SRIMATI PRADHAN Vs. YASHOBANTA NARAYAN MOHAPATRA AND ANR.

JUDGEMENT

(1.) THIS revision is directed against the order dated 2.3.1995 passed by the learned Sessions Judge, Dhenkanal partly allowing Criminal Revision No. 39 of 1990 directed against the order dated 27.3.1990 passed by the learned S.D.J.M., Pallahara in I.C.C. No. 32 of 1989 taking cognizance of offences under Sections 436 and 323 read with 34 I.P.C. and issuing processes against the opposite parties. Despite service of notice the opposite party No. 1 has not entered appearance in this revision.

(2.) BOTH the opposite parties are police officers. During the period of the alleged occurrence opposite party No. 1 was the O.I.C. of whereas opposite party No. 2 was working as an Assistant Sub -Inspector of Police in Khamarpara Police Station. I.C.C. No. 32 of 1989 was filed by the Petitioner -complainant against the opposite parties and another police officer who was working as Literate Constable in the above said police station as well as one Rabi. It was alleged in the complaint petition that there was quarrel between the Petitioner and the above said accused Rabi prior to the date of the alleged occurrence in connection with which opposite party No. 1 called the Petitioner as well as her husband and sons to the police station and demanded money. As the Petitioner failed to oblige opposite party No. 1 with such demand, on 10.11.1989 the opposite parties and co -accused persons came to the house of the Petitioner in the night. The Petitioner's husband being absent, she refused to open the door. However, the accused persons broke open the door and entered into the house. Opposite party No. 1 and the above said Literate Constable dragged the Petitioner from her house and abovesaid Literate Constable slapped her. They repeatedly asked her regarding whereabouts of her husband. When the Petitioner's husband's brother raised objection against the conduct of the accused persons, the above said Literate Constable caught hold of and abused him. Opposite party No. 1 insisted that the Petitioner's husband had been kept concealed in the house. It was further alleged that the opposite party No. 1 as well as the above said Literate Constable and Rabi "conspired among themselves" and then accused Rabi set fire to the house. Thereafter opposite party No. 1 took away Petitioner's two sons and Petitioner's husband's brother to the police station and registered Khamarpara P.S. Case No. 35 of 1989 corresponding to G.R. Case No. 86 of 1989 of the Court of learned S.D.J.M., Pallahara against the Petitioner and her family members for commission of offence under Section 436 read with 34 I.P.C. On the basis of such allegations, prayer was made to proceed against the opposite parties and co -accused persons for commission of offences under Sections 457, 342, 506, 354, 323 and 436 read with 34 I.P.C.

(3.) IN the present case the acts complained of by the Petitioner were alleged to constitute commission of offences under Sections 323 and 436 I.P.C which the opposite parties and above said Literate Constable committed along with the above said Rabi in furtherance of their common intention. In the complaint petition, instead of making allegation of any specific overt physical act committed by any of the police officers towards commission of offence under Section 436 I.P.C., it was alleged that consequent upon conspiracy by the opposite parties and co -accused persons, co -accused Rabi set fire to the house of the Petitioner. So far as allegation of offence under Section 323 I.P.C. is concerned, it was alleged that the opposite party No. 1 and the abovesaid Literate Constable dragged the Petitioner, whereas the abovesaid Literate Constable slapped the Petitioner and caught hold of the Petitioner's husband's brother. In the complaint petition, it has been categorically admitted that criminal case was instituted against the Petitioner as well as her husband and two sons. In the background of such allegations, learned Sessions Judge appears to have, on consideration of materials on record, observed that the initial statement of the complainant and the statements of the witnesses examined by her do not make out commission of offence under Section 436 I.P.C. by the opposite parties. It was further observed that the acts of the police officers, in entering into the house of the Petitioner and dragging her and her sons, having been done in connection with investigation of a case, for which the Petitioner's husband was wanted, amount to acts done in discharge of official duty by police officers for which they are not liable to be proceeded without sanction under Section 197 of the Code of Criminal Procedure Thus, in passing the impugned order the learned Sessions Judge appears to have considered not only the Petitioner's contentions that they could not be proceeded on the basis of the complaint petition without sanction under Section 197 of the Code of Criminal Procedure but also the Petitioner's grievance that materials on record do not constitute any ground for proceeding against the opposite parties for alleged commission of offences under Sections 323 and 436 of the I.P.C.