Manoranjan Jena And Others vs State Of Odisha
2022 Latest Caselaw 2950 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

AFR                           CRLMC No.2209 of 2009

           Manoranjan Jena and others              ....               Petitioners
                                                        Mr. S.K. Pal, Advocate


                                        -Versus-


           State of Odisha                         ....        Opposite Parties
                                                            Mr. K.K. Das, ASC

                       CORAM:
                       JUSTICE R.K. PATTANAIK

                        DATE OF JUDGMENT:04.07.2022


      1.

Instant petition under Section 482 Cr.P.C. is filed by the petitioners assailing the impugned order dated 27th June, 2009 (Annexure-4) passed in S.T. Case No.754 of 2001 by the learned Additional Sessions Judge (FTC), Jagatsinghpur on the grounds inter alia that it is illegal and against the weight of evidence on record and contrary to the provisions of Section 20(3) of the Railway Protection Force Act, 1957 (in short 'the RPF Act')as well as Section 197 Cr.P.C. and therefore, the same is liable to the interfered with and set aside.

2. The petitioners are the members of the RPF and as such, the RPF Act, 1957 is applicable to them for all purposes besides the provisions of the Cr.P.C. The contention of the petitioners is that protection is provided to the members of the RPF in view of Section 20(1) of the RPF Act which prescribes that any member of the RPF having done any act in discharge of duty, it shall be lawful for him to plead that such act was performed under the orders of a competent authority. It is further contended that the mandatory

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provision of Section 20(3) of the RPF Act was not complied with before initiating the prosecution against the petitioners.

3. The petitioners contend that on 11th September, 1996 at 12.30 pm, a goods train was stopped for nearly 40 minutes between Kandarpur Down House and distance signal due to engine work and during that time, some miscreants committed theft of two distributor valves and in that connection, after information was gathered, petitioner No.1 and other officials conducted a joint search during the night hours and on 12th September, 1996, noticed three persons carrying some items and on being intercepted, two of them fled away and one was apprehended and he was found to be in possession of the distributor valves, whereafter, F.I.R. was lodged, seizure was made and the said accused, namely, the deceased was arrested and forwarded to the court of S.D.J.M., Jagatsinghpur on 14th September, 1996. After the production of the said accused, as it appears, he was having some medical conditions for which had to be shifted to SCB Medical College & Hospital, Cuttack and during that time, died later to which U.D. Case No.556 of 1996, dated 15th September, 1996 was registered at Mangalabag P.S. After two days i.e. on 16th September, 1996, the wife of the victim accused lodged F.I.R. (Annexure-2) at Biridi Outpost alleging that her husband was assaulted by the RPF police for which he died. On the strength of the F.I.R., Jagatsinghpur P.S. Case No.313 of 1996 under Section 302 read with 34 IPC was registered which corresponds to G.R. Case No.724 of 1996. After investigation, the local police submitted charge sheet under Section 304 IPC and other offences and the learned S.D.J.M., Jagatsinghpur took cognizance of it and thereafter, the case was committed to the Court of Sessions before which a petition under Section 227 of Cr.P.C. was filed and the same was rejected and then the

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petitioners approached this Court in CMC No.509 of 2003 which was disposed of by order dated 24th April, 2009 (Annexure-3). Pursuant to the direction in Annexure-3, the learned court below once again considered the plea of discharge and finally, passed the impugned order under Annexure-4 dated 27th June, 2009 in S.T. Case No.754 of 2009. In fact, the court below was not inclined to discharge the petitioners and accordingly, dismissed their plea for discharge challenging which the petition was filed for indulgence of this Court once again in exercise of its inherent jurisdiction.

4. Heard Mr. S.K. Pal, learned counsel for the petitioners and Mr. K.K. Das, learned ASC appearing for the State.

5. Mr. Pal would contend that the learned court below did not consider applicability of Section 20 of the RPF Act, where under, protection is provided to the members of the Force. In fact, it is contended that no notice was issued before initiating the criminal action which is mandatorily required under Section 20(3) of the RPF Act. That apart, considering the facts on record, as submitted by Mr. Pal, though the accused died after he was arrested and it was alleged to be on account of injuries received by him but then, no complaint was registered by him at the time of production before the S.D.J.M., Jagatsinghpur and in any case, the petitioners were discharging official duties and in that connection, the arrest was caused and therefore, they enjoy an immunity in view of Section 197 Cr.P.C. Notwithstanding the above, the learned court below, as according to Mr. Pal, lost sight of the fact that the petitioners are members of the RPF and could not have been subjected to prosecution without compliance of the above provisions and therefore, the impugned order under Annexure-4 cannot be sustained. In support of such contention, Mr. Pal cited the following decisions, namely, Anjani Kumar Vrs. State of Bihar &

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others (2008) 40 OCR (SC) 463; Montek Singh Vrs. State of West Bengal and another in CRR No.1030 of 2001 decided on 8th October, 2002; Naresh Mohan Prasad Vrs. State of Bihar and others 2000 Cr.L.J. 424; State of Orissa Vrs. Ganesh Chandra Jew (2004) 28 OCR (SC) 94; Kremjit Mohananda Vrs. Mohampani Karua and another 1995(II) OLR 284; and Abdul Wahab Ansari Vrs. State of Bihar 2000 Cr.L.J. 4631 (SC). All the above judgments except Montek Singh and Naresh Mohan Prasad (which are under Section 20 of the RPF Act) are in relation to Section 197 Cr.P.C. relying upon which Mr. Pal urged that the petitioners cannot be criminally prosecuted for the alleged incident since it happened during and in course of discharging official duty.

6. Mr. Das, on the other hand, submits that the impugned order under Annexure-4 is justified since the deceased who was arrested and subsequently admitted in hospital for treatment died on account of shock arising out of combined effect of the injuries associated with Hepatitis as per the opinion of the doctors and such injuries (19 external and 10 internal) have been indicated in the PM report. Since the deceased was arrested in connection with a theft case and was subsequently beaten up while in custody alleged to have received so many injuries which finally proved to be fatal and therefore, according to Mr. Das, the petitioners did not any right or authority to treat him in such manner and their actions cannot be said to be a part of any duty or official function and therefore, the learned court below did not commit any error in not discharging them and hence, the impugned decision suffers from no infirmity and thus, not to be disturbed.

7. The facts which are not in dispute are that the deceased was arrested in 2CC Case No.49 of 1996 involving an offence punishable under Section 3(a) of the Railway Property (Unlawful

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Possession) Act and subsequently, he died while under treatment at the hospital and that the petitioners were on duty at the relevant point of time.

8. The question is, whether, the petitioners could have been prosecuted for having committed the alleged offences or they should have been discharged by the learned court below? The learned court below distinguished the citations submitted on behalf of the petitioners and ultimately held that a case is prima facie made out for framing of charge and accordingly, passed the impugned order under Annexure-4. The conclusion of the learned court below is that the deceased received good number of injuries which led to his death and it was no part of the official duty of the petitioners to assault or beat him up while being in custody and on such ground, the plea of discharge was rejected. Mr. Pal contends that apart from Section 197 Cr.P.C., the learned court below was to consider Section 20(3) of the RPF Act which it did not. While advancing such an argument, Mr. Pal placed reliance on Montek Singh and Naresh Mohan Prasad (supra). The Court is to examine the above contention of Mr. Pal in order to find out and ascertain, whether, the learned court below rightly took cognizance of offences against the petitioners under Annexure-4.

9. In Montek Singh case, prosecution was launched against an RPF official with the allegation in the F.I.R. that the accused assaulted and illegally detained persons in custody but the Calcutta High Court held that such allegation prima facie shows that the acts complained of are committed in course of official duty and before commencement of legal proceeding, one month notice was not issued which is required as per Section 20(3) of the RPF Act for which it was quashed in exercise of jurisdiction of under Section 482 Cr.P.C. Similarly in Naresh Mohan Prasad (supra), the Patna

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High Court concluded that non-compliance of Section 20(3) of the RPF Act before initiation of the proceeding cannot be sustained and accordingly, in similar facts and circumstances quashed the prosecution by exercising inherent jurisdiction. It is not brought to the notice of the Court if at all any such notice was issued in terms of Section 20(3) of the RPF Act. The question of application of Section 20 of the RPF Act vis-à-vis legal proceeding was discussed in Montek Singh and it was held therein that it would apply to criminal prosecutions and accordingly, the case registered against the RPF officials was quashed for failing to observe Section 20(3) of the RPF Act. It is not claimed by Mr. Das, learned ASC that there was any intimation to the petitioners and their superior authorities before registration of the case. So, the point is that whether in absence of any such compliance of Section 20(3) of the RPF Act, the proceeding in S.T. Case No.754 of 2001 pending before the learned court below can at all be sustained. The law is well settled that before initiating a legal proceeding either civil or criminal, notice is required to be issued to the official alleged of having committed any civil wrong or offence which is mandatory in view of Section 20(3) of the RPF Act which has been reiterated in Montek Singh and Naresh Mohan Prasad ibid.

10. Regarding the protection provided to the public servants under Section 197 Cr.P.C., Mr. Pal relied upon the case of Ganesh Chandra Jew (supra). In the above decision, the Apex Court held and observed that Section 197 Cr.P.C. is to protect responsible public servants against institution of vexatious criminal proceedings for offences alleged to have been committed while discharging or purporting to act which is reasonably connected with the official duty and was not merely a cloak for doing objectionable act; if while performing such official duty, the public servant acted in

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excess of his duty but there is proximity between the act complained of and the performance of duty, the excess would not be sufficient ground to deprive him of the protection.

11. In this connection, another decision of the Supreme Court in P. Arulswami Vrs. State of Madras AIR 1967 SC 776 may perhaps be profitable to refer, wherein, it has been held that not every offence committed by a public servant that requires sanction under Section 197(1) Cr.P.C; not even every act done by him while he is actually engaged in the performance of his official duty; but if the act complained of is directly concerned with the duties so that if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. As further held therein that it is the quality of the act that is important and if it falls within the scope and range of his official duty, the protection contemplated by Section 197 Cr.P.C. could be attracted.

12. Section 197(1) provides that when any person who is or was a public servant not removable from 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 in the manner prescribed. In B. Saha and others Vrs. M.S. Kochar 1979(4) SCC 177, the Supreme Court held that the words 'any offence alleged to have been committed by a public servant while acting or purporting to act in discharge of official duty' employed in Section 197(1) Cr.P.C. are capable of a narrow as well as wide interpretation; if the words are construed too narrowly, the provision would be rendered sterile, for it is no part of an official duty to commit an offence and never can be; in the wider sense, the words would take under their umbrella every act constituting

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an offence committed in the course of same transaction in which the official duty is performed or purports to be performed; the right approach to the import of the said words lies between two extremes and while on the one hand, it is not every offence committed by a public servant while engaged in the performance of official duty entitles protection under Section 197 Cr.P.C. but an act constituting an offence directly and reasonably connected with his official duty would certainly require sanction. The aforesaid decision of the Apex Court in B.Saha with regard to the expression 'acting or purporting to discharge official duty' was referred to by this Court in Kremjit Mohananda case (supra), wherein, it was held that sanction would be necessary in the action directly or indirectly or reasonably connected with the official duty. In the above decision, an earlier case of this Court in Kartikeswar Naik Vrs. Satyabadi Mallik (1994) 7 OCR 326 was cited, wherein, it was held that even if any excess was committed while effecting or carrying out arrest, it cannot be said that the same was completely divorced of the official duty and therefore, prior sanction under Section 197 Cr.P.C. may be necessary.

13. As to the present case, the deceased was no doubt arrested in connection with a theft case and was later produced before the court below. It is revealed from the record that the victim had number of injuries on his body detected during the post-mortem. It is not disputed that the PM report pointed out as many as 19 external and 10 internal injuries on the person of the deceased, which is quite unexpected and unusual. Even if the deceased did not report to the court about any ill-treatment, while being produced but was not taken into custody by the Jail Superintendent looking at his health condition, for which, had to be sent to the hospital, where he died. So many external injuries

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found on the body of the deceased would certainly point fingers towards the petitioners and suspectful of their conduct. With regard to the plea on the applicability of Section 20(1) of the RPF Act, it has been the defence of the petitioners but the alleged overt acts are difficult to be comprehended and accepted in the guise of performing duty on the orders of the competent authority. So far as Section 20(3) of the RPF Act is concerned, it is claimed that the provision was not complied with, a defence which may be examined by the court during trial subject to any prejudice shown to have been caused to them for its non-observance. In any case, considering the extent of injuries, external as well as internal, it is really difficult on the part of the Court to distinguish the case of the petitioners to say that their conduct was in a way reasonably connected to duty. If such a plea of the petitioners is accepted, it would then be difficult to segregate case from case and all kinds of misconduct may have to be condoned on the ground that what was done was on account of duty or while performing or purporting to act in due discharge of duty, which can never be said as the legislative intent vis-a-vis Section 197 Cr.P.C. Having arrived at such a conclusion, the Court, without expressing anything on the merits of the case, is of the opinion that the petitioners shall have to face trial which cannot be derailed on the ground of sanction.

14. Accordingly, it is ordered.

15. In the result, petition filed under Section 482 Cr.P.C. by the petitioners stands dismissed for the reasons stated herein above.

(R.K. Pattanaik) Judge KC Bisoi/Secretary