S.K. Sahoo JUDGMENT
S.K. Sahoo, J.
1. The petitioner Biswa Bhanu Patnaik in CRLMC No. 1695 of 2004 was Superintendent, Sub Jail, Champua and petitioners Rajesh Kumar Satpathy @ Rajesh and Kalandi Nayak in CRLMC No. 2755 of 2004 were the Warders, Sub Jail, Champua and they have filed applications under section 482 of the Criminal Procedure Code challenging the impugned order dated 12.03.2004 passed by the learned Sub-divisional Judicial Magistrate, Champua in I.C.C. Case No. 03 of 2004 in taking cognizance of offences under sections 294/326/34 of the Indian Penal Code and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter '1989 Act') and issuance of process against them.
2. Since both the CRLMC applications arise out of one case in which the common order is under challenge, with the consent of the respective parties, both the applications were heard analogously and disposed of by this common judgment.
3. A complaint petition was filed by the opp. Party Pagal @ Bugula @ Bibhuti Nayak on 19.01.2004 before the learned Sub-divisional Judicial Magistrate, Champua against the petitioners, on the basis of which the I.C.C. Case No. 03 of 2004 was registered. It is the case of the complainant-opposite party that the complainant was in custody in Sub Jail, Champua on 08.12.2003 and while the complainant was returning after taking his day meal, the Warders Rajesh Kumar Satpathy @ Rajesh and Kalandi Nayak obstructed the complainant and abused him in filthy language and when the complainant asked for the reason of such abuse, both the Warders assaulted him and intimated the facts to the petitioner Biswa Bhanu Patnaik who directed the Warders to apply third degree method on the complainant in such a manner that one of his limb would be inactive and accordingly, the Warders with the knowledge and consent of the Superintendent mercilessly assaulted the complainant for which the complainant sustained severe bleeding injuries on his body portion and on his right hand. The petitioners also abused the complainant in the name of his caste. The complainant was medically checked up and the doctor of Champua Sub-divisional Hospital plastered his right hand. It is further alleged that the petitioners tried to patch up the matter and did not allow anybody to meet the complainant and when the complainant's counsel came to know about the same, he filed a memo before the learned C.J.M.-cum-Assistant Sessions Judge, Keonjhar where the complainant was facing trial in S.T. Case No. 45/185 of 2003, for taking necessary action but no action was taken for which the complaint petition was filed.
4. The learned S.D.J.M., Champua on receipt of the complaint petition, recorded the initial statement of the complainant under section 200 Cr.P.C. and conducted inquiry under section 202 of Cr.P.C., during course of which, witnesses Padmalochan Giri and Dr. Narayan Pradhan were examined. On perusal of the complaint petition, initial statement of the complainant, statements of the witnesses, medical documents like O.P.D. register, x-ray plate, the learned Magistrate on 12.03.2004 came to hold that x-ray plate of the complainant indicates that there was hairline fracture on the middle 1/3rd of right radius of the complainant caused to him by the petitioners beyond the authority of them and in view of such injury of the complainant and the allegation of intentional insult to humiliate him for his being a member of Scheduled Tribe in public view, which was intermingled with the occurrence of assault, he found prima facie case under sections 294/326/34 of the Indian Penal Code and section 3(1)(x) of the 1989 Act and accordingly, the learned S.D.J.M., Champua took cognizance of such offences and issued process against the petitioners.
5. Mr. Yeeshan Mohanty, learned Senior Advocate appearing for the petitioners contended that even though the incident alleged to have taken place on 08.12.2003 but for the first time on 22.12.2003, a memo was filed before the Court of learned C.J.M.-cum-Assistant Sessions Judge, Keonjhar that the complainant was tortured and physically assaulted by Jail Warder Kalandi Satpathy of Champua Sub Jail. The learned S.D.J.M., Champua issued a letter on 03.01.2004 to the petitioner Biswa Bhanu Patnaik, Superintendent of Sub Jail, Champua to conduct an inquiry and submit a report on the veracity of the accusation made by the complainant. The petitioner Biswa Bhanu Pattnaik conducted an inquiry and submitted his inquiry report before the learned S.D.J.M., Champua on 14.01.2004 stating therein that the injury sustained by the complainant was not because of the assault by petitioner Kalandi Satpathy rather it was on account of the complainant falling down in a drain while he was roaming around the 'D' wall of the jail for which there was verbal spat between the Jail Warder and the complainant on 08.12.2003. The learned counsel further submitted that on 14.01.2004, the complainant submitted an application in G.R. Case No. 186 of 2002 before the learned S.D.J.M., Champua alleging therein that he was physically assaulted by the Warders petitioners on 08.12.2004 for which he sustained fracture injury in his right hand. The application was forwarded to Champua police station, on the basis of which Champua P.S. Case No. 12 of 2004 was registered under sections 325/34 of the Indian Penal Code. It is further contended that on 17.01.2004 the advocate for the complainant consulted the complainant in the jail and obtained his signatures in six numbers of Vakalatnama but the learned Advocate on the very day complained before the learned S.D.J.M., Champua that the jail officials did not allow him to get the signatures of the complainant on the complaint petition. The learned S.D.J.M. issued a letter to the petitioner Jail Superintendent on such accusation and in reply the petitioner mentioned that the allegations are false and baseless and only Vakalatnama was produced in the Jail wherein the complainant was allowed to put his signatures. It is further contended that while the investigation in Champua P.S. Case No. 12 of 2004 was under progress, relating to the self-same occurrence, the complaint petition was filed and accordingly the impugned order was passed. It is contended that the learned S.D.J.M., Champua did not take recourse to the provision under section 210 of Cr.P.C. in staying the complaint case proceeding and calling for a report from the police officer conducting the investigation. It is further contended that since the petitioners are the public servants and they were discharging their official duties at the relevant point of time, without the necessary sanction as provided under section 197 of Cr.P.C., the impugned order of taking cognizance which suffers from non-application of mind is vitiated in the eye of law.
6. Mr. B.S. Dasparida, learned counsel appearing for the opposite party on the other hand contended that prima facie case of the offences under which cognizance has been taken is clearly made out and there is no nexus between the act committed by the petitioners with the official duty and since the statement of the complainant gets corroboration from the medical evidence, the learned Magistrate was justified in passing the impugned order.
7. Considering the submissions made by the learned counsels for the respective parties and looking at the materials available on record and the documents filed by the learned counsel for the petitioners, it appears that the petitioners were discharging their official duties on the date of occurrence. In connection with this case, when for the first time after the occurrence, the complainant was produced before the learned C.J.M.-cum-Assistant Sessions Judge, Keonjhar in S.T. Case No. 45/185 of 2003 on 22.12.2003, he complained before the learned Court that he was ill-treated by the Jail Warder Kalandi Satpathy and then he filed a memo on the very day indicating therein that during custody, the jail authority of Sub Jail, Champua assaulted him without rhyme or reason for which he sustained fracture injury on his right hand and bleeding injuries on his body. When the learned S.D.J.M. directed the petitioner Superintendent, Sub Jail, Champua to hold an inquiry and submit a report, after inquiry, a report was submitted indicating therein that the complainant did not sustain any injury due to assault by Jail Warders petitioners rather due to his own reason. It is indicated in the report that the complainant was a notorious criminal and on 08.12.2003, he was found absent at the time of counting just before lock up and he did not respond in spite of calls and subsequently he was found near 'D' wall which is the most sensitive part of the jail building and a restrictive zone for the inmates. When the complainant was confronted by the warder petitioner Rajesh Satpathy, the complainant started argument with him and when he was dragged by the said petitioner, the complainant offered resistance and in that process he fell down in a drain and sustained hairline fracture. It appears that the allegation made by complainant developed from time to time inasmuch as at the first instance, he complained before the learned C.J.M.-cum-Assistant Sessions Judge, Keonjhar only against one Kalandi Satpathy on 22.12.2003 and then he submitted a report on 14.01.2004 before the learned S.D.J.M., Champua against petitioners Kalandi Nayak and Rajesh Satpathy and then in the complaint petition, he implicated the petitioner Biswa Bhanu Pattnaik for the first time in his assault. While the investigation in Champua P.S. Case No. 12 of 2004 was under progress relating to the self same occurrence, the complaint petition was filed before the learned S.D.J.M., Champua who has not followed the procedure laid down in section 210 of Cr.P.C. It is pertinent to note that after completion of investigation, final report was submitted in Champua P.S. Case No. 12 of 2004 indicating therein that the allegations are false and baseless.
8. Section 210(1) of Cr.P.C. indicates that when it appears to the Magistrate that police investigation in relation to the offence is under progress either during inquiry or trial of a complaint case which is the subject matter of the complaint petition then the Magistrate shall stay the complaint case proceeding and has to call for a report in the matter from the police officer conducting the investigation. In the complaint petition, in column No. 6, it is mentioned that information was submitted in the Court of S.D.J.M., Champua on dated 14.01.2004. The learned S.D.J.M., Champua after receipt of the report from the complainant on 14.01.2004 has forwarded it to the Officer in Charge of Champua Police Station, on the basis of which Champua P.S. Case No. 12 of 2004 was registered under sections 325/34 of the Indian Penal Code. Therefore, as on the date of filing of the complaint petition on 19.01.2004 and during course of inquiry of the complaint case proceeding, there was material before the Magistrate that the investigation by the police is under progress in relation to the same offence. Therefore, compliance of section 210(1) of Cr.P.C. by the Magistrate in staying the complaint case proceeding and calling for a report from the police officer was necessary which has not been done in the case. The contention raised by the learned counsel by the petitioner that for non-compliance of provision 210(1) of Cr.P.C., the impugned order of taking cognizance suffers from illegality has substantial force.
9. In the case of Dilawar Singh Vrs. State of Delhi reported in MANU/SC/3678/2007 : A.I.R. 2007 Supreme Court 3234, the Hon'ble Supreme Court held that the principle has been statutorily recognized in section 210 of the Cr.P.C. which enjoins upon the Magistrate that when it is made to appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210 Cr.P.C. are mandatory in nature. It may be true that non-compliance of the provisions of section 210 Cr.P.C. is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr.P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice, the Court shall have regard to the fact whether there is a failure of justice and whether the objection could and should have been raised at an earlier stage in the proceedings.
10. Protection of sanction as envisaged under section 197 of Cr.P.C. serves a very salutary purpose, viz., it protects the honest and sincere officer in the performance of their official duty and prevents demoralization of such officer against threat of frivolous and malicious prosecution leading to harassment. "Official duty" implies that the act or omission should have been done in discharge of the duty. Once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction. Existence of reasonable connection between the act complained of and the discharge of official duty is necessary. Law is well settled that the protection given under section 197 of Cr.P.C. is not a cloak for doing the objectionable act. The excesses committed by the public servant during the performance of official duty are also protected under section 197 of Cr.P.C. It is the duty of the Court to find out whether the act done by the public servant and the official duty are so inter-connected/inter-related that one can postulate reasonably that it was done by the accused in performance of the official duty, though possibly in excess of the needs and requirements of the situation. (Ref:- Sudarsan Dash Vrs. Smt. Sarojini Mohapatra reported in MANU/OR/0044/2017 : (2017) 66 Orissa Criminal Reports 635).
11. In this case, there was ample material before the learned S.D.J.M., Champua that at the relevant time, the petitioners were performing their official duties and the complainant was found in a restricted zone of the Jail which is prohibited for the inmates for which there was exchange of words between the Warder and the complainant and also push and pull. Dr. Narayan Pradhan who was examined as a witness during inquiry under section 202 Cr.P.C. has stated that he treated the complainant on 11.12.2003 and as per his advice on 13.12.2003, X-ray of the right hand of the complainant was taken from which hairline fracture was detected. Therefore, there was no complain even in the Jail Hospital on 08.12.2003 regarding any injury sustained by the complainant.
12. On the available materials on record, I am satisfied that the petitioners were performing their official duties on the relevant day and the act complained of due to which the offence is stated to have been committed appears to have been committed while acting or purporting to act in the discharge of their official duties. Even though the allegations are of commission of excesses by the petitioners, in my humble view, the petitioners cannot be prosecuted without sanction from the competent authority. Sanction for prosecution under section 197 Cr.P.C. by the appropriate authority was necessary pre-requisite in the case before taking cognizance of the offence.
13. Resultantly, the impugned order suffers from non-application of mind and is hereby set aside. Accordingly, both the CRLMC applications are allowed.
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