HIGH COURT OF ORISSA: CUTTACK. CRIMINAL REVISION NO.169 OF 2007 From the order dated 11.12.2006 passed by the learned S.D.J.M., Angul in C.T. Case No. 1200 of 2006. ------- Debaki Pradhan …… Petitioner - Versus- Prakash Chandra Pal …… Opp. Party For Petitioner : M/s. M.K.Mohanty, M.R.Pradhan, K.C.Tripathy, T.Pradhan and S.K. Panda For Opp. Party : M/s. R.K.Nayak, P.K. Moharaj, S.R.Mohanty, S.P.Dash and R.P.Ray. PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 20.05.2010 : Date of judgment – 2.7.2010 B.K. PATEL, J. The petitioner-complainant assails in this revision the legality of the order dated 11.12.2006 passed by the learned S.D.J.M., Angul in C.T. Case No. 1200 of 2006 refusing to take cognizance of offences alleged to have been committed by the opposite party-accused on the ground of want of sanction as envisaged under Section 197 of the Cr.P.C. 2. C.T. Case No. 1200 of 2006 was registered on the basis of complaint filed by the petitioner alleging commission of offences under Sections 294, 323, 354 and 506 of the I.P.C. by the opposite party, the then Officer-in-Charge of Chhendipada Police Station in the district of Angul. It was pleaded in the complaint that due to an earlier incident, case and counter case had been registered against her and another woman in Chhendipada Police Station. The petitioner and her husband had been arrested in connection with the case registered against her. They were released on bail on 6.6.2006. It was alleged that on 8.6.2006 when the petitioner was standing on the road in front of Chhendipada Police Station, the opposite party met her and asked as to whether the matter had been subsided or not. In turn, the petitioner asked opposite party as to why he arrested and forwarded her husband in the case as the earlier dispute was between two women. She also asked him as to why he did not explain them the cause of arrest of her husband. It was alleged that the opposite party became enraged and irritated. He scolded the petitioner loudly to the annoyance of the public using words like “AE SALI GHODAGEHI TU KIYE BE MOTE PACHARIBA PAAIN? MO ICHHA MU BANDHILI DEKHIBU KI TOTE PUNI BANDHI PATHEIBI? JAA JAA GHARAKU PALA”. It was further alleged that the opposite party gave a push on petitioner’s hand as a result of which she fell down. Opposite party left the spot threatening that if she joined issues with him, he would assault her to death by means of police baton. On presentation of the complaint petition, the learned S.D.J.M. recorded the statement of the petitioner under Section 200 of the Cr.P.C. and held enquiry under Section 202 Cr.P.C. in course of which statements of two witnesses, namely witness no. 1 Debraj Pradhan and 2 witness no. 2 Gajanan Naik, were recorded upon reference to which the impugned order was passed. 3. Learned counsel for the petitioner contended that averments made in the complaint petition, and the statements of complainant and her witnesses clearly make out commission of the alleged offences. The acts complained of against the accused were not in any manner connected with the official duties attached to the accused so as to indicate that the accused abused, assaulted and threatened the complainant and also outraged her modesty in discharge of his duties. Therefore, there was no basis for the learned Magistrate to insist upon sanction for prosecution against the accused. In support of his contentions learned counsel for the petitioner relied upon decisions of the Hon’ble Supreme Court in Choudhury Parveen Sultan v. State of West Bengal and another : AIR 2009 SC 1404 and this Court in Sri Nabaghana Patalasingh v. Smt. Bhanumati Padhiari : 2006 (I) OLR 330. 4. Learned counsel for the opposite party supported the impugned order contending that the act of taking cognizance is not a mechanical function. While taking cognizance the learned Magistrate is required to take into account the nature of allegations and circumstances under which the alleged acts are stated to have been committed by the opposite party as well as the status of the parties. It was vehemently contended that the petitioner herself admits to have 3 precipitated the situation in the present case by challenging the accused-official as to why he arrested her husband. Facts and circumstances of the case reveal that the complainant harboured bitter feelings against the accused-police officer who had arrested her and her husband, and forwarded them to court two days prior to the alleged date of occurrence. It is obvious that the complaint was filed against the opposite party on false allegations in order to harass him for discharging his duties in arresting the petitioner and her husband. Therefore, the learned S.D.J.M., Angul rightly held that opposite party was entitled to the mandatory protection under Section 197 of the Cr.P.C. Learned counsel for the opposite party relied upon decisions in Anjani Kumar v. State of Bihar and another: (2008) 40 OCR (SC)- 463, Shri Arun Chandra Tripathy v. State of Orissa : 2009 (I) OLR- 849 and Tapash Kumar Rath v. Harekrushna Pradhan : 2009 CRI. L. J.-2151. 5. It is well settled that protection under Section 197 of the Cr.P.C. has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of official duty and not merely a cloak for doing the objectionable act. Before protection under section 197 Cr.P.C. is claimed, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official capacity. If on facts it is prima facie found that 4 the act or omission for which the accused was charged has reasonable connection with discharge of his duty then it must be held to be official, to which applicability of section 197 Cr.P.C. cannot be disputed. What a Court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the need and requirements of situation. In this connection, decisions in P.K. Pradhan –v- State of Sikkim, 2001(21)OCR 640: Bakhshish Singh Barar –v- Gurmej Kaur, 1987(4) SCC 663 : Raj Kishore Roy –v- Kamaleswar Pandy, 2002(23) OCR (SC) 716 : State of Maharashra –v- Debahari Devasingh Pawer, 2008 (39) OCR (SC) 726 may be referred to. 6. It is also pertinent to refer to decision of this Court in Premjit Mohananda –vrs.- Mohanpani Karua and another, (1995) 8 OCR 594 in which complaint had been made against a police officer for alleged commission of offences under Sections 342/323/294/506/34 I.P.C. After referring to earlier decisions of this Court including the decisions in Lalit Mohan Panigrahi –vrs.- Mayadhar Samarath, 67 (1989) CLT 147, T.P. Reddy –vrs.- Devraj Panigrahi, 1991 (II) OLR 253 and Kartikeswar Nayak –vrs.- Satyabadi Mallik, (1994) 7 OCR 326, in which sanction for prosecution against accused-police officer was held to be necessary under Section 197 Cr.P.C., it was held : 5 “The principle under Section 197, Cr.P.C. is well established. The difficulty, however, lies in its application to the facts of a given case. Before the provision of Section 197, Cr.P.C. is invoked, two conditions must be first fulfilled: (i) the public servant is not removable from his office except by or with the sanction of the State Government or the Central Government, as the case may be, and (ii) he is accused of any offence alleged to have been committed by him. After these two pre-conditions are satisfied a further enquiry is necessary to be made as to whether the alleged offence was committed by the public servant while acting or purporting to act in the discharge of his official duty. It is in this connection that the expression “purporting to act in the discharge of official duty” assumes importance. This expression is neither to be too narrowly interpreted nor too widely. The narrow interpretation will make it altogether otiose inasmuch as it in no part of an official duty-never can it be-the official duty to commit an offence. It is not the ‘duty’ which requires scrutiny so much as the ‘act’ because the official act can be performed both in the discharge of official duty as well as in dereliction of it. If it is too widely construed, every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed would come within its sweep which should be avoided. In our constitutional set-up, no one whatever be his rank or position is above the law and every official, irrespective of his rank, is under the same liability for his act done without legal justification as any other citizen. As such, the right approach to the problem lies between the two extremes. A middle line which is adopted is that it is not every offence committed by a public servant in course of performance of his official duty, which is entitled to the protection of Section 197(2). What comes under the protective umbrella is an act constituting an offence, which directly or reasonably connects with his official duty. Protection of Section 197 does not extend to acts done purely in a private capacity by a public servant. In Hori Ram Singh v. Emperor, AIR 1939 PC 43 it was argued that one of the tests for applicability of Section 197, Cr.P.C. should be that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. Vardacharier, J. in his separate judgement accepted it to be the “correct view”. In P.Arulswami v. State of Madras, AIR 1967 SC 776, the Supreme Court observed as below : 6 “It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197, Cr.P.C. will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”” Upon reference to allegations made by the complainant, it was held: “The aforesaid allegations made in the complaint would show that opp.party No. 1 arrested and detained the petitioner in police hazat in connection with gambling case. Refusal of opp. party No. 1 to release the petitioner on bail cannot be said to be unconnected or not reasonably connected with his official duty. The request made by the petitioner to allow him to go on bail seemed to have been not appreciated by opp. party No. 1 for which he got annoyed and directed the Grama-rakhi to assault the petitioner. When the petitioner made further request not to assault him, opp.party No. 1 was alleged to have rushed towards the petitioner and assaulted him and rebuked him in filthy language. It has to be borne in mind that all these things, if they were all true, happened following the arrest of the petitioner in connection with the gambling case. Non-release of the petitioner on bail followed by assault and rebuke might be in excess of the performance of the official duty but they cannot be said to be totally unconnected with the official duty or cannot be held to be not in course of performance of official duty.” 7. In State of Orissa Through Kumar Raghvendra Singh and Ors. –vrs.- Ganesh Chandra Jew, 2004 (2) Crimes 404 (SC), relied upon by the learned counsel for the opposite party, it has been held that the protection is available only when alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing objectionable act. If in doing 7 his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. 8. In Choudhury Parveen Sultan v. State of West Bengal and another(supra), relied upon by the learned counsel for the petitioner also, reiterating the directions given in Bhagwan Prasad Srivastava v. N.P.Misra : AIR 1970 SC 166, it was pointed out by Hon’ble Supreme Court that the underlying object of Section 197 of the Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. It was also categorically held that in order to apply the bar of Section 197 of the Cr.P.C. each case has to be considered in its own fact- situation in order to arrive at a finding as to whether the protection of Section 197 of the Cr.P.C. could be given to the public servant. 9. In Sri Nabaghana Patalasingh v. Smt. Bhanumati Padhiari (supra) also this Court has pointed out that whether protection under Section 197 of the Cr.P.C. is available to the accused or not entirely depends on the facts of each case. 8 10. In Anjani Kumar v. State of Bihar and another (supra), it has been held that the protection under Section 197 of the Cr.P.C. is mandatory in character. 11. It is also pertinent to point out that examination of complainant under Section 200 of the Cr.P.C., enquiry under Section 202 of the Cr.P.C. and issuing of process under Section 204 of the Cr.P.C. are not empty formalities. Rule 21 of the General Rules and Circular Orders of the High Court of Judicature, Orissa (Criminal) Volume-I, prescribes that examination of the complainant under Section 200 of the Cr.P.C. should be a thorough and intelligent enquiry into the subject matter of a complaint to enable the Magistrate to find out whether the complainant is really aggrieved, or whether it would amount to abuse of the process of the Court and harassment to the accused. In course of inquiry under Section 202 of the Cr.P.C. the Magistrate may, if he thinks fit, take evidence of witness on oath. Proviso to Sub-section 2 of Section 202 of the Cr.P.C. provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and to examine them on oath. Before issuance of process, the Magistrate taking cognizance of an offence has to arrive at the opinion that there is sufficient ground for proceeding against the accused which means that the Magistrate has to be satisfied regarding existence of prima facie case before issuing process. 9 For that purpose, the Magistrate is required to examine the complaint petition, initial statement of the complainant and the statements of the witnesses examined on oath. The Magistrate is required to judicially consider the desirability to terminate the proceeding under Section 203 of the Cr.P.C. or to proceed against all or some of the accused persons under Section 204 of the Cr.P.C. upon reference to materials on record. Process ought to be issued when there is sufficient ground for proceeding against an accused. It is salutary to note that judicial process should not be an instrument of oppression or needless harassment. See Punjab National Bank and others –vrs- Surendra Prasad Sinha, AIR 1992 S.C.1815. 12. Considering the question of applicability of Section 197 of the Cr.P.C to the facts of the present case, it is observed that opposite party arrested the petitioner and her husband in connection with an earlier case only two days prior to the alleged date of occurrence. The petitioner admits that case and counter case had been registered against her and another woman. It is averred that occurrence took place when she was standing on the road in front of the police station when the opposite party met and asked her as to whether dispute between her and another woman had been settled or not. It appears that without responding to the query, the petitioner challenged the accused-police officer as to why he arrested her husband. On this, the petitioner is alleged to have uttered obscene words and pushed the 10 complainant. Though the petitioner reiterated the allegations in her statement recorded under Section 200 of the Cr.P.C., statements of her witnesses are not in conformity with the nature of allegations made by her. Witness no. 1 simply alleges that opposite party abused the petitioner in obscene language. He does not allege that the opposite party either pushed the petitioner or threatened her. Witness no. 2 also does not allege that the opposite party threatened to assault the petitioner by police baton. Such discrepancies in the statements assume significance in the background of arrest of the petitioner and her husband by the opposite party two days prior to the alleged occurrence, in order to rule out false implication of the accused with a view to harass him. Allegation made by the petitioner itself reveals that it was she who challenged the authority of the opposite party in arresting her husband instead of answering his query as to whether the differences had been sorted out in the earlier case. Such query certainly related to the official duties of the accused. There is substantial force in the contention made by learned counsel for the opposite party that the petitioner’s response to the query was provocative. Therefore, under the facts and circumstances of the case, the opposite party is entitled to the protective umbrella under Section 197 of the Cr.P.C. There appears no illegality in the impugned order refusing to take cognizance of offences as alleged by the petitioner against the opposite party so as to warrant interference by invoking 11 revisional jurisdiction. Therefore, the revision is dismissed. ……………………… B.K. Patel, J. Orissa High Court, Cuttack, Dated the 2nd July, 2010/Aks. 12