Orissa High Court

Nruparaj Sahu vs State Of Odisha & Another ....... Opp. ... on 20 June, 2024

           THE HIGH COURT OF ORISSA AT CUTTACK

                             CRLMC No.3816 of 2023

 (In the matter of an application under Section 482 of the Criminal Procedure
 Code, 1973)

                                     -----------

 Nruparaj Sahu                         .......              Petitioner


                                     -Versus-


 State of Odisha & another       .......                    Opp. Parties


        For the Petitioner     : Mr. Devidutta Mohapatra, Advocate


        For the Opp. Parties : Mr. P.K. Maharaj,
                                  Addl. Standing Counsel.
                                   (for Opp. Party No.1)

  CORAM:

       THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

                               JUDGMENT

________________________________________________________________ Date of Hearing: 02.05.2024 : Date of Judgment : 20.06.2024_________

S.S. Mishra, J. This application under Section 482 Cr.P.C. has been

filed by the petitioner praying for quashing of the order dated 02.05.2015

passed by the learned J.M.F.C., Saintala in G.R. Case No.192 of 2012

corresponding to Saitala P.S. Case No.123 of 2012 taking cognizance of the

offences punishable under Sections-420/467/468/471/477-A/120-B of the IPC

in so far as the petitioner is concerned. By the impugned order, cognizance of

offences has been taken against the petitioner and six others for various other

offences without there being a valid sanction from the competent officer

against the petitioner.

2. Heard Mr. Devidutta Mohapatra, learned counsel appearing for the

petitioner and Mr. P.K. Maharaj, learned Addl. Standing Counsel appearing

for the State.

3. The prosecution story in the present case is that on 09.08.2012, the

opposite party No.2 vide its office letter bearing No.1883/SSD had

complained to the I.I.C., Saintala Police Station for lodging the F.I.R. against

one Kuni Mallick @ Pratibha Pradhan and others, wherein it was alleged that

they had obtained fake Caste Certificates from the Revenue Officer of

Balangir. It is alleged that the State Level Scrutiny Committee has found that

the Caste Certificate has been fraudulently obtained by Kuni Mallick with the

help of other accused persons. It is also stated that Kuni Mallick had adopted

several means to manipulate the records of the Revenue Department. On

09.08.2012, the I.I.C. has registered the case.

The present petitioner was posted as Tahaslidar, Titlagarh at the time of

the alleged commission of offence. Against the petitioner, it is alleged that he

had issued the Caste Certificate to Kuni Mallick without appropriately

verifying and by entering into a criminal conspiracy with the main accused.

4. After investigation, the charge sheet was filed on 22.04.2015 arraying as

many as seven accused persons. The present petitioner is accused No.7.

5. Mr. Mohapatra, learned counsel for the petitioner submits that apart

from the merits of the case, the cognizance order is not sustainable under law

in absence of proper sanction contemplated under Section 197 of Cr.P.C. The

Court ought not to have taken cognizance for the offences under Sections-

420/467/468/471/477-A/120-B of the IPC against the petitioner sans valid

sanction as the petitioner is admittedly a Government servant.

6. Mr. Mohapatra, learned counsel for the petitioner contended that on the

basis of the report submitted by the Revenue Inspector, the Petitioner being

the Tahasildar, had issued the Caste Certificate. The relevant part of the charge

sheet would indicate that the petitioner had issued the Caste Certificate while

discharging his official duty which reads as under:

"That apart, the concerned Addl. Tahasildars, Dungripali and Tahasildar, Titlagarh, Ex-RI Saintala, who had issued caste certificate in favour of the lady Kuni Mallik @ Pratibha Padhan without proper application of mind and improper verification, enquiry into their caste status taking into consideration of their genealogy of both the families. Hence, they are liable for such omission and commission according to rule 08 (05) of the Orissa Caste Certificate (for SC & ST), Rules, 1980."

7. Even if the allegations are taken at its face value, it is apparent that the

petitioner had issued the Caste Certificate while exercising his official

authority as Tahasildar. Therefore, "the act complained of" is coming under

"the colour of duty" assigned to the petitioner. In that view of the matter, the

sanction contemplated under Section 197 of Cr.P.C. was necessary and pre-

condition for taking cognizance of offences against the petitioner. Therefore,

in absence of such sanction, the cognizance order is bad in law.

8. Mr. Mohapatra, learned advocate has relied upon the judgment of the

Hon'ble Supreme Court in the case of D. Devaraja vs. Owais Sabeer Hussain

passed in Criminal Appeal No.458 of 2020 [arising out of SLP (Crl.)

No.1882 of 2018]. He has emphasized on Paragraphs-72, 73, 74 and 77 of the

judgment, which read as under:

"72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

Xxx xxx xxxx xxx

77. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of Court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is

apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of Court."

9. To buttress his argument, Mr. Mohapatra further relied upon the

judgment of this Court in Ajaya Kumar Barik vs. State of Odisha and

Another reported in 2022 LiveLaw (Ori) 154. He has emphasized on

Paragraphs-5 & 9, which read as under:

"5. Section 197 Cr.P.C. stipulates that when a public servant 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 of the Government. It does mean that a public servant not removable from his office save by or with the sanction of the Government 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 law in this regard is well settled. If the act complained of has any nexus with the official duty, in that case, the public servant cannot be subjected to prosecution without sanction of the Government. The Apex Court in D. Devaraja (Supra) elaborately discussed about the sanction referring to numbers of its earlier judgment and finally concluded that the object of Section 197 Cr.P.C. is to prevent public servants from being subjected to vexatious proceedings for the acts which are done in discharge of official duty or committed in excess of such duty or authority.

9. If the seizure of the vehicle has been carried out in due discharge of official duty, in that case, the learned court below was to demand sanction under Section 197 Cr.P.C. If it is otherwise and that the petitioner did mischief and illegally seized the vehicle by misutilising the authority and official position and committed the excess in the colour of discharging duty, no sanction would be required. The Apex Court in D. Devaraja (supra) while dealing with a matter concerning sanction held and observed that an application under Section 482 Cr.P.C. is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. It has been further held therein that to decide whether sanction is necessary, the test is whether the act is totally

unconnected with the official duty or if there is a reasonable nexus with the official duty and in that case the allegation was with regard to gross mischief committed during custodial interrogation. The Supreme Court in the above case concluded that if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if he has exceeded the scope of his powers and/or acted beyond the four corners of law. In the case at hand, the seizure of the vehicle was carried out by the petitioner which is alleged to be on the instigation of a person with whom opposite party No.2 was not pulling on well and in good terms and that some excess was committed by him which in the considered opinion of the Court may have amounted to commission of offences, however, basically connected to the official duty or having nexus with the investigation and hence, sanction should have been insisted upon before proceeding with the complaint which is a view derived from the ratio of the Apex Court in D. Devaraja ibid."

10. In the case of Centre for Public Interest Litigation and Another vs.

Union of India and Another reported in (2005) 8 SCC 202, the Hon'ble

Apex Court in Paragraph Nos.9, 10 & 11 has held as under -:

"9. The protection given under Section 197 is to protect responsible public servants against the 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. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown

that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

10. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

11. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."

11. In the case of A. Srinivasulu vs. The State Rep. by the Inspector of

police reported in 2023 Live Law(SC)485 Hon'ble Supreme Court while

dealing with similar such matter has held as under-:

"41. In Devinder Singh vs. State of Punjab through CBI , this Court took note of almost all the decisions on the point and summarized the principles emerging therefrom, in paragraph 39 as follows:

39. The principles emerging from the aforesaid decisions are summarised hereunder:

39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.

39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. ...."

12. Mr. Maharaj, learned Addl. Standing Counsel appearing for the

opposite party-State vehemently opposed the contentions raised by Mr.

Mohapatra, learned counsel for the petitioner at the Bar and submitted that the

learned J.M.F.C., Saintala has rightly taken cognizance by relying upon the

judgment of the Hon'ble Supreme Court in the case of State of H.P. vs. M.P.

Gupta reported in (2004) 2 SCC 349. He has strongly relied upon the

judgment of the Hon'ble Supreme Court and contended that once there is an

allegation of criminal conspiracy, there is no question of sanction required to

prosecute a public servant. Mr. Maharaj, learned State Counsel contends that

the Court below has taken cognizance for the offences under Sections-

420/467/468/471/477-A/120-B of the IPC. Since the cognizance under Section

120-B of the IPC has been taken, the petitioner cannot take the plea of

sanction at this stage.

13. I am unable to accept the contentions raised by Mr. Maharaj, learned

State Counsel. Mere allegation of the offence under Section 120-B of the IPC

apart from the other offences, shall not deprive a Government Officer from the

statutory protection provided under Section 197 of Cr.P.C. The protection

given under Section 197 of Cr.P.C. is only to ensure that the public servants

are not subjected to the ordeal of the criminal prosecution, for some bonafide

official act carried out by the officers by following due procedure during the

course of their official duty. The intent behind the statutory protection is to

protect the honest and sincere officers to perform their duty honestly and to

the best of their ability to further the public cause. However, the authority,

under the guise of the protection, is not to camouflage the commission of any

crime. If the "act complained of" is coming under the official function of a

delinquent officer, he cannot be subjected to criminal trial without there being

a valid sanction. Even on merits, the analysis of the present case would reveal

that the evidences are not adequate to proceed against the petitioner.

14. The substratum of the allegations is that one Kuni Mallick @ Prativa

Pradhan is naturally born to one Gobinda Pradhan who belongs to Dumal

(SEBC) by caste. It appears that Kuni Pradhan was adopted by one Subhas

Mallick, who belongs to Kandha caste (ST). After adoption, Kuni Mallick was

admitted to the Primary School and in the School, her father's name was

mentioned as Subash Mallick. After completion of her study, she appears to

have obtained the Caste Certificate and on the strength of the said Caste

Certificate, she got employment as a Cook-cum-Attendant in the SC/ST

Development Department of the Government of Odisha. It is alleged that she

had manipulated the documents and event of adoption to obtain the Caste

Certificate. The doubt appears to have been created after Kuni Mallick married

to one Purushottam Kalia, who too belongs to Dumal caste. From the narration

of the facts, it is illuminating from the record that the real issue appears to be

the issue as to whether Kuni Mallick was validly adopted or not. If the

adoption is found to be valid, no fault could be found from the Caste

Certificate. However, the investigation carried out by the police had gone in a

completely different tangent, the police simply presumed that the adoption

itself was invalid. On the presumption that the adoption was invalid, the I.O.

has proceeded with the case. It is evident that no evidence was collected

regarding the validity of the adoption except to say that there is no adoption

agreement/deed produced by Kuni Mallick.

15. Mere non-existence or non-execution of adoption deed per se would

not invalidate the adoption. Therefore, there is no material collected by the

police to create a genuine doubt regarding the fact that Kuni Mallick was

validly adopted by Subhas Mallick.

16. The Investigating Officer has not taken into account the fact that the

present petitioner being the Tahasildar had issued the Caste Certificate on the

basis of the report submitted by the Revenue Inspector. On the basis of the

enquiry report conducted by the Revenue Officer, the petitioner while

exercising his official function as the Tahasildar had issued the Caste

Certificate on the bonafide belief that Kuni Mallick was validly adopted by

one Subhas Mallick and after adoption even she had taken admission in the

Primary School and completed her study. In the school record Kuni Mallick

was shown as the daughter of Subash Mallick.Therefore, issuance of the Caste

Certificate by the petitioner also cannot be questioned on merit besides the fact

that he had issued the Caste Certificate while exercising his official duty as

Tahasildar.

17. Mr. Maharaj, learned Addl. Standing Counsel further submits that no

indulgence should be given to the petitioner in the present case because

petitioner has been absconding and the charge sheet was filed showing him as

an absconder. To controvert this aspect of the matter, Mr. Mohapatra, has

taken me to ground no.5 of the petition which reads as follows:

"E. For that being a Class-1 Govt. Servant of the State Govt., the petitioner after serving at the Tahasil Office at Titlagarh was transferred to different places which are reproduced below in the chart. Therefore the petitioner at no point of time was avoiding the court process or the investigating officer, though it was well within the knowledge of the prosecution/Investigating Officer, that the petitioner is a Govt. Servant and there is nothing on record to show that the petitioner has acted beyond the capacity as envisaged under law for issuance of caste certificate but he has been arrayed as an accused person & thereafter shown as absconder. That the petitioner was

discharging his official duties at his posted places of service hence the submission of the charge sheet describing the petitioner to be an absconder is vague, evasive in nature and cannot be sustained in the eyes of law.

                      YEARS              POSTINGS OF THE
                                         PETITIONER
                       2008              Tahasildar, Titlagarh
                     2008-2012           District Project
                                         Coordinator, Kalahandi
                     2013-2016           Sub-Collector, Malkangiri
                     2016-2018           Joint-Secretary,
                                         Panchayati Raj
                                         Department.
                     2018-2020           Joint-Secretary, S.C. &
                                         S.T. Department
                     2020-2021           Joint-Coordinator,
                                         Koraput
                 2021 onwards            Registrar, Sambalpur
                                         University

18. On the face of the aforementioned, the Investigating Officer declaring

the petitioner to be an absconder and filing the charge sheet is misconceived

and cannot be believed, as the petitioner is a Government servant and has

been posted in different places in different capacity right through.

19. Taking into consideration the entire facts and circumstances of the case

and weighing the same in the light of the judgments discussed in the preceding

paragraphs, I am of the considered view that the petitioner was entitled to the

protection provided under Section 197 of Cr.P.C. While the petitioner was

functioning as Tehsildar he had bonafidely issued the subject caste- certificate

to Co-accused Kuni Mallick during the course of his official duty, therefore,

he was entitled to the statutory protection before subjecting him to criminal

prosecution. In view thereof, the cognizance taken for the offences

u/ss.420/467/468/471/477-A/120-B of the IPC against the petitioner without

valid sanction is barred under law and is not sustainable.

20. In the result, the CRLMC is allowed and the order dated 02.05.2015

passed by the learned J.M.F.C., Saintala in G.R. Case No.192 of 2012

corresponding to Saitala P.S. Case No.123 of 2012 is set-aside.