JUDGMENT :

Dr. D.P. Choudhury, J.

This is an application under Section 482, Cr.P.C. to quash the order of taking cognizance dated 5.10.2005 passed by the learned S.D.J.M., Cuttack in ICC Case No. 736 of 2005.

FACTS

2. The adumbrated facts leading to the case of prosecution is that on 22/23.06.2005 at about 12.15 A.M., the complainant found a police jeep being parked outside gate of her house wherein petitioner no.1 was sitting in the driver’s seat and all other petitioners were standing close to the outer main gate of the complainant. Then the complainant asked for their visit to her house, but the petitioner no.1 instructed the other petitioners to make forcible entry into the house. The petitioner no.1 did not listen to her. Hearing her cry, her son Prafulla asked as to why she was crying. Before Prafulla came to know the reason, petitioner nos.2, 3 and 4 assaulted Prafulla and dragged him to the jeep after abusing him in filthy language. Petitioner nos.2 and 3 also assaulted Prafulla with fist blows and slaps. Then petitioner no.1 declared that he is under arrest. On being asked about the reason of arrest and giving some time to contact his lawyer, the petitioners forcibly carried Prafulla to the police station in the jeep. Petitioner No.1 abused him in filthy language saying “MAGIHA SALA AMAKU OKILA DEKHOUCHU-AME KETE OKILA KETA LAW DEKHICHU-ETC.

3. In the police station, they allowed Prafulla to sit in the verandah of the police station and petitioner no.1 only said that he is arrested due to issuance of non-bailable warrant of arrest. It is further alleged inter alia that the petitioner no.1 also demanded bribe of Rs.2,000/-for registering F.I.R. lodged by Prafulla for the theft of his motorcycle on 02.04.2005. The complainant had only paid Rs.500/-, but did not pay the rest amount as demanded by petitioner no.1.

4. It is the further allegation in the complaint that petitioner no.1 demanded Rs.1500/-from the complainant for immediate release of her son Prafulla. After detaining Prafulla for two hours, petitioner no.1 asked the other petitioners to put him inside Hazat till the complainant agreed to pay the demanded amount. Finding no other way, the complainant paid Rs.500/-to petitioner no.1 only to get her son saved. Then petitioner no.1 asked the complainant to give the rest money on the next day morning. On the next day, witnesses came and raised voice against such illegal action of the petitioners, after which the complainant’s son was allowed to leave the police station. Hence, the fact was brought to the notice of the Superintendent of Police, Cuttack and Director General of Police. As no action was taken by the senior police officials, the complaint has been filed.

5. Learned S.D.J.M., Cuttack took initial statement of the complainant and recorded the statements of the witnesses. After finding a prima facie case under Sections 294,323,384/34, IPC, learned Magistrate took cognizance of the said offences and issued process against the present petitioners.

SUBMISSIONS

6. Mr. J.Patnaik, learned Sr.Counsel appearing for the petitioners submitted that petitioner no.1 was the Inspector-in-charge of Lalbag Police Station and the other petitioners were the police officers attached to the said police station. According to him, warrant of arrest was issued against Prafulla Kumar Singh, the son of the complainant in U.I. Case No. 1961 of 1998 by learned Judicial Magistrate, Second Class, Cuttack for the commission of offence under Sections 192 and 196 of the M.V. Act and the petitioners had gone to execute the warrant issued against said Prafulla. He further submitted that the entire allegations of the complainant about use of obscene language and demanding money are all fabricated and false. Since the petitioners had gone to execute the warrant of arrest in official capacity, they are to be protected under Section 197, Cr.P.C. as the act complained of was within due discharge of official duty. In support of his submissions, he has re