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Biswa Bhanu Patnaik and Ors. Vs. Pagal - (High Court of Orissa) (26 Sep 2017)

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

MANU/OR/0607/2017

Criminal

The Petitioner have filed applications challenging the impugned order passed by Sub-divisional Judicial Magistrate, taking cognizance of offences under Sections 294/326/34 of the Indian Penal Code, 1860 (IPC) and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and issuance of process against them. It is contended that, the learned S.D.J.M., did not take recourse to the provision under Section 210 of Code of Criminal Procedure, 1973 (CrPC) in staying the complaint case proceeding and calling for a report from the police officer conducting the investigation. It is further submitted 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.

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, it is mentioned that, information was submitted in the Court of S.D.J.M., on 14th January, 2004. The learned S.D.J.M., after receipt of the report from the complainant has forwarded it to the Officer in Charge of Champua Police Station, on the basis of which complaint was registered under sections 325/34 of the IPC. Therefore, as on the date of filing of the complaint petition on 19th January, 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 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.

In the case of Dilawar Singh Vrs. State of Delhi, 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 of Cr.P.C. are mandatory in nature. It may be true that, non-compliance of the provisions of Section 210 of Cr.P.C. is not ipso facto fatal to the prosecution because of the provision of Section 465 of 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.

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.

In present case, there was ample material before the learned S.D.J.M., 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. Witness, the doctor, during inquiry under Section 202 of Cr.P.C. has stated that, he treated the complainant on 11th December, 2003 and as per his advice on 13th December, 2003, X-ray of the right hand of the complainant was taken from which hairline fracture was detected. Therefore, there was no complaint even in the Jail Hospital on 8th December, 2003 regarding any injury sustained by the complainant.

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, the Petitioners cannot be prosecuted without sanction from the competent authority. Sanction for prosecution under Section 197 of Cr.P.C. by the appropriate authority was necessary pre-requisite in the case before taking cognizance of the offence. Resultantly, the impugned order suffers from non-application of mind and is hereby set aside. Accordingly, applications are allowed.

Relevant : Dilawar Singh Vrs. State of Delhi,MANU/SC/3678/2007: A.I.R. 2007 Supreme Court 3234

Tags : PROCEEDINGS   SANCTION   LEGALITY  

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