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2018 Supreme(Ori) 134
IN THE HIGH COURT OF ORISSA : CUTTACK
D.P. CHOUDHURY, J.
Saswat Mishra & another – Appellants
Versus
Dayanidhi Sharma & another - Opposite Parties
CRLMC NO.2151 OF 2005
Decided on : 28-03-2018
Advocate Appeared:
For the Appellant : M/s. D. Nayak, M. Mohanty, R.K. Pradhan, S.K. Das & U.R. Jena, Adv.
For the Respondent: M/s. Chinmaya Mohanty, S. Rath & B.R. Mohanty, Mr. B.K. Senapati, Adv.
Headnote:1. LOTTERIES (REGULATION) ACT, 1998 - Sec. 7 - Prize Chits and Money Circulation Scheme (Banning) Act, 1978 - Secs. 4 and 5 - Cognizance under - Quashing of - Present petitioners have organized the lottery after obtaining necessary permission of the State Government to promote the welfare scheme of the local people - Act complained of has got close nexus with the discharge of duty - They are removable by the order of the sanction of the State Government - Ingredients of Sec. 197, Cr.P.C. are well fulfilled to protect the petitioners who are public servant - When the Statute is clear to show that obtaining of sanction of the State Governmnet is a pre-condition to take cognizance of the offence, any observation that the question of sanction can be cosidered after taking cognizance of the offence is absolutely beyond the purview of the jurisdiction of the Magistrate - In the present case except the statement of the complainant in the complaint no witnesses were examined by the complainant to corroborate him - No document has also been exhibited by the complainant in his initial statement to lend support to his testimony - Unless the certified copy of the order of the learned Lokpal is made exhibited, the Court cannot take cognizance of the said document - No material before the learned Magistrate to find out a prima facie case to make out an offence under the Sections - Held, learned Magistrate without appliction of judicial mind has taken cognizance of the offence and as such taking of cognizance of offence and issuance of process being abuse of process of the Court, they are quashed u/s.482, Cr.P.C. (Paras - 16 to 24)
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 197 - No cognizance can be taken agaist a public servant of the act complained of is performed during discharge of duty and he or she is removable from service by the sanction of the Government - Previous sanction under the Section is the pre-codition for taking cognizance of offence against a public servant of the offence purportedly to have committed in due performance of official duty.
With due regard to the aforesaid decision, it appears that no Court can take cognizance of any offence issuing process to the public servant without sanction of the State Government or the Central Government, as the case may be, if the act complained of has got nexus with the discharge of public duty. Even if it is excess of any public servant while discharging public duty, Section 197, Cr.P.C. will protect him. Not only the act complained of has got nature of duty discharged but also such public servant is only removable from office save by or with the sanction of the State Government or Central Government as the case may be. (Paras - 10 and 15)
JUDGMENT :
DR. D.P. CHOUDHURY, J.
Challenge has been made to the order of taking cognizance dated 27.6.2005 for the commission of offence under Section 7 of the Lotteries (Regulation) Act 1998 and Sections 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 and issuance of process against the petitioners by the learned Sub-Divisional Judicial Magistrate, Bhawanipatna in I.C.C. Case No.8 of 2005.
2. Mr. D. Nayak, learned Senior Advocate for the petitioners submitted that in the year 1994, the Commissioner-cum-Secretary to Government, Sports, Culture & Youth Services Department vide D.O. No.8742/SC dated 1.9.1994 requested all the Collectors of different districts including the then Collector, Kalahandi district to form District Council of Culture, in the district and register its Society under the Societies Registration Act, 1860 for promotion of culture and providing for a coordinating agency at the District level. It is also directed in that letter that the District Council of Culture would function under the leadership of the Collector of the respective districts under sub-rule (2) of Rule 7 of the District Council of Culture Rules, 1994.
3. Mr. Nayak, learned counsel for the petitioners submitted that in accordance with the said direction of the State Government since 1997 Kalahandi Ustav was being celebrated in the month of January of every year. The petitioner No.1 being the Collector, Kalahandi in the year 2002 and petitioner No.2 being the Culture Officer, in the district of Kalahandi, in pursuance of the aforesaid letter of the Government and as per bye-law of the District Council of Culture took decision to observe Kalahandi Ustav for the year 2002. In order to celebrate Kalahandi Ustav in the month of November 2002, a lottery Uthan Ustav was observed as per decision taken in the District Cultural Council Committee. Since it is a part of the Kalahandi Ustav, the entire account was audited by the Government Auditor and found no irregularity. Due to effort of the petitioners the balance was increased to Rs.5,22,339/-but opposite party No.1 made allegation falsely against the petitioners stating that such activities of petitioners were offensive and he made complaint to Lokpal, Chief Secretary and other authorities. At the same time he also filed complaint before the learned Sub-Divisional Judicial Magistrate, Bhawanipatna on 21.3.2005.
4. Mr. Nayak, learned Senior Advocate for the petitioners further submitted that the learned S.D.J.M. without complying the statutory provisions under Section 197 of the Cr.P.C. and without appreciating the initial statement of the complainant and complaint petition took cognizance of the offence mechanically under Section 7 of the Lotteries (Regulation) Act 1998 (hereinafter called “the Act 1998”) and Sections 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 (hereinafter called “the Act, 1978”). He further submitted that the learned S.D.J.M. without application of judicial mind has taken cognizance of such offence and issued process to the petitioners.
5. Mr. Nayak, learned counsel for the petitioners contended that the entire act as alleged in this case is connected with the discharge of duties duly performed by the petitioners who are the Collector and Cultural Officer of the district at that time. Since the act complained of has got nexus with the due discharge of duties, they are protected under Section 197 of Cr.P.C. He relied on the decisions reported in (2012) 53 OCR (SC) 924; Om Prakash & Ors. v. State of Jharkhand Through the Secretary, Department of Home, Ranchi-1 & Anr., AIR 2000 SC 3187;Abdul Wahab Ansari v. State of Bihar and Another and AIR 2004 SC 2179; State of Orissa and others v. Ganesh Chandra Jew.
6. Mr. Nayak, learned counsel for the petitioners further submitted that while passing the impugned order, the learned Magistrate was quite aware that sanction under Section 197 Cr.P.C. is necessary but observed in the order that i
