SAMIRCHANDRA GUHA Vs. K PRADHAN

JUDGEMENT

(1.) This revision is directed against the order passed by the learned Sub- Divisional Judicial Magistrate, Jharsuguda, holding that sanction for prosecution of the opposite parties was required under Section 197 of the Code of Criminal Procedure (T Code for short) for an offence under Section 323 of the Indian Penal Code.

(2.) It is necessary to narrate a few facts. In connection with G.R. Case No. 289 of 1980, arising out of the Jharsuguda Police Station of which opposite party No.1 was the Officer-In-Charge and opposite party No.2 was an Assistant Sub-Inspector of Police, the petitioners, both brothers were produced in the Court of the learned Sub-Divisional Judicial Magistrate, Jharsuguda, on 8-4-1980. Both of them complained before the learned Sub-Divisional Judicial Magistrate that they were arrested on 4-4-1980 and were brought to the Jharsuguda Police Station. After their arrival, the opposite parties not only abused them in obscene language but also instigated the constables to assault them and themselves assaulted, both of them. The statements were recorded on solemn affirmation and the learned Sub-Divisional Judicial Magistrate directed that a separate case be registered on the allegations referred to above. He also took steps for enquiry under. Section 202 of the Code. After conclusion of the enquiry, on 10-2-1981 he found absence of a prima facie case and recorded an order of dismissal under Section 203 of the Code.

(3.) Being aggrieved by the order of dismissal referred to above, the petitioners filed a criminal revision in Samir Chandra Guha & anr. v. K. Pradhan & anr1. This Court obviously found a prima facie case and held that the order of dismissal dated 10-2-1981 was unsustainable. The criminal, revision was accordingly allowed and the case was remitted to the learned court below for reconsideration of the evidence on record so as to pass an order in accordance with law. In pursuance of this Courts direction as referred to above, the learned Sub-Divisional Judicial Magistrate reconsidered the materials available on record on 7-3-1984 and took congnizance of an offence under Section 323 read with, Section. 34 of the Indian Penal Code against the opposite parties and issued process. The opposite parties entered appearance and on 18-10-1984 filed a petition raising an objection that being police officers they were public servants and the alleged offence, if any, had been committed while discharging public duties. Therefore, they could not be prosecuted without prior sanction of the State Government under Section 197 of the Code. Therefore, the prosecution was liable to be quashed. In support of their plea, they produced Home Departments Notification dated 24-12-1981 which is quoted below:HOME DEPARTMENT NOTIFICATION The 24th December, 1981 No. 61160-P.I.C.-1-47181-P. - In exercise of the powers conferred by sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (2 of 1973), the State Government do hereby direct that the provisions of sub-section (2) of the said section of the said Act shall apply to the police officers controlled under the Police Act, 1961 (5 of 1961) and to the officers appointed to the Orissa Special Armed Police udder the Orissa - Special Armed Police Act, 1946 (Orissa Act 7 of 1946). TI The learned Sub-Divisional Judicial Magistrate after hearing both parties considered this aspect of the case and passed the impugned order where he seems to have taken the view that the opposite parties might have applied some force while arresting the petitioners of a charge of robbery and conducting them to the police station. Even if the force applied was in excess of what was necessary, it was done in discharge of public duties having a direct nexus with their arrest. Therefore, the opposite parties were immune from prosecution without prior sanction of the State Government under Section 197 of the Code.