BISHNU PRASAD MOHAPATRA Vs. HARIHAR PATNAIK

JUDGEMENT

(1.) Petitioner, a police officer, questions legality of the order dated 21-9-1987 passed by the learned Subdivisional Judicial Magistrate (in short 'UDJM'), Puri, taking cognizance u/S. 323 of the Indian Penal Code, 1860 (in short 'IPC'), and issuing summons to him.

(2.) Background facts are that on 9-7-1987 the opposite party sent a petition to the learned SDJM inter alia stating and alleging that he was produced before him in connection with G.R. Case No. 851 of 1987 corresponding to P.S. Case No. 181 of 1987 of Puri town Police Station. At the time of Production, he alleged that while in police custody on 7-7-1987, he was abused and severely physically assaulted by police officers including the petitioner. The specific allegation against the petitioner was that he had abused the opposite party in slang languages, and had beaten him with a police baton when he was in police custody. Subsequently, eight to ten other police officers joined the petitioner and abused in same manner and beat him. He was stripped off his shirt, undergarments and personal belongings (gold and money etc.) by one officer Mr. Subudhi of Puri town P.S. and was assaulted by eight to ten officers including Mr. Sharma, the Traffic Sub-Inspector and Mr. Sabu, Asst. Sub-Inspector of Police. The opposite party was assaulted with baton, belt, slaps, blows, kicks; and tortured with half-burnt cigarette butts, for about one hour. Thereafter, he was handcuffed and again assaulted with kicks. He was sent for medical examination. The marks of police brutality were still fresh on his body and he was in a state of intense physical pain and mental anguish. The petition was treated as a complaint, and the statement of the complainant-opposite party was recorded under S. 200 of the Code of Criminal Procedure, 1973 (in short 'the Code'). He reiterated the allegations in the complaint petition. The statement was recorded on 7-8-1987. It is relevant to mention here that Misc. Case No. 95 of 1987 was initiated on 10-7- 1987 on receipt of the application from the Superintendent of Jail, Puri, as referred to above. The learned SDJM called for records of G.R. Case No. 851 of 1987 to be placed on 20-7-1987, and the complainant was directed to produce his witnesses on that date. On 20-7-1987, the matter was adjourned to 23-7-1987 and the complainant was required to produce his witnesses on that date. On the said date an application for adjournment was made on the ground that some of the witnesses were Government servants, so it was not possible for the complainant to procure their attendance, unless they were summoned by the Court. The prayer was allowed and the date was adjourned to 7-8-1987 for enquiry. On 7-8-1987 the complainant examined himself and the date was adjourned to 19-8-1987 for enquiry under S. 202 of the Code. On 19-8-1987 two doctors were examined and certain documents were marked as exhibits. On the prayer of the complainant-opposite party, the matter was adjourned to 3-9-1987. On 3-9-1987, the date was adjourned to 14-9-1987. Certain documents were produced on that date and one witness was examined. The matter was adjourned to 21-9-1987 for orders. After describing the allegations, the learned SDJM held that a prima facie case under S. 323, IPC was made out against the petitioner, and therefore, cognizance was taken and summons was issued. He observed that sufficient material was not available to proceed against any other police officers.

(3.) Mr. R. K. Rath, learned counsel for the petitioner, submitted that the background facts are very revealing. The opposite party who was accused of committing rape on the wife of a police officer, to prevent smooth investigation and with a view to throw scare, has filed a false case against the petitioner. The complaint petition and the evidence of the opposite party clearly indicates that even if the allegations are correct, the acts were performed while the petitioner was acting in discharge of his official duty. The acts of the accused and his official duty are so interrelated that sanction under S. 197 is imperative and, therefore, the cognizance should not have been taken without requisite sanction. In this connection it is submitted that the opposite party has already been convicted of the offence under S. 376, I.P.C., which reinforces the plea of false implication. According to the petitioner, non-application of mind by the learned SDJM is patent because he did not find any material against other officers though serious charges were levelled against them; and on the self-same material took cognizance so far as the petitioner is concerned. When the evidence of the complainant in almost its entirety was disbelieved and discarded by the learned SDJM so far as other police officers are concerned, there was no scope for a different view in petitioner's case. Mr. Pradipta Mohanty, learned counsel for the opposite party, however, submitted that the acts complained of had no nexus with the discharge of official duty and therefore, sanction under S.197 was not necessary.