Dinakrushna vs Smt. Sunanda Behera

M. Papanna, J.—Invoking inherent powers of this Court the present petitioner makes this application seeking quashment of order of learned S.D.J.M., Beripada taking cognizance of offence against him u/s 3, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short ''Act'') in ICC No. 101 of 2000/99.

Complainant''s case is that while the petitioner was working as Chairman, Baripada Municipality, he and his staff demolished her shop rooms. The petitioner abused her husband saying ''Dhoba''. As a result, he felt insulted in the public. On complainant''s information Baripada Town P.S. Case No. 224/99 was registered. D.S.P., Baripada as authorised officer investigated into the case. He submitted final report stating it as mistake of law. On receipt of notice issued by learned S.D.J.M., Baripada in this regard complainant filed protest petition. Basing on the protest petition, I.C.C. No. 101 of 2000/99 was registered in the Court of learned S.D.J.M., Baripada who conducted enquiry u/s 202, Cr. P.C. and took cognizance of the offence against the petitioner u/s 3 of the Act. He committed the case to the Special Judge, Mayurbhanj (Baripada) for trial u/s 209, Cr. P.C.

Learned Advocate, Sri S. Mohanty, appearing on behalf of the petitioner, questioned jurisdiction of learned S.D.J.M. Baripada to act upon a complaint u/s 3 of the Act. Maintainability of the criminal proceedings against the petitioner who was a public servant at the relevant time, without previous sanction of the Government has also been questioned by Sri Mohanty.

Learned counsel Sri S. B. Sharma, appearing on behalf of opp. party, refuted the contentions of Sri Mohanty, He supported the order impugned before this Court.

The present application u/s 432, Cr. P.C. needs careful examination and adjudication in view of the above question of law raised by the learned counsel for the petitioner.

Law laid down by the Apex Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, is of some help in deciding this matter. In the reported case, the Apex Court has held that a Special Judge is competent to entertain a complaint where a Public Servant is alleged to have committed offences as enumerated in Section 6(1) (a) & (b) of Prevention of Corruption Act, 1952. Cognizance of the said offences by Special Judge is legal. The law is well settled that Court of a Special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction some powers are conferred by the statute setting up the Court. Excepting under the Criminal Procedure Code a Court of Special Judge will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied.

Order of cognizance should be seldom interferred with by this Court. In other words the Court must be slow to interfere with order of cognizance. In rare cases where the Magistrate taking cognizance of offence exceeds his jurisdiction, the Court is bound to invoke its inherent powers conferred on it u/s 482, Cr. P.C., to quash the order of cognizance.

In the present case learned S.D.J.M., Baripada has taken cognizance of an offence u/s 3 of the Act against the petitioner in a private complaint. The Act empowers a Special Judge but not a Magistrate to try offence amounting to atrocities to victims belonging to Scheduled Caste and Scheduled Tribe Communities as defined u/s 3 of the Act. As such learned S.D.J.M., has no jurisdiction to take cognizance of offence constituting atrocities u/s 3 of the Act against the petitioner. In my opinion he is totally out of jurisdiction to act upon a complaint u/s 3 of the Act. In such a view of the matter, there is no need for committment of the case by the learned Magistrate. Reliance can be placed on Udhaba alias Udhaba Charan Kar and Another Vs. Gora Bindhani, . In the said case learned Magistrate takes cognizance of various offences under IPC and also u/s 3 of the Act against petitioner in a complaint case. This Court holds, as act complained of constitutes atrocities as defined u/s 3 of the Act and also offences under IPC, accused is to be tried in the same proceedings. For that purpose no order of committment by the Magistrate is necessary. However, as it is a case of complaint being filed before a Magistrate alleging commission of offence both under IPC and the Act, the Magistrate shall, if satisfied that prima facie materials exist to show commission of offence under the Act, return it for presentation before the proper Court with an endorsement to that effect.

In the present case, it is evident from the petition of complaint that at the relevant time petitioner was working as Chairman of Baripada Municipality. So he was a public servant undisputedly. He was discharging his officials duty at the relevant time by demolishing the unauthorised construction of shop rooms found within Municipal area. That being so, his case comes under Umbrella of Protection u/s 197, Cr. P.C.

Apex Court, in the case of Abdul Wahab Ansari Vs. State of Bihar Another, , has laid down that previous sanction of competent authority being a pre-condition for the Court in taking cognizance of offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question of applicability of Section 197, Cr. P.C. touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking plea that cognizance was taken without prior sanction of competent authority till the charges are framed.

It is to be seen wheather Section 197, Cr. P. C. applies to the present case. Supreme Court has laid down law on the subject in the case of Bakhshish Singh Brar Vs. Gurmej Kaur and Another, Law as laid down u/s 197 gives protection to responsible public servants against whom vexatious criminal proceedings for offences alleged to have been committed by them are instituted while they are acting or purporting to act as public servants. Legislature ensures public servants adequate protection u/s 197, Cr. P. C. The intention is to see that they are not harrassed by being prosecuted, for anything done by them in discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it complete control of the prosecution. This protection has certain limit. It is available only when the alleged act done by the public servant is reasonably connected with discharge of his official duty and are not merely a clock 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 his official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in discharge of his official capacity. Before Section 197 can be invoked it must be shown that the officer concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. It is not the duty which requires examination so much as the act, because the official act can be performed both in discharge of his official duty as well as in deriliction of it. The act must fall within the scope and range of the official duty of public servant concerned. It is the quality of act which is important and the protection of the Section is available, if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor it is possible to lay down any such rule. One safe and surest test in this regard would be to consider if the commission or neglect on the part of public servant to commit the act complained of would have made him answerable for a charge of deriliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.

In the present case petitioner while demolishing unauthorised shop rooms constructed by the complainant within Baripada Municipality told the victim ''Dhoba'' and asked him to leave the place. In my opinion petitioner has stated so in discharge of his official duty. The act complained of falls within the scope and range of official duty of the petitioner as public servant at the relevant time. Hence, he is entitled to be protected u/s 197, Cr. P. C. In the case of Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan and Others, Supreme Court has taken the view that provision u/s 197, Cr. P. C. is a prohibition imposed by the statute on a Court from taking cognizance. As such a Court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the concerned servant.

In the light of the law laid down by the Apex Court as above, I am of the view that the learned Magistrate ought not to have taken cognizance of offence u/s 3 of the Act against the petitioner who was a public servant at the relevant time without previous sanction of the Government.

The ultimate result is, the Criminal Misc. Case u/s 482, Cr. P. C. is allowed. The criminal proceedings in I.C.C. No. 101 of 2000/1999 initiated on the file of learned S.D.J.M., Baripada against petitioner being hit by Section 197, Cr. P. C. is hereby quashed along with impugned order taking cognizance of offence against him u/s 3 of the Act.