The High Court of Orissa noted that sanction under section 197 CrPC when a public servant is an accused alleged to have committed an offense in the discharge of his official duty then in that case, no court shall take cognizance of the offense except with the previous sanction of the Govt.
So, if in case the official is acting as per the directions of his superior he is still working in his official agency, and sanction u/s 197 CrPC is necessary to prosecute him.
Brief Facts:
The Current Petition has been filed under Section 482 of CrPC, the petitioner herein is aggrieved by the order dated 24th March 2014 passed by the learned SDJM on the grounds that it is not tenable in law in the absence of sanction under Section 197 CrPC.
On submission of the inquiry report by the informant, the case was registered under Sections 342 read with 34 IPC. The case was in connection with the death of the deceased who was in police lock-up. According to the prosecution story, the deceased was assaulted as the complainant who has been to the police station had lodged a written report against him with the allegation of assault and damage caused to a vehicle in the course of this, an inquiry was conducted by the petitioner who was posted in that police station.
It has been alleged that the deceased was kept inside the lock-up till the next day without any case being registered against him during that time and the deceased had committed suicide on the next day. Since the deceased was wrongfully detained at the police station, the case was registered, an inquiry happened and accordingly, the petitioner and one more person were charge-sheeted. The order of cognizance of this chargesheet has been questioned on the ground that sanction under Section 197 CrPC was necessary which had not been obtained at the time of submission of the chargesheet.
Contentions of the Petitioner:
The counsel for the petitioner has submitted that the issuance of process against the petitioner is unjustified and bad in law as the below court has failed to appreciate the material facts on record and the statutory requirement of sanction under section 197 CrPC, which is necessary to criminally prosecute a Government Servant. For the same several cases were referred by the petitioner’s side. It was also contended that the petitioner was not directly involved and was not responsible for the alleged detention of the victim even apart from that, a public servant prosecution against him should have been preceded by a sanction under section 197 CrPC.
Contentions of the Respondent:
The Opposite counsel has submitted that the inquiry was held and then the informant lodged the FIR and the alleged detention of the deceased was prima facie proved and was found to be illegal therefore, the petitioner was charge-sheeted and for the alleged misconduct, no sanction under section 197 CrPC was required as it was no one’s official duty to detain a person in police lock-up which is without jurisdiction. It was further submitted that because of the illegality committed by the petitioner, he is equally responsible like the other accused and rightly, the learned court below took cognizance of the offences against him which therefore need not be disturbed.
Observations of the Court:
The Hon’ble Court then noted that in the case of Ajaya Kumar Barik Vs. State of Orissa and Another, the court had considered the case of D. Devaraja Vs. Owais Sabeer Hussain, where it was concluded that an application under section 482 CrPC is maintainable to quash the proceeding ex-facie bad for want of sanction and it was also held that for the sanction, the test is whether the act complained of having a reasonable nexus with the official duty in that case. The court then noted that in the current case, the petitioner was on duty and did not commit any mischief in his private capacity but was acting on the orders of the other accused and since the law is well settled regarding the sanction under section 197 CrPC, the court was of the opinion that the impugned order cannot be sustained in law.
Then the court noted the ambit of Section 197 CrPC, according to which an accused alleged to have committed excess while acting or purporting to act in the discharge of his official duty in that case, no court shall take cognizance of the offense except with the previous sanction of the Government. The court then referred to the case of Balbir Singh Delhi Administration Vs. D.N. Kadian M.M. Delhi and Another, where it was held that if the act complained of has no nexus or reasonable connection or relevant to the official act or duty of such public servant done or purported to be done in the discharge of official duty and is otherwise illegal, unlawful or in the nature of the offense, in that case, the public servant cannot take shelter under Section 197 CrPC.
In the current case, it was noted that the petitioner cannot be said to be in any way responsible to detain the deceased as it was at the direction of the other accused. After analyzing the facts and circumstances, the court noted that the petitioner was on the orders of his superior and was not directly responsible for the alleged detention, and being an official on duty, sanction under section 197 CrPC should have been demanded by the below court.
The Decision of the Court:
The CRLMC was allowed and the impugned order was quashed with the liberty to proceed against the petitioner subject to the sanction received under section 197 CrPC.
Case Title: Sudhir Kumar Satpathy Vrs. State of Orissa
Coram: Justice R.K. Pattanaik
Case No.: CRLMC No.1719 of 2015
Advocates for the Petitioners: Mr. Tapas Kumar Acharya, Advocate
Advocate for the Respondents: Mr. Tapas Kumar Praharaj, SC; Mr. Jitendra Samantaray, Advocate for informant
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