Kremjit Mohananda vs Mohanpani Karua and Another

R.K. Patra, J.—The petitioner is the complainant. He filed complaint vide ICC No. 20 of 1993 in the Court of the Judicial Magistrate, First Class, Ranpur against opposite parties on the allegation that they committed offences punishable under Sections 342/323/294/506/34, IPC. Opp. party No. 1 was the Officer-in-charge of Ranpur police station at the relevant time. The learned Magistrate after perusing the complaint, the initial statement of the petitioner and the statements of witnesses recorded in the enquiry u/s 202, Cr PC held that the facts and circumstances of the case did not show that there was any connection of assault or use of abusive words at the petitioner by the opp. party No. 1 while the latter was discharging official duty. He was of the opinion that no sanction u/s 197, Cr PC was necessary. Having found a prima facie case he took cognizance of offences under Sections 323/506/34 IPC and directed issue of summons to the opposite parties. This order was passed on 9-2-1994. The opp. party No. 1 challenged it before the learned Sessions Judge. By the impugned order, the learned Sessions Judge held that opp. party No. 1 is entitled to the protection u/s 197 Cr PC. and in absence of sanction, taking cognizance is illegal and consequently he quashed the cognizance, taken against him. In this revision the petitioner has assailed the, validity of this order.

Shri Misra, learned counsel for the petitioner, contended that it was no part of the official duty of opp. party No. 1 to assault or to use abusive words against the petitioner and, as such, no sanction is required for his prosecution. In this context, he placed reliance on the decisions of this Court-in Abani Ch. Biswal Vs. State of Orissa and Another, .

In Abani Ch. Biswal Vs. State of Orissa and Another, , a Division Bench of this Court had the occasion to consider tie applicability of Section 197, Cr PC. In that case a police officer detained the complainants in the police hazat and abused them in filthy language calling them ''SALA, CHOR, BADMAS'' stating that they had forcibly sowed paddy in the disputed field. The Court after making a survey of decisions cited before it observed that whether the offence was committed in the course of official duty or not would depend upon the facts of each case and the test may well be as to whether the public servant can reasonably claim or challenge that he did so by virtue of his office but he cannot claim blanket privilege for all the acts and uncalled for overdoings while discharging any public duty. Having regard to the fact that the complainants were abused when they had already been lodged in the police hazat, the Court observed that there was no apparent justification for the police officer to abuse the complainants. Accordingly, it held that no protection is available to the public servant u/s 197, Cr PC.

In Samir Chandra Saha v. K. Pradhan and Anr. 67 (1989) CLT 451 a Single Judge of this Court has held that in that case no sanction was necessary for prosecution of a police officer for assaulting persons inside the police station inasmuch as the victims neither attempted to escape nor used any criminal force against police and there was no nexus of the alleged assault with their discharge of public duty.

In Kailash Chandra Mahanta v. Ganeswar Amanta, 1990 (I) OLR 432, the validity of taking cognizance against the Officer-in-charge of police station came up for consideration. This Court found that there was no material available before the Sessions Judge (who had set aside the order taking cognizance) to show that the alleged act was in purported exercise of the official duty of the accused and as that stage had not come the Court set aside the order of the learned Sessions Judge and observed that it was open to the accused to place material on record in the later stage of the proceeding.

In Brundaban Rath and Others Vs. Tarakanta Das and Another, , the learned Single Judge following the ratio of Abani Charan (supra) held that the materials on record justified taking of cognizance against the police officer. In that case the Officer-in-charge of the police station was alleged to have slapped the complainant and directed his subordinates to put the complainant inside the police hazat.

In Trilochan Barik v. Raghunath Bal 72 (1991) CLT 215 the Officer-in-charge of a police-station was alleged to have gone to the shop of the complainant and abused him in filthy language and also assaulted him and thereafter took him to the concerned police station. The learned Judge observed that the act of the police officer at the relevant time was in no way connected with the investigation of the case. Accordingly, the order of taking cognizance was upheld.

Let me examine the decisions cited by the counsel for the opposite parties. In Lal it Mohan Panigrahi v. Mayadhar Samarath 67 (1989) CLT 147, the order of taking cognizance was quashed. In that case the concerned police officer executed warrant of arrest against the complainant even after the warrant of arrest was recalled. The Court held that it was not a private action of forcible confinement but an act in discharge official duty as public servant for which sanction u/s 197, Cr PC was necessary.

In T.P. Ready v. Devraj Panigrahi '' the Single Judge who decided the case of Brundaban Rath (supra) held that even if in discharge of one''s official duty any excess is committed, the act complained of may attract the question of prior sanction as required u/s 197, Cr PC. In that case the police officer called a person to the police station on complaint made by another one and thereafter he went to the village of that person and arrested him. After hand cuffing, he paraded that person on the road and huried abusive words. The learned Judge held that sanction u/s 197, Cr PC was necessary for prosecution.

In Kartikeswar Nayak v. Satyabadi Mallik (1994)7 OCR 326 a police officer was alleged to have taken the complainant into custody and thereafter the complainant was alleged to have been assaulted tortured and detained in the lock-up by the concerned officer. This Court held that the acts complained of against the police officer were undoubtedly committed in course of discharge of his official duty. In arresting the complainant and producing him before the Court and even if any excess was committed in discharge of his duty that excess was plainly in relation to his official duty in the sense that it was professed to be so and it was meant to convey to the mind of the complainant that he was acting under the authority of his office. The Court further observed that arresting an offender is the official duty of the police officer. Even if any excess, was committed while effecting or continuing such arrest, it cannot be said that it was completely divorced from his duties. Accordingly, it was held that prior sanction u/s 197, Cr PC was necessary.

The principle embodied u/s 197, Cr PC is well established. The difficulty, however, lies in its application to the fact of a given case. Before the provision of Section 197, Cr PC is invoked, two conditions must be first fulfilled : (i) the public servant is not removable from his office except by or with the sanction of the State Government or the Central Government, as the case may be, and (ii) he is accused of any offence alleged to have been committed by him. After these two pre-conditions are satisfied a further enquiry is necessary to be made as to whether the alleged offence was committed by the public servant while acting or purporting to act in the discharge of his official duty. It is in this connection that the expression "purporting to act In the discharge of official duty" assumes importance. This expression is neither to be too narrowly interpreted nor too widely. The narrow interpretation will make it altogether otiose inasmuch as it is no part of an official duty--never can it be -- the official duty to commit an offence. It is not the ''duty'' which requires scrutiny so much as the ''act'' because the official act can be performed both in the discharge of official duty as well as in dereliction of it. If it is too widely construed, every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed would come within its sweep Which should be avoided. In our constitutional set-up no one whatever be his rank or position is above the law and every official, irrespective of his rank, is under the same liability for his act done without legal justification as any other citizen. As such, the right approach to the problem lies between the two extremes. A middle line which is adopted is that it is not every offence committed by a public servant in course of performance of his official duty, which is entitled to the protection of Section 197(1). What comes under the protective umbrella is an act constituting an offence, which directly or reasonably connects with his official duty. Protection of Section 187 does not extend to acts done purely in a private capacity by public servant. In Hori Ram Singh v. Emperor, AIR 1930 PC 43 it was argued that one of the tests for applicability of Section 197, Cr PC should be that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. Varadachariar, J. In his separate judgment accepted it to be the "correct view".

In P. Arulswami Vs. The State of Madras, , the Supreme Court observed as below :

"It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197, Cr PC will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It Is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."

The aforesaid being the legal position, let us, therefore, examine the allegations made , in the complaint against opp. party No. 1. It goes without saying that whether a particular act is done by a public servant in discharge of his official duty or not'' is substantially one of fact to be decided on the facts and circumstance of each case. It has been stated in the complaint that the petitioner was arrested on 31-10-1993 along with some others by opp. party No. 1 on the allegation that he committed an offence u/s 3 of the Orissa Prevention of Gambling Act, 1955 and was taken into custody and was kept inside the police hazat. At about 10.30 a. m opp. party No. 1 came to the police station and released the co-accused from the hazat and directed his subordinate to forward the petitioner to the Court of Magistrate. The petitioner appealed to him saying that he might be allowed to go on bail as the offence was bailable. At this request, opp. party No. 1 suddenly got annoyed and directed the Grama-rakhi opp. party No. 2 to assault the petitioner saying "HABO E ARJUN PIT SALAKE BO KANA BAKAR BAKAR HAUCHHE JE". The Grama-rakhi accordingly rushed towards the petitioner and gave slaps at his back. The petitioner again beseeched opposite party No. 1 not to ask his subordinate to assault him and to cause physical injury. Thereafter opp. party No. 1 rushed towards the petitioner and gave a slap at his back and kicked him in both by his right leg in between the left-side Chest and back. Ay a result, he sustained swelling injury and got severe pain on his body. Opp. party No. 1 also abused the petitioner in vulgar and filthy language saying "SALA MAGHIA GANDA, SALAKU CHHUINLE JAITE JAUCHHE AAU KETE RUBAB KARUCHHE".

The aforesaid allegations made in the complaint would show that opp, party No. 1 arrested and detained the petitioner in police hazat in connection with the gambling case. Refusal of opp. party No. 1 to release the petitioner on bail cannot be said to be unconnected or not reasonably connected with his official duty. The request made by the petitioner to allow him to go on bail seemed to have been not appreciated by opp. party No. 1 for which he got annoyed and directed the Grama-rakhi to assault the petitioner. When the petitioner made further request not to assault him, opp. party No. 1 was alleged to have rushed towards ''the petitioner and assaulted him and rebuked him in filthy language. It has to be borne in mind that all these things, if they were all true, happened following the arrest of the petitioner in connection with the gambling case. Non-release of the petitioner on bail followed by assault and rebuke might be in excess of the performance of the official duty but they cannot be said to be totally unconnected with the official duty or cannot be held to be not in course of performance of official duty. It is not disputed that opp. party No. 1 is not removable from his office except by or with the sanction of the State Government. For the aforesaid reasons, opp. party No. 1 is entitled to the protective umbrella u/s 197 Cr PC. Requirement of obtaining sanction for his prosecution being mandatory and admittedly no sanction having been taken, cognizance against opp. party No. 1 cannot be supported in law. The order of the learned Sessions Judge, therefore, cannot be faulted with.

The revision is accordingly dismissed being devoid of merit.