2009 Supreme(Ori) 233

2009 (II) OLR — 504
B.P. DAS AND S.C. PARIJA, JJ.
Sri Debasis Panigrahi...Petitioner
Versus
State of Orissa and another...Opp. Parties
Sri Satyajit Mohanty...Petitioner
Versus
State of Orissa and another...Opp. Parties
CRLMC Nos. 629 and 850 of 2007
Decided on 29th July, 2009.

Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 482 - Cognizance for commission of offences under Sec. 323 read with Section 107/108 of IPC and Section 29 of the Police Act - Quashing of - Discussing the facts, contention and the provisions of law laid down in cited cases held, wild and baseless allegation made in the complaint which are absurd, inherently improbable and entirely unbelievable and even otherwise, as such allegations do not prima facie constitute any offence or make out a case against the petitioners - Continuance of such a proceeding would be an abuse of the process of Court - Cognizance quashed.

       It is not known as to how the learned Magistrate came to a prima facie finding that he complainant had sustained injuries, which was due to the inaction and lapses on the part of the present petitioners, when there is absolutely no medical evidence in proof of any such injury. Moreover, there is no material to even suggest that any unidentified criminals had ever entered the house of the complainant during continuance of round-the-clock police protection provided by personnels of O.S.A.P. It is rather strange that when the allegations in the complaint is with regard to alleged wilful lapses and dereliction of duty by the security personnels posted at the house of the complainant, who were parties in the complaint, they have not been held liable for such alleged offence and no cognizance has been taken and process has been issued against them. All these goes to show that the learned Magistrate has acted in a most casual and mechanical manner and has failed to apply his judicial mind to the very nature and extent of the allegations made in the complaint and exercise caution and circumspection is examining the genuineness of the same, before taking cognizance and issuing process against the present petitioners. (Para - 32)

       2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 482 - Inherent power - Exercise of - When a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence - The section does not confer any new powers on the High Court - It only saves the inherent power which the Court possessed before the enactment of the Code - It envisages three circumstances under which the inherent jurisdiction may be exercised namely :

       (i)to give effect to an order under the Code;

       (ii)to prevent abuse of the process of Court; and

       (iii)to otherwise secure the ends of justice.

       It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties im¬posed upon them by law. That is the doctrine which finds expres¬sion in the section which merely recognizes and preserves inher¬ent powers of the High Courts. All courts, whether civil or crimi¬nal possess, in the absence of the any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliauid alicui concedit,concedre videtur et id sine guo res ipsae esse non pot¬est” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administra¬tion of which along courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of the process of Court, to allow any action which would result in injustice and prevent promotion of justice and in exercise of such powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report or the complaint, the court may examine the question of fact. When a report or complaint is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto. (Para - 21)

       3. CRIMINAL PROCEDURE CODE, 1973 - Sec. 197 - It is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants - Protection of this section is available if the act falls within the scope and range of his official duty - Detail stated.

       The policy of the legisla¬ture is 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 reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connec¬tion between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, 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 duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protec¬tion of this section is available if the act falls within the scope and range of his official duty. (Para - 34)