| Case Name: | Kumar Raghavendra Singh and others v. Ganesh Chandra Jew opp. Party |
| Court: | Orissa High Court |
| Date of judgement: | December 15, 1995 |
| Case number: | Criminal Misc. Case no. 2163 of 1992 |
| Petitioner: | Kumar Raghavendra Singh and others |
| Respondent: | Ganesh Chandra Jew |
| Bench: | R.K. Dash |
| Referred: | Code of Criminal ProcedureWildlife Protection Act |
FACTS OF THE CASE:
- The matter is regarding an order passed by the learned S.D.J.M. Baripada, after taking cognizance of the offence under Section 341, 323, 325, 506 and 386 read with section 34 of Indian Penal Code. The petitioners filed this case under Section 482 of Code of Criminal Procedure (hereinafter referred to as CRPC) and have invoked the inherent jurisdiction of the court to quash the said order in a case arising out of a complaint filed by the opposite party.
- As per the facts mentioned in complaint petition, Petitioner no.1 is a Divisional Forest Officer while other petitioners work under him as subordinate officers. The opposite party who filed the complaint is a well known and reputed pharmacist having field experience of more than 35 years. The incident took place on 27-02-1991, while the complainant was engaged in his work, some police personnel barged into his clinic and handcuffed him after alleging recovery of elephant tusk from his place. The complainant is a reputed person in this business and has respectable social standing. In an attempt to lower his reputation, petitioner no. 1 made him walk along the marketplace with handcuffs. This was totally unnecessary and avoidable since a reputed person like the complainant would not flee from police custody. The police personnel took him to the range office where he was made to occupy a place under a tree which gave the general public the impression that he was in fact guilty of trading elephant tusk illicitly. Later on, the requests of Advocate Nayak to provide the opposite party with insulin since he is diabetic, were declined.
- The next day petitioner no. 1 instructed the opposite party to put some elephant tusks on his shoulder, following which, petitioner no. 1 took his photographs. This mishandling of the opposite party is no less than what is experienced by a criminal. The complainant was forced to sign some papers and post his refusal to do so, he was severely abused and beaten due to which he sustained injuries.
- After being produced before S.D.J.M Baripada just before evening, the complainant got himself medically checked and filed a case against the government officials involved in the incident. He contended that the police personnel exercised powers beyond what is vested with them, manipulated the entire matter and took law into their hands.
- The learned S.D.J.M ordered for an enquiry against the government officials involved in the case under Section 202 of CRPC and took cognizance of the alleged offence thereafter. The petitioners filed a criminal misc. case no. 1589 of 1991, condemning the action of taking cognizance and asking to set aside the order since no prior sanction has been obtained. The learned magistrate rejected the contentions of the petitioners. Hence the present petition.
ISSUES ADVANCED:
- Whether the order of cognizance passed by S.D.J.M is valid in absence of a prior sanction to proceed.
- Whether the search, seizure and arrest conducted by petitioners comes within proportionate discharge of official duty.
CONTENTIONS OF THE PETITIONER:
The counsel for petitioners argued that the petitioners being public servants as defined by Section 21 of IPC are protected under Section 197 of CRPC from prosecution for acts committed in discharge of official duty. The petitioners conducted search, seizure and arrest of the complainant which comes within discharge of official duty. Since the alleged acts form a reasonable nexus with disposal of official duty, there lies no question of proceedings against them. The order of cognizance and initiation of criminal proceedings against them without a prior sanction from appropriate authority must be quashed. Regarding the alleged mistreatment done by the petitioner, the opposite party did not complain of the same when he was produced before the Magistrate. He complained of mishandling only after he was released on bail. Such frivolous allegations were made to target the police personnel who took legal action against him.
CONTENTIONS OF THE RESPONDENT:
The counsel for respondent contended that actions taken by the police were not in line with discharge of official duty. No part of duty demands them to arrest, humiliate and defame a respectable person of society. The way they handled the complainant reeks of improper motive to harm his dignity. By the virtue of official power, they went to the extent of physically assaulting, publicly humiliating a person in the course of investigation. The petitioners are liable to be punished for their actions since they were not in accordance with law and must not be provided protection under Section 197.
JUDGEMENT OF THE COURT:
The mandate of prior sanction under Section 197 and the protection offered thereby comes into picture only when acts committed by a public servant form a part of or a reasonable relation with discharge of his duty. In the present case, the court observed that the petitioners allegedly treated the opposite party as a criminal and exercised unnecessary force against him. Such actions do not form a part of official duty, nor is it expected from protectors of law and order.
Since the alleged acts do not fall in line with disposal of official duty, the protection guaranteed under Section 197 cannot be attracted. Therefore, the need for a prior sanction is eliminated. The court ordered continuance of the proceedings and upheld the order of SDJM, taking cognizance of the offence.
REASONING BEHIND THE JUDGEMENT RENDERED:
- The counsel for petitioners cited the case of Matajog Dobey v. H.C Bhari (i), where complaints were filed of alleged assault and mishandling by police officials. Post this, enquiries were conducted whereupon cognizance of the offence was taken. Later, the question of prior sanction was dealt with and even though the alleged acts where the complainant was beaten were considered, the contention that sanction is necessary to proceed was upheld. It was also considered that reasonable force was employed by the officials which was not entirely divorced from the performance of official duty.
- Similar to this case, the case of Pancham lal v. Dadan Singh (ii), T.P Reddy v. Devraj Panigrahi and opposite party (iii), Harihar Bhata v. Somnath Dakua (iv) were relied upon and the decision went in favour of the public servants. These cases involved different arrays of facts not relevant to the one at hand.
- It was observed that in order to avail the benefits of Section 197 of CRPC two things have to be established. First, the person alleged of criminal acts must come under any category of public servant. Secondly, the acts in question must be done in discharge of official duty. The legislative intent of the section is to offer protection to officers from unnecessary harassment. But it must be checked that such persons, enjoying official power do not become the exploiters rather than protectors of the public.
- The court relied on the judgement given in the case of Bhagwan Prasad Srivastava v. N.P Mishra (v) in which a Civil surgeon hurled highly defamatory remarks at Civil Assistant surgeon due to some misunderstanding in front of the whole staff and forcibly expelled him out of the hospital. Initially the contention of want of sanction to prosecute the Civil surgeon was upheld but the apex court held that Section 197 was inapplicable to the facts of the case. Since the acts of hurling defamatory remarks and forcibly turning him out do not form a part of official duty or is reasonably connected to it, the protection under Section 197 cannot be availed. Similar rulings were passed in the case of Pukhraj v. State of Rajasthan (vi), B.S Sambhu v. T.S Krishnaswamy (vii) and Abani Charan Biswal v. Samir Chandra Guha (viii).
- Upon hearing claims and contentions of both parties, the court declined to accept the submissions on behalf of the two officers since they found no nexus between the alleged acts and disposal of official duty. There is no material to substantiate the fact that the complainant employed any force against the officers or made attempts to escape from police custody. This highlights that the force used by the officers was unnecessary and avoidable. It was observed that no part of official duty demands the officer to assault a person in custody.
- Finally, the judgement rendered in the case of Premjit Mahananda v. Mohapani Karua (ix) having facts similar to the case of Abani Charan was looked into and it was observed that the Forest officials empowered by Wildlife Protection Act to conduct investigation against anyone committing offence, had acted in excess and exercised unnecessary force. They treated the complainant at par with a criminal thereby humiliated, assaulted and insulted him. Such acts are in no way connected to what is vested in or expected of them. Since no reasonable connection between the alleged acts and the performance of official duty can be found, the protection under Section 197 cannot be availed and the need for sanction is not attracted. The court therefore dismissed the Criminal Misc. Case.
CONCLUSION:
The provision of law aims at guaranteeing protection to public servants from frivolous cases and unnecessary harassment. But this guarantee must not be seen as a tool to oppress the general public. The court, in the present case has proved that this protection does not eliminate the room for trial in case of commission of an offence by a public servant. The performance of official duty must not be an excuse to humiliate or assault a common man.
Therefore, upon cumulative consideration of the facts and provisions of law, the issues advanced stand hereby disposed of.
FOOTNOTES:
- AIR 1956 SC 44
- 1979 Cri. L.J 1081
- 1991 (2) O.L.R 263
- 1991 (2) O.L.R 547
- (1970) 2 SCC 56
- (1973) 2 SCC 701
- AIR 1983 SC 64
- 64 (1987) C.L.T 659
- 80 (1995) C.L.T 302
written by Divyanshi bais intern under legal vidhiya
