Bishnu Prasad Mohapatra vs Harihar Patnaik on 13 December, 1991

Orissa High Court
Bishnu Prasad Mohapatra vs Harihar Patnaik on 13 December, 1991
Equivalent citations: 1992 CriLJ 2701, 1992 I OLR 186
Author: A Pasayat
Bench: A Pasayat


JUDGMENT

A. Pasayat, J.

1. Petitioner, a police officer, questions legality of the order dated 21-9-1987 Passed by the learned Subdivisional Judicial Magistrate (in short ‘SDJM’), Puri, taking cognizance under Section 323 of the Indian Penal Code, 1860 (in short ‘1PC’), and issuing summons to him.

2. Background facts are that on 9-7-1987 the opposite party sent a petition to the learned SDJM inter alia stating and alleging that he was produced before him in connection with G. R. Case No. 851 of 1987 corresponding to P.S. Case No. 181 of 1987 of Puri Town Police Station. At the time of production, he alleged that while in police custody on 7-7-1987, he was abused and severely physically assaulted by Police Officers including the petitioner. The specific allegation against the petitioner was that he had abused the opposite party in slang languages, and had beaten him with a police baton when he was in police custody. Subsequently, eight to ten other police officers joined the petitioner and abused in same manner and beat him. He was stripped off his shirt, undergarments and personal belongings (gold and money etc.) by one officer Mr. Subudhi of Puri Town P.S. and was assaulted by eight to ten Officers including Mr. Sharma, the Traffic Sub-Inspector and Mr. Sahu, Asst. Sub-Inspector of Police. The opposite party was assaulted with baton, belt, slaps, blows, kicks, and tortured with half-burnt cigarette butts, for about one hour. . Thereafter he was handcuffed and again assaulted with kicks. He was sent for medical examination. The marks of police brutality were still fresh on his body and he was in a state of intense physical pain and mental anguish. The petition was treated as a complaint, and the statement of the complainant-opposite party was recorded under Section 200 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). He reiterated the allegations in the complaint petition. The statement was recorded on 7-8-1987. It is relevant to mention here that Misc. Case No. 95 of 1987 was initiated on 10-7-1987 on receipt of the application from the Superintendent of Jail,Puri, as referred to above. The learned SDJM called for records of G.R. Case No. 851 of 1987 to be placed on 20-7-1987, and the complainant was directed to produce his witnesses on that date. On 20-7-1987, the matter was adjourned to 23-7-1987 and the complainant was required to produce his witnesses on that date. On the said date an application for adjournment was made on the ground that some of the witnesses were Government servants, so it was not possible for the complainant to procure their attendance, unless they were summoned by the Court, The prayer was allowed and the date was adjourned to 7-8-1987 for enquiry. On 7-8-1987 the complainant examined himself and the date was adjourned to 19-3-1987 for enquiry under Section 202 of the Code. On 19-8-1987 two doctors were examined and certain documents were marked as exhibits. On the prayer of the complainant-opposite party, the matter was adjourned to 3-9 1987. On 3-9-1987, the date was adjourned to 14-9-1987. Certain documents were produced on that date and one witness was examined. The matter was adjourned to 21-9-1987 for orders. After describing the allegations, the learned SDJM held that a prima facie case under Section 323, IPC was made out against the petitioner, and therefore cognizance was taken and summons was issued. He observed that sufficient material was not available to proceed against any other police officers.

3. Mr. R. K. Rath, learned counsel for the petitioner, submitted that the background facts are very revealing. The opposite party who was accused of committing rape on the wife of a police officer, to prevent smooth investigation and with a view to throw scare, has filed a false case against the petitioner., The complaint petition and the evidence of the opposite party clearly indicates that even if the allegations are correct, the acts were performed while the petitioner was acting in discharge of his official duty. The acts of the accused and his official duty are so inter-related that sanction under Section 197 is imperative and, therefore, the cognizance should not have been taken without requisite sanction. In this connection it is submitted that the opposite party has already been convicted of the offence under Section 376, IPC, which reinforces the plea of false implication. According to the petitioner, non-application of mind by the learned SDJM is patent because he did not find any material against other officers though serious charge were levelled against them; and on the self-same material took cognizance so far as the petitioner is concerned. When the evidence of the complainant in almost its entirety was disbelieved and discarded by the learned SDJM so far as other police officers are concerned, there was no scope for a different view in petitioner’s case.Mr. Pradipta Mohanty, learned counsel for the opposite party, however, submitted that the acts complained of had no nexus with the discharge of official duty and therefore, sanction under Sec, 197 was not necessary.

4. Section 197 is intended as a protection against malicious or vexatious prosecution of certain categories of officials or authorities. It is not an absolute requirement in law that wherever any of the named categories of authorities or officers are proceeded against, sanction under Section 197 is a must. It is no part of the requirement of law to set any of them above the common law. If he commits an offence, he has no peculiar privilege. It is only when one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rule laid down in Section 190 that cognizance of any offence may be taken by the Magistrates enumerated therein. The privilege of immunity from prosecution without sanction is only extended to acts which can be shown to have been done in the discharge of official duty; or in purported exercise of such power. The use of the expression ‘while acting’ determines the nature of the act complained of. An offence arising out of official position but not purported to be a part thereof does not require any sanction under Section 197. There is no scope for either narrow or wide construction of the section. It is not the ‘duty’ which requires examination – so much as the ‘act’ because the official act can be performed both in the discharge of the official duty as well as In dereliction of it. (See Bhagwan Prasad Srivastava v. N- P. Misra : AIR 1970 SC 1661). The basic requirement of Section 197, therefore, is that the delinquent officer must be discharging an official duty and the act complained of was a part thereof and. therefore, had close nexus or link with the same. What has to be found out by the Court is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. (See Matajog Dobey v. H. C. Bhari : AIR 1956 SC 44). No straight jacket formula can be laid down as to the test to be applied in a case concerning Section 197. But one thing is crystal clear. Official position should not be used as a cloak to defend the act complained of. There must be a reasonable link and not a fanciful one. The question whether sanction was necessary might have to depend upon from stage to stage having regard to the facts and circumstances of the case. It would be open to the accused to establish during the course of further proceedings that requisite sanction under Section 197 must be obtained. (See Prabhakar V. Sinari v. Shankar Ananta Verlekar AIR 1969 SC 686). It is always open to a Court to consider the necessity of a sanction on the basis of facts subsequently coming to light during the course of judicial enquiry, or, during the course of the presecution evidence at the trial. At those stages it is open to the accused to place materials on record to show that his official duties and the acts complained of were inter-related so as to attract protection under Section 197 (See Bakshish Singh Brar v. Smt. Gurmaj and Anr. : AIR 1388 SC 257 ). We are concerned with a case where the petitioner has assailed taking of cognisance. It is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The question may arise at any stage of the proceeding. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.

5. Taking cognisance is threshold act of a judicial proceeding relating to an offence. It amounts to taking judicial notice of an offence by the Magistrate. It includes intention of initiating a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is basis for the offence. Till the process is issued, the accused does not come into picture at all. Cognisance has no esoteric or mystic significance, but merely means becoming aware of and when used with reference to Court or Judge to note judicially. What is taking cognizance has not been defined in the Code. Taking cognizance may broadly be stated to mean that the Magistrate has applied his mind to the contents of the petition of complaint for the purpose of proceeding under the subsequent provisions of Chapter XV. It cannot be a mechanical act. Threadbare analysis of materials, consideration of possibility of conviction or acquittal are not permissible while taking cognisance.

6. In these premises, it is to be seen whether cognizance taken by the learned SDJM is defensible. Normally in cases of this nature, a revisional Court would be extremely slow to interfere with the order taking cognizance. As observed by the Apex Court in Pravakar V. Sinari’s case (supra) the public servant who pleads that prosecution case cannot take off for want of sanction is to place materials what were his official duties and how the acts complained of were inter-related with such duties. This can be done at during different stages after cognizance is taken. The accused can show that the act and the official duty are inseparably linked that notwithstanding the fact that the performance of duty was in excess of the needs and requirements of the situation, sanction is imperated. In the case at hand, one aspect is very striking. On the self-same materials, the learned SDJM concluded that no sufficient material is available to proceed against any other police officers. The complainant in his complaint petition and evidence in Court implicated several police officials. If the learned SDJW felt that those were unworthy of acceptance or credence, he should have at least indicated why a distinction was warranted so far as the petitioner is concerned. The allegations against some others named in the complaint petition and in evidence were of more serious nature. As indicated above, no elaborate analysis or reasoning is necessary. But where question arises regarding application of mind, these are relevant aspects. I, therefore, vacate the order taking cognizance, and direct reconsideration of the matter so far as the petitioner is concerned. The petitioner, if he chooses, may appear when the matter is reconsidered and place his case. To avoid unnecessary delay, direct the matter to be taken up on 19th of January. 1992. without further notice to parties. Any observation made by me is not to be construed to be expression of opinion on merits of the case. The revision application is accordingly disposed of.

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