Padma Mothu and Others vs Amita Majhi

R.K. Pattanaik, J

Instant petition under Section 482 Cr.P.C. is at the behest of the petitioner for quashing of the order dated 1st November, 2021 passed in 1CC Case No.02 of 2021 by the learned S.D.J.M., Gunupur and for having been summoned in connection therewith on the grounds inter alia that the same is not maintainable due to want of sanction under Section 197 Cr.P.C. as all of them were on duty at the relevant point of time.

The opposite party lodged the complaint (Annexure-2) in ICC Case No.02 of 2021 against the petitioners for an incident dated 4th March, 2021. As per the complaint, the petitioners committed the alleged mischief described in Annexure-2 and during which and in course of events, they abused and assaulted the opposite party. On receipt of Annexure-2, the learned court below recorded the initial statement of the opposite party under Section 200 Cr.P.C. and thereafter, proceeded to hold enquiry under Section 202 Cr.P.C. and examined a single witness during such enquiry and finally passed the impugned order dated 1st November, 2021 under Annexure-4 by taking cognizance of the offences under Sections 294, 452, 453, 323, 354 and 506 read with 34 IPC and summoned all of them to appear on the date fixed. The said decision of the learned court below has been challenged by the petitioners, who are the police officials of Puttasingh P.S. in the district of Rayagada. According to the petitioners, they were on duty on the alleged date and had been to the village in question on receiving intelligence report about disposal of contraband Ganja stored in the house of one of the villagers. During that time, according to the petitioners, the person in possession of the contraband Ganja and his supporters armed with traditional weapon started abusing them in filthy language and threatened all with dire consequences, in connection with which, Puttasingh P.S. Case No.27 dated 5th March, 2021 was registered under Sections 147, 148, 120-B, 341, 342, 332, 353, 354, 325, 307, 395, 435, 294 and 506 IPC besides Section 20(b)(C) NDPS Act read with Section 7 of the Criminal Law (Amendment) Act, 2013. It is, hence, claimed that the learned court below without considering the need for a sanction under law in terms of Section 197 Cr.P.C. proceeded to take cognizance of the alleged offences against the petitioners and therefore, the impugned order under Annexure-4 is bad in law.

Heard Mr. Mishra, learned counsel for the petitioners and Mr. Chand, learned counsel for the opposite party.

Mr. Mishra, learned counsel for the petitioners submitted that sanction under Section 197 Cr.P.C. was necessary before taking cognizance of the alleged offences as the petitioners were on official duty, the fact was not duly enquired into by the learned court below. In that connection, Mr. Mishra refers to the following decisions, such as, Bhagwan Prasad Srivastava Vrs. N.P. Mishra AIR 1970 SC1661; Nirupama Dey Vrs. Chaitanya Dalua and Others MANU/OR/0284/2003; Sukumar Panigrahi and Others Vrs. State of Orissa and Others MANU/OR/0115/2001; Debasis Panigrahi Vrs. State of Orissa and Others MANU/0R/0867/2009; Tapash Kumar Rath Vrs. Harekrushna Pradhan 2009(1) ILR-CUT 483 and finally D. Devaraja Vrs. Owais Sabeer Hussain AIR 2020 SC3292 besides an order dated 16th November, 2022 (CRLMC No.1922 of 2019) in the case of Nirmal Chandra Panigrahi Vrs. A. Pratap Chandra Rao to contend that in the present case, the learned court below ought to have demanded sanction before passing the impugned order under Annexure-4. So therefore, Mr. Mishra lastly submits that taking cognizance of the alleged offences against the petitioners is not sustainable and thus, liable to be quashed in exercise of the Court’s inherent jurisdiction.

On the other hand, Mr. Chand, learned counsel for the opposite party submits that the nature of mischief committed by the petitioners as described in complaint do not fall within the domain of any official duty and for such misconduct, sanction under Section 197 Cr.P.C. is not necessary which has rightly been held by the learned court below referring to the decisions of this Court in Bhikari Charan Behera Vrs. State of Odisha (2018) 71 OCR 44 and Praman Kumar Pradhan and Another Vrs. State of Orissa and Another (2016) 63 OCR 1051. In other words, Mr. Chand contends that for each and every kind of mischief and misconduct of a public servant, protection under Section 197 Cr.P.C. is not available and hence, in the present case, having regard to the kind of mischief alleged against the petitioners, sanction is not available and therefore, the impugned order under Annexure-4 is unassailable.

In Bhagwan Prasad Srivastava (supra), the Apex Court held that the object and purpose under Section 197 Cr.P.C. is to afford protection to the public servants against frivolous, vexatious of false prosecution for offences alleged to have been committed by them, while acting or purporting to act in discharge of their official duty, which would be necessary only if the act complained of is directly concerned with the duty assigned to them. Though, the said decision has been relied upon by Mr. Mishra, in the facts and circumstances of the said case, as the accused appellant therein to be a civil surgeon, who had used defamatory and abusive words and had forcibly removed the complainant from the operation theatre, it was held that sanction under Section 197 Cr.P.C. was not necessary since such an act was not connected with the performance of official duty and that without so acting, he could not have properly discharged it. But, then the sum and substance of the above authority is that a public servant, who is on duty and while discharging such duty, any offence is committed by him which is punishable under criminal law, which has some kind of a nexus with such duty, sanction under Section 197 Cr.P.C. is required since immunity is enjoined against the prosecution, which may even be false or vexatious. The aforesaid view has been reiterated by this Court in Debasis Panigrahi (supra) but therein, it was held that sanction under Section 197 Cr.P.C. to be necessary since the alleged act complained of had been committed as a public servant in discharge of official duty or in dereliction of the same. Most recent judgment of the Apex Court in D. Devaraja (supra) wherein many of its earlier decisions have been taken judicial notice of discussed the principles on the subject with the final conclusion drawn that sanction to be a legal requirement and therein, it was felt necessary that before taking cognizance of the offences against the police officials, who had been alleged of having committed mischief during investigation though had acted in excess of duty was however having nexus with their official performance. In the said case, the accused filed a private complaint alleging ill-treatment and police excess while in custody in the hands of the petitioners and others and in that connection, the Apex Court concluded that there was a need for sanction and the High Court, therefore, erred of law in refusing to exercise its inherent jurisdiction by not setting aside the order of cognizance and instead of remitting the matter back with the liberty in favour of the accused to seek discharge. The other decisions so relied upon by Mr. Mishra, learned counsel for the petitioners reiterated the above legal position. Hence, the conclusion is that if a public servant is on official duty, any act which is complained of is an offence punishable under law, sanction under Section 197 Cr.P.C. to be necessary only if it has a reasonable nexus with the duty assigned to him.

In the instant case, the opposite party filed a complaint and she was aware of the fact that the petitioners to be police officials. In fact, the petitioner No.1 was the Inspector-In-Charge of Puttasingh PS, whereas, petitioner No.2 to be the Sub-Inspector of Police and petitioner Nos.3 and 4 had by then been posted as the Home Guards. Annexure-2 describes the excess committed by the petitioners, who were alleged to be not in uniform. The alleged incident took place on 4th March, 2021 and on 9th March, 2021, the complaint was filed which is nearly after four days. The complainant opposite party was examined by the learned court below under Section 200 Cr.P.C. and she alleged the mischief against the petitioners. A single witness was examined during the enquiry under Section 202 Cr.P.C. The copies of the initial statement of opposite party and evidence of the witness recorded during enquiry are at Annexures-2 and 3 respectively. A whole lot of allegations have been made regarding the ill-treatment, the opposite party received in the hands of the petitioners including a demand of bribe of Rs.20,000/- by petitioner No.1. The learned court below considering the materials on record concluded that the excess committed cannot be treated as a part and parcel of the official duty and hence, sanction under Section 197 Cr.P.C. was not to be required. As earlier mentioned, the opposite party including the witness examined under Section 202 Cr.P.C. apparently had the knowledge that the petitioners are the police officials of Puttasingh PS but at that point in time, they were not in uniform. Considering the fact that the petitioners are the police officials of a local PS, in the considered view of the Court, a detailed enquiry was necessary. The learned court below ought to have ascertained during enquiry by such other means as to reason behind the complaint filed and if at all the petitioners, who are police officials, were on duty or otherwise. It is not that the learned court below was not aware of the fact that the petitioners are the police officers of Puttasingh P.S. The demand of bribe is not revealed from Annexure-2 but it was deposed by the witness examined under Section 202 Cr.P.C. In such view of the matter, the learned court below could not have been a mute spectator and ought to have conducted enquiry in a manner to ascertain the real reason behind the filing of complaint specifically when the local police officials are involved. Of course, the petitioners did not have the occasion to bring the fact of lodging of the FIR in connection with the incident which happened on 4th March, 2021 itself for which Puttasingh P.S. Case No.27 was registered since the stage was yet to arrive.

Mr. Mishra, learned counsel for the petitioners submits that the complaint is a counterblast to Annexure-1 which had to be lodged at the PS since petitioner No.1 and other police officials including petitioner Nos.2, 3 and 4 had been subjected to a mob violence when they had gone to the village in connection with search of a house found to have five quintals of contraband Ganja stored for its disposal. The details of the mischief committed by the villagers and accused persons named therein numbering about 16 stand described in Annexue-1. In any case, the learned court below did not have the occasion by then to know about the lodging of Annexure-1 at the instance of petitioner No.1. When the petitioners are police officials and had been to the village and in that connection, for the alleged incident, a complaint was filed against them under Annexure-2, it was the duty and responsibility of the learned court below to hold a proper and purposeful enquiry to find out the real cause of the incident. A court must have to be very cautious while entertaining complaint against a public servant. At times, false allegations are made against public servants, who are on official duty to fix them up and therefore, the courts are to be extremely vigilant and careful before taking cognizance of the offences alleged or else it could seriously affect the officers on duty and subject them to unnecessary harassment. In so far as, Annexure-1 is concerned, as it is made to appear, the same was lodged on 5th March, 2021 immediately after the incident dated 4th March, 2021 for which the opposite party filed the complaint. So therefore, the Court is of the view that the learned court below ought to have ascertained the real reason behind filing of the complaint with an enquiry without being entirely persuaded by the allegations on record before taking cognizance of the alleged offences against the petitioners. Since this Court is drawn to the attention of Annexure-1 and that it was lodged with promptitude, whereas, Annexure-2 arrived thereafter and nearly four days later, it is made to appear that the opposite party made an attempt to cover up the mischief the villagers committed on the date of incident and moved the court below as a counterblast and therefore, in the aforesaid backdrop, the petitioners cannot be made face the prosecution without the necessary sanction.

Accordingly, it is ordered.

In the result, the CRLMC stands allowed. As a necessary corollary, the order dated 1st November, 2021 under Annexure-4 and the criminal proceeding pending before the court of learned S.D.J.M., Gunupur in connection with 1CC Case No.02 of 2021 are hereby quashed for the reasons discussed herein above.

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