Sarat Chandra Patra vs Ananta Kumar Behera

L. Mohapatra, J.—This application u/s 482, Code of Criminal Procedure has been filed against the order dated 23.8.1997 passed by the learned J.M.F.C., Soro in I.C.C. No. 52 of 1997 taking cognizance of offences committed under Sections 323/379 of the Penal Code.

The case of the complainant-opposite party is that on 19.4.1997 at about 40'' clock he was called to Simulia police Station where the accused�Petitioner was working as the Officer-in-charge. When the complainant went to the police station he was asked to sit on the verandah and subsequently it is alleged that the accused-Petitioner asked him to depose before him and before the Court that the F.I.R. lodged by the wife of the complainant, co-villager Ajay Sial with regard to house burning is not correct and wife of Ajay Sial had herself set fire to the house. Since the complainant did not agree to depose in the manner the accused-Petitioner wanted, he was abused in foul language and assaulted by means of kicks, fist blows as well as by use of stick. In view of such assault, the complainant sustained injuries. At that point of time though the'' witnesses named in the complaint were present, they did not oppose being afraid of the accused-Petitioner. It is further alleged that the wearing apiaries of the complainant were taken away along with Rs. 100/- kept in the shirt pocket and he was detained in the police station. On the next day it is alleged that the accused-Petitioner again persuaded him to make false statement before him and before the Court and also threatened that unless the complainant did not do so, false case would be initiated against him. It is also alleged in the complaint that since 19.4.97 the complainant had been detained in the police station and ultimately on 23rd April, 1997 he was shown to have been arrested in connection with Simulia P.S. Case No. 27 of 1997 (G.R. 85/97) and was forwarded to the Court. The complainant complained before the learned Magistrate about the ill treatment received by him during his stay in the police station and accordingly under orders of the learned Magistrate, he was examined by the, doctor and was sent to jail custody. After coming back from the jail custody and after recovery from the injury, the complaint was filed.

The learned Magistrate on consideration of the allegations made in the complaint as well as in the initial statement of the complainant was satisfied that prima facie materials were available for taking cognizance of offences under Sections 323 and 379 of the Penal Code and accordingly took cognizance of the said offences.

The Learned Counsel appearing for the Petitioner challenged the order solely on the ground of absence of sanction. According to the Learned Counsel for the Petitioner the entire alleged overt act even if accepted tobe correct which took place inside the police station is in discharge of official duty. There is No. dispute that the complainant was arrested in connection with G.R. Case No. 85 of 1997 and, therefore, any kind of overt act alleged by the complainant can come under the purview of official duty, and therefore, sanction u/s 197 of the Code of Criminal Procedure was necessary. None appeared for the opposite party in spite of notice.

The question as to whether sanction u/s 197 of the Code of Criminal Procedure is required in a given case or not will depend on the nature of allegation made therein. Section 197, Code of Criminal Procedure prescribes that 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 of the competent authority. Therefore, each case has to be judged on the facts placed before the Court and the Court is required to see whether on the basis of such allegation it can be said that the public officer did the act alleged in discharge of official duty or not. This Court in the case of Kartikeswar Nayak v. Satyabadi Mallik reported in (1994) 7 O.C.R. 326 while dealing with Section 197, Code of Criminal Procedure has observed that in order to attract Section 197, the Act complained of must have been committed in the course of discharge of official duty. Even if any excess is committed in discharge of duty, that excess would relate to official duty in the sense that it was professed to be so and it was meant to convey to the mind of another that he was acting under the authority of his office. Same interpretation has also been given to Section 197 by this Court in another case i.e. in Arun Kumar Sarangi v. Madan Pattanaik and Ors. reported in (2001) 20 O.C.R. 164. The Apex Court also in the case of Abdul Wahab Ansari v. State of Bihar and Anr. reported in (2001) 20 O.C.R. (SC) 1 has also observed that some acts alleged found to be in excess of the official duty can also be covered by Section 197, Code of Criminal Procedure So far as the present case is concerned, now it is to be seen whether the act alleged to have been committed by the accused-Petitioner was in the course of discharge of official duty at all. It is specifically complained in the complaint that on 19th April, 1997 the complainant was called to the police station by the accused-Petitioner and he was persuaded to make false statement before the accused-Petitioner as well as the Court and when the complainant refused to do so, he was abused, assaulted, kept in the lock-up for four days and was also threatened. Ultimately he was arrested in connection with another case and was forwarded to Court. When the complainant complained before the learned Magistrate about the ill treatment received by him in the police station, he was sent for medical examination and injuries were found on his person. Taking all these aspects into consideration, the learned Magistrate found that the act alleged is not in discharge of official duty and, therefore, sanction u/s 197 was not required and accordingly took cognizance of the offence. From the allegations made in the complaint as well as the initial statement of the complainant, it is clear that the complainant was called to the police station on 19th April, 1997 and was persuaded by the accused-Petitioner to make false statements not only before him but also before the Court. Can this act alleged against the Petitioner be said to be in discharge of official duty?

Obviously, the answer is No. A police officer is not supposed to persuade the witnesses to make false statement during investigation or in Court and under No. stretch of imagination the said persuasion can be said to be in discharge of official duty. Therefore, all subsequent acts alleged against the Petitioner for not obliging him cannot be in discharge of official duty. I am unable to agree with the Learned Counsel for the Petitioner since the act alleged took place within the police station it has to be in discharge of official duty. It is not necessary that each and every action taken by the police officials inside the police station can be said to be in discharge of official duty. Since I find that the act alleged against the Petitioner cannot be said to be in discharge of official duty, the question of sanction does not arise and, therefore, the learned Magistrate was justified in holding so and taking cognizance of the offences.

I accordingly do not find any merit in the petition and the same is dismissed.