R.N. Misra, J.
1. Two complaint petitions were filed on 22-8-1978 in the court of the learned Sub-Divisional Judicial Magistrate at Puri being I.C.C. 327 of 1978 and I.C.C. 328 of 1978. In the first case the complainant was Mukunda Baral, who described himself as a subtenant of a premises known as 'Roma Villa' located within the Town of puri while the second case was by one Harihar Singha said to be a tenant of the premises. In the first case, the accused persons were three in number namely, the Deputy Superintendent of Police, the Officer-in-charge of the Town Police Station of Puri and an Assistant Sub-Inspector of that Police Station. In the other case, the accused persons were five, i.e. besides the three above-named persons who are common, another Sub-Inspector and one Manjulata Mohanty were also added as accused persons. The prosecution allegations in brief were the following: The owner of Roma Villa is a person of Calcutta. Harihar Singh had been occupying the premises for about 14 years as a tenant. On 18th of August, 1978, around 5 P. M., the Police Officers and the lady accused trespassed into the premises and threatened Harihar with dire consequences unless he and his children walked out of the premises. Several other police people were standing armed outside and the Deputy Superintendent of Police threatened saying that he would direct lathi charge if there was no compliance with his orders. Apprehensive of evil consequences, Harihar and members of his family came out of the house. Accused Manjulata threw out Harihar's belongings and under the orders of the Deputy Superintendent of Police, the articles thrown out were put into the police vehicle by the constables. When Harihar resisted, he was physically assaulted. The. house was kept under lock and the key was made over to the lady accused. On the following day, Harihar was called to the Police Station and detained for almost the whole day. On the following Monday, he had also been sent for and detained at the police station for some time. He, therefore, filed the petition of complaint on 22-8-1978 alleging commission of offences punishable under Sections 341, 375, 426 and 448, Indian Penal Code, Harihar's tenant filed a complaint On Similar allegations an the same day.
The learned Sub-Divisional Judicial Magistrate directed an enquiry under Section 202 of the Code of Criminal Procedure. At the instance of the complaint, he called for the case diary in Town P. S. Case No. 251 of 1978 under Section 307, Indian Penal Code and the connected G. R. case. In Complaint Case No. 327 of 1978, 4 witnesses.were examined in the enquiry while in the other case, 3 witnesses were examined. In each of the cases, the learned Sub-Divisional Judicial Magistrate directed dismissal of the complaint. These two revision applications have, therefore, been filed by the complainants of the respective cases.
2. Mr. Patnaik in support of the revision petitions has contended that on the basis of the evidence led in support Of the allegations, prima facie case had been made Out against the accused person, The learned Sub-Divisional Judicial Magistrate appears to have utilised facts not on record and has come to hold without any justification that a prima facie case had not been made out. Mr. Patnaik's further contention is that there was evidence to show that the accused Deputy Superintendent of Police had come to the spot in mufti which was indicative of the position that he did not come on duty. According to Mr. Patnaik, it was no part of the duty of the Police to be at the premises even if there was force in the stand taken by the opposite parties that there had been an earlier order under Section 144 of the Code of Criminal Procedure which had been made absolute against the complainant. Undoubtedly, by lapse of time, the order under Section 144 of the Code had spent its force by the date of the occurrence. Even if there was allegation of violation of the order of restraint and an offence under Section 188 of the Penal Code had been committed, the police had no justification to enter into the premises and drive away the occupant and hand over possession of the premises to the lady accused. The entire role of the police officers is motivated and malicious and cannot be said to be in due discharge of duty. Conceding, Mr. Patnaik contended, that the Deputy Superintendent of Police was entitled to the protection under Section 197 of the Code of Criminal Procedure, the other accused persons were not entitled to that protection and so far as they were concerned, the case had to be considered from a different angle.
3. The case of the Deputy Superintendent of Police may be first considered. Section 197 of the Code provides:
'(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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-
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
Admittedly the Deputy Superintendent of Police is a person removable from service by the' State Government and if the act complained of is one done' in discharge of his duty or purported discharge of duty, he would be entitled to the protection. There was no allegation in the petitions of complaint that the Deputy Superintendent of Police had not gone to the spot in Police uniform. Only one of the witnesses had casually stated during the enquiry that he was in mufti. What would exactly be the meaning of 'purported exercise' has been the subject-matter of a series of judicial decisions and a liberal meaning has been ascribed to the words.
4. Mr. Patnaik places reliance on two decisions of the Supreme Court in this connection. The first one is the case of Nagraj v. State of Mysore : 1964CriLJ161 , where the Court pointed out:
It is clear that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under Sections. 127 and 123 of the Code and in so doing committed some offence complained of, the Court will not entertain the complaint unless it appears that the State Government had sanctioned the prosecution of that police officer. If the allegations in the complaint do not indicate such facts, the court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person.' Admittedly this is not a case where Sections 127 and 128 of the Code are relevant.
The next is the case of the Court in Prabhakar V. Sinari v. Shankar Anant Verlekar : 1969CriLJ1057 . There it was observed:.Normally it would be the officer-in-charge of the police station who would go to the spot to prevent any breach of peace. Even if the appellant who was a superior officer could come to prevent any ugly situation arising between the complainant and the hawkers, it is not established that the appellant came in the capacity as a police officer. On the contrary the necessary implication in the statement of the complainant is that the appellant came in civil dress, wanted the hawkers to be put in possession of the disputed plot and actually directed them to enter the plot and warned the complainant that if he resisted he would be slapped in his face. Until some more material is placed on the record it cannot be held that it was any part of the duty of the appellant to ensure that the hawkers were put in possession of the disputed land. It may be that the appellant was entitled to interfere and take proper steps if he apprehended any breach of peace but there is nothing whatsoever in the complainant's statement which would show that any such situation existed which could justify interference by the appellant. Ordinarily, if a person is in possession of some property and other persons are threatening to dispossess him, it is no part of the duty of a police officer to take sides and decide the dispute in favour of one party or the other or to force one party to give up possession to the other, even if he was satisfied that the party seeking to take possession was lawfully entitled to do so. This the police officer could only do if there had been any direction by a competent court for rendering help in the matter of delivery of possession....
These observations go a long way to indicate that if the allegations of the complainants were true, the action of the police was not within the range of duty. The allegations in the instant cases, however, seem to be that the Deputy Superintendent of Police though stated by one witness to be in mufti had gone there with a team of police officers and constables and in the setting of the matter, it may not be proper to disturb the finding of the learned Magistrate that the Deputy Superintendent of Police was acting in purported exercise of his official duty. I agree with Mr. Patnaik that the special protection provided under Section 197 of the Code of Criminal Procedure should be strictly construed and until material is placed before the court to justify invoking of Section 197 of the Code, ordinarily, even if the accused be a police officer, he should not be given any special treatment. Under the Rule of Law, every citizen must be subjected to the same law unless law itself for some definite public purpose makes an exception. Otherwise, the situation is likely to be abused and the doctrine of Rule of Law could receive a serious blow. The common citizen's confidence in the system of law would be shaken and its efficacy would soon be doubted. While I agree with the contention of Mr, Patnaik on the legal aspect, on the facts the instant case may be taken to be a borderline one and the view of the learned Magistrate that so far as the Deputy Superintendent of Police was concerned, the protection under Section 197 of the Code of Criminal Procedure was available, may not be disturbed. The revision petitions so far as he is concerned are, therefore, rejected. It would be open to the complainant in each of the cases to move Government and obtain the requisite sanction, but until then, the bar would operate.
5. So far as the other three police officers are concerned, admittedly they are removable by the head of the police establishment and, therefore, Section 197 of the Code is not attracted. The enquiry under Section 202 of the Code is onesided inasmuch as until summons had issued, the accused are not in the picture. The complainants in the respective cases have led evidence and the uncontroverted statements of the witnesses supporting the allegations in the respective petitions of complaint had to be taken into consideration for finding out a prima facie case of trespass, mischief and wrongful restraint. On the allegations made in the petitions of complaint, there could be no justification for the police officers to turn out the complainants who allege that they were in possession. Even accepting that there was an order under Section 144 of the Code of Criminal Procedure, which had been made absolute, by the date of occurrence, the validity of the order had lapsed. It may be that the complainants were in illegal possession, but as the Supreme Court very appropriately pointed out in Prabhakar's case : 1969CriLJ1057 it was not for the police officers to take sides and their involvement in the matter could be only for the purpose of executing a direction of the court. Prima facie, the prosecution case should have been accepted. I would accordingly allow both the applications except so far as they relate to the Dy. Superintendent of Police and direct the learned Magistrate to hold further enquiry into the matter in accordance with law and deal with the matter keeping the legal position in view. If he finds that a prima facie case has been made out, he would take cognisance of such of the offences and proceed to deal with the cases in accordance with law.