Public servants cannot be prosecuted for acts done in official capacity without prior sanction under Section 197 Cr.P.C., and cognizance taken in such instances is void.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant petition under Section 482 Cr.P.C. is filed by the petitioner assailing the order of cognizance dated 8^th October, 2005 (Annexure-2) passed in I.C.C. Case No.39 of 2011 by the learned J.M.F.C., Bhuban on the ground that the same is illegal, perverse and without any sanction being obtained in terms of Section 197 Cr.P.C. and therefore, it is liable to be interfered with and set aside.

2. As per the petitioner, the learned court below took cognizance of offences under Sections 294 /325/326/342 and 506 IPC under Annexure-2 in a mechanical manner without application of judicial mind to the facts and circumstances of the case. It is claimed by the petitioner that the materials on record have not been duly examined by the learned court below, which passed the order of cognizance in a whimsical manner simply considering the statement of the complainant which reveals that the latter had been to the P.S. while the former was the IIC posted therein and was discharging his duty in official capacity and therefore, for the alleged incident sanction under Section 197 Cr.P.C. was necessary and therefore, the impugned order under Annexure-2 is, therefore, liable to be quashed in the interest of justice.

3. A copy of the complaint filed by OP No.2 is at Annexure-1 describing therein the alleged occurrence dated 14^th October, 2011 at about 10 am inside the PS. The circumstances under which the incident happened have been elaborately stated in Annexure-1. The alleged occurrence at the PS appears to have been preceded by an incident dated 12th October, 2011 during which one Jayguru Patra was said to have locked the premises of a local Math which was protested by OP No.2 and other members of said Math. In fact, according to OP No.2, he was called to the PS on 14^th October, 2011 in connection with the above incident and thereafter, said to have been dragged into the PS Hazat and assaulted by the petitioner by means of a bamboo lathi. The manner in which the mischief was committed by the petitioner at the PS stands narrated in Annexure-1 alleging that the petitioner did not have any authority to treat him in the above manner. After the said incident, OP No.2 stated to have lodged the complaint before the learned court below which, thereafter, passed the order of cognizance under Annexure-2.

4. Heard Mr. P. Panigrahi, learned counsel for the petitioner and Mr. Sk. Zafrulla, learned ASC for OP No.1. The appearance of OP No.2 could not be ensured despite the Court’s order dated 29^th November, 2013. However, since the matter is pending from 2013 with an interim order dated 15^th April, 2014 in M.C. No.1358 of 2013, it was decided by the Court to dispose of the same in presence of learned ASC.

5. Admittedly, a complaint was filed, whereupon, the learned court below took cognizance of the alleged offences vide Annexure-2 fixing the appearance of the petitioner on 20^th November, 2012. As it seems, NBW was issued against the petitioner in the aforesaid complaint case, whereafter, the interim order of protection in M.C. No.1358 of 2013 was passed by this Court staying its execution which was extended from time to time till 31^st August, 2016. The learned court below, as it appears from Annexure-2, recorded the initial statement of OP No.2 and conducted enquiry as per Section 202 Cr.P.C. and then, considering the materials on record proceeded to take cognizance of th