Shri Harekrushna Satapathy and Another vs Shri Maheswar Sahu and Another

G.B. Patnaik, J.—The two Petitioners who are admittedly public servants and have been arrayed as accused persons in ICC Case No. 75 of 1983 pending in the Court of the Judicial Magistrate First Class, Nimapara, have invoked the jurisdiction of this Court u/s 482 of the Code of Criminal Procedure against the order of cognizance passed by the learned Magistrate on the basis of the complaint filed by opposite party No. 1. Earlier, they had moved the learned Sessions Judge in revision and the said revision having been dismissed, they have approached this Court.

Petitioner No. 1 was the Tahsildar, Kakatpur, at the relevant point of time and Petitioner No. 2 was the Sub-Inspector of Police and Officer-in-charge of Kakatpur Police Station. The complainant filed the complaint petition alleging therein that he had applied for a certified copy of the order of the Additional Tahsildar at Kakatpur Tahsil Office since the same was required to be produced before a consolidation authority. On the date of occurrence, he went to the office and was sitting on the verandah At that point of time, Petitioner No. 1 came and challenged as to why he had come to the office premises before the office hours and directed the complainant to vacate the premises, When the complainant said that he would not leave unless he obtained the certified copy applied for Petitioner No. 1 threatened him to leave forthwith or else he would face the consequences. When the complainant asserted that this was a public premises being a public office and he had the right to receive the certified copy of the order applied for, Petitioner No. 1 became furious and immediately gave a push to the complainant as a result of which the complainant fell down from the verandah. When he again tried to go to the verandah, Petitioner No. 2 who was passing by that road on being called by Petitioner No. 1 came to the spot and gave a blow on the left fore-arm of the complainant by means of a baten which he was holding as a result of which the complainant got his bone fractured and there was severe pain. Thereupon, as directed by Petitioner No. 2. another accused took the complainant to Kakatpur Police Station and made him sit till 11.00 A.M. The complainant than went to Kakatpur Hospital where the doctor stitched the raptured skin and gave first-aid and referred him to Bhubaneswar Hospital for x-ray and necessary treatment. The complainant then went to Bhubaneswar Hospital and got himself admitted. The x-ray report revealed a fracture and the complainant had to remain as an indoor patient till 10.6.1983. He left Bhubaneswar only on 28.6.1983 under the advice of the doctor and thereafter filed the petition of complaint.

On receipt of the aforesaid complaint petition, the learned Magistrate recorded the initial statement of the complainant on 18.7.1983, but instead of summoning the accused persons directed to hold an inquiry u/s 202 of the Code of Criminal Procedure. In the said inquiry, the complainant examined one witness on his behalf and also produced the medical certificate and the x-ray plate on 29. 8. 1983 and the matter was adjourned to 6.9.1983. On 6.9.1983, the learned Magistrate on being satisfied on the materials as record that a prima facie case has been made out against the accused persons under Sections 323/342/325, Indian Penal Code, took cognisance u/s 323, Indian Penal Code, against Petitioner No. 1, the Tahsildar and u/s 325 and 342, Indian Penal Code against Petitioner No. 2, the officer in-charge, but did not take cognisance as against the other accused and issued summons to the accused persons. While taking cognisance, the Magistrate also considered the question of applicability of Section 197 of the Code of Criminal Procedure and came to the conclusion that on the allegations made in the ''complaint petition, Section 197 could not be attracted. This order of the Magistrate was challenged by the Petitioners before the learned Sessions Judge who disposed of the same by order dated 11.2.1986 by coming to the conclusion that the Petitioners were not entitled to the protection of Section 197, Code of Criminal Procedure, and hence the present revision.

Mr. Pasayat, the learned Counsel for the Petitioners, raises sole contention in this application that admittedly the Petitioners being public servants and the complainant having been found to be present inside the public premises the Petitioners had right to ask him to go out of place and in course of such an incident, even if it is believed that Petitioner No. 1 gave a push, that may be in excess of his official duty but must be held to be in discharge of official duty and, therefore, in such a case no cognisance could be taken without the sanction of the concerned authority. So far as the allegation against Petitioner No 2 is concerned, Mr. Pasayat contends that since Petitioner No. 2 was the Sub-Inspector of Police and was in charge of maintaining law and order, he was duty bound to go to the office on being called by Petitioner No. 1 and, therefore, his giving a blow on the complainant even if believed, would be for maintenance of law and order, in as much as the complainant was insisting on staying in the office premises even though Petitioner No. 1 had been requesting to vacate the same. In that view of the allegations made out against Petitioner No. 2 also would be in discharge of the official duty of Petitioner No. 2 ana thereby requiring sanction of the sanctioning authority u/s 197 of the Code of Criminal Procedure. Accordingly, the learned Magistrate as well as the learned Sessions Judge erred in law in coming to the conclusion that Section 197 of the Code was not attracted to the facts and circumstances of the present case.

The short question which requires consideration is as to whether in the facts and circumstances of the present case, it can be said that the Petitioners being Government servants are accused of any offence alleged to have been committed by them while acting or purporting to act in discharge of their official duty so that the Court shall not take cognisance of such offence except with the previous sanction. There is no dispute that there has been no previous sanction within the meaning of Section 197 of the Code of Criminal Procedure.

The right to prosecute any person by whom one may have been injured, when such injury gives rise to an offence, is a common right and can be taken away only by express provisions in a statute. Section 197 of the Code of Criminal Procedure is one such exception to the general rule embodied in Section 190 of the Code empowering a Magistrate to take cognisance if prima facie the Magistrate is satisfied that the offence has been committed. The said Section 197 provides a special protection to certain public servants when charge of having committed the offence while acting or purporting to act in the discharge of their official duties. The protection that is available to such Government servant is that a Court can take cognisance only after the appropriate Government accords sanction, This is a safe guard against vexatious prosecution and a prosecution can be initiated and cognisance can be taken only after securing a well-considered opinion of a superior authority, but the two pri-conditions which must be satisfied to attract Section 197 are that the accused must be a public servant not removable from his office save by or with the sanction of the State Government and the offence must be committed by him while acting or purporting to act in the discharge of his official duty. Unless both these conditions are satisfied. Section 197 of the Code cannot be attracted Admittedly, the first requirement is satisfied in the present case, in as much as Petitioner No. 1 is stated to be a public servant not removable from office save by or with the sanction of the State Government and Petitioner No. 2 because of the notification issued by the State Government. But the question is whether the acts complained of by the complainant can be said to be in discharge of the official duty of the two accused persons.

Mr. Pasayat relying upon the decisions of this Court in Prahallad Dora v. Kishore Chandra Das 59 (1985) C.L.T. 546 and in Prana Kurshna Swain v. Raghunath Singh and Ors. 1987 (2) O.L.R. 457, contends that the acts complained against both these Petitioners must be held to be in discharge of their official duty even though there may have been some excess and, therefore, Section 197 of the Code of Criminal Procedure would apply Whether sanction is required depends upon the facts of such case and has to be decided on the basis of allegations made in the complaint petition. The Supreme Court has laid down the test in several cases and to find out if the acts complained of are inseparably connected with the duties attached to the office, then the provision of Section 197 would apply in other words there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that he could lay a reasonable but not a pretended or fanciful claim that he did it in course of performance of his duty, Therefore, what has to be found out is whether the act and the official duty were so inter-related that once could postulate reasonably that it was done by the accused in the performance of official duty though possibly in excess of the needs and requirements of the situation. See, Prabhakar V. Sinari Vs. Shanker Anant Verlekar, and Shreekantiah Ramayya Munipalli Vs. The State of Bombay, . It was held by the Supreme Court in the case of B. Saha and Others Vs. M.S. Kochar, that the sine qua non for the applicability of Section 197 was that the offence charged be it one of commission, omission must be one committed by the public servant either in his official duty or under colour of his office held by him. It is the quality of the act that is important and if it falls within the range and scope of his official duty protection u/s 197 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. It is true that Section 197 should never be construed too narrowly as in that case it can never be applied, but at the same time as assault by a public servant on a person can never be a part of an official duty of an officer nor can it be said to be in discharge of the official duty. Examining the allegations made in the complaint petition from the aforesaid standpoint, I am clearly of the opinion that the acts complained of cannot be said to be in discharge of the official duty of the Petitioners and in that view of the matter, Section 197, Code of Criminal Procedure has no application, Consequently, the order of congnizance cannot be said to be bad for want of sanction.

In the result there is no merit in this application which is accordingly dismissed.