JUDGMENT
L. Rath, J.
1. The petitioner who was an Additional Commercial Tax Officer has filed this application seeking quashing of cognizance taken and direction issued for issue of process against him for commission of offences Under Sections 294 and 506, 1PC alleged in a complaint filed by the opposite party. The complainant was filed on 30-9-1989 with the averments that the complain is a businessman of repute and goodwill having business at Kesinga. On 19-9-1989 the accused persons including the petitioner came to his business premises and verified the books of accounts but did not find there any defect of mistake. After verification the accused persons who, besides the petitioner, were the Inspector of Commercial Tax and the Inspector of Investigation Wing, demanded illegal gratification of Rs. 5,000/-. Since the opposite patty did not oblige them and protested the demand, they got annoyed and scolded him in obscene language. The opposite party protested such highhanded action and uncivilised behaviour and asked them to leave the mill premises; They left the mill premises giving him threat of getting him imprisoned. On such complaint, the learned Magistrate, after recording the initial statement. directed an inquiry Under Section 202, Cr.PC, The opposite party examined three witnesses in the inquiry. Thereafter the learned Magistrate took cognizance Under Sections 294 and 506, IPC against the petitioner.
2. The petitioner in moving the petition has averred that on 19-9-1989 he and his staff had reached the mill premises of the opoosite party at 12 noon to inspect the books of accounts but were refused access to the books and instead the opposite party asked the party to leave the premises. The petitioner and the party left the premises saving that the matter would be reported to the Assistant Commissioner(Vigilance Wing), Sambalpur. Thereafter at about 7.30 p.m. while the petitioner and his staff were returning after cheking in some other establishments, the opposite party along with 20 to 30 other persons stopped his jeep and assaulted him and his staff and also snatched away the bag containing official papers. The matter was reported by the petitioner at the Kesinga Police Station. The Officer-in charge, Kesinga P. S., after investigation, arrested the opposite party on 26-9-1989 and produced him before the Magistrate who released him on bail. It is his case that thereafter the complaint was filed as a counterblast only to intimidate the petitioner and to avoid the prosecution launched against him.
3. The learned counsel appearing for the petitioner urges the complaint to be mala fide and filed as an afterthought and that too after delay of 11 days of the occurrence, and on such ground, seeks quashing of the cognizance and of the direction to issue process against him. He also raises the question of sanction having not been obtained for his prosecution, he being a Government employee.
4. Though the question of sanction was raised, yet Mr. Nayak, the learned counsel appearing for the petitioner frankly concedes that where the allegation is of the demand of illegal gratification and abuse in obscene language, it will not come within the discharge of official duties and hence a sanction would not be necessary.
5. Even so some features of the case are worth noticing, it is true that in a case where the cognizance taken in a complaint and the direction for issue of process are assailed before the Court seeking their quashing, a consideration as to whether ultimately a conviction would ensue on the complaint or not is not appropriate and the factors which should weigh with the Court are that whether even if the prosecution allegations are taken as uncontroverted, a prima facie case is. made out. Even so it is also not the law that when some allegations are made in the complaint, the Court is to merely act as a rubber stamp to direct issue of process. Some kind of check on the genuineness of the complaint is inherent so that the Court is not used for an oblique purpose but is approached for bringing an offender to book. The demarcating line between the two approaches is extremely thin and the Court has to be conscious while dealing with the same. On the one hand the right of a prosecutor where his rights have been infringed and he is aggrieved by the criminal conduct is to be safeguarded and justice meted out, and on the other hand, a possibly innocent citizen is to be protected from unnecessary and undue harassment by letting loose a prosecution against him mala fidely. The caution so administered is more called for when the accused in the case is a public servant against whom allegation is made that in discharge of his official duties ha deviated from the path of rectitude and resorted to unlawful activities demanding illegal gratification or resorting to abuse in obscene and filthy language or even resorting to assault unauthorisedly. lt has to be kept in mind also that of late there has been a spurt in institution of criminal cases by way of private complaints against public servants alleging criminal conduct on their part while discharging official duties or otherwise. If such accusations are made unjustifiably which become manifest even on a little scratch at the surface, it will be wholly unjustified to allow the prosecution to continue since the result otherwise would be deterrent for public servants to discharge their duties with any real and indeed they may be found to be shirking from responsible discharge of their commitments as there would always be a lurking apprehension in them of being subjected to unmerited prosecutions by way of private complaints. Dealing with the question of the function of Court when question of power Under Section 482, Cr PC to quash criminal proceeding arises before it, the Apex Court held in AIR 1988 SC 709 (Madhavrao Jiwajj Rao Scindia and Anr., etc. v. Sambhajirao Chandrajirao Angre and Ors., etc.):
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely, to be served by allowing a prosecution to continue, the Court may, while taking into consideration the special facts of a case, also quash the proceeding even though it may be at a preliminary stage.”
6. Coming to the facts of the case, it is found that where as in the complaint petition the opposite party came with the case of demand having been made of Rs. 5,000/- as illegal gratification, yet each of the witnesses examined by him In the enquiry spoke differently about the amount demanded. PW 1 did not, state of any particular amount as having been demanded but merely stated that the petitioner had taken the opppsite party aside to speak something and when they came back the opposite party said that he cannot pay more money and that the petitioner may take whatever action he wishes. This would show as if the opposite party had already paid some money and refused to pay more which however. Is not the case of the opposite party. PW 2 stated that the demand was of Rs. 500/-. The only other witness, PW 3 stated that after the opposite party and the petitioner returned from their talk the opposite party told the petitioner that he could not pay such a huge amount of money. Then again, the witnesses differed in their statements of the words supposed to have been uttered by the petitioner on the refusal of the opposite party to pay. Such facts are to be considered coupled with the fact that the complaint . itself was filed eleven days after, that too only after the F.I.R. had been lodged by the petitioner against the opposite party leading to his arrest on 26-9-1939 and release on bail, in the complaint petition it was merely stated that the opposite party did not lodge any report at the police station as the accused persons were Government Officers, Even if it is taken to be so yet there is absolutely no explanation as to why the complaint itself was not filed earlier. Besides, it is difficult to digest that the information was not lodged with the-police only because the accused persons were Government Servants. Considering all such factors, I would hold that this is a case which falls under the category of the cases as visualised by the Supreme Court that where chances of an ultimate conviction are bleak and no useful purpose would be served by allowing the prosecution to continue, it can be quashed even at the preliminary stage as the Court is not “to be utilised for any oblique purpose. Mr Panigrahi, the learned counsel appearing for the opposite party has placed reliance on AIR 1976 SC 1917 (Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi. and AIR 1973 SC 1668 Hareram Satpathy v. Tikaram Agarwalla and Ors.) to contend that at the stage of issue of process, the consideration before the Court is whether a prima facie case has been made out and that the Court is not concerned with the consideration as to whether the case would ultimately end in conviction. The same question was examined by the later decision of the Supreme Court in AIR 1938 SC 709 (supra). In that view of the matter, I would hold that even the dicta laid down by the Supreme Court are not satisfied inasmuch as there is no prima facie case against the petitioner.
7. In the result, the petition is allowed and the cognizance and the direction for issue of process against the petitioner in I.C. No. 41 of 1989 are quashed.