JUDGMENT
A.S. Naidu, J.
1. The facts of both the aforesaid Criminal Misc. cases ate inter-linked and connected or continuation of the
same incident, hence, both the cases are heard together and disposed of by this common judgment.
2. Criminal Misc. Case No. 134 of 1998 is filed challenging the order dated 19-9-97 passed by the Sub-divisional Judicial Magistrate, Phulbani in I.C.C. case No. 28 of 1997 holding that there is sufficient ground to proceed against the petitioner with regard to commission of the alleged offence and the petitioner is not entitled to the protective umbrella provided under section 197 of the Code of Criminal Procedure.
3. The sole point which needs determination in the Said case is as to whether the petitioner who was admittedly holding the post of Superintendent of Police and was posted at Phulbani at the relevant time can be proceeded against in absence of a sanction as required under section 197, Cr. P. C. For effectively answering the said question, it is necessary to dwelve into the facts of the case.
On the basis of an F. I. R. lodged in Phulbani police station, two case being P. S. case No. 111 of 1997, (subsequently converted to G. R. case No. 284 of 1997) as well as P. S. case No. 112 of 1997 were initiated. F. I. R. of P. S. case No. 111 of 1997 was lodged by one Suresh Kumar Behera who was the Sergeant in charge of A. P. R. Force. Similarly, P. S. case No. 112 of 1997 was registered on the basis of an F. I. R. lodged by one Purna Chandra Mishra, O. I. C. of Town P. S. Phulbani. Durga Prasad Tripathy and one Siba Prasad Tripathy were accused in P. S. case No. III of 1997 whereas some of their friends and relatives are accused in P. S. case No. 112 of 1997. The F. I. R. lodged at about 11-10 p: m. on 13-9-97 reveals that while police was performing patrol duty in the bazar area, they received reliable information that some culprits of Town P. S. case Nos. 106, 107 and 108 of 1997 (dacoity and rioting cases) were hiding in the lodging of Kamala Kanta Pandey. On receiving the said information, the Sergeant along with the A.P.R.
force tried to verify the matter, but Durga Prasad Tripathy who
is the Manager of the said hotel did not allow him or the police
personnel to enter into the hotel. It is further alleged that a
Tata Sumo vehicle bearing Registration number OR-05 D-3887
was parked in front of the hotel obstructing half of the road and
the Manager refused to call the driver who was admittedly
inside the hotel. When the police personnel wanted to enter
into the hotel to call the driver and to investigate whether the
accused of the said dacoity cases were present in the hotel or
not, they were physically obstructed and the Manager-Durga Prasad Tripathy dragged the Sergeant inside the hotel, with a view to assault him. Seeing the said incident, the police personnel rushed to rescue the Sergeant and there was a tussle between the hotel staff and the police personnel, as a result of which said Durga Prasad Tripathy was pushed against the gril gate and sustained some injuries. The A. P. R. Force was able-to rescue the Sergeant and thereafter apprehended Durga Prasad Tripathy whereas Siba Prasad Tripathy and some others who were present and obstructed police personnel from discharging their duties escaped.
The second F.I.R. was lodged by one Purna Cbandra Misra, O. I. C. of Town P, S. alleging that they brought Durga Prasad Tripathy, who had assaulted the Sergeant to the police station and noticed that he had a minor, bleeding injury on his bead. In order to give 6rst aid, they took Durga PrasadTtipathy to the district headquarters hospital. Dr. Dasarathi Mohapatra attended him. At the relevant time, Kamalakanta Pandey accompanied by hissons, son-in-law Siba Prasad Tripathy and others came and demanded release of the accused. They gheraoed him, abused in filthy language and threatened with dire consequences. They also threatened to attack the police station. It is further alleged that said Kamalakanta Pandey snatched away a stick and assaulted the O: I. C; as a result of which his hand was broken. Other overt acts committed by the accused were also vividly explained in the F. I. R. which was lodged at 12 p. m. on 13-9-97 and was registered as P. S. case No. 112 of 1997.
While the matter stood thus, Durga Prasad Tripathy, who was in custody, filed a complaint petition from jail alleging that the Superintendent of Police, Pbulbani on 13-9-97 at about 9.30 p. m. came near the hotel and found a Tata Sumo vehicle being parked in front of the hotel. He asked the complainant to call for the driver and send the vehicle to Town P. S. immediately. There was delay as the driver was taking his meal and the Superintendent of Police became enraged scolded the complainant in filthy language and assaulted him by means of police button causing bleeding head-injury. Thereafter, the complainant was arrested and was taken to the hospital for treatment and was
detained in police Hazat.
The learned Magistrate after receiving the complaint registered I.C.C. Case No. 28 of 1997 and thought it just and proper to record the initial deposition of the complainant under section 200, Cr. P. C. . Thereafter, the Magistrate thought it expedient to conduct an inquiry under section 202, Cr. P. C. and examined the complainant and another witness.
4. The learned Magistrate relying upon the averments made in the complaint petition, initial statement of the complainant and the statements recorded in course of the inquiry took cognizance of the offence under sections 323, 324, 355, 506 of the I.P.C. holding that although at the relevant time the person complained against was a public servant i.e. Superintendent of Police, Phulbani, it is too hard to say that he committed the alleged acts on the complainant either while acting or purporting to act in discharge of official duty particularly when it was not the part of his official duty to commit the alleged acts, nor any reasonable nexus can be built between the two. Thus, he is not entitled to the protection provided under section 197, Cr. P. C. . On the basis of the said observation, the learned Magistrate issued processes under section 204, Cr, P. C. against the petitioner. The said order, as has been, stated earlier, is impugned in Criminal. Misc. Case No. 134 of 1998, filed under section 482 of the Cr. P. C. .
5. Durga Prasad Tripathy and Siba Prasad Tripathy, who
are accused in G. R. Case No. 284 of 1997, have filed Criminal
Misc. Case No. 2954 of 1998 invoking the jurisdiction of this Court
under section 482, Cr. P. C. praying to quash the order dated
8-6-98 taking cognizance of the offence under sections 341/332,
353, 307 read with section 34, I.P.C. and issuing summons against
them.
6. Shri S. D. Das, learned counsel for petitioner in Criminal Misc. case No. 134 of 1998 vehemently” argued that the complaint petition on the basis of which I.C.C. case No. 28 of 1997 was registered, is a counter blast to tiggle out from the rigour of G. R. case No. 284 of 1997 and P. S. Case No. 112 of 1997 and that the allegations ate false, frivolous and are clear after-thought. It is submitted that perusal of the F. I. R. lodged by Suresh Kumar Behera, Sergeant-in-charge of A. P. R. Force, would reveal that the police was performing patrol duty in town area. Attention was drawn to the statement made by the complainant, who admitted that the Superintendent of Police was enraged because a Tata Sumo vehicle was parked in front of the hotel.
7. It is evident from the F. I. R. filed by the police
Sergeant that in fact, the said vehicle was parked on the road almost covering half of the passage. Removing obstruction by shifting the vehicle is definitely a part of the duty assigned to the police personnel. The Superintendent of Police was discharging his duties and was supervising the patrol duty performed by the police. Thus, the incident cropped up during the police operation as would be evident from the complaint petition vis-a-vis the two F.I.Rs referred to earlier and is intermingled with the performance of official duty by the Superintendent of Police who is an officer of I.P.S. cadre.
8. It is further submitted by Sri Das that the allegation that the complainant sustained injury due to assault by the Superintendent of Police, prima facie appears to be not correct inasmuch as there are only two injuries sustained by the complainant and the cause of such injuries has been vividly explained
in the F. I. R. lodged by the police Sergeant as well as the F.I.R. lodged by the Officer-in-charge which are earlier in time. Sri Das has relied upon a recent decision of the Apex Court reported in 2000(7) Supreme 177 as well as the decisions reported, in 1995 (II) O. L. R. 284 and 1998(15) O. C. R. 415 and submitted that the petitioner is entitled to the protection of section 197 of the Code of Criminal Procedure.
9. On the other hand, Miss S. Ratho, learned counsel appearing for opp. party No. 2 in Crl. Misc. Case No. 134 of 1998 vehemently submitted that as the injury report corroborates the allegation that the petitioner assaulted opp. party No. 2, which act was not within the scope of duty and is totally unconnected with due discharge of duty and amounts to police brutality, necessarily section 197, Cr. P. C. would not be applicable. In support of such submission, Miss Ratho has relied upon the decision’s reported in 1999(17) O. C. R. (S. C.) 81 (A. K. Singh & others v. Uttarakhand Jan Morcha & others), 1994(7) O. C. R, 229 (SR. Siraj v. State of Orissa & others), 1991(4) O. C. R. 315 (Trilochan Barik v. Raghunath Bal) and 60(1985) C. L. T. 261 (Sarat @ Saroj Kumar Sahu & 2 others v. Alio Mallik).
Miss Ratho who is also appearing for the petitioner in Crl. Misc. Case No. 2954 of 1998 relying upon number of decisions has further submitted that the allegations levelled against the petitioner No. 1, who is opp. party No. 2 in Crl. Misc. Case No. 134 of 1998, are false and there is no impediment to set aside the impugned order of taking cognizance.
10. Admittedly, the petitioner in Crl. Misc. Case No. 134 of 1998 is a public servant not removable from his office save by or with the sanction of the Government. The object of section 197 is to guard against vexatious proceedings against public servants to secure the opinion of the superior authority as to whether iris desirable that there should be a prosecution against such public servant. Section 197 of the Cr. P. C. is an exception to the general rule covered by section 190, and bars the jurisdiction of the court to take cognizance of the offence unless there is an order according sanction for prosecution of the
public servant by the Government. The section thus, is substantially one, in the nature of restraint against taking cognizance of the offences against a public servant unless and until there is a prior sanction of the Government.
11. Keeping in mind the aforesaid guidelines and after going through the decision cited by the counsel for both the parties, I am of the opinion that while considering applicability of section 197, Cr. P. C., a line has to be drawn between the narrow inner circle of strict official duty and the acts outside the scope of official duty. If prima facie it appears that there is a reasonable connection between the act and the discharge of official duty and that the act is inter-mingled to such an extent that the accused could lay a reasonable claim, and not a pretended or fanciful claim that he did it in the course of performance of his duty be is protected by the umbrella of section 197, Cr. P. C.. In, other words, if the act complained of is directly concerned with the discharge of official duty and/or part and parcel of discharge of duty, then sanction would be necessary and that would be so, irrespective of whether it was, in fact, a proper discharge, of the duties, because that would really be a matter of defence on the merits.
12. The crux of the matter is that in order to determine whether in a particular case a public servant is entitled to the protection of section 197, Cr. P. C. all that has to be considered is whether the act complained of against the public servant which is alleged to constitute the offence was committed by him while discharging his official duty and that such act had reasonable connection with his official duty. It is not material whether in discharging such official duty, the public servant acted somewhat in excess of his limit, provided there is reasonable connection between the act committed and due discharge of official duty.
Keeping in mind the position of law discussed above, it appears that on the date of occurrence, the Superintendent of Police was, in fact, discharging his duties. Parking of a Tata Sumo blocking half of the road thereby causing traffic hazards and inconvenience is an offence and the petitioner who was the
Superintendent of Police and was supervising the police patrol, was within his rights to ask Durgn Prasad Tripathy to call the driver and remove the vehicle immediately. Such action satisfies official discharge of duty. While discharging such duties, if due to some altercation or otherwise and/or resistance caused, it was requited to apply force for removing the vehicle, the same would be inter-mingled with due discharge of official duty.
13. In view of the discussions made above, I am of the opinion that the learned Magistrate acted illegally and with material irregularity in coming to a conclusion that the petitioner in Crl. Misc. Case No. 134 of 1998 is not entitled to the protection under section 197, Cr.P.C. and therefore, Crl. Misc. Case No. 134 of 1998 is allowed and the impugned order dated 19-9-1997 is set aside. In view of the fact that the action of the Superintendent of Police is inter-mingled with discharge of his official duty, in absence of sanction under section 197, Cr. P. C., the learned Magistrate cannot proceed against the petitioner who is admittedly a public servant. The point of law formulated is answered accordingly.
14. So far as Criminal Misc. Case No. 2954 of 1997 is concerned, there are overwhelming material which prima facie indicate that an offence has been committed and cognizance has been taken by the learned Magistrate. Law is well settled that jurisdiction under section 482, Cr. P. C. has to be exercised sparingly and with circumspection. It has been held by the Apex Court in the case of Mahavir Prasad Gupta & another v. State of National Capital Territory of Delhi & others, A. I. R. 2000 S. C. 3101 that at an initial stage, the court should not embark upon an inquiry as to whether the allegations are likely to be established by evidence or not. The powers of quashing criminal proceedings must be exercised very sparingly and that too in the rarest of rare cases. It would not be fair and justifiable for the court to embark upon an inquiry at to the reliability or genuineness or otherwise of the allegations made in the F. I. R. . Extraordinary or inherent powers of the Court did not confer any arbitrary jurisdiction on court to act according to its whim or
caprice. In view of this position of law, I am not persuaded to interfere with the order passed by the Magistrate in G. R. case No. 284 of 1997 and accordingly, Criminal Misc. Case No. 2954 of 1998 is dismissed. However, in view of the fact that the G. R. case is of the year 1997, I direct the Magistrate to proceed with the case expeditiously.
15. Crl. misc. case dismissed.