Gurubaria Sahoo vs State Of Orissa
2023 Latest Caselaw 628 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC No.484 of 2011

     Gurubaria Sahoo                        ....              Petitioner
                                      Mr. Satyabrata Panda, Advocate


                                 -Versus-


     State of Orissa                          ....        Opposite Party
                                           Mr. Tapas Kumar Praharaj, SC


               CORAM:
               JUSTICE R.K. PATTANAIK

                 DATE OF JUDGMENT:19.01.2023


1.

Instant petition under Section 482 Cr.P.C. is moved by the petitioner for quashing of the impugned order dated 31st August, 2010 passed in connection with G.R. Case No.116 of 2009 by the learned S.D.J.M., Birmaharajpur on the grounds inter alia that the same is not tenable in law due to absence of sanction in terms of Section 197 Cr.P.C.

2. As per the pleading, the alleged incident took place on 29th August, 2009 for which a report was lodged by the informant registered as Birmaharajpur P.S. Case No.72 of 2009 under Sections 341, 323, 294 and 506 IPC and Section 3(i)(x) of SC/ST (PoA) Act but after investigation, a final report was submitted consequent upon which protest petition was received from the informant whereafter the learned court below proceeded treating the same as a complaint (stated to have been dealt with in G.R. Case No.116 of 2009) and finally the impugned order dated 31st August, 2010 was passed which is under challenge primarily due to want of sanction.

3. Heard Mr. Panda, learned counsel for the petitioner and Mr. Praharaj, learned counsel for the State.

Gurubaria Sahoo Vrs. State of Orissa

4. Mr. Panda, learned counsel for the petitioner submits that for the self-same incident dated 29th August, 2009, the petitioner lodged an FIR leading to the registration of Birmaharajpur P.S. Case No.69 of 2009 under Sections 448, 294, 332, 427 and 506 read with 34 IPC and as a counterblast, the informant lodged the report in Birmaharajpur P.S. Case No.72 of 2009 which corresponds to G.R. Case No.116 of 2009. It is further submitted that the alleged incident took place in connection with the official duty of the petitioner and therefore, the learned court below should have insisted upon for sanction from the informant (complainant) but instead it proceeded and passed the impugned order dated 31st August, 2010. The initial statement and the evidence received during the enquiry under Section 202 Cr.P.C. revealed that the alleged occurrence took place while the petitioner was on duty and hence, according to Mr. Panda, the learned court below grossly erred in taking cognizance of the alleged offences against him without sanction morefully when the investigation conducted by the local police in connection with G.R. Case No.116 of 2009 resulted in submission of final report.

5. Mr. Praharaj, learned counsel for the State submits that the impugned order dated 31st August, 2010 is justified for the reason that the learned court below recorded the initial statement of the informant (complainant) under Section 200 Cr.P.C. and held an enquiry and thereafter, on a subjective satisfaction took cognizance of the offences against the petitioner. The nature of allegations as per the complaint and the evidence received by the learned court below, as according to Mr. Praharaj, learned SC, did not require sanction.

6. In support of a need for sanction in terms of Section 197 Cr.P.C., Mr. Panda, learned counsel for the petitioner cited the following decisions, such as, Sambit Kumar Vrs. State of Odisha 2022(II) OLR 34; Pramod Kumar Swain and Others Vrs. State of Orissa (2022) 86 OCR 229; Tarini Charan Sahu Vrs. State of Odisha, Vigilance (2018)

Gurubaria Sahoo Vrs. State of Orissa

71 OCR 276; and D. Devaraja Vrs. Owais Sabeer Hussain (2020) 79 OCR (SC) 146. It is contended that since the petitioner was on duty and the dispute was in connection with an enquiry report prepared by him and stated to be adverse to the interest of the informant for which the alleged incident happened, the learned court below after having received the final report, ought to have demanded sanction in terms of Section 197 Cr.P.C. which has been the settled position of law reiterated time and again and so discussed in the decision of the Apex Court in D.Devaraja (supra).

7. On receiving a protest petition, the learned court below was required to register it as a complaint instead of dealing with it in G.R. Case No.116 of 2009. Quite unusually, the learned court below recorded the initial statement of the informant and also conducted enquiry under Section 202 Cr.P.C. not in any complaint case but made it a part of G.R. Case No.116 of 2009. In such view of the matter, the learned court below is required to be to be directed to register a complaint instead of proceeding in G.R. Case No.116 of 2009 since the protest petition is accepted which is to treated in a manner as contemplated in chapter XV of the Cr.P.C.

8. Initially a report was lodged and Birmaharajpur P.S. Case No.72 of 2009 was registered and it was at the instance of the informant and as earlier mentioned, the final report dated 17th December, 2009 was submitted since no prima facie case could be established, later to which, the learned court below received the protest petition and then proceeded considering it as a complaint. As per investigation by the local police, the allegation of the informant could not be prima facie proved rather it was revealed that the petitioner was approached in connection with an enquiry report which he had submitted and when the former wanted to see the said report, same was not obliged by the latter, which annoyed him and there he said to have committed certain overt act. When the final report was received, the learned

Gurubaria Sahoo Vrs. State of Orissa

court below after having summoned the informant and received the protest petition carried forward the proceeding and ultimately passed the impugned order dated 31st August, 2010.

9. As per the initial statement under Section 200 Cr.P.C. of the informant (complainant) and evidence received during enquiry, the Court finds that at the relevant point of time, the petitioner was posted as an R.I. and he had submitted an enquiry report and in that connection, it was alleged that an illegal demand of Rs.2000/- was made by him. But during police investigation, such allegation could not be established so also the incident, hence, the final report. It is made to suggest from the final report dated 17th December, 2009 and the evidence received by the learned court below after having entertained the complaint, the dispute was with regard to a report prepared by the petitioner in the capacity of R.I. The question is, whether with the nature of allegation in the complaint, sanction under Section 197 Cr.P.C. was necessary or not? The learned court below without considering such a question proceeded to take cognizance against the petitioner. It is perhaps on the premise that there has been allegation of demand of illegal gratification by the petitioner which is no part of any duty and moreover, the overt act committed by him could neither be an official function.

10. As to the sanction under Section 197 Cr.P.C., this Court in Sambit Kumar (supra) held that even when some excess is committed by a Government servant while discharging his official duty, sanction is necessary. In Pramod Kumar Swain (supra) which was with regard to allegation of misappropriation by lifting stocks and disposing it of in black market as alleged by the Vigilance Department since related to and while discharging official duty, prior sanction is required to prosecute the accused, a Government official. In D. Devaraja (supra), the Apex Court elaborately discussed different authorities of its own and finally held and observed that anything done while discharging

Gurubaria Sahoo Vrs. State of Orissa

official duty and in doing so any wrong is committed and where there is a reasonable connection between the act alleged of and in the performance of the official duty, the fact that the act is in excess of duty would not deprive the Government official of the protection and hence, sanction under Section 197 Cr.P.C. would be necessary. In the aforesaid case, some policemen were criminally prosecuted for having committed excess during custodial interrogation. The essence of the decision in D. Devaraja is that if the act complained of is having nexus with the duty assigned, unless there is a sanction, a Government official cannot be criminally prosecuted as he enjoys immunity under law.

11. In the instant case, the petitioner is said to have prepared a report and in that connection, the informant (complainant) had approached him and during that time, the alleged incident took place. It is revealed during police investigation that since the petitioner did not oblige the request of the informant, who wanted to see the report, the latter was annoyed and suddenly pounced upon the former and committed the alleged overt act but in contrast, it is claimed that there was an illegal demand of Rs.2,000/- in the preparation of the report and the petitioner rather did the excess. The petitioner lodged the FIR and also the informant (complainant). Under the above circumstances, whether, the sanction was to be demanded by the learned court below. It is not that the alleged incident is not in any way related to the official duty of the petitioner as he had prepared an enquiry report and rather in that connection, he had met the informant (complainant) and in course of events, the alleged incident is said to have happened with the rival contentions. According to the Court, any act done in excess of the official duty needs protection and also necessary when there is a possibility of false implication of a Government official. To say that, the alleged excess since no part of official duty and hence sanction is not required, in certain circumstances, could invite serious trouble for Government officials as

Gurubaria Sahoo Vrs. State of Orissa

they might falsely be implicated. In the case at hand, the petitioner was confronted and challenged by the informant (complainant) with regard to an enquiry report and there the incident happened. No doubt, abusing someone or causing assault cannot by any stretch of imagination be held as a part of one's official duty but it should not be lost sight of the fact that there may be false allegations against a Government official, who could well be prosecuted maliciously with an ulterior motive and oblique purpose. The petitioner in the present case also lodged an FIR and with regard to the case registered at the instance of the informant (complainant), the investigation by the local police resulted in final report being submitted and against the aforesaid backdrop, when the incident arose out of a dispute concerning an enquiry report said to have been prepared and submitted by the petitioner, as an abundant caution, learned court below ought to have examined the need of a sanction before taking cognizance of the alleged offences against him. Since it was while in discharge of duty and in connection with preparation and submission of a report, which was perhaps not found favour with the informant (complainant) and so the incident happened, it could be claimed by the petitioner that the act complained of was during and in course of his official function and hence, sanction to be necessary. Considering the background facts and possibility of a false implication, the Court is of the conclusion that learned court below keeping in view the settled position of law more prominently decided in the recent case of D. Devaraja (supra), ought to have insisted upon for sanction before proceeding with the complaint.

12. Accordingly, it is ordered.

13. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order dated 31st August, 2010 passed in connection with G.R. Case No.116 of 2009 is hereby quashed. Consequently, the learned S.D.J.M., Birmaharajpur is directed to register a complaint

Gurubaria Sahoo Vrs. State of Orissa

instead of dealing with it in G.R. Case No.116 of 2009 and thereafter to proceed and to disposed of the same as per and in accordance with law after having received sanction vis-à-vis the petitioner.

(R.K. Pattanaik) Judge

U.K. Sahoo