Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK CRLMC No.2131 of 2018 In the matter of application under Section 482 of the Criminal Procedure Code, 1973. --------------- Akshaya Kumar Nayak ..… Petitioner State of Orissa and another ….. Opp. Parties -Versus- For Petitioner : Ms. S. Devi, Advocate For Opp. Parties : Mr. M. Mishra, [A.S.C.] Mr. P.K. Jena, [Adv. for O.P. No.2] P R E S E N T: HONOURABLE MR. JUSTICE G. SATAPATHY Date of hearing:07.02.2023, Date of judgment:15.03.2023 G.SATAPATHY, J. An application U/S. 482 Cr.P.C. by the Petitioner seeks to quash the order passed on 24.03.2018 by learned S.D.J.M., Panposh, Rourkela in 1.C.C. Case No. 573 of 2015 at annexure-2 whereby cognizance of offences U/Ss. 294/323 of IPC has been // 2 // taken and consequently, the criminal proceeding arising thereof on the grounds of want of valid sanction and frivolity of prosecution case. 2. The short facts as emerge in this case are the Petitioner was the Inspector of Police, Cyber Crime P.S., Crime Branch and was also entrusted with the investigation of Cuttack Cyber Crime P.S. Case No. 07 of 2012 at the relevant time and in the course of investigation, the Petitioner seized one Tata Photon Plus Dongle and Hard Disk from the custody of the O.P. No. 2-cum-Complainant under a separate seizure list. It is alleged that in the course of investigation, the Petitioner, and the complainant and his friend while going to Uditnagar Police Station in two separate motor cycles, on the way the Petitioner stopped at Basanti Colony Over Bridge and asked the complainant and his friend to stop and when the complainant-cum-O.P. No.2 asked for the reason, the Petitioner abused him in // 3 // filthy/slang language and slapped to O.P. No.2. On this incident, O.P. No.2 approached the Uditnagar Police Station as well as S.P. Rourkela, but in vain and thereafter, on the above facts, O.P. No. 2 instituted a complaint against the Petitioner in 1.C.C. No. 573 of 2015 in the Court of learned S.D.J.M., Panposh, Rourkela, who after recording initial statement of the complainant and examining the witness Hemant Kumar Dwibedi who was going with the O.P. No.2 in the motor cycle and being satisfied, took cognizance of offence U/Ss. 294/323 of IPC. Hence, this CRLMC. 3.
Legal Reasoning
Ms. S. Devi, learned counsel for the Petitioner by relying upon certain judgments submits that the impugned order taking cognizance of offence is bad for want of sanction and frivolity of prosecution case and she, accordingly, prays to quash the impugned order as well as the criminal proceeding instituted against the Petitioner. In support of her contention, the petitioner // 4 // relies upon the decisions in the case of Matajog Dobey Vrs. H.C. Bihari; AIR 1956 SC 44 and Debaki Pradhan Vrs. Prakash Chandra Pal; 2010 (SUPP- II) OLR 803. 4. Mr. P.K. Jena, learned counsel for O.P. No. 2 by relying upon certain decisions submits that the act of the Petitioner cannot be termed as due discharge of Official duties nor was there any nexus between the action of Petitioner and discharge of his Official duties and, thereby, when the learned trial Court after applying his judicial mind has taken cognizance of offence, the impugned order need not to be interfered with in this CRLMC. In relying upon the cases in State of Madhya Pradesh Vrs. Yogendra Singh Jadon and Anr. ; (2020) 78 OCR (SC) 217, Byasadeba Sarangi Vrs. State of Orissa and Anr. ; (2020) 78 OCR-8, D. Devaraja Vrs. Owais Sabeer Hussain; (2020) 79 OCR (SC) 146 and Anil Kumar Pradhan Vrs. State // 5 // of Odisha and others; (2020) 77 OCR 449, learned counsel for the O.P. No.2 prays to dismiss the CRLMC. 5. In what grounds a criminal case can be quashed has been well elucidated by the Hon’ble Apex Court in the oft quoted and most celebrated decisions in State of Haryana & others Vrs. Bhajan Lal & others; 1992 Supp (1) SCC 335, wherein such grounds are laid down at Paragraph-102 of the judgment:- “102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the the accused. (2) Where the allegations in the first report and other information materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of // 6 // the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground the accused. for proceeding against (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the Institution and continuance of the proceedings and/or where there is specific the Act provision concerned, providing efficacious redress for the grievance of the aggrieved party. the Code or in the proceeding (7) Where a criminal proceeding is manifestly attended with mala fide and/or is maliciously where instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” // 7 // 6. In coming back to scrutinize the facts of the case on the above parameters, it appears that the complaint unambiguously discloses no annoyance to anybody to constitute the offence U/S. 294 of IPC which is further invigorated by the initial statement of the complainant-cum-O.P. No.2 who being presumed to be a legally knowledgeable person, had failed to state about the annoyance caused to anybody by the abusive words of the Petitioner. For a moment, even if the abusive words stated by the complainant in his initial statement is considered to be true, which is “Besi Okilati Dekhauchu”, no offence U/S. 294 would be attracted against the petitioner in view of the fact that such abusive word never comes within the purview of filthy/slang language and the statement of witness also does not disclose about the basic ingredient of 294 of IPC. Thus, a careful perusal of the facts and evidence do not disclose the basic ingredient of 294 of IPC. // 8 // 7. Now coming to the offence U/S. 323 of IPC, there appears some allegation against the Petitioner, but as the Petitioner presses the ground of frivolity of the prosecution case, the same has to be scrutinized carefully. Admittedly, the Petitioner was the I.O. in Cyber P.S. Case No. 07 of 2012 and he had seized the Dongle and Hard Disk from the custody of O.P. No.2- cum-complainant who is an advocate. Besides, there is no other independent witness to the occurrence. In addition, the statement of complainant and the witness is at variance with regard to the sequence of events inasmuch as when complainant in his initial statement says that he along with his colleague Hemant Kumar Dwibedi (witness) accompanied the Petitioner to his residence, but the witness Hemant Kumar Dwibedi in his inquiry U/S. 202 Cr.P.C. says that when he reached the residence of O.P.No.2, he saw O.P. No. 2 and another going on two motor cycles and he then followed and // 9 // when he reached near Basanti Colony Over Bridge, he saw the Petitioner slapping the complainant and abusing him in filthy language. These factors may be insignificant in normal parlance, but assume significance in this case in view of the facts, that the Police Officer seizing some articles from the complainant in the course of investigation of a case was alleged to have slapped the complainant. On a careful perusal of the complaint together with the initial statement of the complainant and statement of witness in the inquiry U/S. 202 Cr.P.C. in the backgrounds of the case, it prima facie leaves no room for doubt about complainant wrecking vengeance against the Petitioner which is one of the grounds for quashing of the criminal proceeding as laid down by the Apex Court in Bhajan Lal (Supra). 8. On reverting back to the next plank of submission of legal protection of the Petitioner by way of sanction as contemplated U/S. 197 of Cr.P.C., this // 10 // Court considers it apt to refer to some decisions. In the sequel, in Matajog Dobey(supra), a constitutional Bench of five Judges of the Apex Court has held in Paragraph-17 as under:- “17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.” But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It if the act does not matter even exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when trial proceeds on the merits. What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was the done by accused the in // 11 // performance of the official duty, though possibly in excess of the needs and requirements of the situation.” 9. In the decision as relied on by O.P. No.2 in D.Devaraja(Supra), the Apex Court at Paragraphs-71 to 74, 77 and 78 has held as under:- ”71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of Government sanction for initiation of criminal action against him. 72. The language and tenor of section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. 73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of policeman or any other public servant unconnected with the official duty there for acts done // 12 // filed against can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. 74. If the act alleged in a complaint to be purported the is reasonably connected to policeman discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act. 77. It is well settled that an application U/S. 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex-facie bad for want of sanction, frivolous or in abuse of process of the Court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the apparently criminal prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of Court. 78. There is also no reason to support that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved proceeding is // 13 // complaint can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complaint alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently the complaint pertains to an act under colour of duty.” 10. Learned counsel for OP No.2 has relied upon the decision in Yogendra Singh Jadon (Supra), but the same is not applicable to OP No.2 in view of the fact that the materials thereon prima facie disclose commission of offences, which is not the position in this case as already discussed in the preceding paragraphs. For a moment, if the allegation made by the complainant against the petitioner in the complaint is taken into consideration, admittedly it reveals that the petitioner had seized the dongle by preparing the seizure list in the course of the investigation as stated in the complaint and according to the complainant, the petitioner had committed some excesses in the form of // 14 // abusing and slapping the complainant in the course of the investigation of Cyber Crime P.S. Case No. 7 of 2012 and, thereby, the act of the petitioner having definite nexus in the course of investigation of a case, of course, such act was alleged in excess of Official duty or under the color of his office, sanction is required for launching prosecution against the petitioner and, therefore, prior sanction U/S. 197 Cr.P.C. is required before taking cognizance in this case. The underlying object of sanction before taking cognizance of offence does not necessarily mean in all cases to protect the Govt. Officials from true prosecution as a cloak inasmuch as in such event, the Authority empowered to grant sanction would get an opportunity to verify and scrutinize the allegation before granting sanction and it cannot in the context mean that the Authority empowered would refuse to grant sanction in all cases of Official excesses. It is, // 15 // however, true that the power U/S. 197 Cr.P.C. would enable the Authorities to scrutinize the allegations made against a public servant to protect him/her against frivolous, vexatious or false prosecution initiated with the main object of causing harassment and embarrassment to the said Officials and it also protects the Govt. Officials from wrecking vengeance by way of untrue prosecutions initiated by unscrupulous persons. 11. In view of the discussion made hereinabove and taking into consideration the facts involved in this case, which in any way does not disclose the basis ingredients offence U/S. 294 of the IPC and the allegation for commission of offence U/S. 323 of IPC appears to be motivated/wrecking vengeance against the petitioner and the acts of the petitioner involved in this case being protected U/S. 197 of Cr.P.C. as emerging from the law laid down by the Apex Court in // 16 // D.Devaraja and Matajog Dobey (Supra), the impugned order together with the present criminal proceeding is nothing, but an abuse of process of Court and to secure the ends of justice, the same requires to be quashed. 12. Resultantly, this CRLMC stands allowed on contest, but in the circumstance there is no order as to cost. Consequently, the impugned order taking cognizance of offences U/Ss. 294/323 of IPC and the criminal proceeding initiated against the petitioner in 1.C.C. Case No. 573 of 2015 pending in the file of learned S.D.J.M., Panposh, Rourkela are hereby quashed. JUDGE …………….………….. G.SATAPATHY, Orissa High Court, Cuttack The 15th March, 2023, Priyajit