Sudhir Kumar Satpathy vs State Of Orissa
2023 Latest Caselaw 5206 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.1719 of 2015

  Sudhir Kumar Satpathy                 ....            Petitioner
                             Mr. Tapas Kumar Acharya, Advocate


                              -Versus-


  State of Orissa                      ....       Opposite Party
                                  Mr. Tapas Kumar Praharaj, SC
                Mr. Jitendra Samantaray, Advocate for informant
            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:05.05.2023

1.

Instant petition under Section 482 Cr.P.C. is filed by the petitioner being aggrieved of the order dated 24th March, 2014 passed in G.R. Case No.1516 of 2013 by the learned S.D.J.M., Angul corresponding to Jarapada P.S. Case No.117 of 2013 on the grounds inter alia that the same is not tenable in law in absence of sanction under Section 197 Cr.P.C.

2. In fact, on submission of enquiry report by the informant in connection with Jarapada P.S. U.D. Case No.1 of 2013, Jarapada P.S. Case No.117(8) dated 24th August, 2013 was registered under Sections 342 read with 34 IPC. It was in connection with the death of the deceased, who was in police lock-up. As per the prosecution case, on 31st December, 2012 in the morning hours, the deceased said to have been assaulted as the complainant who had been to Jarapada PS had lodged a written report against him with the allegation of assault and damage caused to a vehicle, in course of which, an enquiry was conducted by the petitioner, who was posted at the PS as the ASI of police. It is alleged that the deceased was kept inside the PS lock-up till the next day and

Sudhir Kumar Satpathy Vrs. State of Orissa

such detention was without any case being registered against him and during that time, he committed suicide on 1st January, 2023 in the afternoon. In fact, according to the FIR, the deceased tied his neck with wearing shirt and hanged himself inside the PS hazat and though his body was removed and was shirted to DHH, Angul but was declared dead and in that connection, Jarapada P.S. U.D. Case No.1 of 2013 was registered. Under the above circumstances, since the deceased was wrongly detained at the PS, in view of the enquiry held by the informant, Jarapada P.S. Case No.117 (8) was registered after completion of investigation and the petitioner and another accused, namely, IIC of the PS were chargesheeted vide C.S. No.18th dated 24th April, 2022, consequent upon which, the learned court below took cognizance of the alleged offence and summoned them. The said order of cognizance vide Annexure-2 is under challenge on the solitary ground that the petitioner was on duty and he was not directly responsible for the alleged detention of the deceased which was on the orders of the other accused, namely, IIC of the PS and sanction under Section 197 Cr.P.C. was necessary which has not been obtained at the time of submission of chargesheet and thereafter, while cognizance of the offence vide Annexure-2.

3. Heard Mr. Acharya, learned counsel for the petitioner, Mr. Praharaj, learned SC and Mr. Samantaray, learned counsel for the informant.

4. Mr. Acharya, learned counsel for the petitioner submits that the order of cognizance under Annexure-2 and issuance of process against the petitioner is unjustified and bad in law, inasmuch as, the learned S.D.J.M., Angul failed to appreciate the materials facts on record and the statutory requirement of sanction in terms of Section 197 Cr.P.C. which is necessary to criminally prosecuted a

Sudhir Kumar Satpathy Vrs. State of Orissa

Govt. servant. It is stated that the petitioner was on duty at the relevant point of time and the complainant had been to PS and lodged a report and in that connection, the deceased was called to the PS and attempt was made to effect compromise between the parties to which the victim had agreed to make payment of Rs.8,000/-, however, the matter could not be solved. It is further submitted by Mr. Acharya that the deceased was detained of the PS and on the next day, Jarapada P.S. Case No.1 of 2013 was registered under Sections 341, 294, 427 and 506 IPC on the direction of the IIC of the PS and during that time, unfortunate incident happened. It is contended by Mr. Acharya that since the petitioner was on duty and he was on the orders of the IIC of the PS, on whose direction deceased was detained inside the PS lock- up and though, it is an excess but not directly responsible for the alleged misconduct and in any case, sanction was required in view of Section 197 Cr.P.C. While contending so, Mr. Acharya cited a judgment of this Court in CRLMC No.4453 of 2011 (Ajaya Kumar Barik Vrs. State of Orissa and Another) disposed of on 1st November, 2022 which is with regard to need of sanction under Section 197 Cr.P.C. Apart from above, Mr. Acharya placed reliance on a decision of the Apex Court in D. Devaraja Vrs. Owais Sabeer Hussain decided on 18th June, 2020 in Criminal Appeal No.458 of 2020 and also one more of this Court in Sangram Keshari Behera Vrs. Niladri Dhir 2012 SCC Online Ori 316 and highlighted upon the need for compliance of Section 197 Cr.P.C. before criminally prosecuting the petitioner being a public servant. So, therefore, the contention is that the petitioner was not directly involved and was not responsible for the alleged detention of the victim and that apart, being a public servant, prosecution against him should have been preceded by a sanction under Section 197 Cr.P.C.

Sudhir Kumar Satpathy Vrs. State of Orissa

5. Mr. Praharaj, learned SC for the State-opposite party submits that enquiry was held and finally the informant lodged the FIR and the alleged detention of the deceased was prima facie proved and also found to be illegal and therefore, rightly the petitioner was chargesheeted along with the other accused and for the alleged misconduct, no sanction under Section 197 Cr.P.C. is required as it is no one's official duty to detain a person in police lock-up which is without jurisdiction. Mr. Samantaray, learned counsel for the informant supported the contention of the learned SC and submits that because of the illegality committed by the petitioner, he is equally responsible like other accused and rightly, the learned court below took cognizance of the offences against him which therefore need not be disturbed.

6. This Court in Ajaya Kumar Barik (supra) considered decision in D. Devaraja (supra) and concluded that in the facts and circumstances of the said case, sanction under Section 197 Cr.P.C. was required. In fact, the Apex Court in D. Devaraja, while dealing with the matter concerning sanction concluded that an application under Section 482 Cr.P.C. is maintainable to quash the proceeding ex-facie bad for want of sanction and has also been held therein that the decision vis-a-vis sanction if necessary, the test is, whether, the act complained of is having a reasonable nexus with the official duty and in that case, the allegation was with regard to mischief committed during custodial integration.

7. Mr. Acharya, learned counsel for the petitioner submits that the petitioner is a Government servant and he was on duty at the time of alleged incident and hence, sanction under Section 197 Cr.P.C. should have been insisted upon by the learned court below before taking cognizance of the offences against him. It is also claimed that an offence under Section 342 IPC is not made

Sudhir Kumar Satpathy Vrs. State of Orissa

out against the petitioner, who was not involved in the alleged confinement and detention of the deceased which was on the direction of the other accused. In any case, according to Mr. Acharya, learned counsel for the petitioner, case was registered on 1st January, 2013 with regard to the complaint received against the deceased, though till then, no case has not been registered which was admittedly to effect compromise between both the sides. Since the law is well settled with regard to sanction under Section 197 Cr.P.C. and the petitioner was on duty and did not commit any mischief in his private capacity but was acting of the orders of the other accused, the impugned order under Anenxure- 2 cannot be sustained in law due to want of sanction to prosecute him obtained from the competent authority.

8. Sanction under Section 197 Cr.P.C. is stipulated when a public servant is an accused alleged to have committed excess while acting or purporting to act in the discharge of his official duty and in that case, no court shall take cognizance of the offence except with the previous sanction of the Govt. It means, a public servant not removable from his office save and except by or with the sanction of Govt. cannot be criminally prosecuted unless a sanction under Section 197 Cr.P.C. is obtained provided the mischief which is alleged against him was committed while he was acting or purporting to act in the discharge of official duty. The need of a sanction has been elaborately discussed by the Supreme Court in D. Devaraja (supra). However, with a sound of caution, the Apex Court in Sambhoo Nath Misra Vrs. State of UP and Another 1997(2)SCR 1139 held that it is not the official duty of a Govt. servant to do any kind of mischief in furtherance of or in discharge of official duty rather the official position enables him to misuse the authority and such act cannot be said to be integrally connected or inseparably with the duty and in the said

Sudhir Kumar Satpathy Vrs. State of Orissa

case, the allegation was with regard to fabrication of records and misappropriation of public funds. In Balbir Singh Delhi Administrastion Vrs. D.N. Kadian M.M. Delhi and Another AIR 1986 SC 345, the Apex Court 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 discharge of an official duty and is otherwise illegal, unlawful or in the nature of offence, in that case, the public servant cannot take shelter under Section 197 Cr.P.C.

9. In the instant case, the deceased was detained at the PS as it appears from the FIR and the petitioner was conducting enquiry on the complaint received on 31st December, 2012 and the compromise was attempted between the parties but did not materialize and he was kept in PS lock-up and on the next date i.e. on 1st January, 2013, Jarapada P.S. Case No.1 of 2013 was registered and till then he was at the PS and it has been alleged that the detention was not lawful. The petitioner was the ASI of Police and according to FIR, on the orders of the IIC of the PS that the deceased was kept in the lock-up. It is also revealed from the FIR that on 31st December, 2012 at about 2.30 PM when the deceased was sitting alone at the PS, the other accused directed the constable on duty to put him in the PS lock up and the detention continued till 1st January, 2013, the date on which, the victim committed suicide between 1.30 PM to 2.30 PM at the time when all the officials of the PS had left for lunch with the Sentry Constable on duty. The unfortunate incident took place during the time of detention of deceased which was found to be not lawful. In so far as the petitioner is concerned, he is not said to be in anyway responsible to detain the deceased, which was on the direction of the other accused. On the next day, after having received orders from the IIC, Jarapada P.S. Case No.1 of

Sudhir Kumar Satpathy Vrs. State of Orissa

2013 was registered and the petitioner was ordered to take up investigation. So to say, the petitioner being on duty and as a police official was responsible for preliminary enquiry and was directed to investigate into the matter after the case was registered against the deceased which was on the orders of the IIC of the PS, who from the FIR, stated to be primarily responsible for the alleged detention. In other words, the petitioner after receiving the orders from the other accused took up the investigation following registration of Jarapada P.S. Case No.1 of 2013. Under such circumstances narrated above, since the petitioner was on the orders of his superior and was not directly responsible for the alleged detention and being an official on duty, keeping in view the settled position of law, in the humble view of the Court, sanction under Section 197 Cr.P.C. should have been demanded by the learned court below and hence, therefore, the impugned order vide Annexure-2 as against him is untenable and thus, liable to be interfered with.

10. Accordingly, it is ordered.

11. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order dated 24th March, 2014 passed in G.R. Case No.1516 of 2013 by the learned S.D.J.M., Angul corresponding to Jarapada P.S. Case No.117 of 2013 is hereby quashed vis-à-vis the petitioner with the liberty to proceed against him subject to sanction received in terms of Section 197 Cr.P.C.

(R.K. Pattanaik)

THAKURD Digitally signed by THAKURDAS TUDU Judge

AS TUDU Date: 2023.05.05 20:48:05 +05'30' TUDU