Sanction under Section 197, CrPC is required for the prosecution of a police sub-inspector in the State of Orissa, as per the notification issued by the Home Department of the State of Orissa.

JUDGMENT :

K.C. Jagadeb Roy, J. - This criminal revision has bean filed against 8 accused persons, but the same was dismissed against opp. parties 1 to 4, 6 and 7 by order No. 10 of this Court dated 178 1990. The other two accused persons . against whom the present petitioner persues this criminal revision are opp. parties 5 and 8. Opp. party No. 6 is a Police Sub-Inspector of Sahidnagar P. S. whereas opp, party No. 8 is a process server of Civil Court, Bhubaneswar. The S.D.J.M. refused to take cognizance against those 2 persons on the ground that no sanction u/s 197, Cr PC had been obtained since both of them are public servants and what was alleged against them was in discharge of their duties as such public servants; Besides, the Court was also not satisfied on the inquiry conducted u/s 202, Cr PC against them as it failed to arrive at prima facie satisfaction that the alleged offence had been committed by the said two opposite parties, namely, the present opp. parties 5 and 8.

2. The allegation made against these opposite parties is that all the accused persons including opp. parties 5 and 8 had assaulted the complainant after demolishing the wall of his house and committed dacoity in his house in respect of paddy bags, gold ornaments etc, It was not disputed that opp. parties 5 and 8 who are the S. I. of police and the process server of the Civil Court, Bhubneswar had been to the spot on the very day for giving delivery of possession of a house in connection with Execution Case No. 21 of 1980. The allegation in the complaint petition against these two opposite parties is that as per the direction of the process server and the S. I. of police, the rest of the accused persons demolished the walls of the house of the complainant, entered inside the house, assaulted him and removed some articles from his house and when the complainant protested, the process server caught hold of his hair and directed the S. I. of police to arrest him. On the materials available in the inquiry u/s 202, Cr PC, the Court came to the satisfaction that none of the witnesses examined by the complainant uttered a single word against the accused persons in support of these allegations. The Court did not find any prima facie case u/s 395 I.P.C. against opp. parties 5 and 8 and all that the prosecution witnesses consistently deposed is that all the accused persons including opp. parties 5 and 3 were only found in the court-yard of the complaint, the Court came to find that it is no doubt true that they were present in the premises of the complainant, but for executing the decree in an execution case. According to the Court, the allegation of pulling the hair by the process server was not supported by any evidence adduced by the prosecution witnesses excepting PWs 4 and 5. The Court did not give much emphasis on the statements of PWs 4 and 5 as the said statement of pulling hair was not stated by the complainant when he was produced before the Court in a counter case namely G. R. Case No. 2274 of 1988 which was initiated against the complainant on the allegation that he obstructed the process server and threatened him white he was discharging his official duty.

3. In the present revision petition; the learned counsel for the petitioner states that the trial Court was in error in not taking cognizance on the ground that sanction as required under Sec. 197 has not been obtained as the said section requires that sanction is necessary before prosecuting a public servant when such public servant is not removable from his office save by or with the sanction of the Government and since the S. I. of police and the process server are not such public servants as they are removable from service by the other authorities, the requirement of Section 197 was not attracted in this case.

4. Section 197(1) Cr PC reads as follows :

"197. Prosecution of Judges and Public Servants (1) when any person who is or was a Judge or Magistrate or a public servant, not removable from his