Sarat alias Saroj Kumar Sahu and Others vs Alio Mallik

G.B. Patnaik, J.—The accused-Petitioners are the police officers. Petitioner No. 1 is a Sub-Inspector of Police; Petitioners No. 2 is an

Assistant Sub-Inspector of Police and Petitioner No. 3 is a Havildar. In this revision, they have prayed to quash the cognisance taken against them

by the learned Sub-Divisional Judicial Magistrate, Balliguda, in ICC Case No. 2 of 1984 on the ground that the offences alleged to have been

committed by them were in discharge of their official duty and, therefore, without necessary sanction u/s 197(1) of the Code of Criminal Procedure

(hereinafter referred to as the ''Code''), no Court has power to take cognisance.

The opposite party filed a complaint, against the Petitioners alleging that the Petitioners called the complainant to the revenue dak bungalow of

Kurtamgada on 9-12-1983 at 8 p. m. and there in the bungalow Petitioner No. 1 Sarat Kumar Sahu assaulted the complainant by lathi on his left

thigh. Thereafter, said Sarat Kumar Sahu directed the other accused persons to enter into the complainant''s house and remove all the properties

and accordingly Petitioners 2 and 3 proceeded to the complainant''s house. While proceeding, Petitioner No. 3 Arjuna Behera assaulted the

complainant. After entering into the house, Petitioner No. 2 assaulted the complainant and when the wife of the complainant obstructed the entry,

she was also assaulted by Petitioner No. 2. Thereafter, both the accused, namely, Petitioners 2 and 3 entered into the house of the complainant

forcibly and removed eighteen articles. The complainant was again brought to the dak bungalow, where Petitioner No. 1 again assaulted him in

consequence of which he became senseless. The complainant was in fact removed to Balliguda Hospital where he was treated. The brother of the

complainant reported the matter to the Director General of Police, Superintendent of Police, Collector and other high officials, but as nothing

happened, the complaint was lodged on 11-1-1984.

After recording the initial statement of the complainant on 23-1-1984, evidence of four witnesses was taken and then a report was called for

from the Superintendent of Police, Phulbani, u/s 210 of the Code. The report was received from the Superintendent of Police and ultimately by

order dated 6-3-1984, the learned Magistrate took cognisance of the offences under Sections 323/330/457/380/34, Indian Penal Code, and

directed issuance of summons to the accused. An application was thereafter filed on behalf of the accused - Petitioners challenging the order of

taking cognisance on the ground that there is no prior sanction as required u/s 197 of the Code. The learned Magistrate dismissed the application

of the accused-Petitioners by order dated 24-4-1984 by holding that no sanction is necessary as it cannot be said at this stage that there was a

reasonable connection between the ""act"" and the ""discharge of official duty"" by the accused persons and whether the ""act"" falls within the range of

official duty"" of the accused persons. It is this order of the learned Magistrate which is being impugned in this revision.

Mrs. A.K. Padhi, the learned Counsel appearing for the Petitioners, contends that the Petitioners were in fact investigating into a case of murder

which had been registered as G.R. Case No. 285 of 1983 and in course of the investigation found that the complainant had kept some gold on

pledge from the accused in that G. R. Case who had killed the boy and, therefore, they searched the house of the complainant on 9-12-1981 and

seized seventeen articles from the house which formed the subject-matter of allegation of theft in the complaint case. In this view of the matter there

cannot be any manner of doubt that the entry of the Petitioners into the complainant''s house and the recovery of articles from his house were in

discharge of their official duty and accordingly no Court has power to take cognisance without necessary sanction as required u/s 197 of the Code.

The learned Counsel for the opposite party-complainant, on the other hand, contend that even if the contention of the Petitioners is true, then the

sanction u/s 197 is necessary at the most for the offence u/s 380, Indian Penal Code, but not for any other offence, as the assault by the Petitioners

on the complainant and his wife would not be in the discharge of their official duty. Consequently, for those offences which have no nexus with the

alleged discharge of official duty, no sanction is necessary. Besides, the learned Counsel also contends that on the existing materials, it is not

possible to hold that the forcible taking away of articles from the complainant''s house is also in discharge of the official duty of the Petitioners.

At the outset it is necessary to note that though the Petitioners are not removable from their office by or with the sanction of the Government, yet

under Sub-section (3) of Section 197 of the Code, a notification has been issued by the State Government directing that the provisions of Sub-

section (2) of said section shall apply to the police officers enrolled under the Police Act and the officers appointed to the Orissa Special Armed

Police under the Orissa Special Armed Police Act, 1946 vide Notification No. 61160-PIC-I-47/81-P, dated 24-12-1981. There is no dispute

that the Petitioners come within the ambit of the said notification and, therefore, Sub-section (2) of Section 197 applies in their case. The law

relating to sanction has now been set at rest by several decisions of the Supreme Court and of this Court. As has been said by the Supreme Court

in the case of Bhagwan Prasad Srivastava v. N.P. Misra 1970 S.C.D. 581.

...While the law is well settled the difficulty, really arises in applying the law to the facts of any particular case. The intention behind the section is to

prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good

faith, for a person who obstansibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it

confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a

contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the

execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being

committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in

the execution of his duty. 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 need the act constituting the offence be so inseparably

connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an

act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant.

Expressions such as the capacity in which the act is performed, ''cloak of office'' and ''professed exercise of office may not always be appropriate

to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or purporting to be

done in execution of a duty.

I have recently dealt with the question in Bishnu Prasad Mohapatra v. Ramesh Sahu etc. 60 (1978) C.L.T. 164.

The only question therefore, for consideration is whether in the facts and circumstances of the present case, it can be said at this stage on the

existing materials that any of the offences alleged against the Petitioners can be said to have been committed by them while acting or purporting to

act in discharge of their official duty. Mrs. Padhi, the learned Counsel for the Petitioners, has annexed in this revision several documents in G.R.

Case No. 285 of 1983 and after going through those documents and the allegations in the complaint petition, there is no manner of doubt in illy

mind that the offence of theft in the dwelling house of the complainant as alleged in the complaint petition has a reasonable nexus with the discharge

of the official duty of the Petitioners in the matter of investigation in G. R. Case No. 285 of 1983 and, therefore, Section 197 of the Code is fully

applicable to that extent. Consequently; no Court can take cognisance of the said offence, as admittedly, there is no prior sanction of the

competent authority as required under Sub-section (2) of Section 197 of the Code.

So far as the offence of lurking house trespass as alleged in the complaint petition is concerned, the same is also in relation to the investigation by

the Petitioners in the G.R. Case and is accordingly directly connected with the same. In that view of the matter, for the offence u/s 457, Indian

Penal Code, as alleged in the complaint petition against the Petitioners, sanction of the competent authority u/s 197 of the Code is necessary and

there being no sanction, the cognisance taken by the learned Magistrate in respect of the said offence cannot be sustained.

So far as the allegations in the complaint petition constituting the offences under Sections 323 and 330, Indian Penal Code, are concerned, in my

opinion, it cannot be said that there was any reasonable nexus between the alleged discharge of the official duty of the Petitioners in the matter of

investigation into the G.R. Case and the acts complained of in the complaint petition. It can never be said that an assault by a police officer while

investigating into a criminal case would be a part of his official duty. In that view of the matter, for the offences under Sections 323 and 330, Indian

Penal Code, no sanction is necessary under law. Mrs. Padhi, the learned Counsel for the Petitioners, has contended that the alleged acts

constituting the offences under Sections 323 and 330, Indian Penal Code, are acts done by public servants directly in pursuance of their public

office and in discharge of their official duty though, may be, in excess of the said duty and, therefore, even for the same sanction is necessary. The

learned Counsel in this connection placed reliance on the decision of the Supreme Court in the case of Matajog Dobey Vs. H.C. Bhari, , and the

decision of this Court in the case of Prana Krushna Swain Vs. Raghunath Singh and Others, , I have carefully examined the said two decisions, but

in my opinion, a perusal of the complaint petition in the instant case shows that the assault by the police officers had been made at the dak

bungalow where admittedly the police officers were not discharging any official duty in relation to the investigation in the G.R. Case. In my opinion

the allegation of the complainant against the Petitioners tested by the ratio of Matajog Dobey Vs. H.C. Bhari, , show, prima facie, no inter-

relationship, and, therefore, in respect of those offences no protection u/s 197 of the Code can be afforded to the Petitioners.

The only other question which remains for consideration is whether the complaint case can proceed in respect of those offences for which no

sanction is necessary. The allegations constituting the offences under Sections 323 and 330, Indian Penal Code are distinct and different from the

allegations constitiuting the offences under Sections 380 and 457, Indian Penal Code. The ingredients of the offences are distinct. The quality of the

two offences is also different. Where upon the facts, commission of several offences is disclosed some of which require sanction and others do not,

it is open to the complainant to proceed in respect of those only which do not require sanction. See, Satish Chandra Chakravarti v. Ram Doyal

De, Basirul Huq v. State of West Bengal and Durgacharan Naik and Ors. v. State of Orissa. In this view of the matter, in my opinion, the

complaint case in respect of the offences under Sections 323 and 330, Indian Penal Code, can proceed as those two offences do not require any

sanction u/s 197 of the Code.

In the result, therefore, I would set aside the order of cognisance under Sections 380 and 457, Indian Penal Code; but hold that the complaint

case in respect of the other two offences can proceed. The criminal revision is accordingly partly allowed.