P.C. but the other grounds should be that a public servant is only to be removed by the sanction of the Government. If these two principles are fulfilled, any order of taking cognizance of the offence by the learned Magistrate against the police officer without any sanction order of the State or Central Government is illegal.
12. Now adverting to the facts of the present case, it is clear from the complaint, initial statement of the complainant and the statement of the witnesses recorded under section 202 Cr.P.C. that the petitioners while discharging their duties to stop the mob, the alleged occurrence took place. So, there is reasonable nexus between the act complained of and the official duty discharged by the petitioners. The notification dated 24th December 1981 shows that the protection under Section 197 Cr.P.C. would be available to all cadres of police officers, if any act complained of while discharging duty. Since the occurrence took place during discharge of duty, the petitioners being police officers are to be protected under the said notification.
13. In view of the aforesaid analysis, it appears that the 12 learned Magistrate on 3.7.2007 has passed order of taking cognizance and relevant portion of the same is placed below for better reference:
"3.7.2007 ...... There is prima facie evidence against the accused that they have abused the complainant in obscene words in front of block office which is a public place. Thus, prima facie evidence under Sections 341/342/323/ 294/506/34, IPC is made out against the accused person viz. (1) Priya Ranjan Satpathy, S.I. of police, Pipli P.S. (2) Brahmananda Swain, Asst. Sub-Inspector of police, Pipli P.S. Cognizance of the offences under sections 341/342/294/323/506/34 IPC is taken against the accused persons, namely (1) Priya Ranjan Satpathy, S.I. of Police, Pipli P.S. (2) Brahmananda Swain, Asst. Sub-Inspector of Police, Pipli P.S. Issue summons to the accused persons fixing 19.7.2007 for their appearance. The complainant is directed to take steps by 7.7.2007.
Sd/-A. Mishra, J.M.F.C."
The aforesaid impugned order does not disclose that after obtaining the sanction order for prosecution, learned Magistrate has taken cognizance of the offences and issued process against the present petitioners. Since the mandatory provision of Section 197, Cr.P.C. has not been complied, the impugned order dated 3.7.2007 of taking cognizance of the offences and issuance of process suffers from illegality and impropriety. As there is abuse of process of Court, exercising the 13 inherent jurisdiction, the same is hereby quashed under Section 482, Cr.P.C.
The CRLMC is disposed of accordingly.
The LCR received be sent back immediately.
.................................. Dr. D.P. Choudhury, J.
Orissa High Court, Cuttack The 23rd March, 2018/Kar