JUDGMENT

A. K. PARICHHA, J. — By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the legality of the order of cognizance dated 18.8.1998 passed by the learned S.D.J.M., Bhubaneswar in ICC No. 149 of 1998 on the ground that the said order of cognizance suffers from want of sanction under Section 197 of the Code of Criminal Procedure and impinges upon the right and liberty of the petitioners guaranteed by the Constitution of India.

2. According to the petitioners one Sangram Keshari Mohan¬ty lodged a report before the Balianta Police Station on 28.3.1998 against Manmohan Mohanty alleging that the said Manmohan Mohanty abused him in obscene language, assaulted him with lathi and threatened to kill him. Basing on such report F.I.R. No. 43 of 1998 was registered in Balianta Police Station and in connec¬tion with the investigation of the said case, Manmohan Mohanty was arrested on 30.3.1998 and released on bail. After being released, Manmohan Mohanty filed a complaint case bearing ICC Case No. 149 of 1998 before the Court of learned S.D.J.M., Bhuba¬neswar on 6.4.1998 alleging that on 28.3.1998 the petitioners forcibly dragged him to Balakati Police Out-post, assaulted him with kicks and fist blows and then illegally confined him in Balianta Police Station till 30.3.1998. The petitioners allege that the learned S.D.J.M. without making proper enquiry and without considering the fact that the petitioners are protected under Section 197(1), Cr.P.C. took cognizance of the offences under Sections 342/384/34, IPC and issued process. According to the petitioners, they filed several applications under Section 482 Cr.P.C. before this Court for quashing the order of cogni¬zance alleging want of proper sanction, but this Court, instead of deciding the issue of necessity of sanction before taking cognizance, left the matter to the lower Court, as a result of which they are now being harassed by issuance of N.B.W. and proc¬ess under Sections 82 and 83 of Cr.P.C. by the trial Court. It is claimed by the petitioners that the acts alleged in the complaint petition are intricately connected with their official duties and so sanction under Section 197(1), Cr.P.C. is mandatory before passing the order of cognizance, for want of which the impugned order of cognizance needs to be quashed.

3. Dr. Tripathy, learned counsel for the petitioners, submits that the petitioners arrested and detained the complain¬ant Manmohan Mohanty in due discharge of their official duties as public officers an so, the necessity of sanction contemplated under Section 197, Cr.P.C. should have been considered before passing the order of cognizance. According to him when the act is done or purported to have been done by a public servant in due discharge of his duties, the matter of sanction becomes a condi¬tion precedent to the taking of cognizance and it cannot be de¬ferred to a later stage of the case. He submits that since this issue was not answered by this Court in any of the Criminal Misc. Cases earlier filed by the petitioners under Section 482, Cr.P.C. the same needs to be answered in the present writ petition.

4. Mr. G. K. Mohanty, learned Addl. Government Advocate and Mr. Biswajit Nayak, learned counsel for the intervenors, on the other hand, submit that the issue of sanction under Section 197, Cr.P.C. was raised by the petitioners before this Court in Crl. Misc. Case No. 16585 of 1999, 3699 of 2002, 5790 of 2002, 343 of 2001 and Misc. Case No. 66 of 2003 and this Court having already decided the said matter the same issue cannot be re-agi¬tated in the present writ petition. They also submit that the question of necessity of sanction under Section 197 (1), Cr.P.C. can be considered by the trial Court at any stage of the case and so the order of cognizance is not to be quashed simply because the matter of sanction was not decided at the threshold. Case laws were cited by the learned counsel for the parties in support