NARASINGH BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) By this petition under Arts. 226 and 227 of the Constitution of India, the petitioners have challenged the legality of the order of cognizance dated 18-8-1998 passed by the learned S.D.J.M., Bhubneshwar in ICC No. 149 of 1998 on the ground that the said order of cognizance suffers from want to sanction under Section 197 of the Code of Criminal Procedure and impinges upon the right and liberty of the petitioners guaranteed by the Constitution of India.

(2.) Accordingly to the petitioners one Sangram Keshari Mohanty lodged a report before the Balianta Police Station on 28-3-1998 against Manmohan Mohanty alleging that the said Monmohan Mohanty abused him in obscene language, assaulted him with lathi and threatened to kill him. Basing on such report, F.I.R. No. 43 of 1998 was registered in Balianta Police Station and in connection with the investigation of the said case, Manmohan Mohanty was arrested on 30-3-1998 and released on bail. After being released, Monmohan Mohanty filed a complaint case bearing ICC Case No. 149 of 1998 before the Court of learned S.D.J.M., Bhubaneswar on 6-4-1998 alleging that on 28-3-1998 the petitioners forcibly dragged him to Balakati Police Out-post, assaulted him with kicks and fist blows and then illegally confined him in Balianta Police Station till 30-3-1998. The petitioners allege that the learned S.D.J.M. without making proper enquiry and without consider the fact that the petitioners are protected under Section 197(1), Cr. P.C. took cognizance of the offences under Sections 342/384/34, IPC and issued process. According to the petitioners, they filed several applications under Sections 482, Cr. P.C. before this Court for quashing the order of cognizance alleging want of proper sanction, but this Court, instead of deciding the issue of necessity of sanction before taking cognizance, left the matter to the lower Court, as a result of which they are now being harassed by issuance of N.B.W. and process under Sections 82 and 83 of Cr. P.C. by the trial Court. It is claimed by the petitioners that the acts alleged in the complaint petition are intricately connected with their official duties and so sanction under Section 197(1), Cr. P.C. is mandatory before passing the order of cognizance, for want the impugned order of cognizance needs to be quashed.

(3.) Dr. Tripathi, learned counsel for the petitioners, submits that the petitioner arrested and detained the complainant Manmohan Mohanty in due discharge of their official duties as public officers and so, the necessity of sanction contemplated under Section 197, Cr. P.C. should have been considered before passing the order of cognizance. According to him when the act is done or purported to have been done by a public servant in due discharge of his duties, the matter of sanction become a condition precedent to the taking of a cognizance and it cannot be deferred to a later stage of the case. He submits that since this issue was not answered by this Court in any of the Criminal Misc. Cases earlier filed by the petitioners under Section 482, Cr. P.C., the same needs to be answered in the present petition.