Orissa High Court
Himansu Barik vs State Of Odisha And Anr. .... Opp. ... on 17 October, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLMP No.1105 of 2025
Himansu Barik .... Petitioner
Mr. G. K. Rath, Advocate
-versus-
State of Odisha and Anr. .... Opp. Parties
Mr. Raj Bhusan Dash, Addl. P. P.
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 17.10.2025
Chittaranjan Dash, J.
1. Heard learned counsel for the Parties.
2. By this application, the Petitioner seeks to quash the
order dated 09.05.2024, passed by the learned S.D.J.M.,
Boudh in dismissing the complaint, and the subsequent
order dated 22.03.2025, passed by the learned Sessions
Judge, Boudh in C.R.P. No.1 of 2024.
3. The Petitioner is actively involved in promoting
social justice and routinely brings instances of illegality to
the notice of the competent authorities. In one such instance,
he became aware that certain children were engaged in
hazardous child labour and accordingly reported the matter
to the District Labour Officer (DLO), Boudh. The DLO
acknowledged the information, appreciated the Petitioner's
efforts, and assured that legal action would be taken against
the offenders.
After a considerable lapse of time, the DLO
conducted a spot inquiry at Village Bahira (Tentulipali) on
10.08.2023. The Petitioner made repeated visits to the
DLO's office to ascertain the progress of the case. On each
occasion, the DLO avoided giving a definite response and
merely stated that the matter would be looked into.
However, on 25.01.2024, when the Petitioner again sought
an update regarding his complaint dated 06.02.2023, the
DLO became annoyed, accused him of making false and
baseless allegations, and threatened him with prosecution.
When the Petitioner protested, the DLO allegedly
abused him in foul language, forcibly pushed him out of the
office, and continued to harass him. Aggrieved by this
conduct, the Petitioner consulted counsel and filed a
complaint before the learned Sub-Divisional Judicial
Magistrate, Boudh, which was registered as 1CC Case No.1
of 2024. The learned S.D.J.M. conducted an inquiry under
Section 202 Cr.P.C., examined the witnesses, and perused
the Petitioner's statement. Observing that the allegations
pertained to actions purportedly done by the DLO in the
course of official duty, the S.D.J.M. held that cognizance
could not be taken without sanction under Section 197
Cr.P.C. As no sanction had been obtained, the complaint
was dismissed for want of sanction.
Aggrieved thereby, the Petitioner preferred C.R.P.
No.1 of 2024 before the learned Sessions Judge, Boudh.
Upon hearing both sides, the learned Sessions Judge found
no infirmity in the order dated 09.05.2024 of the S.D.J.M.
and dismissed the Revision Petition on 22.03.2025. Hence,
through the present application, the Petitioner challenges the
orders of the learned S.D.J.M., Boudh dated 09.05.2024 and
of the learned Sessions Judge, Boudh dated 22.03.2025.
4. Mr. G. K. Rath, learned counsel for the Petitioner,
reiterated the principal grounds earlier urged before the
courts below while challenging the order of the learned
Magistrate. He strenuously argued that the acts alleged in
the complaint do not fall within the ambit of a public
servant's official duties and, therefore, the requirement of
prior sanction is wholly misconceived and unsupported by
law. He submitted that the DLO, under the guise of official
authority, subjected the Petitioner to abuse and unlawful
conduct, which can never be treated as an act done in the
discharge of official functions. According to him, the
alleged misconduct was entirely outside the scope of the
DLO's official capacity. Consequently, the dismissal of the
complaint by the learned S.D.J.M., Boudh for want of
sanction, and the affirmation of that order by the learned
Sessions Judge, are illegal and unsustainable. Mr. Rath
accordingly prayed for quashing both orders and permitting
the Petitioner to proceed with the complaint without
insisting on prior sanction.
5. Mr. Dash, learned counsel for the State, on the other
hand, vehemently opposed the contentions raised by the
Petitioner and submitted that the very object of Section 197
of the Cr.P.C. is to protect public servants from
unnecessary harassment, and therefore, the impugned order
suffers from no illegality. He further contended that the
complaint itself reveals that the Petitioner had visited the
office of the DLO, Boudh, and the DLO, in his official
capacity, dealt with the Petitioner. However, the Petitioner
allegedly exceeded the bounds of propriety and attributed
misconduct to the DLO for not attending to his grievance.
In order to maintain the decorum and dignity of the office,
the DLO merely directed the Petitioner to leave the office.
6. Be that as it may, from the very narration in the
complaint regarding the allegations against the DLO, it is
apparent that the DLO was engaged in the discharge of his
official duties. In doing so, he acted in a manner necessary
to maintain the dignity of his office. Accordingly, any
complaint against the DLO would necessarily fall within
the ambit of Section 197 of the Cr.P.C., requiring prior
sanction before the court can take cognizance.
7. The ambit, scope, and effect of Section 197 of the
Cr.P.C., and the circumstances in which the protection
under this provision is available to a public servant against
criminal prosecution, form the subject matter of
determination in this application. It is needless to state that
this issue has been under consideration for a long period of
time, and a large body of case law has evolved on the point,
tracing back to the decision of the Federal Court in
Hariram Singh vs. Emperor, reported in AIR (26) 1939
FC 43, wherein it was observed as follows:-
"Section 197 of the CrPC is not confined solely
to acts done by a public servant strictly in
pursuance of his official duties, even if
performed in excess of duty under a mistaken
belief as to the existence of such duty. Nor is it
necessary that the act constituting the offence be
so integrally connected with the official duty as
to form part and parcel of the same transaction;
it is sufficient if the act is related to or arises out
of the discharge of official functions."
xxx
There must be something in the nature of the act
complained of that attaches to the official
character of the person so doing."
8. The views expressed by the learned Judges of the
Federal Court were subsequently affirmed by the Judicial
Committee of the Privy Council in H.B. Gill Vs. The King,
reported in AIR 1948 PC 128, wherein it was observed as
follows:-
"A public servant can only be said to act or to
purport to act in the discharge of his official duty if
his act is such as to lie within the scope of his
official duty. The test is whether the act
complained of is directly concerned with the
official duties of the public servant, so that, if
questioned, it could be claimed to have been done
by virtue of the office. There must be a reasonable
connection between the act and the discharge of
official duty; the act must bear such relation to the
duty that the accused could lay a reasonable, but
not a pretended or fanciful, claim that he did it in
the course of his official duty."
9. The test is whether the public servant, if challenged,
can reasonably claim that what he did was done by virtue of
his office. The correctness of the view expressed by their
Lordships of the Privy Council in Gill's case (Supra) came
up for consideration before the Hon'ble Supreme Court in
Matajog Dobey vs. H.C. Bhari, reported in AIR 1956 SC
44. The Court observed that the test laid down in Gill's case
(Supra), requiring the act complained of to be an 'official
act,' unduly narrowed the scope of protection afforded to
public servants under Section 197 CrPC. After reviewing
earlier precedents, their Lordships clarified that there must
be a reasonable connection between the act and the
discharge of official duty. The act must bear such relation to
the duty that the accused can reasonably, and not in a
pretended or fanciful manner, claim that it was done in the
course of performing official duty.
10. Applying this test, in Pukhraj vs. State of Rajasthan,
reported in (1973) 2 SCC 701, it was held that the acts of
kicking and abusing the complainant by a public servant
were considered as having been done in the course of
performance of duty. However, in S.P. Venkatachalam v.
G. S. Gnanasekaran, reported in JT 1994 (2) SC 689,
dealing with protection under Section 53 of the Madras
District Police Act, 1859, the Hon'ble Supreme Court held
that the mere fact that the appellant was summoned under
law would not establish the required nexus. The acts of
beating and torturing the appellant could not be said to have
any reasonable connection with the official duty of
responding to a summons. It was emphasised that unless a
nexus is established between the provision of law under
which the respondent purports to act and the misconduct
complained of, the statutory protection would not be
attracted. This principle was further reiterated in Amrik
Singh vs. State of Pepsu, reported in AIR 1955 SC 309,
wherein it was underscored that the protection cannot extend
to acts which are manifestly unrelated to the lawful
discharge of official duty.
It is necessary to protect public servants in the
discharge of their duties. They must be immune from
frivolous or vexatious criminal proceedings and
prosecutions; this being the rationale underlying Sections
196 and 197 of the CrPC. At the same time, it is equally
important to emphasise that the rights of citizens should be
protected, and access to justice must not be curtailed.
11. In the present case, it is prima facie evident that the
act of the Opposite Party-DLO bears a reasonable
connection with the discharge of his official duties. The
Hon'ble Apex Court, in State of Orissa & Ors. v. Ganesh
Chandra Jew, reported in 2004 (8) SCC 40, while
interpreting the scope of Section 197 CrPC, observed that
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 in discharge of his duty. The Court further
held that the scope of such protection is wide enough to
extend even to those acts or omissions committed in
purported exercise of official duty. Once it is found that the
act or omission has been committed by a public servant in
discharge of his duty, a liberal and broad construction
should be given to the expression 'official duty,' so far as its
official nature is concerned."
It is, in fact, prima facie evident that the act or
omission for which the accused was charged bears a
reasonable connection with the discharge of his official
duties. Therefore, it must be held to be an official act, to
which the applicability of Section 197 of the Code of
Criminal Procedure (CrPC) cannot be disputed.
12. The Hon'ble Supreme Court, in Debaraj vs. Sabowis
Sabeer Hussain, reported in (2020) 7 SCC 694, examined
the object of Section 197 of the CrPC in relation to
prosecution and also expanded the test to decide the
applicability of the provision. The Court further considered
the provisions of Section 70 of the Karnataka Police Act,
1963, as applicable in the State. The Hon'ble Apex Court
held that the object of requiring sanction for prosecution,
whether under Section 197 of the CrPC or Section 70 of the
Karnataka Police Act, is to protect public servants, including
police officers, from harassment through the initiation of
frivolous or retaliatory criminal proceedings while
discharging their official duties and functions.
13. Moreover, the Hon'ble Apex Court in it's recent
decision in the matter of Om Prakash Yadav vs. Niranjan
Kumar Upadhyay & Ors., reported in 2024 LiveLaw (SC)
989, has clarified the position of laws as follows: -
65.Thus, the legal position that emerges from a
conspectus of all the decisions referred to above is
that it is not possible to carve out one universal rule
that can be uniformly applied to the multivarious
facts and circumstances in the context of which the
protection under Section 197 CrPC is sought for.
Any attempt to lay down such a homogenous
standard would create unnecessary rigidity as
regards the scope of application of this provision.
In this context, the position of law may be
summarized as under: -
(i) The object behind the enactment of Section
197 CrPC is to protect responsible public
servants against institution of possibly false or
vexatious criminal proceedings for offences
alleged to have been committed by them while
they are acting or purporting to act in their
official capacity. It is to ensure that the public
servants are not prosecuted for anything which is
done by them in the discharge of their official
duties, without any reasonable cause. The
provision is in the form of an assurance to the
honest and sincere officers so that they can
perform their public duties honestly, to the best
of their ability and in furtherance of public
interest, without being demoralized.
(ii) The expression "any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of his official
duty" in Section 197 CrPC must neither be
construed narrowly nor widely and the correct
approach would be to strike a balance between
the two extremes. The section should be
construed strictly to the extent that its operation
is limited only to those acts which are discharged
in the "course of duty". However, once it has
been ascertained that the act or omission has
indeed been committed by the public servant in
the discharge of his duty, then a liberal and wide
construction must be given to a particular act or
omission so far as its "official" nature is
concerned.
(iii) It is essential that the Court while
considering the question of applicability of
Section 197 CrPC truly applies its mind to the
factual situation before it. This must be done in
such a manner that both the aspects are taken
care of viz., on one hand, the public servant is
protected under Section 197 CrPC if the act
complained of falls within his official duty and
on the other, appropriate action be allowed to be
taken if the act complained of is not done or
purported to be done by the public servant in the
discharge of his official duty.
(iv) A public servant can only be said to act or
purport to act in the discharge of his official
duty, if his act is such that it lies within the scope
and range of his official duties. The act
complained of must be integrally connected or
directly linked to his duties as a public servant
for the purpose of affording protection under
Section 197 CrPC. Hence, it is not the duty
which requires an examination so much as the
"act" itself.
(v) One of the foremost tests which was laid
down in this regard was - whether the public
servant, if challenged, can reasonably claim that,
what he does, he does in virtue of his office.
(vi) Later, the test came to be re-modulated. It
was laid down that there must be a reasonable
connection between the act done and the
discharge of the official duty and the act must
bear such relation to the duty such that the
accused could lay a reasonable, but not a
pretended or fanciful claim, that his actions were
in the course of performance of his duty.
Therefore, the sine qua non for the applicability
of this section is that the offence charged, be it
one of commission or omission, must be
committed by the public servant either in his
official capacity or under the color of the office
held by him such that there is a direct or
reasonable connection between the act and the
official duty.
(vii) If in performing his official duty, the public
servant acts in excess of his duty, the excess by
itself will not be a sufficient ground to deprive
the public servant from protection under Section
197 CrPC if it is found that there existed a
reasonable connection between the act done and
the performance of his official duty.
(viii) It is the "quality" of the act that must be
examined and the mere fact that an opportunity
to commit an offence is furnished by the official
position would not be enough to attract Section
197 CrPC.
(ix) The legislature has thought fit to use two
distinct expressions "acting" or "purporting to
act". The latter expression means that even if the
alleged act was done under the color of office,
the protection under Section 197 CrPC can be
given. However, this protection must not be
excessively stretched and construed as being
limitless. It must be made available only when
the alleged act is reasonably connected with the
discharge of his official duty and not merely a
cloak for doing the objectionable act.
(x) 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 such a rule.
However, a "safe and sure test" would be to
consider if the omission or neglect on the part of
the public servant to commit the act complained
of would have made him answerable for a charge
of dereliction of his official duty. If the answer to
this question is in the affirmative, the protection
under Section 197 CrPC can be granted since
there was every connection with the act
complained of and the official duty of the public
servant.
(xi) The provision must not be abused by public
servants to camouflage the commission of a
crime under the supposed color of public office.
The benefit of the provision must not be
extended to public officials who try to take
undue advantage of their position and misuse the
authority vested in them for committing acts
which are otherwise not permitted in law. In such
circumstances, the acts committed must be
considered dehors the duties which a public
servant is required to discharge or perform.
(xii) On an application of the tests as aforesaid, if
on facts, it is prima facie found that the act or
omission for which the accused has been charged
has a reasonable connection with the discharge
of his official duty, the applicability of Section
197 CrPC cannot be denied.
66.At the cost of repetition, we say that the position
of law on the application of Section 197 CrPC is
clear - that it must be decided based on the peculiar
facts and circumstances of each case. This Court
has held in a legion of decisions that any misuse or
abuse of powers by a public servant to do
something that is impermissible in law like
threatening to provide a tutored statement or trying
to obtain signatures on a blank sheet of paper;
causing the illegal detention of an accused;
engaging in a criminal conspiracy to create false or
fabricated documents; conducting a search with the
sole object of harassing and threatening
individuals, amongst others, cannot fall under the
protective umbrella of Section 197 CrPC.
14. Applying the legal propositions referred to above,
and considering the uncontroverted facts, it is clear that the
DLO concerned, while engaged in the discharge of his
official duties, cannot be faulted for the manner in which he
conducted his duty. The questions raised by the Petitioner
pertain to acts that have a close nexus with the DLO's
official functions.
15. In view of the above discussion, this Court concludes
that the prosecution of the Petitioner could not have
proceeded in the absence of sanction under Section 197 of
the CrPC. Consequently, the impugned order dismissing the
complaint for want of sanction cannot be faulted. However,
in the event the Petitioner obtains the requisite sanction for
prosecution against the concerned DLO, the complaint may
be filed again in accordance with law.
16. As a result, the CRLMP is disposed of.
(Chittaranjan Dash)
Judge
AKPradhan
Signed by: ANANTA KUMAR PRADHAN
Location: HIGH COURT OF ORISSA
Date: 20-Oct-2025 12:08:48
