Priya Ranjan Satpathy and another vs Surendranath Mishra

DR. D.P. CHOUDHURY, J.

Challenge has been made to the order dated 3.7.2007 taking cognizance of the offences under Sections 341, 342, 323, 294, 506/34 of the Indian

Penal Code (hereinafter called ‘IPC’) and issuance of process against the present petitioners in I.C.C. Case No.51 of 2006 by the learned

Judicial Magistrate, First Class, Pipili.

Mr. S.K. Dash, learned counsel for the petitioners submitted that the petitioners are Police Officers being posted at Pipili Police Station, in the

district of Puri at the relevant time, i.e., on 15.8.2006. According to him, the opposite party lodged complaint against the petitioners in the Court of the

learned J.M.F.C., Pipili, in the above noted complaint case alleging that the then Inspector of Police, Manoranjan Mohanty has illegally registered a

case against one Lingaraj Mishra, Headmaster of the High School and others following death of one Bapi Pradhan on 9.6.2006 in an accident arising

out of the fire work display on the day of Champak Dwadashi. In spite of objection by the local people for not registering the case on account of such

accidental death and in view of the settlement arrived at between the owner of the absconding vehicle and the son of the deceased, the succeeding

Inspector-in-charge Dillip Mohanty registered a case and sent the dead body for postmortem examination.

Mr. Dash further submitted that alleging about Police atrocities, a mob led by the complainant-opposite party headed a rally to give a Memorandum

to the Director General of Police and other authorities but the petitioners allegedly caught hold of the complainant and dealt with fist blows. They also

allegedly put the complainant-opposite party inside the Police jeep. The petitioners also allegedly assaulted the complainant-opposite party causing

severe bleeding injury and also abused him in obscene language as the grievance was made to senior officers of the Police and to the Human Rights

Commission. At the same time, the complainant filed complaint making false allegations against the petitioners. But the learned J.M.F.C., Pipili without

application of judicial mind took cognizance of the aforesaid offences basing on the statement of the complainant and the statement of the witnesses

recorded under Section 202 of the Cr.P.C.

Mr. Dash, learned counsel for the petitioners submitted that the order of the learned Judicial Magistrate is palpable wrong and erroneous because

the petitioners even if have committed such act as alleged against them, they are closely connected with the discharge of duty for which the previous

sanction for taking cognizance as required under Section 197 Cr.P.C. ought to have been considered before taking cognizance of the offence by the

learned Magistrate. According to him, the act complained of having been close nexus with the discharge of duty by the petitioners as Police Officers,

they are well protected under Section 197 of Cr.P.C. Moreover, there are lot of discrepancies between the statement of witnesses and the

complainant for which prima facie case is far from proof. So, the learned counsel for the petitioners submitted to quash the impugned order of taking

cognizance and issuance of process against the petitioners.

Mr. Dash, learned counsel for the petitioners while making above submissions relied upon the decisions reported in AIR 2015 SC 2022; D.T.

Virupakshappa v. C. Subash, (2012) 12 SCC 72; Om Prakash and Ors. v. State of Jharkhand through the Secretary, Department of Home, Ranchi-1

and Anr., AIR 2004 SC 2179; State of Orissa and others v. Ganesh Chandra Jew, 2016 (I) OLR (SC) 338; Prof. N.K. Ganguly v. CBI, New Delhi

and AIR 1956 SC 44; Matajog Dobey v. H.C. Bhari. Apart from this, Mr. Dash also placed a notification issued by the State Government where the

protection under Section 197 Cr. P.C. is applicable to all the Police Officers appointed under the Orissa Police Act and under the Orissa Special

Armed Police Act if any of their act is complained of in the Court of law.

DISCUSSIONS

Section 197 Cr.P.C. states as follows:

“197. Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a public servant not removable

from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or

purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection

with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection

with the affairs of a State of the State Government: [Provided that where the alleged offence was committed by a person referred to in clause (b)

during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for

the expression"" State Government"" occurring therein, the expression “Central Government"" were substituted.]

 [Explanation. â€" For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any

offence alleged to have been committed under Section 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D,

Section 370, Section 375, Section 376, Section 376A, Section 376C, Section 376D or Section 509 of the Indian Penal Code (45 of 1860).]

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or

purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of

the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of

that sub-section will apply as if for the expression ""Central Government"" occurring therein, the expression ""State Government"" were substituted.

[(3-A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any

member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty

during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction

of the Central Government.

(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State

Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with

the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with

respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution

was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to

take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence

or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial

is to be held.â€​

In the case of Matajog Dobey â€"V- H.C. Bhari; AIR 1956 SC 44 where Their Lordships at paragraph-17 of the said judgment have observed in

the following manner:

“17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in S.

197 of the Code; ""any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty"". But the

difference is only in language and not in substance.

The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No

question of sanction can arise under S.197, unless the act complained of is an offence; the only point to determine is whether it was committed in the

discharge of official duty. There must be a 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 we

must 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 the official duty, though possibly in excess of the needs and requirements of the situation. In ‘Hori Ram Singh v. Emperor’, AIR

1939 FC 43 at p.51 (B), Sulaiman, J. observes:

The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the

duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence

should be so inseparably connected with the official duty as to form part and parcel of the same transaction"".

The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 56: ""There must be something in

the nature of the act complained of that attaches it to the official character of the person doing it"". In affirming this view, the Judicial Committee of the

Privy Council observe in ‘Gill's case(A)’

“A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his

official duty .... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his

office"".

AIR 1939 FC 43 (B) is referred to with approval in the later case of ‘H.T. Huntley v. Emperor’, AIR 1944 FC 66 (C) but the test laid down

that it must be established that the act complained of was an ‘official’ act appears to us unduly to narrow down the scope of the protection

afforded by S. 197, Criminal P. C. as defined and understood in the earlier case. The decision in â€" ‘Albert West Meads v. The King’, AIR

1948 PC 156 (D), does not carry us any further; it adopts the reasoning in ‘Gill's case(A).’

It is reported in the case of State of Orissa and others â€"V- Ganesh Chandra Jew; AIR 2004 SC 2179 where Their Lordships at paragraph-11

have observed in the following manner:

“……….. Use of the expression, 'official duty' implies that the act or omission must have been done by the public in the course of his service and

that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in

service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.“

In Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi 1 and another, (2012) 12 SCC, 72, the

Hon’ble Apex Court at paragraph 32 has held as follows :

“32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of

was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to

his office as to be inseparable from it (K. Satwant Singh; AIR 1960 SC 266). The protection given under Section 197 of the Code has certain limits

and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a

cloak 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 the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra

Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the

acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a

conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in

cold blood.â€​

It is reported in the case of D.T. Virupakshappa v. C. Subash; AIR 2015 SC 2022 where Their Lordships at paragraph-7 have observed in the

following manner:

“7. In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted

the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in

the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197

of CrPC, in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in

discharge of his official duty, the previous sanction is necessary.â€​

With due regard to the aforesaid decisions, it is very clear that Section 197 Cr.P.C. would be applicable if the act complained of is reasonably

connected with the official duty performed by the public servant. So, there should be reasonable nexus apart from any excess derived from the

performance of duty is to be protected under Section 197 Cr.P.C. Of course, the official duty discharged by the public servant is one of the grounds of

Section 197 Cr.P.C. but the other grounds should be that a public servant is only to be removed by the sanction of the Government. If these two

principles are fulfilled, any order of taking cognizance of the offence by the learned Magistrate against the police officer without any sanction order of

the State or Central Government is illegal.

Now adverting to the facts of the present case, it is clear from the complaint, initial statement of the complainant and the statement of the

witnesses recorded under section 202 Cr.P.C. that the petitioners while discharging their duties to stop the mob, the alleged occurrence took place. So,

there is reasonable nexus between the act complained of and the official duty discharged by the petitioners. The notification dated 24th December

1981 shows that the protection under Section 197 Cr.P.C. would be available to all cadres of police officers, if any act complained of while

discharging duty. Since the occurrence took place during discharge of duty, the petitioners being police officers are to be protected under the said

notification.

In view of the aforesaid analysis, it appears that the learned Magistrate on 3.7.2007 has passed order of taking cognizance and relevant portion of

the same is placed below for better reference:

“3.7.2007...... There is prima facie evidence against the accused that they have abused the complainant in obscene words in front of block office

which is a public place. Thus, prima facie evidence under Sections 341/342/323/ 294/506/34, IPC is made out against the accused person viz. (1) Priya

Ranjan Satpathy, S.I. of police, Pipli P.S. (2) Brahmananda Swain, Asst. Sub-Inspector of police, Pipli P.S. Cognizance of the offences under sections

341/342/294/323/506/34 IPC is taken against the accused persons, namely (1) Priya Ranjan Satpathy, S.I. of Police, Pipli P.S. (2) Brahmananda

Swain, Asst. Sub-Inspector of Police, Pipli P.S. Issue summons to the accused persons fixing 19.7.2007 for their appearance. The complainant is

directed to take steps by 7.7.2007.

Sd/-A. Mishra,

J.M.F.C.â€​

The aforesaid impugned order does not disclose that after obtaining the sanction order for prosecution, learned Magistrate has taken cognizance of the

offences and issued process against the present petitioners. Since the mandatory provision of Section 197, Cr.P.C. has not been complied, the

impugned order dated 3.7.2007 of taking cognizance of the offences and issuance of process suffers from illegality and impropriety. As there is abuse

of process of Court, exercising the inherent jurisdiction, the same is hereby quashed under Section 482, Cr.P.C The CRLMC is disposed of

accordingly. The LCR received be sent back immediately.