PREMJIT MOHAHANDA Vs. MOHANPANI KARUA

JUDGEMENT

(1.) The petitioner is the complainant. He filed complaint vide I.C.C. No. 20 of 1993 in the court of the Judicial Magistrate First Class, Rampur against opposite parties on the allegation that they committed offences punishable under Sections 342/323/294/506/34 IPC, Opposite party No. 1 was the Officer-in-charge of Rampur Police Station at the relevant time. The learned Magistrate after perusing the complaint, the initial statement of the petitioner and the statements of witnesses recorded in the enquiry under Section 202 Cr. P.C. held that the facts and circumstances of the case did not show that there was any connection of assault or use of abusive words at the petitioner by the opposite party no. 1 while the latter was discharging official duty. He was of the opinion that no action under Section 197 Cr. P.C. was necessary. Having found a prima facie case he took cognisance of offences under Sections 323/506/34 IPC and directed issue of summons to the opposite parties. This order was passed on 9-2-1994. The opposite party no. 1 challenged it before the learned Sessions Judge. By the impugned order, the learned Sessions Judge held that opposite party no. 1 is entitled to the protection under Section 197 Cr. P.C. and in absence of sanction, taking cognizance is illegal and consequently he quashed the cognizance taken against him. In this revision the petitioner has assailed the validity of this order.

(2.) Shri Misra, learned counsel for the petitioner, contended that it was no part of the official duty of opposite patty no. 1 to assault or to use abusive words against the petitioner and, as such, no sanction is required for his prosecution. In this context, he placed reliance on the decisions of this Court in (1987) 64 CLT 659 : (1988 Cri LJ 1038), (1989) 67 CLT 451, 1990 (I) OLR 432, 1991 (I) OLR 195 and (1991) 72 CLT 215. In Abani Charan Biswas v. State of Orissa, (1987) 64 CLT 659 : (1988 Cri LJ 1038) a Division Bench of this Court had the occasion to consider the applicability of Section 197, Cr. P.C. In that case a police officer detained the complainants in the police hazat and abused them in filthy language calling them 'SALA, CHOR, BADMAS' stating that they had forcibly sowed paddy in the disputed field. The Court after making a survey of decisions cited before it observed that whether the offence was committed in the course of official duty or not would depend upon the facts of each case and the test may well be as to whether the public servant can reasonably claim or challenge that he did so by virtue of his office but he cannot claim blanket privilege for all the acts uncalled for over doings while discharging any public duty. Having regard to the fact that the complainants were abused when they had already been lodged in the police hazat, the Court observed that there was no apparent justification for the police officer to abuse the complainants. Accordingly, it held that no protection is available to the public servant under Section 197, Cr. P.C.In , a single Judge of this Court has held that in that case no sanction was necessary for prosecution of a police officer for assaulting persons inside the police station inasmuch as the victims neither attempted to escape nor used any criminal force against police and there was no nexus of the alleged assault with their discharge of public duty.In Kailash Chandra Mahanta v. Ganeswar Amaate, 1990 (I) OLR 432 : (1990 Cri LJ NOC 87 (Orissa), the validity of taking cognisance against the officer-in-charge of police station came up for consideration. This Court found that there was no material available before the Sessions Judge (who had set aside the order taking cognizance) to show that the alleged act was is purported exercises of the official duty of the accused and as that state had not come the Court set aside the order of the learned Sessions Judge and observed that it was open to the accused to place material on record in the later stage of the proceedings.In Brundaban Rath v. Tara Kanta Das, 1991 (I) OLR 195, the learned single Judge following the ratio of Abani Charan (supra) held that the materials on record justified taking of cognizance against the police officer. In that case the officer-in-charge of the police station was alleged to have slapped the complainant and directed his subordinates to put the complainant inside the police hazat.In Trilochan Barik v. Raghunath Bal, (1991) 72 CLT 215 : (1991 Cri LJ 2259), the officer-in-charge of a police station was alleged to have gone to the shop of the complainant and abused him in filthy language and also assaulted him and thereafter took him to the concerned police station. The learned Judge observed that the act of the police officer at the relevant time was in no way connected with the investigation of the case. Accordingly, the order of taking cognizance was upheld.Let me examine the decisions cited by the counsel for the opposite parties. In Lalit Mohan Panigrahi v. Mayadhar Samarath, (1989) 67 CLT 147, the order of taking cognizance was quashed. In that case the concerned police officer executed warrant of arrest against the complainant even after the warrant of arrest was recalled. The Court held that it was not a private action of forcible confinement but an act in discharge of official duty as public servant for which sanction under Section 197, Cr. P.C. was necessary. In T. P. Reddy v. Devraj Panigrahi, 1991 (II) OLR 263, the Single Judge who decided the case of Brundaban Rath (supra) held that even if in discharge of one's official duty any excess is committed, the act complained of may attract the question of prior sanction as required under Section 197, Cr. P.C. In that case the police officer called a person to the police station on complaint made by another one and thereafter he went to the village of that person and arrested him. After handcuffing, he paraded that person on the road and hurled abusive words. The learned Judge held that sanction under Section 197, Cr. P.C. was necessary for prosecution.In Kartikeswar Nayak v. Satyabadi Nallik, (1994) 7 OCR 326, a police officer was alleged to have taken the complainant into custody and thereafter the complainant was alleged to have been assaulted, tortured and detained in the lock up by the concerned officer. This Court held that the acts complained of against the police officer were undoubtedly committed in course of discharge of his official duty in arresting the complainant and producing him before the Court and even if any excess was committed in discharge of his duty that excess was plainly in relation to his official duty in the sense that it was professed to be so and it was meant to convey to the mind of the complainant that he was acting under the authority of his office. The Court further observed that arresting an offender is the official duty of the police officer. Even if any excess was committed while effecting or continuing such arrest, it cannot be said that it was completely divorced from his duties. Accordingly, it was held that prior sanction under Section 197, Cr. P.C. was necessary.

(3.) The principle embodied under Section 197, Cr. P.C. is well established. The difficulty, however, lies in its application to the facts of a given case. Before the provision of Section 197, Cr. P.C. is invoked, two conditions must be first fulfilled : (i) the public servant is not removable from his office except by or with the sanction of the State Government or the Central Government, as the case may be and (ii) he is accused of any offence alleged to have been committed by him. After these two pre-conditions are satisfied a further enquiry is necessary to be made as to whether the alleged offence was committed by the public servant while acting or purporting to act in the discharge of his official duty. It is in this connection that the expression "purporting to act in the discharge of official duty" assumes importance. This expression is neither to be too narrowly interpreted nor too widely. The narrow interpretation will make it altogether otiose inasmuch as it is no part of an official duty never can it be -- the official duty to commit an offence. It is not the 'duty' which requires scrutiny so much as the 'act' because the official act can be performed both in the discharge of official duty as well as in dereliction of it. If it is too widely construed, every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed would come within its sweep which should be avoided. In our constitutional set-up, no one whatever be his rank or position is above the law and every official, irrespective of his rank, is under the same liability for his act done without legal justification as any other citizen. As such, the right approach to the problem lies between the two extremes. A middle line which is adopted is that it is not every offence committed by a public servant in course of performance of his official duty, which is entitled to the protection of Section 197 (1). What comes under the protective umbrella is an act constituting an offence, which directly or reasonably connects with his official duty. Protection of Section 197 does not extend to acts done purely in a private capacity by a public servant. In Hori Ram Singh v. Emperor, AIR 1939 FC 43 : (1939 (40) Cri LJ 468) it was argued that one of the tests for applicability of Section 197, Cr. P.C. should be that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. Varadachariar, J. in his separate judgement accepted it to be the "correct view".In P. Arulawami v. State of Madras, AIR 1967 SC 776 : (1967 Cri LJ 665), the Supreme Court observed as below (at page 778; of AIR) :-"It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197, Cr. P.C. will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."