Janardan Mishra vs Manoranjan Jena and another

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S. K. SAHOO, J.

The petitioner Janardan Mishra who was the Sub-inspector of Ghasipura Police Station has filed this application under section 482 of Cr.P.C.

challenging the impugned order dated 31.08.2006 passed by the learned S.D.J.M., Anandapur in I.C.C. Case No. 18 of 2006 in taking cognizance of

the offences under sections 294 and 323 of the Indian Penal Code and issuance of process against him.

It is not in dispute that while the petitioner was checking the vehicles in presence of the learned S.D.J.M., Anandapur who was holding mobile Court

on the national highway, he demanded production of some documents from the opposite party no.1. It is the case of the complainant that the petitioner

misbehaved with him, abused him in filthy language and assaulted him by means of a fist blows and slaps. The occurrence in question stated to have

taken place on 24.02.2006. The learned Magistrate recorded the initial statement of the complainant and then the case was posted for conducting

inquiry under section 202 of Cr.P.C. From the side of the complainant, the evidence affidavit one witness was filed during inquiry under section 202 of

Cr.P.C. on 31.08.2006. The learned Magistrate after perusal of the complaint petition, initial statement of the complainant and affidavit evidence of the

witness has been pleased to find prima facie case under sections 294 and 323 of the Indian Penal Code and accordingly, took cognizance of the

offences.

 Mr. Ashutosh Mohanta, learned counsel appearing for the petitioner contended that the impugned order suffers from non-application of mind and

the ingredients of the offences under which cognizance has been taken are not attracted. It is further contended that the petitioner is a police officer

and on the date of occurrence, in due discharge of his official duty, he demanded documents of the vehicle from the complainant for verification for

which an exaggerated version has been presented in the complaint petition with an ulterior motive to harass the petitioner. The alleged incident stated

to have taken place in presence of the Magistrate during course of mobile Court which appears to be an improbable feature. It is further contended

that since the alleged offences have been committed in due discharge of the official duties, the petitioner is entitled to the protection as envisaged

under section 197 of Cr.P.C. The sanction for prosecution being mandatory in nature, the same having not been taken, the impugned order of taking

cognizance is not sustainable in the eye of law and therefore, should be set aside.

 None appears on behalf of the opposite parties. Section 197 of Cr.P.C. deals, inter alia, with the prosecution of public servants. Sub-section (1) of

section 197 of the Code states that no Court can take cognizance of an offence alleged to have been committed by a person who is or was a public

servant not removable from his office save by or with the sanction of the Government while acting or purporting to act in the discharge of his official

duty, except with the previous sanction of either the Central Govt. or the State Govt. as the case may be. The concept of sanction is to give freedom

and liberty to the public servants to perform their duty without fear or favour and not to succumb to the pressure of unscrupulous elements. It is a

weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled for prosecution but not intended to shield the

guilty.

In case of Sangram -Vrs.- Niladri Dhir reported in (2012) 52 Orissa Criminal Reports 362, it is held that all the Magistrates are to exercise power of

cognizance in complaint case against public officer with due care & 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. A number of complaint cases are lodged against police

officers only because action is taken by the police either to investigate, apprehend or prosecute an accused and in such circumstances, the accused

persons acting through their family members, relatives and/or villagers by filing complaints and in such circumstance, the Court before whom such

complaints are lodged, must act with due care and caution and in appropriate case may also seek assistance of the District Superintendent of Police.

The Magistrate should enquire from the complainant as to whether the police officers 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 taking

cognizance on complaint has to give specific finding regarding the applicability or otherwise of section 197 of Cr.P.C. which is mandatory.

In case of Abdul Wahab -Vrs.- State of Bihar reported in (2001) 20 Orissa Criminal Reports (SC) 1, it is held that previous sanction of the competent

authority being a pre-condition for the Court in taking cognizance of the 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 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 such plea till the charges are framed. In the said case, the appellant who was

the SubDivisional Magistrate had been directed to be present with the police force and remove the encroachment in question and in course of

discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of

the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and as such the provisions of section 197(1) of

Cr.P.C. apply to the case and there being no sanction, the cognizance taken by the Magistrate is bad in law.

 In case of P.K. Pradhan -Vrs.- State of Sikkim reported in 2001 Supreme Court Cases (Criminal) 1234, it is held that the legislative mandate

engrafted in sub-section (1) of section 197 of Cr.P.C. touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking

cognizance. There must be 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 a Court has to 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 official duty, though, possibly in excess of the needs and requirements of the situation. An official act can be performed in the discharge of official

duty as well as in dereliction of it. For invoking protection under section 197 of the Code, the acts of the accused complained of must be such that the

same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those

duties, and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by

the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is

well settled that question of sanction under section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance

or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be

possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In

order to come to the conclusion whether claim of the accused that the act he did was in course of the performance of his duty was a reasonable one

and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such eventuality,

the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.

 In case of Gauri Shankar Prasad -Vrs.- State of Bihar reported in 2000 Supreme Court Cases (Criminal) 872, it is held that section 197 of Cr.P.C.

embodies one of the exceptions to the general rules laid down in section 190 of Cr.P.C., that any offence may be taken cognizance of by the

Magistrates enumerated therein. In that case, the appellant was present at the place of occurrence in his official capacity as SubDivisional Magistrate

for the purpose of removal of encroachment from the Government land and in exercise of such duty, he is alleged to have committed the acts which

formed the gravamen of the allegations contained in the complaint lodged by the respondent. Hon'ble Court held that it cannot but be held that the acts

complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant and the appellant is entitled to the

immunity from criminal proceedings without sanction provided under section 197 Cr.P.C. In case of Devinder Singh -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 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.

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.†In the case in hand, since it appears that the offences are alleged to have

been committed while the petitioner was performing the official duty and demanded production of the documents of the vehicle from the complainant-

opposite party no.1 which he was driving, it cannot be said that there is no reasonable nexus between the acts alleged and the performance of official

duty. Even if it is alleged that it is in excess of the needs and requirements of the situation, the learned Magistrate should have considered the sanction

aspect while taking cognizance of offences and issuing process against the petitioner. I am of the humble view that the alleged acts of the petitioner

complained of cannot be separated from the discharge of his official duty and therefore, in absence of any sanction order to proceed against the

petitioner from the competent sanctioning authority, the order of taking cognizance is vitiated in the eye of law. The impugned order seems to be

suffering from non-application for mind. Accordingly, the CRLMC application is allowed. The impugned order dated 31.08.2006 passed by the learned

S.D.J.M., Anandapur and the entire criminal proceeding in I.C.C. Case No. 18 of 2006 stands quashed.