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IN THE HIGH COURT OF ORISSA
G.B. Patnaik., J.
BISHNU PRASAD MOHAPATRA - APPELLANT
Versus
RAMESH SAHU - RESPONDENT
Criminal Misc. Case No. 375 of 1982
Decided On : 27-04-1985
CRIMINAL PROCEDURE CODE - SECTION 197 - SANCTION FOR PROSECUTION OF PUBLIC SERVANT - ACTING OR PURPORTING TO ACT IN DISCHARGE OF OFFICIAL DUTY - INTERPRETATION - SCOPE AND APPLICABILITY - COGNISANCE OF OFFENCE WITHOUT SANCTION - VALIDITY.
Fact of the Case:
The petitioner, a Deputy Superintendent of Police, was accused of committing offenses while acting in his official capacity. The Magistrate took cognizance of the offenses without obtaining sanction from the State Government, as required under Section 197 of the Code of Criminal Procedure (CrPC). The petitioner challenged the cognizance on the grounds that sanction was necessary and that the Magistrate erred in relying on an enquiry report submitted by another Judicial Magistrate.
Finding of the Court:
The Court held that the acts complained against the petitioner were committed in the course of his official duty as a Deputy Superintendent of Police, who was engaged in maintenance of law and order. The Court further held that the Magistrate erred in taking cognizance of the offenses without obtaining sanction from the State Government, and that the order taking cognizance on the basis of an enquiry report submitted by another Judicial Magistrate was also bad in law.
Issues: 1. Whether the acts complained against the petitioner were committed in the course of his official duty, attracting the provisions of Section 197 of the CrPC. 2. Whether the Magistrate erred in taking cognizance of the offenses without obtaining sanction from the State Government. 3. Whether the Magistrate erred in relying on an enquiry report submitted by another Judicial Magistrate.
Ratio Decidendi: 1. The Court held that the acts complained against the petitioner, such as not allowing the complainants to talk to the Officer-in-charge and arresting them, were committed in the course of his official duty as a Deputy Superintendent of Police. The Court relied on the principle that if there is a coherent nexus between the act complained of as an offense and the duty of the public servant, sanction becomes necessary even if such act is in excess of his exact duty. 2. The Court held that the Magistrate erred in taking cognizance of the offenses without obtaining sanction from the State Government, as required under Section 197 of the CrPC. The Court held that the acts complained against the petitioner were committed in the course of his official duty, and therefore, sanction was necessary. 3. The Court held that the Magistrate erred in relying on an enquiry report submitted by another Judicial Magistrate, as this was not permissible under the law.
Final Decision: The Court allowed both the criminal miscellaneous cases and set aside the orders taking cognizance in both cases.
JUDGMENT :
G.B. Patnaik, J. - In both these applications, the accused is common and identical question of law is involved though the complainants are different persons. Since identical question of law is involved in both these applications, they were heard together and are being disposed of by this common judgment.
2. The petitioner was at the relevant time a Deputy Superintendent of Police posted at Bolangir and in that capacity served at Bolangir from 3-11-1978 till 15-5-1981. In these two applications he has invoked the inherent jurisdiction of this Court to quash the cognisance taken against him in two complaint cases, namely ICC. No. 109 of 1980 and ICC. No. 108 of 1980 and also to quash both the criminal proceedings, mainly on the ground that section 197 of the Code of Criminal Procedure (hereinafter referred to as the "Code") prohibits taking of such cognisance without sanction of the State Government and also on the ground that the Magistrate committed error in relying on the report of another Judicial Magistrate in an enquiry under section 202 of the Code.
3. While the petitioner was continuing as the Deputy Superintendent of Police at Bolangir, there were some public agitations in the town in September, 1980, and as the Deputy Superintendent of Police, the petitioner was taking active part in maintenance of law and order in the town. The two complainants are the leading persons of the town and station diary entries of the police station reveal that they were fomenting the public agitation. Large number of station diary entries appear to have been made against the two complainants along with others to the effect that they were taking active part in instigating the agitation as well as taking initiative for release of persons those who were being arrested in connection with the said agitation. The station diary entry No. 440 recorded at 11.30 a.m. dated 12-11-1980 indicates that on coming to know that some persons would be released on bail, the complainants were instigating one Mohan Gopal Panda to arrange a procession so that they would break the prohibitory order which had been issued under section 144 of the Code and would terrorise the business people against whom the agitation was mainly intended. The petitioner as Deputy Superintendent of Police along with one Magistrate Sri S.B. Kar was moving from place to place to prevent lawlessness on the day. The subsequent entries in the station diary made at 5.30 p.m. and 6.30 p.m. also indicate that on account of prohibitory order having been violated, some persons have been arrested and police had also arrested some people under section 151 of the Code and further those entries indicate that both the complainants were involved in the incident that happened on that day.
4. Complainant Ramesh Sahu (opposite party in Criminal Misc. Case No. 375 of 1982) filed the complaint on 14-11-1980 alleging commission of offence by the petitioner on 12-11-1980 between 5 p.m. and 10.30 p.m. at the Sadar Police Station, Bolangir, under sections 342, 500 and 506 of the Indian Penal Code, which was registered as ICC Case No. 109 of 1980. This complainant was an advocate of the local Bar.
Complainant Prafulla Kumar Mohanty (opposite party in Criminal Misc. Case No. 39 of 1984) also filed the complaint on 14-11-1980 alleging commission of offence by the petitioner on the very day, i.e. on 12-11-1980 at 5 p.m. at Sadar Police Station, Bolangir, under sections 342 and 500, Indian Penal Code, which was registered as ICC Case No. 108 of 1980.
After getting the initial statement of the complainant recorded, the Magistrate directed an enquiry to be conducted under section 202 of the Code and on 23-10-1981, in both the complaint cases, the Sub-Divisional Judicial Magistrate directed that the enquiry under section 202 of the Code should be conducted by a Judicial Magistrate, First Class. Thereafter on receiving the report of enquiry from the Judicial Magistrate, First Class, the Chief Judicial Magistrate
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