SRI NILAM NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard further arguments and the case is disposed of in the following manner.

(2.) Petitioner is the complainant in I.C.C. No. 3/94 of the Court of JMFC, Khariar. O.P. No. 2 is the accused in that case. By the date of occurrence, O.P. No. 2 was the Officer-in-charge, Boden Police-station. It is alleged in the complaint petition that on 4-1-1994 when the complainant had gone to the police-station, he was misbehaved by the petitioner. When the matter was reported to the higher authorities on 6-1-1994, when the complainant was returning from the Block Office along with two companions, on the road in front of the Police-station, accused obstructed the way of the complainant, abused him in filthy language and took him to the police-station and assaulted him and thereafter wrongfully confined him in the lock-up till around 5.30 to 6 p.m. When on his report the Superior Police Officer did not take any action against the opposite party petitioner filed the aforesaid complaint case. Learned JMFC, Khariar made an enquiry under Sec. 202, Cr. P.C., and referring to the statement of the complainant and one witness examined in that-enquiry, found a prima - facie case for the offences under Sections. 294/ 323/ 341/ 342, IPC against opp. party and accordingly on 22-6-1994 he took cognizance of the offences and issued processes. The opposite party preferred Criminal Revision No. 37 of 1994 as against the order of taking cognizance and learned Sessions Judge, Kalahandi - Nuapada at Bhawanipatna vide his judgment dated 10-9- 1997 allowed the revision by setting aside the order of cognizance on the ground that the over act alleged against the opposite party (accused) is minor in nature, and he, having been done that in due discharge of his official duty cognizance of the offences could not have been taken in the absence of sanction under Sec. 197(3), Cr. P.C. read with the Home Department Notification No. 61160 dated 24-12-1981. The complainant-petitioner has proposed this Court for interference challenging the aforesaid order to be unjust, improper and illegal.

(3.) After hearing the parties at length, this Court finds that learned Sessions Judge has failed in properly appreciating the facts and law and incorrectly recorded that cognizance order is bad due to want of sanction. The reasons in, support of the aforesaid opinion of this Court is recorded as hereunder. There was not a scrap of paper available before the Sessions Judge to show or suggest that the opposite party did the alleged acts in due discharge of his official duty. Learned counsel for the opposite party argues that on the date and at the time of occurrence opposite party was serving as the Officer in-charge of the police -station. In the complaint petition or in his statement petitioner has not stated that opposite party was not on duty. Hence it can be validly presumed that at the relevant time opposite party was on duty. Since such a presumption is available, findings and orders of the Sessions Judge is not improper or illegal. In support of his contention, learned counsel for the opposite party relies on the case of Anadr Charan Jena v. Byaya Kumar Mohanty. Facts in that case was that in spite of the informations given to the police-officer regarding smuggling of paddy, the accused-Police Officer did not discharge his duty in apprehending the offenders but detained the complainant in police custody. Upon receipt of complaint petition and after enquiry under Section 202, Cr. P.C., the S.D.J.M. Champua took cognizance of the offences under Sections 220 and 221, IPC. In that context, this Court held that: