Smt. Mamata Nayak And Others vs State Of Odisha And Others
2023 Latest Caselaw 2320 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.3093 of 2019

  Smt. Mamata Nayak and Others    ....            Petitioners
                          Ms. Deepali Mahapatra, Advocate



                               -Versus-


  State of Odisha and Others           ....       Opposite Parties
                                   Mr. Pradip Kumar Rout, AGA
             Mr. S.D. Das, Senior Advocate for O.P. Nos.2 and 3

            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:22.03.2023

1.

Instant petition under Section 482 Cr.P.C. is at the behest of the petitioners for quashing of the order of cognizance dated 26th September, 2019 passed in ICC Case No.420 of 2015 by the learned S.D.J.M., Berhampur and the entire criminal proceeding on the grounds inter alia that the complaint is maliciously instituted with an ulterior motive for wreaking vengeance against them and hence, it is liable to be interferred with.

2. The complaint in ICC Case No.420 of 2015 was filed by opposite party Nos.2 and 3 with the allegation that on 26th February, 2015 while they were returning from Vishakhapatnam to Bhubaneswar along with others in a vehicle bearing registration No.OD 07C 7117 came to be intercepted by petitioner No.1 and 10 other police officers as members of a squad near Khandagiri, Bhubaneswar and thereafter, they were taken to Saheed Nagar P.S. and then to Balugaon P.S. and finally to Gosaninuagaon P.S., Berhampur and both of them were detained and during that time, petitioner No.1 abused opposite party No.2 in filthy language and

Smt. Mamata Nayak and Others Vrs. State of Odisha and Others

also took away the latter's personal belonging and cash of Rs.80,000/- and demanded Rs.5 lac and unless the said demand is fulfilled threatened to book the former in other false cases and lastly, he was forwarded in connection with Gosainuagaon P.S. Case No.67 of 2014. On receipt of the complaint, the learned court below recorded the initial statement of opposite party No.2 and conducted an enquiry, examined witnesses and finally took cognizance of the offences under Annexure-3 which is currently under challenge.

3. Heard Ms. Mahapatra, learned counsel for the petitioners, Mr. Rout, learned AGA for the State and Mr. Das, learned Senior Advocate for opposite party Nos.2 and 3.

4. The petitioners contend that opposite party No.2 is involved in number of criminal cases including one under Section 302 IPC and at the relevant point of time, in order to apprehend him, petitioner No.1 as the IIC of Golanthara P.S. was a member of a special squad constituted by the S.P., Berhampur and was leading the team and while discharging official duty apprehended opposite party Nos.2 and 3 and arrested them and thereafter, produced both before the local court and in so far as the allegations are concerned, they are completely false, the fact which was lost sight of by the learned court below while taking cognizance of the offences on a complaint.

5. Ms. Mohapatra, learned counsel for the petitioners narrated the events leading to the arrest of opposite party No.2 in connection with Gosaninuagaon P.S. Case No.67 of 2014 and contended that the learned court below could not have taken cognizance of the alleged offences against the petitioners, who were performing their official duty. In other words, it is submitted that sanction under Section 197 Cr.P.C. should have been insisted

Smt. Mamata Nayak and Others Vrs. State of Odisha and Others

upon by the learned court below before taking cognizance of the offences under Annexure-3. While advancing such an argument, Ms. Mohapatra cited the following decisions, such as, State of Orissa Through Kumar Raghvendra Singh and Others Vrs. Ganesh Chandra Jew (2004) 8 SCC 40 and Indra Devi Vrs. State of Rajasthan and Another decided in Crl. Appeal No.593 of 2021 and disposed of on 23rd July, 2021 to contend that sanction was absolutely necessary to proceed against the petitioners since they were on duty at the time the alleged incident took place. The details of the criminal antecedents vis-à-vis opposite party No.2 as at Annexure-4 is also referred to by Ms. Mahapatra, learned counsel for the petitioners and it is finally contended that the impugned order of cognizance under Annexure-2 so also the complaint proceeding cannot be sustainable in law in absence of sanction in terms of Section 197 Cr.P.C.

6. Mr. Das, learned Senior Advocate on the other hand, while appearing for opposite party Nos.2 and 3, highlighted upon the excess committed by the petitioners and in particular, petitioner No.1, who at that point in time was leading the special squad. The manner in which opposite party No.2 was detained and subjected to harassment has also been drawn to the attention of the Court by Mr. Das, learned Senior Advocate to suggest that opposite party Nos.2 and 3 have been falsely framed by petitioner No.1 and they were ill-treated while being in the latter's custody and not only that, both them were unduly harassed. The abuse hurled at opposite party No.2 and the assault on him at the instance of petitioner No.1, as according to Mr. Das, learned Senior Advocate cannot be and could not have been a part of official duty and for the said excess, no sanction under Section 197 Cr.P.C. is needed and therefore, the learned court below did not commit any error or illegality in proceeding against

Smt. Mamata Nayak and Others Vrs. State of Odisha and Others

the petitioners and taking cognizance of the alleged offences under Annexure-3 against them. The following decisions, such as, Abani Chandra Biswal Vrs. State of Orissa and Another 1987 SCC OnLine Ori 237; Samir Chandra Guha and Another Vrs. K. Pradhan and Another 1989 SCC OnLine Ori 19 and Sri Nilam Naik Vrs. State of Orissa and Another 2000(I) OLR 222 have been pressed into service by Mr. Das, learned Senior Advocate besides a judgment of this Court in Rabindranath Mohapatra Vrs. State of Orissa and others decided in W.P.(C) No.13941 of 2012 and disposed of on 28th January, 2016 to contend that the petitioners cannot escape the criminal prosecution by taking a plea of being on duty and need of sanction under Section 197 Cr.P.C. as such overt acts cannot be part of any one's official duty. Mr. Rout, learned AGA adopted the argument of Mr. Das, learned Senior Advocate for opposite party Nos.2 and 3.

7. The decision in Rabindranath Mohapatra (supra) is related to death of the petitioner's son while being in custody at the P.S. and therein, this Court directed payment of compensation due to the negligence of the police officials on duty and not a decision on sanction. The other decisions referred to by Mr. Das, learned Senior Advocate are concerned with the police excess committed during the custodial interrogation and the overt acts committed by the officials. With regard to the defence of the petitioners, it is contended that the case is one of the kind where protection under Section 197 Cr.P.C. is available to them, who were on duty as the members of a special squad. It is claimed that with false allegations, opposite party Nos.2 and 3 filed the complaint which is after about five months from the date of the alleged occurrence which clearly smacks malafide.

8. Whether sanction under Section 197 Cr.P.C. is required or otherwise depends on the facts and circumstances of each

Smt. Mamata Nayak and Others Vrs. State of Odisha and Others

particular case and it cannot have a general application. In Ganesh Chandra Jew (supra), the Apex Court discussed the necessary attributes of Section 197 Cr.P.C. and held and observed that such sanction is to protect responsible public servants against institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. Further, it has been observed therein that the policy of the Legislature is to afford adequate protection to the public servants to ensure that they are not prosecuted or anything done by them in discharge of official duties without reasonable cause and such protection has certain limits and is available only when the alleged acts done is reasonably connected with the discharge of official duty and is not merely a cloak for doing objectionable acts. The decision in the case of B. Saha Vrs. M.S. Kochar reported in (1979)4 SCC 177 has been referred to by the Apex Court in the aforesaid decision to explain the expression 'official duty' and what it implies. The Supreme Court in B. Saha (supra), which is a legal classicus on the point, held that the words 'any offence alleged to have been committed by the public servant while acting of purporting to act in the discharge of official duty' employed in Section 197(1) Cr.P.C. are capable of a narrow and as well as wide interpretation and if construed too narrowly, it would render the provision sterile for it is no part of an official duty to commit an offence and never can be; and in a wider sense, the words would take under its umbrella every acts constituted an offence and therefore, the right approach to import the words lies between the two extremes, while on the one hand, it is not every offence committed during official duty entitles protection under Section 197(1) Cr.P.C. but an act constituting an offence having direct and reasonable nexus with such duty. In the said case, the forest officials were alleged of having committed the excess by publicly

Smt. Mamata Nayak and Others Vrs. State of Odisha and Others

assaulting and humiliating the victim for which a complaint was filed and extending the protection under Section 197 Cr.P.C., the criminal prosecution against them was quashed with a conclusion that its continuance would amount to an abuse of process of law.

9. The petitioners were on duty when the alleged incident took place and there is no denial to it which is also revealed from the complaint as at Annexure-1. In fact, the petitioners were parties to the apprehension and arrest of opposite party No.2 during a raid conducted by the special squad. The complainants alleged that the petitioners detained them and opposite party No.2 was taken to Gosaninuagaon P.S., Berhampur and in course of events, he was abused and ill-treated and also threatened, if the illegal demand of Rs.5 lac was not met. The incident dated 26th February, 2015 and it is also not in dispute that opposite party No.2 was produced before the local Magistrate in connection with Gosaninuagaon P.S. Case No.67 of 2014. The allegation is to the effect that the petitioners misbehaved and ill-treated opposite party No.2 after he is apprehended and while in police custody. So it can safely be said that the petitioners had been on duty against whom the excess is alleged by opposite party No.2. After the arrest of opposite party No.2, he was produced before a court. It is not that the complainants were detained not in connection with any case or without any reason but it was in relation to Gosaninuagaon P.S. Case No.67 of 2014. If opposite party No.2 was ill-treated, it has not been revealed from his initial statement as to if he registered any complaint before the Magistrate at the time of his production. It has been pleaded that opposite party No.2 was prevented from revealing such ill- treatment to the Magistrate while being produced. Nevertheless, when the excess is alleged, opposite party No.2 was required to register a complaint or could have done so sometime thereafter.

Smt. Mamata Nayak and Others Vrs. State of Odisha and Others

As it appears, the complaint was filed in the month of August, 2015, whereas, the alleged incident is of the month of February of the said year. What was the reason behind for filing of the complaint with such delay for about five months has not been explained by the complainants and more particularly, opposite party No.2. In such view of the matter, Ms. Mahapatra, learned counsel for the petitioner submits that the inordinate delay in approaching the court below with a complaint creates a cloud of suspicion for which an inference is to be drawn that it was with an oblique motive and malafide intention and in order to wreak vengeance against the petitioners who are responsible for their arrest, such a course of action was adopted.

10. A court is to remind itself of the norms set by the Apex Court in B. Saha (supra) while proceeding against public servants in order to ensure that they do not become the victims of any vexatious criminal action to which one is always susceptible. If while discharging official function, any excess results, which amounts to an offence or offences, it is a statutory duty and obligation for a court to insist sanction from the competent authority unless gross misdeeds have been committed in the garb of performing duty. In the latter case, indisputably, sanction is not needed. In the case at hand, the petitioners were on duty and said to have intercepted the petitioners and arrested both. The opposite party No.2 was later produced before a local court which is not in dispute either. During the custody, it is alleged that the excess was committed but strangely, opposite party No.2 filed the complaint long after about five months. The explanation of having no scope to complain the ill-treatment by opposite party No.2 at the time of production is far-fetched more so when they remained silent for five months. Therefore, the apprehension of a false complaint filed against the petitioners cannot be ruled out.

Smt. Mamata Nayak and Others Vrs. State of Odisha and Others

In any view of the matter, the petitioners having been on duty, the learned court below ought to have conducted a detailed enquiry before proceeding against them, who could be subject of vengeance due to their involvement in the arrest of opposite party No.2 and the other complainant. No doubt, the allegations per se cannot be part of anyone's official duty but considering the peculiar facts of the case where there was also a delay of five months, false implication not being ruled out, the court below having regard to the fact that the petitioners were on duty by then was required to demand sanction which it did not do and hence, in the humble view of the Court, the order of cognizance and the decision to proceed against them is indefensible.

11. Accordingly, it is ordered.

12. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order of cognizance dated 26th September, 2019 is hereby quashed for the reasons discussed herein above. Consequently, the learned S.D.J.M., Berhampur shall proceed with the complaint in ICC Case No.420 of 2015 against the petitioners subject to sanction received.

(R.K. Pattanaik) Judge

UKSahoo