KREMJIT MOHANANDA Vs. MOHANPANI KARUA AND ANR.

JUDGEMENT

(1.) THE petitioner is the complainant. He filed complaint vide ICC No. 20 of 1993 in the Court of the Judicial Magistrate, First Class, Ranpur against opposite parties on the allegation that they committed offences punishable under Sections 342/323/294/506/34, IPC. Opp. party No. 1 was the Officer -in -charge of Ranpur 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 PC 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 opp. party No. 1 while the latter was discharging official duty. He was of the opinion that no sanction under Section 197, Cr PC was necessary. Having found a prima facie case he took cognizance 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 opp. party No. 1 challenged it before the learned Sessions Judge. By the impugned order, the learned Sessions Judge held that opp. party No. 1 is entitled to the protection under Section 197 Cr PC. 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 opp. party 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 .

(3.) THE aforesaid being the legal position, let us, therefore, examine the allegations made , in the complaint against opp. party No. 1. It goes without saying that whether a particular act is done by a public servant in discharge of his official duty or not' is substantially one of fact to be decided on the facts and circumstance of each case. It has been stated in the complaint that the petitioner was arrested on 31 -10 -1993 along with some others by opp. party No. 1 on the allegation that he committed an offence under Section 3 of the Orissa Prevention of Gambling Act, 1955 and was taken into custody and was kept inside the police hazat. At about 10.30 a. m opp. party No. 1 came to the police station and released the co -accused from the hazat and directed his subordinate to forward the petitioner to the Court of Magistrate. The petitioner appealed to him saying that he might be allowed to go on bail as the offence was bailable. At this request, opp. party No. 1 suddenly got annoyed and directed the Grama -rakhi opp. party No. 2 to assault the petitioner saying "HABO E ARJUN PIT SALAKE BO KANA BAKAR BAKAR HAUCHHE JE". The Grama -rakhi accordingly rushed towards the petitioner and gave slaps at his back. The petitioner again beseeched opposite party No. 1 not to ask his subordinate to assault him and to cause physical injury. Thereafter opp. party No. 1 rushed towards the petitioner and gave a slap at his back and kicked him in both by his right leg in between the left -side Chest and back. Ay a result, he sustained swelling injury and got severe pain on his body. Opp. party No. 1 also abused the petitioner in vulgar and filthy language saying "SALA MAGHIA GANDA, SALAKU CHHUINLE JAITE JAUCHHE AAU KETE RUBAB KARUCHHE".