Judgment:
H.L. Agrawal, C.J.
1. The only question involved in this Criminal Revision which has been referred to a Division Bench by a learned single Judge of this Court is as to whether the criminal proceeding initiated against the petitioner Abani Chandra Biswal, Officer-in-Charge, Komna Police Station in the district of Kalahandi belonging to the Orissa Police Force is competent in the absence of prior sanction of the appropriate authority as required by Section 197(3), Cr. P.C. ('the Code').
2. Bhoga Bag, opposite party No. 2, filed a complaint against the petitioner in the court of the Sub-Divisional Judicial Magistrate, Nawapara alleging that on 22-6-82 the petitioner along with one Police Constable had gone to his village and asked him to come along with his father to Komna Police Station since they were witnesses in a criminal case. It is said that both of them went to the police station and were asked by the petitioner to wait in the verandah of the police station and not to go away. Both of them were then detained in the Police Hifzat for 3 days, i.e. up to 24-6-82 without any food etc. and were ill-treated so much so that on 24-6-82 the petitioner abused them in filthy language calling them 'Sala, Chora' and 'Badmash' stating that they had forcibly sowed paddy in the field of Chandrabhan and that they would be sent to jail under handcuffs. The petitioner also refused them to be released on bail. Opposite party No. 2 and his father were forwarded to the Court on 25-6-82 in connection with G.R.Case No. 382/82. The present complaint was, however, filed on 26-6-82 in the court of the Sub-Divisional Magistrate, Nawapara who by his order dt. 23-10-82 took cognizance of an offence under Section 504, I.P.C. against the petitioner,
3. Sub-section (1) of Section 197 of the Code is an exception to the general rule laid down in Section 190 that cognizance of any offence may be taken by a Magistrate. This provision provides for special protection from vexatious proceedings to a certain class of public servants charged with having committed offence while acting or purporting to act in discharge of official duty without previous sanction of the Government. Sub-section (3) of this section further provides that the State Government may, by notification, direct that the provisions of Sub-section (2) shall apply to such class or category of members of the Forces charged with the maintenance of public order, as may be specified in the said order, and upon such notification being made, the provisions of Sub-section (2) shall apply to such category of members of the Forces.
4. In the order of reference made by the learned single Judge, it has been stated that the petitioner is a police officer in respect of whom a notification has been made under Section 197(3). We therefore, proceed to examine the case on this assumption.
5. The question arising for our consideration has fallen times without number before various High Courts including this Court as well as the Supreme Court.
Let me first examine the two decisions of this Court, namely, (1) Prahallad Dora v. Kishore Chandra Das (1985) 2 Orissa LR 103 and (2) Bishnu Prasad Mohapatra v. Ramesh Sahu (1985) 60 Cut LT 164.
In Bishnu Prasad Mohapatra's case, the petitioner was a Deputy Superintendent of Police posted at Bolangir. In the petition of complaint, it was alleged that on 12-11-80 the said police officer was taking active part in the maintenance of law and order in the town when some public agitation was going on and in course of the same, several persons were arrested for breaking prohibitory order issued under Section 144, Cr. P.C. It was further alleged that while the arrested persons were in the police lock-up, the complainant wanted to get the signatures of the arrested persons on the Vakalatnama. But the police officer did not allow them to take the signatures and when this was protested by one student leader, the Deputy Superintendent forced him into the jeep and refused to release the detenus. Even when bail order was obtained from the court he did not not allow him to contact the officer-in-charge and expressed in an angry mood that he would not release Sri Panda on bail to which the complainant protested, and then the officer 'lost his temper and hurled abusive words and also arrested them'. The learned Judge took the view that the allegation of hurling abusive words was 'rather too vague' and 'closely interwoven with the acts of arrest of the complainant' and were related to 'in discharge of the official duty of the petitioner as the Deputy Superintendent of Police who was in charge of law and order attracting the provisions of Section 197 and admittedly no sanction having been obtained, the order taking cognizance is bad in law.'
On referring to the case of Bhagwan Prasad Srivastava v. N. P. Misra : 1970CriLJ1401 , the learned Judge came to the conclusion that the provisions of Section 197 of the Code, if construed too narrowly, can never be applied.
6. On behalf of the opposite parties, reliance was placed upon the following observations in Bhagwan Prasad Srivastava's case (supra):
There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of official duties of public servants concerned.
In this case, it has been further observed that Section 197 is not to be interpreted either too widely or too narrowly I am of the view that it will not be safe to apply the observation made in Bishnu Prasad Mohapatra's case (1985 60 Cut LT 164) (supra) to the present case as the Court is not unaware of the police atrocities in a large number of cases including many deaths in police lock-ups and other acts of torture including the Bhagalpur blinding Case. A reasonable balance has therefore to be struck as observed by the Supreme Court in Bhagwan Prasad Srivastava's case.
7. The ratio of all the decisions, however, is that there must be a reasonable nexus between the act complained of and the discharge of official duty.
8. The Supreme Court again in the case of Prabhakar v. Shankar : 1969CriLJ1057 while rejecting the case for a similar . protection to a Deputy Superintendent of Police - where he had threatened the complainant that he would be slapped - held that no sanction was required for prosecution of the police officer. The facts and circumstances of this case are more close to that of the case on hand.
9. In the first case of this Court (1985) 2 Orissa LR 103, which was cited on behalf of the petitioner, the situation was quelling a demonstration at Malkangiri against the enhancement of bus fare and the accused happened to be a Sub-Divisional Police Officer who had used abusive language against complainant and the complaint petition was dismissed by the Sub-Divisional Judicial Magistrate under Section 203 of the Code for want of sanction. The learned Judge, coming to the conclusion that on the materials it could not be said that the action alleged to have been taken by the police officer was taken in his private capacity, dismissed the revision. Reliance was placed by the learned Judge on certain observations made in the case of Matajog Dobey v. H. C. Bhari : [1955]28ITR941(SC) to the effect that if the offence was committed in discharge of official duty, it did not matter even if the act exceeded what was strictly necessary for the discharge of the duty. I, however, feel that the observations made by this Court in both the decisions are a little too wide.
There is no gainsaying that whether an offence was committed in the course of official duty or not will 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 what he did was by virtue of his office. But he cannot claim blanket privilege for all the acts and uncalled for overdoings while discharging any public duty.
In a recent decision of the Supreme Court in the case of Balbir Singh v. D. N. Kadian : 1986CriLJ314 , some members of the Delhi Police Force had tampered with the search memo while the same was in the custody of the Court and it was held that the act could not be deemed to be an act purported to have been done by the appellants in discharge of their official duties.
10. To emphasize the obvious, it is held that the cardinal principle is that 'there must be a reasonable connection between the act and the discharge of official duty and the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim that he did it in the course of performance of his duty'.
11. As already said above, every case has to be decided in the facts of its own. Judging the accusation made against the petitioner that he had hurled abusive language at the complainant while he was already in the police lock-up, in my considered opinion, the action cannot, by any stretch of imagination, be said to have been committed in course of the discharge of official duty as it had no connection whatsoever therewith, much less, reasonable. The same principle has been reiterated by the Supreme Court in the case of Pukhraj v. State of Rajasthan : 1973CriLJ1795 . I am conscious of the situation where a police officer sometimes have to overstep or act a little in excess of the needs of a situation in discharge of his official duty depending upon the facts and circumstances of each case. In the present case, however, the situation did not justify the conduct of the petitioner on the allegations made in the petition of complaint. He is therefore not entitled to claim any protection under Section 197 of the Code.
12. Mr. Misra also cited a few decisions relating to the conduct of the Presiding Officers in judicial proceedings. In the case of Sukhdeo v. Emperor AIR 1934 All 978 : 1935-36 Cri LJ 331, while the witness was in the witness box, the Magistrate had used insulting language against him for which a complaint was filed and it failed for lack of sanction. The learned Judge of the Allahabad High Court took the view that in such a case, sanction under Section 197 of the Code was necessary for the filing of a complaint against the Magistrate. Similar was the situation in the case before the Madhya Pradesh High Court in Mewalal v. Totalal : AIR1957MP230 .
In my opinion, the ratio of the decisions in these cases would have no application to the present case. As already indicated above, according to the case made out by the opposite parties in the petition of complaint, he was abused when he had already been lodged in the police hazat for which there was no apparent justification.
13. 1, therefore, do not find any merit in the revision petition which must fail. It is accordingly dismissed.
B.K. Behera, J.
14. I agree with the conclusion recorded by my Lord the Chief Justice.