JUDGMENT
K.C. Jagadeb Roy, J.
1. This criminal revision has bean filed against 8 accused persons, but the same was dismissed against opp. parties 1 to 4, 6 and 7 by order No. 10 of this Court dated 178 1990. The other two accused persons . against whom the present petitioner persues this criminal revision are opp. parties 5 and 8. Opp. party No. 6 is a Police Sub-Inspector of Sahidnagar P. S. whereas opp, party No. 8 is a process server of Civil Court, Bhubaneswar. The S.D.J.M. refused to take cognizance against those 2 persons on the ground that no sanction Under Section 197, Cr PC had been obtained since both of them are public servants and what was alleged against them was in discharge of their duties as such public servants; Besides, the Court was also not satisfied on the inquiry conducted Under Section 202, Cr PC against them as it failed to arrive at prima facie satisfaction that the alleged offence had been committed by the said two opposite parties, namely, the present opp. parties 5 and 8.
2. The allegation made against these opposite parties is that all the accused persons including opp. parties 5 and 8 had assaulted the complainant after demolishing the wall of his house and committed dacoity in his house in respect of paddy bags, gold ornaments etc, It was not disputed that opp. parties 5 and 8 who are the S. I. of police and the process server of the Civil Court, Bhubneswar had been to the spot on the very day for giving delivery of possession of a house in connection with Execution Case No. 21 of 1980. The allegation in the complaint petition against these two opposite parties is that as per the direction of the process server and the S. I. of police, the rest of the accused persons demolished the walls of the house of the complainant, entered inside the house, assaulted him and removed some articles from his house and when the complainant protested, the process server caught hold of his hair and directed the S. I. of police to arrest him. On the materials available in the inquiry Under Section 202, Cr PC, the Court came to the satisfaction that none of the witnesses examined by the complainant uttered a single word against the accused persons in support of these allegations. The Court did not find any prima facie case Under Section 395 I.P.C. against opp. parties 5 and 8 and all that the prosecution witnesses consistently deposed is that all the accused persons including opp. parties 5 and 3 were only found in the court-yard of the complaint, the Court came to find that it is no doubt true that they were present in the premises of the complainant, but for executing the decree in an execution case. According to the Court, the allegation of pulling the hair by the process server was not supported by any evidence adduced by the prosecution witnesses excepting PWs 4 and 5. The Court did not give much emphasis on the statements of PWs 4 and 5 as the said statement of pulling hair was not stated by the complainant when he was produced before the Court in a counter case namely G. R. Case No. 2274 of 1988 which was initiated against the complainant on the allegation that he obstructed the process server and threatened him white he was discharging his official duty.
3. In the present revision petition; the learned counsel for the petitioner states that the trial Court was in error in not taking cognizance on the ground that sanction as required under Sec. 197 has not been obtained as the said section requires that sanction is necessary before prosecuting a public servant when such public servant is not removable from his office save by or with the sanction of the Government and since the S. I. of police and the process server are not such public servants as they are removable from service by the other authorities, the requirement of Section 197 was not attracted in this case.
4. Section 197(1) Cr PC reads as follows :
“197. Prosecution of Judges and Public Servants (1) when any person who is or was a Judge or Magistrate or a public servant, not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction :
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.”
What the learned counsel for the petitioner urges obviously is correct by the simple reading of the Sec. 197, Cr PC which is supported by a decision of the Madras High Court in the case of (Sakthivel v. Murugesa Sundara Pandiyan) reported in 1993 (II) Crimes 205. But the position in the State of Orissa is different because of the notification in the Home Department of the State of Orissa made in exercise of its power conferred by Sub-section (4) of Section 197, Cr PC directing that provisions of Sub-section (2) of Section 197, Cr PC shall apply to the police officers of the State. Because of this notification even though the Court may come to a finding that inert; is reasonable connection between the alleged act of the police officer and discharge of the official duty and the police officer is not such an officer who is removable from service without sanction of the Government still Section 197 is made available to such police officer, In a case reported in 70 (1990) CLT 201 (Anadi Charan Jena v. Bijaya Kumar Mohanty), this Court held thus ;
“xx xx. The petitioner and the two other police officers were obviously not removable from office by orders of the Government. But by virtue of notification No. 61160-F dated 24-12-1981 issued by the Home Department, Government of Orissa, it was necessary to obtain sanction in order to take cognizance of offence against the police officers. The notification envisages police officers of all rank. In view of this notification read with Section 197 of the Code, sanction of the State Government was necessary before taking cognizance of the offences against the petitioner and for that matter against the other two police officers. In this view of the matter, the order of cognizance either against the petitioner or against the other two police officers cannot be supported and must have to be set aside, xx xx”
In view of the notification aforesaid, sanction Under Section 197, Cr PC is also necessary against opp. party No. 5 who is a police Sub-Inspector. Though the S.D.J.M. had come to the said conclusion, but did not give the correct reasonings. Since ultimately the order is justified in law though a wrong reason has been indicated, I do not consider it proper to interfere with that finding and maintain it.
5. Coming to opp. party No. 8, the S.D J.M. held that assuming that he had done the alleged act, in absence of any prior sanction of the Government, he could not be prosecuted.. This finding of the trial Court as far as opp. party No. 8 is concerned, is totally erroneous. Opp. party No 8 is, no doubt, a public servant but sanction of the State Government is not necessary for his removal, as such, prior sanction Under Section 197 is not necessary to be obtained for taking cognizance of the offence against this officer. The question now arises whether the inquiry conducted under Sec. 202, Cr PC against opp. party No. 8 reveals materials making out prima facie a case against him in respect of the charges alleged. Under Sec. 203 of the Code, if, after considering the statements on oath, if any, of the complainant and of the witnesses and the result of the inquiry or investigation, if any, Under Section 202, Cr PC, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case, he shall briefly record his reasons for so doing.
6. In the present case, as far as opp. party No. 8 is concerned, the learned S.D.J.M. simply refused to take cognizance on the ground that prior sanction as required Under Section 197, which he thought was necessary, had not been obtained. He has not given reasonings if on the basis of the statement made on oath by the complainant and other witnesses and the result of the inquiry Under Section 202, Cr PC he was of the opinion that no sufficient ground was there for proceeding with the case, in which event he should have dismissed the complaint by giving reasons. He has not done so even though he has indicated that Under Section 202 inquiry nothing was found against the opp. party No. 8 to make out a prima facie case against opp. party No. 8. In such view of the matter, I set aside the impugned order as far as opp. Party No. 8 is concerned and send the matter back relating to opp. party No. 8 to the trial Court to pass appropriate order on the basis of the statements given by the complainant on oath and by the witnesses and the result of the inquiry Under Section 202, Cr PC.
7. In the result, the criminal revision is allowed in part. The refusal of taking cognizance against opp. party No. 5 is maintained and the same against opp. party No. 8, the process server, is set aside, but the case of opp. party No. 8 is remanded back to the trial Court to pass necessary orders keeping in view the observations made in this judgment.