A public servant cannot be prosecuted for an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty without the previous sanction of the appropriate authority.

ORDER

These two cases were heard analogously with Crl. Revision No. 714 of 1972 and Crl. Misc. Case No. 227 of 1972 as they arise out of the same facts. The petitioner in these cases is the Sub-Divisional Officer of Deogarh who was arrayed as accused No. 21 in the complaint petition filed by the complainant Balaram Sahu (O.P. No. 1) in complaint Case No. 1CC-12/72. Facts have been narrated in detail in Crl. Revision No. 714 of 1972, judgment in which has been pronounced today, and need not be repeated. The following allegations were made against the petitioner by the complainant in the complaint petition. They may be extracted.

"Para. 28. That under the direction of accused No. 4 the police force armed with guns and lathis commenced marching from southern bank of Gohiri river. Accused Nos. 1, 2, 3, 4 and 21 went with them. It is subsequently learnt that the S.D.O. Deogarh (accused No. 21) remained in the Panchayat Bhaban and directed the boatman not to allow any person to and from Gogua village without his orders.

x x x x

Para 38. That accused No. 21 is the local S.D.O. and Magistrate 1st Class but he did not take any action to prevent the atrocity of the police.

Para 33. x x x x Accused No. 2 was present but omitted to prevent the same being Magistrate 1st Class.

Para 37. That at about 12 noon, the complainant and other person arrested in connection with G.R. Case No. 107 of 1972 were taken in a police van in custody of accused No. 10 and the force under his command. They were kept in the van on the road in front of S.D.O.'s (accused No. 21) residence and were not produced before him. As such they had no opportunity to complain of police illtreatment. The advocate of the complt, protested about the non-production submitted for instructions from complt and others but he was refused to do so as that was his residential quarters. The Advocate filed a written application but the S.D.O. forwarded the same to the Jail Supdt. and asked the advocate to meet the complt. and others in jail.

Para 40. That complt. and others through advocate petitioned to the S.D.O. complaining ill-treatment by the police and for their medical examination but for reasons best known to him, he rejected the said prayer and thereby caused disappearance of evidence of assault.

Para 45. That the complt. could not file the complaint earlier as he was under arrest and after release he went to Bhubaneswar to move the Government for judicial enquiry."

It would thus be seen from the aforesaid allegations that no positive allegation has been made against the S.D.O. that he was a party to any atrocity or assault committed on the complainant and his co-accused. All that was narrated against him was about his inaction to take action. The only positive allegation is that the accused persons were not produced before the S.D.O. at his residence but they were kept in the police van outside his compound and without putting any question to them the S.D.O. recorded that no ill-treatment by the police was complained. It is to be noticed that in paragraph 37 of the complaint petition it is a admitted that they did not make any complaint of ill-treatment by the police though an explanation was given that they had no opportunity to complain as they were kept in the van outside the compound.

Out of the several allegations made in the complaint petition, only one is referred to in the statement on oath in paragraph 23 wherein it was stated :-

"The S.D.O. passed some orders on the outer verandah. The police van carrying me and others did not enter into the premises of the S.D.O.'s residence." The other grievances were not referred to in the statement on oath. On a perusal of the complaint petition and the complainant's statement on oath I am satisfied that the only grievance that was made against the S.D.O. was that he passed certain orders on his outer verandah and the police van was not taken inside his compound.

There is no dispute that the police van was not taken i