(1.) In this application, the petitioner who is a Police Officer, seeks to quash the order dated 19.6.2002 passed by the learned SDJM, Banki taking cognizance of the offence under Sections 204, 294, 342, 506, IPC in ICC No. 11 of 2001. Opposite Party as complainant, filed a complaint case bearing ICC No. 11 of 2001 before the learned S.D.J.M., Banki stating that on 18.8.2000 at about 8.00 P.M. he lodged a written report at Banki Police Station regarding a occurrence, which happened on the same day at 1.00 P.M. on that day. At that time in absence of the Officer-in-charge, the Second Officer, namely, Maguni Charan Das received the report from him, registered the case as P.S. Case No. 120 of 2000 against Rabindra Kumar Barik and others for the offence under Sections 447, 341, 323, 324, 354, 506/34, IPC and under Section 3 of the S.C. & S.T. (P.A.) Act and under Section 25/27 of the Arms Act and handed over a copy of the FIR to him. The complainant-opposite party and his son were sent to Banki hospital for treatment by the Second Officer with instruction to come to the police station on the next day at about 10 A.M. As per the direction of the Second Officer, the complainant-opposite party went to the police station with his son. The O.I.C. told him to wait till he returned from village Dulanpur. At about 10 P.M., the OIC returned to the police station and scolded the complainant-opposite party stating "MAGHIA MADORCHOD EMITIKI KANA ETALA LEKHl CHHU MUN JEMITI KAHUCHHI SEMITI LEKHE" and directed his staff to place him in the hazat. Then the complainant-opposite party and his son were put in the hazat and after some time, the accused-petitioner called the complainant-opposite party to his office room and scolded him saying "MAGHIA KENTHU GOTE LEKHl ANICHHI". The accused-petitioner torn the earlier FIR lodged by the complainant-opposite party. The complainant-opposite party and his son were confined in the hazat from 19.8.2001 to 21.8.2001 and on the same day, i.e., on 21.8.2001 they were forwarded to the Court in a false case initiated at the instance of the persons against whom the FIR was lodged by the complainant.
(2.) Mr. D. Nayak, learned Sr. Counsel appearing for the accused-petitioner submitted that the offence alleged in the complaint petition in Annexure-1 prima facie does not make out a case against the petitioner. Therefore, the learned Magistrate has committed error by taking cognizance vide impugned order dated 19.6.2002. He further submitted that the petitioner is a pubic servant and cognizance has been taken in absence of sanction under Section 197, Cr.P.C. as the Act done is coming within the purview of due discharge of official duty and the act so done does not amount to misutilization of his official power. Therefore, the impugned order taking cognizance by the learned SDJM need be quashed. In order to substantiate his contention, Sri Nayak has relied upon the judgments in Sarat Chandra Panda v. State of Orissa and another, 2013 2 OrissaLR 374, Rohit Kumar That v. State of Orissa and another, 2010 Supp1 OrissaLR 209 , Biswanath Hota and others v. State of Orissa and another, 2009 Supp2 OrissaLR 317 , N.K. Ogle v. Sanwaldas alias Sanwalmal Ahuja, 1999 2 OrissaLR 33 .
(3.) Learned counsel appearing for the opposite party submitted that the order of cognizance is well within the jurisdiction of the learned Magistrate as the allegation made out a prima facie case against the petitioner. The act committed has no nexus with due discharge of official function. There is no reasonable connection between the act complained of and due discharge of official duty by the petitioner. Therefore, this Court may not interfere with the order passed by the learned Magistrate taking cognizance. Admittedly, in the absence of the petitioner, who was working as O.I.C., Banki Police Station, the complainant-opposite party lodged before the FIR and handed over the same to S.I. of Police Sri Maguni Charan Das. On receipt of the same, P.S. Case was registered and copy of the FIR was handed over to the complainant-opposite party and the complainant-opposite party and his son were sent to Sub-Divisional Headquarters Hospital, Banki for treatment through Gramarakhi with instruction to come to the police station on the next date i.e. on 19.8.2000. In obedience to the said direction only, the complainant-opposite party and his son came to the police station on 19.8.2000 and the petitioner detained both the complainant-opposite party and his son in the police hazat and abused them in obscene language and kept them in the police hazat till 21st August, 2000, and thereafter forwarded them to the Court on the very same day. Being aggrieved by the inhuman conduct of the petitioner, the complainant-opposite party lodged the complaint before the learned SDJM, Banki vide Annexure-1 on 23.1.2001, which was registered as ICC Case No. 11 of 2001.