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Akhoy Kumar Mohapatra Vs. Balaram Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in39(1973)CLT1062; 1974CriLJ722
AppellantAkhoy Kumar Mohapatra
RespondentBalaram Sahu and ors.
Cases ReferredPrabhakar v. Shanker
Excerpt:
.....the act, 1951. [air 2002 orissa 130 overruled]. - as such they had no opportunity to complain of police ill-treatment. complaining ill-treatment by the police and for their medical examination but for reasons best known to him, he rejected the said prayer and thereby caused disappearance of evidence of assault. recorded that no ill-treatment by the police was complained. it is to be noticed that in paragraph 37 of the complaint petition it is admitted that they did not make any complaint of ill-treatment by the police though an explanation was given that they had no opportunity to complain as they were kept in the van outside the compound. on a perusal of the complaint petition and the complainant's statement on oath i am satisfied that the only grievance that was made against the s...........river. accused nos. 1, 2. 3, 4 and 21 went with them. it is subsequently learnt that the s. d. o. deogarh (accused no. 21) remained in the panchayat bhaban and directed the boatman not to allow any person to and from gogua village without his orders. x x xpara. 38. that accused no. 21 is the local s. d. o. and magistrate 1st class. but he did not take any action to prevent the atrocity of the police.para 33. x x x x accused no. 2 was : present but omitted to prevent the same being magistrate 1st class.para. 37. that at about 12 noon, the complainant and other persons arrested : in connection with g. r. case no. 107 of 1972 were taken in a police van in custody of accused no. 10 and the force under his command. they were kept in the van on the road in front of s. d. o.'s (accused no. 21).....
Judgment:
ORDER

G.K. Misra, C.J.

1. These two cases were heard analogously with Cri. Revision No. 714 of 1972 and Cri. Misc. Case No. 227 of 1972 as they arise out of the same facts. The petitioner in these cases is the Sub-Divisional Officer of Deogarh who was arrayed as accused No. 21 in the complaint petition filed by the complainant Balaram Sahu (O. P. No. 1) in complaint Case No, ICC.12/72. Facts have been narrated in detail in Cri. Revision No. 714 of 1972, judgment in which has been pronounced today, and need not be repeated. The following allegations were made against the petitioner by the complainant in the complaint petition. They may be extracted.

Para. 28. That under the direction, of accused No. 4 the police force armed with guns and lathis commenced marching from southern bank of Gohiri river. Accused Nos. 1, 2. 3, 4 and 21 went with them. It is subsequently learnt that the S. D. O. Deogarh (accused No. 21) remained in the Panchayat Bhaban and directed the boatman not to allow any person to and from Gogua village without his orders.

X X XPara. 38. That accused No. 21 is the local S. D. O. and Magistrate 1st Class. but he did not take any action to prevent the atrocity of the police.

Para 33. x x x x Accused No. 2 was : present but omitted to prevent the same being Magistrate 1st Class.

Para. 37. That at about 12 noon, the complainant and other persons arrested : in connection with G. R. Case No. 107 of 1972 were taken in a police van in custody of accused No. 10 and the force under his command. They were kept in the van on the road in front of S. D. O.'s (accused No. 21) residence and were not produced before him. As such they had no opportunity to complain of police ill-treatment. The advocate of the complt. protested about the non-production submitted for instructions from complt. and others but he was refused to do so as that was his residential quarters. The Advocate filed a written application but the S. D. O. forwarded the same to the Jail Supdt. and asked the advocate to meet the complt. and others in jail.

Para. 40. That complt. and others through advocate petitioned to the S. D. O. complaining ill-treatment by the police and for their medical examination but for reasons best known to him, he rejected the said prayer and thereby caused disappearance of evidence of assault.

Para. 45. That the complt. could not file the complaint earlier as he was under arrest and after release he went to Bhubaneswar to move the Government for judicial enquiry.

It would thus be seen from the aforesaid allegations that no positive allegation has been made against the S. D. O. that he was a party to any atrocity or assault committed on the complainant and his co-accused. All that was narrated against him was about his inaction to take action. The only positive allegation is that the accused persons were not produced before the S. D. O. at his residence but they were kept in the police van outside his compound and without putting any question to them the S. D. O. recorded that no ill-treatment by the police was complained. It is to be noticed that in paragraph 37 of the complaint petition it is admitted that they did not make any complaint of ill-treatment by the police though an explanation was given that they had no opportunity to complain as they were kept in the van outside the compound.

Out of the several allegations made in the complaint petition, only one is referred to in the statement on oath in paragraph 23 wherein it was stated:

The S. D. O. passed some orders on the outer verandah. The police van carrying me and others did not enter into the premises of the S. D. O.'s residence.

The other grievances were not referred to in the statement on oath. On a perusal of the complaint petition and the complainant's statement on oath I am satisfied that the only grievance that was made against the S. D. O. was that he passed certain orders on his outer verandah and the police van was not taken inside his compound.

There is no dispute that the police van was not taken inside the compound of the residence of the S. D. O. In his order recorded on 12-7-1972 which was a holiday on account of Ratha Jatra the S. D. O. passed the following order:

12-7-1972. Seen the F. I.E. No. 27 /72 under Section 302/148/149/332/342 /379/383/224, I. P. C. of Naikul P. S. and the forwarding report of C. I. Deogarh, the I. O. of the case. The I. O. has forwarded accused CD Ghanashyam Padhan xx xx (2) Binod Bihari Sahu xx xx (3) Gobardhan Sahu xx xx (4) Debraj Sahu xx xx (5) Sudhir Kumar Sahu xx xx (6) Purna Chandra Sahu xx xx (7) Sankarsan Dhal xx xx (8) Madan Mohan Samal xx xx (9) Sashibhusan Sahu xx xx (10) Laxmidhar Seth xx xx (11) Srikar Sahu xx xx (12) Durvodhan Sahu xx xx (13)(13) Dasarathi Sahu xx xx (14) Danei Sabar xx xx (15) Narottam Sahu xx xx (16) Jadumani Behera xx xx (17) Linga-raj Mohapatra xx xx (18) Bhubaneswar Sahu xx xx (19) Sukdeo Sahu xx xx (20) Balaram Sahu s/o. Magta Sahoo of village Gogua, P. S. Naikul, Dist. Sambal-pur in the above noted case through escort party incharge Hav. S. D. Karmi and 8 Constables of A, P. R. They do not complain of any ill-treatment by police, xx xx xx

The accused persons are remanded to jail custody till 25-7-1972. xx xx xx

The ordersheet of the S. D. O. has got some presumptive value of correctness. In his affidavit in the criminal revision the S. D. O. says that the van was outside his compound; he verified the identity of each of the accused and they did not complain of ill-treatment by the police to his query.

2. From the aforesaid facts it is difficult to imagine as to what offence the S. D. p. has committed unless it be one of making a false statement in the official record. As I have already stated, the various allegations against the S. D. O. made in the complaint petition were diluted in the statement on oath.

The S. D. O. also was implicated in the complaint petition two and a half months after the date of occurrence. The explanation for implicating the S. D. O, in the complaint petition after a long lapse of time is not very satisfactory.

3. I am, therefore, clearly of opinion that the complaint petition against the S. D. O. (accused No. 21) is to be dismissed.

4. That apart, the allegations against the S. D. O. show that sanction should have been obtained under Section 197, Criminal P. C. That section says that when any /person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from office save by or with the sanction of a State Government or the Central 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 (a) xx xx (b) in the case of a person employed in connection with the affairs of a State, of the State Government, Admittedly, in this case no previous sanction of the State Government has been obtained.

It was however, contended by Mr. Ghose on behalf of opposite party No. 1 on the authority of : 1969CriLJ1057 Prabhakar v. Shanker that on the allegation made in the complaint petition no sanction is necessary. That very decision lays down the law in unmistakable terms. Their Lordships said that 'it was not every offence committed by a public servant which required sanction for prosecution under Section 197D of the Code of Criminal Procedure nor even every act done by him while he was actually engaged in the performance of his official duties. But if the act complained of was strictly concerned with his official duties so that, if questioned, it would be claimed to have been done by virtue of the office, then sanction would be necessary and that would be so, irrespective of whether it was in fact a proper discharge of his duties or not.

The facts of this case come within the ambit of the ' latter dictum when sanction is necessary. The only act complained of in the statement of complainant on oath against the petitioner is that without making any enquiry from the accused persons the petitioner recorded statement that there was no complaint of ill-treatment by the police. This act complained of is directly concerned with the official duties of the petitioner. He did it by virtue of his office even if in discharging the duties it might not have been properly done. In the facts and circumstances of this case, previous sanction of the State Government under Section 197(1), Criminal P. C. for the prosecution of the petitioner is essential and without previous sanction the complaint is liable to be dismissed.

5. Both on merits as well as due to. want of previous sanction the complaint petition against the petitioner is liable to be dismissed and is hereby dismissed. The order of the learned Sub-Divisional Magistrate, Deogarh. dated 25-9-1972 directing an enquiry under Section 202, Criminal P. C. against the petitioner is quashed and the criminal revision is allowed.

6. As has already been stated in Criminal Revision No. 714 of 1972, the S. D. M. Shri R. S. Sahu has already been transferred from Deogarh to Cuttack. Crl. Misc. Case No. 226 of 1972 for transfer of complaint Case No. ICC-12/72 from his file has, therefore, become infructuous. It is accordingly dismissed.

7. Though Crl. Misc. Cases Nos. 226 and 227 of 1972 have been dismissed on the ground that they have become infructuous, in the facts and circumstances of this case I am of opinion that Complaint Case No. ICC-12/72 and G. R. Case Nos, 107 of 1972 and 109 of 1972 should be tried at Deogarh by the A. D. M. (Judicial) as the atmosphere in Deogarh to try these cases would not be uncongenial now and the cases should be tried by an experienced judicial officer.


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