Niranjan Nayak Vs Sasanka Sekhar Biswal

B.R. Sarangi, J.@mdashThe petitioner, who was working as Block Development Officer, Pattamundai, in this application u/s 482, Cr.P.C. assails the order dated 22.7.2002 passed by the learned J.M.F.C., Pattamundai in ICC Case No. 59 of 2002 taking cognizance of the offence under Sections 294, 323, 506, IPC against him. Opposite party, being the complainant, lodged a complaint on 16.7.2002 alleging that on 10.7.2002 at 11 A.M. he went to the office of the petitioner requesting the latter to issue work order in his favour for execution of the road work of his village under EAS (FDR) scheme pursuant to the recommendation made by the Palli Sabha and the petitioner demanded a sum of Rs. 2,000/- from the complainant for issue of such work order. On his protest, it is alleged that the petitioner scolded him and coming out of the chair, pushed him and drove him out of the room.

2. On the basis of the complaint lodged, two of the co-villagers have been examined, who have made parrot-like statements in support of the complainant and on consideration of the same, by order dated 22.7.2002 learned J.M.F.C., Pattamundai took cognizance of the offence under Sections 294, 323, 506, IPC against the petitioner in ICC Case No. 59 of 2002.

3. Mr. Kar, learned counsel appearing for the petitioner states that the learned Magistrate should not have taken cognizance of the offence on the basis of the complaint lodged by the opposite party on the ground that sanction as required u/s 197, Cr.P.C. has not been obtained prior to taking of cognizance. The complaint made against him is absolutely false and frivolous inasmuch as the offence so alleged, if taken into consideration in its totality, would indicate that in course of due discharge of his official function the complainant questioned, why he did not issue the work order. The complainant and two others, who are his co-villagers, obstructed him from discharging his official business and shouted when he was in his work.

4. On the above mentioned facts, now it is to be considered as to whether the act so alleged was committed in due discharge of his official function, and whether sanction u/s 197, Cr.P.C. is required or not.

5. The apex Court in the case of Sankaran Moitra Vs. Sadhna Das and Another, has held that prosecution hit by provision u/s 197 Cr.P.C. cannot be launched without the contemplated sanction. It is a condition precedent though the question as to applicability of Section 197 Cr.P.C. may arise not necessarily at the inception but even at a subsequent stage.

6. Referring to the case of P. Arulswami Vs. The State of Madras, , this Court in Biswanath Hota and Others Vs. State of Orissa and Another, has held that Section 197 Cr.P.C. has been implanted in the Code of Criminal procedure to protect the responsible public servants against the institution of vexatious criminal proceeding for offences alleged to have been committed by them, while they are acting or purporting to act as public servants. The Legislature has implanted the same in the statute to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without any reasonable cause. But the protection has certain limits and is available only when the alleged act done by the public servant appears to have a reasonable connection with the discharge of the official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, a public servant acted in excess of his duty, but there is a reasonable connection between the act complained of and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of protection available to him u/s 197 Cr.P.C.

7. A Division Bench of this Court relying upon various earlier judgments of the apex Court as well as this Court in Sri Debasis Panigrahi Vs. State of Orissa and Others, has held that the Magistrate may not take cognizance where he finds the allegations are absurd and inherently improbable or it requires prior sanction of the competent authority.

8. This Court in Tapash Kumar Rath Vs. Harekrushna Pradhan, has held that before protection u/s 197 Cr.P.C. is claimed, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official capacity. If on facts it is prima facie found that the act or omission for which the accused was charged has reasonable connection with discharge of his duty then it must be held to be official, to which applicability of Section 197 Cr.P.C. cannot be disputed. What a Court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the need and requirements of situation.

9. In Anjani Kumar Vs. State of Bihar and Another, the apex Court has held that once it is established that the act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. It is further observed that if it is prima facie found that the act or omission for which the accused was charged has a reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of Cr.P.C. cannot be disputed. Relying upon the said judgment this Court in Sankarsana Behera Vs. State of Orissa, has quashed the order of cognizance passed against the petitioner in the said case.

10. The apex Court in Chittaranjan Das Vs. State of Orissa, has held that sanction is a device provided by law to safeguard public servants from vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled for prosecution but not intended to shield the guilt.

11. Now question comes what is the duty of the Magistrate in a complaint case. The said question has been considered in Tapas Kumar Rath (supra) taking into account Sections 200, 202, 203 and 204 Cr.P.C. read with Rule 21 of the General Rules and circular Orders of the High Court of Judicature, Orissa (Criminal), Volume-1, wherein this Court has held as follows:

Rule 21 of the General Rules and circular Orders of the High Court of Judicature, Orissa (Criminal), Volume-1 prescribes that examination of the complainant u/s 200 of the Cr.P.C. should be a thorough and intelligent enquiry into the subject matter of a complaint to enable the Magistrate to find out whether the complainant is really aggrieved, or whether it would amount to abuse of the process of the Court and harassment to the accused. In course of inquiry u/s 202 of the Cr.P.C. the Magistrate may, if he thinks fit, take evidence of witness on oath. Proviso to Sub-section 2 of Section 202 of the Cr.P.C. provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and to examine them on oath. Before issuance of process, the Magistrate taking cognizance of an offence has to arrive at the opinion that there is sufficient ground for proceeding against the accused which means that the Magistrate has to be satisfied regarding existence of prima facie case before issuing process. For that purpose, the Magistrate is required to examine the complaint petition, initial statement of the complainant and the statements of the witnesses examined on oath. The Magistrate is required to judicially consider the desirability to terminate the proceeding u/s 203 of the Cr.P.C. or to proceed against all or some of the accused persons u/s 204 of the Cr.P.C. upon reference to materials on record.

12. In view of the above mentioned provisions of law governing the field and taking into consideration the factual aspects alleged in the complaint petition, it is the admitted case that the petitioner was discharging his duties of Block Development Officer, Pattamundai on the date of occurrence, i.e. on 10.7.2002. The complainant has also stated that while the petitioner was discharging his duties, he entered into his official room and asked for issuance of work order in his favour pursuant to the recommendation made by the Palli Sabha in presence of two of his co-villagers. But he alleged that the petitioner demanded a sum of Rs. 2000/- for issuance of such work order, as a result he protested and the petitioner scolded him, thereby there was altercation of words, which has culminated in filing of the complaint petition against the petitioner. On perusal of the complaint petition as well as the statement given by the witnesses, which are parrot-like, on which basis cognizance has been taken by the Magistrate, it would appear that the act alleged was committed while the petitioner was in due discharge of his official function. Before cognizance was taken, sanction as required u/s 197, Cr.P.C. has not been taken. Therefore, cognizance so taken by the learned Magistrate without prior sanction u/s 197, Cr.P.C. in the complaint case has to be quashed.

13. It is urged that the complainant has filed complaint to wreak vengeance against the petitioner even though he was not present in the office on the date of alleged occurrence. In course of hearing, it has been brought to the notice of the Court that on the date of occurrence, i.e. on 10.7.2002, the petitioner was not present in the office, rather he was present on the very same day at 10 A.M. in the District Crime meeting held at Kendrapara to which he was a signatory and whose name finds place at Sl. No. 31 in Annexure-1 to his affidavit filed in Court on 2.8.2013 and Therefore, it is proved that the complainant has filed false and frivolous allegations against the petitioner. In view of the aforesaid facts and circumstances, the complaint so filed by the complainant-opposite party being frivolous one, the initiation of the proceeding in ICC No. 59 of 2002, cannot be sustainable. Apart from the same, assuming that the petitioner was present on the date of occurrence, the proceeding also cannot be initiated against him as the act alleged is in due discharge of his official function, is protected u/s 197, Cr.P.C. and no sanction has been obtained prior to taking cognizance by the learned J.M.F.C., Pattamundai. Therefore, on both the counts, the proceeding in ICC No. 190 of 2002 is hereby quashed. CRLMC is allowed.