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Premjit Mohananda v. Mohanpani Karua & Another Opp. Parties.
Factual and Procedural Background
The petitioner (the complainant) filed a criminal complaint (I.C.C No. 20 of 1993) in the Court of the Judicial Magistrate First Class, Sonepur, alleging offences under sections 342, 323, 284, 506 and 34 of the IPC against the opposite parties. Opposite party No. 1 was the officer-in-charge of Banpur police station at the relevant time. After examining the complaint, the petitioner’s initial statement and enquiry witnesses under section 202 Cr. P.C., the learned Magistrate concluded that the facts did not show a connection of assault or use of abusive words by opposite party No. 1 while discharging official duty and was of the opinion that no sanction under section 197 Cr. P.C. was necessary. Nevertheless, the Magistrate found a prima facie case and on 9-2-1994 took cognizance of offences under sections 323/506/34 IPC and directed summons to issue.
Opposite party No. 1 challenged the Magistrate’s order before the Sessions Judge. The Sessions Judge held that opposite party No. 1 was entitled to protection under section 197 Cr. P.C., that prior sanction was necessary, and in the absence of sanction quashed the cognizance taken against him. The petitioner filed the present revision challenging the Sessions Judge’s order.
Legal Issues Presented
- Whether prosecution of opposite party No. 1 (a police officer who allegedly assaulted and abused the petitioner after arrest) required prior sanction under section 197 Cr. P.C.
- Whether the alleged assault and use of abusive language were acts done "in the discharge of" or "purporting to act in the discharge of" official duty such that section 197 protection applies.
- Whether the Sessions Judge was correct in quashing the Magistrate's cognizance for want of sanction under section 197 Cr. P.C.
Arguments of the Parties
Petitioner's (Complainant's) Arguments
- Learned counsel for the petitioner (Shri Misra) argued that it was not part of opposite party No. 1's official duty to assault or use abusive words against the petitioner, and therefore no sanction under section 197 Cr. P.C. was required for prosecution.
- The petitioner relied on several decisions of the Court (listed in the opinion) to support the submission that assaults or abuse inside police custody or police premises, when not connected with official duty, do not attract the protection of section 197 and thus do not require prior sanction.
Opposite Parties' Arguments
The opinion does not contain a detailed account of the opposite parties' specific legal arguments; it records that opposite party No. 1 sought protection under section 197 Cr. P.C., and that decisions were cited on both sides, but the precise submissions advanced by the opposite parties are not detailed in the text.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abani Charan Biswal v. State of Qissa, 64 (1987) C.L.T 659 | Whether offence was committed in course of official duty depends on facts; public servant cannot claim blanket privilege; test is whether the public servant can reasonably claim the act was by virtue of office. | The court cited this decision to show that abusive conduct toward detained persons inside police custody, without apparent justification, does not attract protection under section 197; used as supporting authority for the view that factual inquiry is decisive. |
| Samir Chandra Guha v. K. Pradhan, 67 (1989) C.L.T 451 | Sanction under section 197 not necessary where assault inside police station had no nexus with discharge of public duty. | Cited as authority supporting the petitioner's contention that assaults inside the police station not connected to duty do not require sanction. |
| Kailash Chandra Mahanta v. Gamswar Amanta, 1990 (I) O.L.R 432 | When no material shows that alleged act was exercise of official duty, cognizance should not be quashed at that early stage; accused may place material later. | Referred to for the proposition that absence of material to show the act was in discharge of official duty is a ground to set aside an order that quashed cognizance; illustrates procedural caution in early stages. |
| Brundaban Rath v. Tam Kanta Das, 1991 (I) O.L.R 195 | Where materials show police officer slapped a complainant and directed detention, taking cognizance was justified (no protection under section 197). | Used to demonstrate cases where court found materials sufficient to take cognizance against a police officer for assault despite official status. |
| Trilochan Bank v. Raghunath Bal, 72 (1991) C.L.T 215 | Acts of a police officer (abuse and assault at complainant's shop followed by taking him to station) were not connected with investigation and thus did not attract section 197 protection. | Cited as authority upholding cognizance where officer's acts were unrelated to investigation and therefore not protected. |
| Lalit Mohan Panigrahi v. Mayadhar Sadarath, 67 (1989) C.L.T 147 | Execution of a recalled warrant was an act in discharge of official duty; thus sanction under section 197 was necessary and cognizance was quashed. | Considered by the court as a decision cited by opposite parties' counsel; used to show circumstances where court found the act to be in official discharge and sanction required. |
| T.P. Reddy v. Devraj Panigrahi, 1991 (II) O.L.R 253 | Even if excess is committed in discharge of official duty, prior sanction under section 197 may be necessary. | Used to illustrate the proposition that excesses committed while acting under colour of duty may nonetheless attract the requirement of sanction. |
| Kartikeswar Nayak v. Satyabadi Mallik, (1994) 7 O.C.R 326 | Arresting and producing an offender is official duty; even if excess occurs during arrest, the act is in relation to official duty and sanction under section 197 is necessary. | Relied upon to show that acts connected with arrest/production before court are within the ambit of section 197 protection; the court used this reasoning in its factual application. |
| Hori Ram Singh v. Emperor, A.I.R. 1939 P.C. 43 | Test that the act complained of must have something in its nature that attaches it to the official character of the person doing it. | Quoted to support the proposition that the quality of the act and its attachment to official character is a relevant test for applicability of section 197. |
| P. Arulswami v. State of Madras, A.I.R. 1967 S.C. 776 | "It is the quality of the act that is important"—if the act falls within the scope of official duties, section 197 protection attaches; if unconnected, no protection. | Quoted by the court to state the governing principle that the quality and scope of the act determine applicability of section 197. |
Court's Reasoning and Analysis
The court began by setting out the legal framework for section 197 Cr. P.C. and identifying the two pre-conditions that must be satisfied before invoking the protection of that provision: (i) the public servant must be one who is not removable from office except by or with sanction of the State or Central Government; and (ii) he is accused of an offence alleged to have been committed by him. Once those preconditions are met, the question becomes whether the alleged offence was committed while "acting or purporting to act in the discharge of his official duty."
The court explained the interpretive difficulty of the expression "purporting to act in the discharge of official duty," rejecting both overly narrow and overly broad approaches. It adopted a middle path: protection under section 197 is not available for every offence committed by a public servant in the course of performing an official act; rather, it applies to offences that directly or reasonably connect with the public servant's official duty. Acts done purely in a private capacity are excluded.
Applying these principles to the complaint's allegations, the court summarized the factual allegations: the petitioner was arrested on 31-10-1993 for an offence under section 3 of the Orissa Prevention of Gambling Act, detained in the police hazat, and later was alleged to have been refused bail, ordered to be assaulted by opposite party No. 1 and his subordinate, slapped and kicked by opposite party No. 1 and abused in filthy language. The court observed that the refusal to release the petitioner on bail and the subsequent assault and abuse occurred after the arrest in connection with the gambling case.
The court found that refusal to release on bail and the subsequent conduct, although possibly an excess in performance of official duty, could not be said to be completely unconnected with official duty. Because these acts were related to the arrest and detention (matters within the scope of police function), they were reasonably connected to official duty and therefore attracted the protective ambit of section 197. It was not disputed that opposite party No. 1 required sanction for removal; hence, the mandatory requirement of obtaining sanction for prosecution had not been complied with. For these reasons the court held that the cognizance against opposite party No. 1 could not be supported in law.
The court thus affirmed the Sessions Judge's view that prior sanction under section 197 was required and that, in absence of sanction, the Magistrate's taking of cognizance was unlawful.
Holding and Implications
HOLDING: The revision is dismissed; the order of the learned Sessions Judge quashing the cognizance taken against opposite party No. 1 for want of sanction under section 197 Cr. P.C. is upheld.
Implications:
- The direct effect is that cognizance taken against opposite party No. 1 cannot be supported in law in the absence of prior sanction under section 197 Cr. P.C., and the Sessions Judge's quashing of such cognizance is affirmed.
- The court applied established tests and authorities on the scope of section 197 and did not purport to create or announce a new legal principle beyond those authorities; the decision applies those principles to the particular factual allegations before the court.
R.K Patra, J.:— The petitioner is the complaint. He filed complaint vide I.C.C No. 20 of 1993 in the court of the Judicial Magistrate Fust Class, Sonepur against opposite parties on the allegation that they committed offences punishable under sections 342/323/284/506/34 I.P C.. Opposite party No. 1 was the officer-in-chaige of Banpur police station at the relevant time. The learned Magistrate after perusing the complaint, the initial statement of the petitioner and the statements of witnesses recorded in the enquiry under section 202 Cr. P.C held that the facts and circumstances of the case did not show that there was any cannection of assault or use of abusive words at the petitioner by the opposite party No. 1 while the latter was discharging official duty. He was of the opinion that no sanction under section 197 Cr. P.C was necessary. Having found a prima facie case be took cognisance of offences under sections 323/506/34 I.P.C and directed issue of summons to the opposite parties. This order was passed on 9-2-1994. The opposite party No. 1 challenged it before the learned Sessions Judge. By the impugned order, the learned Sessions Judge held that opposite party No. 1 is entitled to the protection under section 197 Cr. P.C and in absence of sanction, taking cognizance is illegal and consequently he quashed the cognizance taken against him. In this revision the petitioner has assailed the validity of this order.
2. Shri Misra, learned counsel for the petitioner, contended that it was no part of the official duty of opposite party No. 1 to assult or to use abusive words against the petitioner and, as such, no sanction is required for his prosecution. In this coutext, he placed reliance on the decisions of this Court in 64 (1987) C.L.T 659, 67 (1989) C.L.T 451, 1990 (I) O L.R 432, 1991 (I) O.L.R 195 and 72 (1991) C.L.T 215. In Abani Charan Biswal v. State of Qissa, 64 (1987) C.L.T 659, a Division Bench of this Court had the occasion to consider the applicability of section 197 Cr. P.C. In that case a police officer detained the complainants in the nolice hazat and abused them in filthy language calling them SALA, CHOR, BADM AS’ stating that they had forcibly sowed paddy in the disputed field. The Court after making a survey of decisions cited before it observed that whether the offence was committed in the course of official duty or not would depend upon the facts of each case and the test may well be as to whether the public servant can reasonably claim or challenge that he did so by virtue of his office but he cannot claim blanket privilege for all the acts and uncalled fox overdoings while discharging any public duty. Having regard to the face that the complainants were abused when they had already been lodged in the police hazat, the Court observed that there was no apparent justification for the police officer to abuse the complainants. Accordingly, it held that no protection is available to the public servant under section 197 Cr, P.C.
3. In Samir Chandra Guha v. K. Pradhan, 67 (1989) C.L.T 451 a Single Judge of this Court has held that in that case no sanction was necessary for prosecution of a police officer for assaulting persons inside the police station inasmuch as the victims neither attempted to escape nor used any criminal force against police and there was iso nexus of the alleged assault with their discharge of public duty.
4. In Kailash Chandra Mahanta v. Gamswar Amanta, 1990 (I) O.L.R 432, the validity of taking cognizance against the officer-in-charge of police station came up for consideration. This Court found that there was no material available before the Sessions Judge (who had set aside the order taking cognizance) to show that the alleged act was a purported exercise of the official duty of the accused and as that stage had not come the Court set aside the order of the learned Sessions Judge and observed that it was open to the accused to place material on record in the later stage of the proceeding.
5. In Brundaban Rath v. Tam Kanta Das., 1991 (I) O.L.R 195 the learned Single Judge following the ratio of Abani Charan (supra) held that the materials on record justified taking of cognizance against the police officer. In that case the officer-incharge of the police station was alleged to have slapped the complainant and directed his subordinates to put the complainant inside the police hazat.
6. In Trilochan Bank v. Raghunath Bal, 72 (1991) C.L.T 215, the officer-in-charge of a police station was alleged to have gone to the shop of the complainant and abused him in filthy language and also assaulted him and thereafter took him to the concerned police station. The karned Judge observed that the act of the police officer at the relevant time was in no way connected with the investigation of the case. Accordingly, the order of taking cognizance was upheld.
7. Let me examine the decision cited by the counsel for the opposite patties. In Lalit Mohan Panigrahi v. Mayadhar Sadarath, 67 (1989) C.L.T 147, the order of taking cognizance was quashed. In that case the concerned police offices executed warrant of arrest against the complaint even after the warrant of arrest was recalled. The Court held that it was not a private action of forcible confinement bat an act in discharge of official duty as public servant for which sanction under Section 197, Cr. P. C was necessary.
8. In T.P Reddy v. Devraj Panigrahi, 1991 (II) O.L.R 253, the Single Judge who decided the case of Brundaban Rath (supra) held that even if in discharge of one's official duty any excess is committed, the act complained of may attract the question of prior sanction as required under section 197, Cr. P.C. In that case the police officer called a person to the police station on complaint made by another one and thereafter he went to the village of that person and arrested him. After handcuffing, he paraded that person on the road and hurled abusive words. The learned Judge held that sanction under section 197, Cr. P.C was necessary for prosecution.
9. In Kartikeswar Nayak v. Satyabadi Mallik, (1994) 7 O.C.R 326, a police officer was alleged to have taken the complainant into custody and thereafter the complainant was alleged to have been assaulted, tortured and detained in the lock up by the concerned officer. This Court held that the acts complained of against the police officer were undoubtedly committed in course of discharge of his official duty in arresting the complainant and producing him before the Court and even if any excess was committed in discharge of his duty that excess was plainly in relation to his official duty in the sense that it was professed to be so and it was meant to convey to the mind of the complainant that he was acting under the authority of his office. The Court further observed that arresting an offender is the official duty of the police officer. Even if any excess was committed while effecting or continuing such attest, it cannot be said that it was completely divorced from his duties. Accordingly, it was held that prior sanction under section 197, Cr. P.C was necessary.
10. The principle embodied under section 197, Cr. P.C is well established. The difficulty, however, lies in its application to the facts of a given case. Before the provision of Section 197, Cr. P. C is invoked, two conditions must be first fulfilled: (i) the public servant is not removable from his office except by or with the sanction of the State Government or the Central Government, as the case may be and (ii) he is accused of any offence alleged to have been committed by him. After these two pre-conditions are satisfied a further enquiry is necessary to be made as to whether the alleged offence was committed by the public servant while acting or purporting to act in the discharge of his official duty. It is in this connection that the expression “purporting to act in the discharge of official duty” assume importance. This expression is neither to be too narrowly interpreted nor too widely. The narrow interpretation will make it altogether otiose inasmuch as it is no part of an official duty-never can it be-the official duty to commit an offence. It is not the ‘duty’ which requires scrutiny so much as the “act” because the official act can be performed both in the discharge of official duty as well as in dereliction of it. If it is too widely construed, every act constituting an offence committed in the course of the same transaction in which the official duty is performed or purports to be performed would come within its sweep which should be avoided. In our constitutional set-up, no one whether be his rank or position is above the law and every official, irrespective of his rank, is under the same liability for his act done without legal justification as any other citizen. As such, the right approach to the problem lies between the two extremes. A middle line which is adopted is that it is not every offence committed by a public servant in course of performance of his official duty, which is entitled to the protection of section 197(1). What comes under the protective umbrella is an set constituting an offence, which directly or reasonably connects with his official duty. Protection of section 197 does not extend to acts done purely in a private capacity by a public servant. In Hori Ram Singh v. Emperor, A.I.R 1939 P.C 43 it was argued that one of the tests for applicability of section 197, Cr. P.C should be that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. Varadachariar, J. in his separate judgment accepted it to be the “correct view”.
11. In P. Arulswami v. State of Madras, A.I.R 1967 S.C 776, the Supreme Court observed as below:—
“It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by section 197, Cr. P.C will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”
12. The aforesaid being the legal position, 1st us, therefore, examine the allegations made in the complaint against opposite party No. 1. It goes without saying that whether a particular act is done by a public servant in discharge of his official duty or not is substantially one of fact to be decided on the facts and circumstances of each case. It has been stated in the complaint that the petitioner was arrested on 31-10-1993 along with some others by opposite party No. 1 on the allegation that he committed an offence under section 3 of the Orissa Prevention of Gambling Act, 1955 and was taken into custody and was kept inside the police hazat. At about 10. 30 a.m opposite party No. 1 came to the police station and released the co-accused from the hazat and directed his subordinate to forward the petitioner to the court of Magistrate. The petitioner appealed to him saying that he might be allowed to go on bail as the offence was bailable. At this request, opposite party No. 1 suddenly got annoyed and directed the Gramarakhi opposite party No. 2 to assault the petitioner saying “HABO E ARJUN PIT SALAKE BO KANA BAKAR BAKAR HAUCHHE JE”. The Gramarakhi accordingly rushed towards the petitioner and gave claps at his back. The petitioner again beseached opposite party No. 1 not to ask his subordinate to assault him and to cause physical injury. Thereafter opposite party No. 1 rushed towards the petitioner and gave a slap at his back and kicked him in back by his tight leg in between the leftside chest and back. As a results, he sustained swelling injury and got severe pain on his body. Opposite party No. 1 also abused the petitioner in vulgar and filthy language saying “SALA MAGIHA GANDA, SALAKU CHHUINLE JAIET JAUCHHE AAU KETE RUBAB KARUCHHE”.
13. The aforesaid allegations made in the complaint would show that opposite party No. 1 arrested and detained the petitioner in police hazat in connection with the gambling case. Refusal of opposite party No. 1 to release the petitioner on bail cannot be said to be unconnected or not reasonably connected with his official duty. The request made by the petitioner to allow him to go on bail seemed to have been not appreciated by opposite party No. 1 for which he got annoyed and directed the Grama-takhi to assault the petitioner. When the petitioner made further request not to assault him, opposite party No. 1 was alleged to have rushed towards the petitioner and assaulted him and rebuked him in filthy language. It has to be born in mind that all these things, if they were all true, happened following the arrest of the petitioner in connection with the gambling case. Non-release of the petitioner on bail followed by assault and rebuke might be in excess of the performance of the official duty but they cannot be said to be totally unconnected with the official duty or cannot be held to be not in course of performance of official duty. It is not disputed that opposite party No. 1 is not removable from his office except by or with the sanction of the State Government. For the aforesaid reasons, opposite party No. 1 is entitled to the protective umbrella under section 197, Cr. P.C. Requirement of obtaining sanction for his prosecution being mandatory and admittedly no sanction having been taken, cognizance against opposite party No. 1 cannot be supported in law. The order of the learned Sessions Judge, therefore, cannot be faulted with. The revision is accordingly dismissed being devoid of merit
14. Revision dismissed.
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