Orissa High Court
Satyabrata Lenka vs State Of Orissa And Another on 24 July, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 2324 OF 2004
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.119 of 2004
pending on the file of J.M.F.C., Jajpur Road.
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Satyabrata Lenka ......... Petitioner
-Versus-
State of Orissa and
another ......... Opposite parties
For Petitioner: - Mr. Lalit Mishra
For the State: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
For Opp. Party No.2: - Mr. Maitrijit Mohanty
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 24.07.2017
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S. K. SAHOO, J.Heard Mr. Lalit Mishra, learned counsel for the petitioner, Mr. Prem Kumar Patnaik, learned counsel for the State and Mr. Maitrijit Mohanty, learned counsel appearing for the opposite party no.2.
2
The petitioner Satyabrata Lenka who was the Sub- Inspector of Police, Jajpur Road Police Station has filed this application under section 482 of the Criminal Procedure Code challenging the impugned order dated 13.09.2004 passed by the learned J.M.F.C., Jajpur Road in I.C.C. Case No.119 of 2004 in taking cognizance of offences under sections 294/323 of the Indian Penal Code and issuance of process against him.
Learned counsel for the petitioner while challenging the impugned order contended that on the first information report of one Jogendra Kumar Agrawal, Jajpur Road P.S. Case No.141 of 2004 was registered on 06.08.2004 for offences punishable under sections 341/294/354/323/506/34 of the Indian Penal Code against the complainant-opposite party no.2 Debabrata Nayak and others and at the relevant point of time, the petitioner who was the Sub-Inspector of Police of Jajpur Road Police Station took the complainant into custody in connection with the said case and forwarded him to the Court of learned J.M.F.C., Jajpur Road. After being released from custody, the complainant has filed the complaint petition. It is further contended that the averments made in the complaint petition that while in custody in the police station, the petitioner abused the complainant that "Mote Sala Vakila Dekhauchhu" and gave a 3 slap on the left cheek and side of the ear of the complainant are all concocted story and it has been made just to demoralize the petitioner who is a public servant and arrested the complainant in due discharge of his official duty and forwarded him to the Court. It is further contended that while taking cognizance of the offences, the learned Magistrate has not taken into consideration the necessity of sanction as provided under section 197 of Cr.P.C. and therefore, the impugned order is not sustainable in the eye of law.
In the case of Sudarsan Das -Vrs.- Smt. Sarojini Mohapatra reported in (2017) 66 Orissa Criminal Reports 635, it is held as follows:-
"5. Protection of sanction as envisaged under section 197 of Cr.P.C. serves a very salutary purpose, viz., it protects the honest and sincere officer in the performance of their official duty and prevents demoralization of such officer against threat of frivolous and malicious prosecution leading to harassment. "Official duty" implies that the act or omission should have been done in discharge of the duty. Once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction. Existence of reasonable connection between the act complained of and the discharge of official duty is necessary. Law is well settled that the protection given under section 197 of Cr.P.C. is not a cloak for 4 doing the objectionable act. The excesses committed by the public servant during the performance of official duty are also protected under section 197 of Cr.P.C. It is the duty of the Court to find out whether the act done by the public servant and the official duty are so inter- connected/inter-related that one can postulate reasonably that it was done by the accused in performance of the official duty, though possibly in excess of the needs and requirements of the situation."
Keeping in view the factual aspect of this case and the applicability of section 197 of Cr.P.C., it is clear that the petitioner who is a public servant arrested the complainant- opposite party no.2 in connection with Jajpur Road P.S. Case No.141 of 2004 which is a cognizable case and it further appears that the complainant was taken to the police station and then he was forwarded to the Court of learned J.M.F.C., Jajpur Road and subsequently the complainant was released on bail.
In view of the factual scenario, the non-consideration of the sanction aspect at all by the learned Magistrate while taking cognizance of the offence and issuance of process against the petitioner is against the principle laid down by this Court in case of Sangram Kesari Behera -Vrs.- Niladri Dhir reported in (2012) 52 Orissa Criminal Reports 362 wherein it is observed and direction was issued to all the Magistrates to 5 exercise power of cognizance in complaint case against police officer with due care and caution, especially, in cases where complaints are lodged against police officers for alleged excess act committed by them in course of due discharge of their official duty. It was further held that the Magistrate should enquire from the complainant as to whether the police officer against whom, the complaints are being lodged had any connection with any official duty, which was being discharged by the police officer or not at the time of alleged incident. The Magistrate while taking cognizance of offences shall give finding regarding the applicability or otherwise of section 197 of Cr.P.C. which is mandatory.
The learned Magistrate has not inquired from the complainant as to whether the petitioner against whom the complaint petition was filed had any connection with any official duty which was being discharged by him at the time of alleged incident. The act complained of due to which the offence is stated to have been committed against the complainant appears to have committed by the petitioner while acting or purporting to act in the discharge of his official duty. Even though the allegations are that of commission of excesses by the petitioner while performing his official duty, in my humble view, the 6 petitioner cannot be prosecuted without sanction from the competent authority. Sanction for prosecution under section 197 of Cr.P.C. by the appropriate authority is a necessary pre- requisite before the Court of competent jurisdiction takes cognizance of offences and issues process against a public servant while acting or purporting to act in the discharge of his official duty.
Resultantly, the impugned order suffers for non- application of mind and is hereby set aside.
Accordingly, the CRLMC application is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 24th July, 2017/Sisir