Protection under Section 197 CrPC is available to public servants only for acts committed in the course of their official duty or purporting to act in the discharge of their official duty.

R. K. PATRA, J.

( 1 ) THE petitioner is the complainant. He filed complaint vide I. C. C. No. 20 of 1993 in the court of the Judicial Magistrate First Class, Rampur against opposite parties on the allegation that they committed offences punishable under Sections 342/323/294/506/34 IPC, Opposite party No. 1 was the Officer-in-charge of Rampur Police Station at the relevant time. The learned Magistrate after perusing the complaint, the initial statement of the petitioner and the statements of witnesses recorded in the enquiry under Section 202 Cr. P. C. held that the facts and circumstances of the case did not show that there was any connection of assault or use of abusive words at the petitioner by the opposite party no. 1 while the latter was discharging official duty. He was of the opinion that no action under Section 197 Cr. P. C. was necessary. Having found a prima facie case he took cognisance of offences under Sections 323/506/34 IPC and directed issue of summons to the opposite parties. This order was passed on 9-2-1994. The opposite party no. 1 challenged it before the learned Sessions Judge. By the impugned order, the learned Sessions Judge held that opposite party no. 1 is entitled to the protection under Section 197 Cr. P. C. and in absence of sanction, taking cognizance is illegal and consequently he quashed the cognizance taken against him. In this revision the petitioner has assailed the validity of this order.

( 2 ) SHRI Misra, learned counsel for the petitioner, contended that it was no part of the official duty of opposite patty no. 1 to assault or to use abusive words against the petitioner and, as such, no sanction is required for his prosecution. In this context, he placed reliance on the decisions of this Court in (1987) 64 CLT 659 : (1988 Cri LJ 1038), (1989) 67 CLT 451, 1990 (I) OLR 432, 1991 (I) OLR 195 and (1991) 72 CLT 215. In Abani Charan Biswas v. State of Orissa, (1987) 64 CLT 659 : (1988 Cri LJ 1038) a Division Bench of this Court had the occasion to consider the applicability of Section 197, Cr. P. C. In that case a police officer detained the complainants in the police hazat and abused them in filthy language calling them 'sala, CHOR, BADMAS' stating that they had forcibly sowed paddy in the disputed field. The Court after making a survey of decisions cited before it observed that whether the offence was committed in the course of official duty or not would depend upon the facts of each case and the test may well be as to whether the public servant can reasonably claim or challenge that he did so by virtue of his office but he cannot claim blanket privilege for all the acts uncalled for over doings while discharging any public duty. Having regard to the fact that the complainants were abused when they had already been lodged in the police hazat, the Court observed that there was no apparent justification for the police officer to abuse the complainants. Accordingly, it held that no protection is available to the public servant under Section 197, Cr. P. C. In , a single Judge of this Court has held that in that case no sanction was necessary for prosecution of a police officer for assaulting persons inside the police station inasmuch as the victims neither attempted to escape nor used any criminal force against police and there was no nexus of the alleged assault with their discharge of public duty. In Kailash Chandra Mahanta v. Ganeswar Amaate, 1990 (I) OLR 432 : (1990 Cri LJ NOC 87 (Orissa), the validity of taking cognisance against the officer-in-charge of police station came up for consideration. This Court found that there was no material available before the Sessions Judge (who had set aside the order taking cognizance) to show that the alleged act was is purported exercises of the official duty of the accused and as that state had not come the Court set aside the order of the learned Sessions Judge and observed that it was open to the accused to place material on record in the later stage