ORISSA HIGH COURT : CUTTACK CRLMC NO. 822 OF 2009 In the matter of an application under section 482 of the Code of Criminal Procedure, 1973. ------------- Sri Kailash Chandra Sethy …… Petitioner -Versus- State of Orissa and another …… Opp. Parties For Petitioner : M/s. S.Pradhan, S.C.Panda, P.K. Mishra & N.K.Behera. For Opp. Parties : Addl. Standing Counsel (For O.P. No.1) M/s. S.K.Mishra, K.R.Mohanty & J.Pradhan. (For O.P.No.2) ----------------------- Decided on 14 .10. 2009. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ------------------------------------------------------------------------------------------ M.M. Das, J. The petitioner in this application under section 482 Cr.P.C. has challenged the order taking cognizance of offence under sections 341/394/506 IPC passed by the learned S.D.J.M., Khurda in I.C.C. No. 12 of 2008. 2. The petitioner’s case is that he is working on probation as a Sub-Inspector of Police in Jankia Police Station in the district of Khurda. On the direction of the O.I.C. of the said Police Station, he was discharging his duties along with two other constables, namely, S.K. Patnaik (C/295) and K.Ch. Behera (C/598) and one Home Guard, namely, Susant Kumar Sundaray (512) for checking motor vehicles on 10.2.2008 at 9.00 P.M. at Chhangiri Chhak, which is at a distance of one K.M. from the Police Station. One Ranjit Kumar Mangaraj @ Bapi along with two other persons came in a Hero Honda Motor-cycle from Rameshar Chhak side and the said two constables finding the riders of the said motor-cycle coming in a high speed without putting helmet, tried to stop them. On stopping, the motor-cycle, to a query, the said Ranjit Kumar Mangaraj started abusing the constables in filthy language. The petitioner, thereafter, intervened and tried to subside the matter. But the said Ranjit Kumar Mangaraj slapped the petitioner and started scolding him in presence of passersby and thereafter, escaped from the spot giving threat to the petitioner. Immediately thereafter, the petitioner lodged an F.I.R., which was registered as Jankia P.S. Case No. 13 of 2008 for the offence under sections 341/294/332/506 IPC read with section 3 of the S.C. and S.T. (P.A.) Act against the said Ranjit Kumar Mangaraj @ Bapi – opp. party no.2. 3. Charge sheet has been filed pursuant to the said F.I.R. and the case is pending before the learned S.D.J.M., Khurda. 2 4. The opp. party no. 2 instituted a complaint case bearing I.C.C. Case No. 12 of 2008 before the learned S.D.J.M., Khurda on 21.2.2008 against the petitioner making allegation of commission of offence under sections 341/323/294/506 IPC. The learned S.D.J.M., Khurda, before whom the complaint petition was filed, dismissed the same by his order dated 26.7.2008 after making an enquiry under section 202 Cr.P.C. holding that as no sanction has been obtained for prosecuting the petitioner under section 197 Cr.P.C. the complaint case cannot be maintained. The opp. party no. 2 preferred a revision, being Criminal Revision No. 12 of 2008 before the learned Addl. Sessions Judge, Khurda against the said order dated 26.7.2008 passed by the learned S.D.J.M. The learned Addl. Sessions Judge disposed of the revision directing the leaned S.D.J.M. to take cognizance of the offence in accordance with law and issue processes to the petitioner and to proceed with the trial. Pursuant to the order passed by the learned Additional Sessions Judge, the learned S.D.J.M., Khurda has passed the impugned order dated6.2.2009 taking cognizance of the offences against the petitioner. The impugned order reads as follows:- “6.2.2009. Perused the order of the learned A.D.J., Khurda in Crl. Revn. No. 12 of 2008 on 28.1.09. Learned A.D.J. by virtue of above order had set aside the order of this court dismissing the complaint petition u/s. 203 Cr.P.C. and learned A.D.J. directed this court to take cognizance of the offences in accordance with law 3 and issue process to the accused police officer, K.C. Sethi against whom the complaint petition was filed and to proceed with the trial. In view of the above order of learned A.D.J., I again perused the complaint petition and initial statement of the complainant and the statement of the witnesses recorded u/s.202 Cr.P.C. and on perusal of the same offence u/ss.294 /341/506 IPC. made out against the accused named in the complaint petition . Hence, cognizance for the above offence is taken. The complainant is directed to take steps to file necessary requisites for issuing summons to the accused fixing 6.4.2009 for his appearance”. It, therefore, transpires that it was pursuant to the decision of the learned Additional sessions Judge, Khurda in which he directed the learned S.D.J.M. to take cognizance, the said court has taken cognizance of the offence and has passed the impugned order. 5. Mr. S. Pradhan, learned counsel for the petitioner vehemently urged that law is well settled that without obtaining a sanction as contemplated under section 197 Cr.P.C. a prosecution cannot lay and obtaining of such sanction is a condition precedent. 6. Mr. S.K. Mishra, learned counsel for the opp. party no. 2 submitted that it is only when the accused proves that the alleged act was done reasonably and not with pretended course of his official duty, then only, the question of sanction arises and in such a case, the question of obtaining sanction should be left open to be decided after conclusion of the trial. 4 7. Mr. Pradhan, learned counsel for the petitioner relied upon the decision in the case of Sankaran Moitra v. Sadhna Das and another, (2006) 4 SCC 584 and submitted that the prosecution hit by the provision under section 197 Cr.P.C. cannot be launched without the contemplated sanction and it is a condition precedent though the question as to applicability of sanction under section 197 may arise, not necessarily at the inception but even at a subsequent stage. The Supreme Court in the facts of the said case which is almost similar to the facts of the present case held that postponing a decision on the applicability or otherwise of section 197 (1) Cr.P.C. can only lead to the proceedings being dragged on in the trial court and the decision of the Supreme Court, then and there, would be more appropriate in the circumstances of the case especially when the accused involved are police personnel and the nature of the complaint made is kept in mind. 8. In the Constitution Bench decision in the case of Matajog Dobey v. H.C. Bharl, AIR 1956 SC 44, the Supreme Court laid down that in the matter of grant of sanction under section 197 Cr.P.C., the offence alleged to have been committed by the accused most have something to do and must be related in some manner, with the discharge of official duty. In other words, there must be a reasonable connection between the act and the 5 discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. The Supreme Court further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorizes the performance of whatever may be necessary for executing its command. 9. Coming to the facts of the present case, it would be seen that the occurrence as alleged in the F.I.R., which was lodged by the petitioner on 10.2.2008 took place on the said date at about 9.00 P.M. The complaint petition which was filed on 21.2.2008 copy of which has been annexed to the petition also shows that the occurrence took place on 10.2.2008 at about 9.00 P.M. As the said occurrence was investigated by the police on the F.I.R. lodged by the petitioner and a charge sheet has already been filed, where the opp. party no. 2 is an accused, the allegations made in the F.I.R. prima facie shows that the 6 occurrence took place when the petitioner was discharging his official duty. 10. In view of such facts, the contentions raised by the opp. party no. 2 that the nature of occurrence alleged in the complaint petition cannot be said to have any connection with discharge of official duty by the petitioner is not acceptable. Hence, applying the ratio of the aforesaid decisions of the Supreme Court, it is clear that the prosecution cannot be sustained due to want of sanction under section 197 Cr.P.C. from the competent authority. It further appears that the revisional court, i.e., learned Additional Sessions Judge, Khurda has committed an error of law in directing the learned S.D.J.M. to take cognizance of the offence. It would be profitable to note here that in the case of Matajog Dobey (Supra), the Supreme Court laid down that public servants have to be protected from harassment in the discharge of the official duties while ordinary citizens not so engaged do not require this safeguard. While dealing with the contention that section 197 Cr.P.C. vested an absolutely arbitrary power in the Government to grant or withhold sanction at their sweet will and pleasure and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion, the Supreme Court held that there is no question of 7 any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. Thus held, it laid down that no one can take such proceedings without such sanction (emphasis supplied). 11. This Court, therefore, while setting aside the impugned order dated 6.2.2009 taking cognizance of the offence passed by the learned S.D.J.M., Khurda in I.C.C. Case No. 12 of 2008 and directing dismissal of the complaint petition also sets aside the order dated 28.1.2009 passed in Criminal Revision No. 12 of 2008 by the learned Additional Sessions Judge, Khurda. The CRLMC is accordingly allowed. ……………………… M.M. Das, J. Orissa High Court, Cuttack. October 14th , 2009/Biswal. 8 9 10 11