Sri Satyabadi Padhi Vs. Nepal Chandra Kar - Court Judgment

Excerpt:
criminal - cognizance - quashing of - sections 448, 294, 352, 363, 342, 323, 324, 384 and 34 of indian penal code, 1860 (ipc) and section 197, 202 and 482 of code of criminal procedure, 1973 (cr.p.c.) - petitioner who is sub-inspector of police forcibly entered inside house of opposite party no. 1 and brought his son by giving him push upto police jeep and then wrongfully confined and assaulted by petitioner - opposite party no. 1 filed complaint case - proceeding started against petitioner - statements were taken and enquiry under section 202 of cr.p.c. was conducted by trial court -  cognizance taken by trial court under sections 448, 294, 352, 363, 342, 323, 324, 384 and 34 of ipc - hence, present application under section 482 of cr.p.c. for quashing of cognizance - held, son of opposite party no. 1 was taken to police station for interrogation by petitioner on strength of fir which discloses commission of cognizable offence and allegation so made might be in excess of performance of official duty, but cannot be said to be total unconnected with official duty or cannot be held to be in non-performance of his official duty - petitioner is entitled to protective umbrella under section 197 of cr.p.c. - requirement of obtaining sanction for his prosecution being mandatory and no sanction having been taken, impugned order taking cognizance against petitioner cannot be sustained - application allowed criminal - documents - furnish of - petitioner also filed revision to furnish documents - since order taking cognizance has been quashed there remain nothing in revision - revision disposed of - state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - (s), cuttack has taken cognizance of the offence under sections 448, 294, 352, 363, 342, 323, 324, 384/34. 1pc and issued processes against the petitioner as well as opp. 9. the trial court while taking cognizance of the offence, has come to the conclusion that the act complained of against the petitioner and others does not come in discharge of their official duty. kanapan), it has been held that if there is no necessary connection between the act complained of and the official duty and the performance of those duties and official status furnish only the occasion or opportunity for the acts, no sanction would be required. ramesh sahu), wherein it has been held that the object of section 197 of the code of criminal procedure is to guard against vexatious proceedings against public servants and to secure the well-considered opinion of the superior authority before a prosecution is launched against them. can apply, the court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim that he did it in course of the performance of his duty. is well established. after these two pre- conditions are satisfied, a further enquiry is necessary to be made as to whether the alleged offence was committed by the public servant while acting or purporting to act in the discharge of his official duty. in the case at hand, as well as in the complaint so lodged, the son of the opp. the order of the learned magistrate taking cognizance of the offence is bad and is accordingly, set aside.b.p. das, j.1. as both the criminal revision and the criminal misc. case arise out of the same case i.e. icc case no. 61 of 1995, they were heard together and are being disposed of by this common judgment.2. the criminal revision is directed against the order 29.8.1 997 passed by the learned j.m.f.c, cuttack in icc case no. 61 of 1995 rejecting the application of the accused-petitioner praying for furnishing him copies of the documents, namely; (i) statements recorded under sections 200 and 202, cr.p.c. of all persons examined by the magistrate, (ii) the statement on confession with any statement recorded under sees. 161 or 164, cr.p.c, and (iii) any document produced before the magistrate on which the prosecution proposes to rely.3. the criminal misc. case has been filed with a prayer to quash the order dated 24.4.1996 passed in icc case no. 51 of 1995 taking cognizance of the offence under sections 448, 294, 352, 363, 342, 323. 324, 384/34, ipc against the petitioner and the entire proceeding initiated in the said complaint case.4. the criminal misc. case being for quashing the entire proceeding, the same was heard alongwith the criminal revision which has been filed challenging the order dated 29.8.1997 refusing the prayer of the petitioner to supply certain documents. it is profitable to examine first whether or not there is any cogent ground to quash the entire proceeding because in case this court ultimately comes to the conclusion that the entire proceeding is liable to-be quashed, then there may not be any need to examine the questions raised in the criminal revision.5. let me now examine whether there is any material to allow the prayer of the petitioner so made in criminal misc. case no. 4376 of 1996.6. the criminal misc. case has been filed under section 482, cr.p.c. by the petitioner, who is a sub-inspector of police and at the relevant time was attached to bidanasi police station against whom proceeding has been initiated in icc case no. 61 of 1995 wherein by order dated 24.4.1996, the learned s.d.j.m. (s), cuttack has taken cognizance of the offence under sections 448, 294, 352, 363, 342, 323, 324, 384/34. 1pc and issued processes against the petitioner as well as opp. parties 2 arid 3. who are also the police officers.7. the brief facts, as it reveals from the impugned order dated 24.4.1996 passed in icc no. 61 of 1995, are that opp. party no. k the complainant alleged that on 14.3.1995 at about 11.30 p.m. the present petitioner alongwith opp. parties 2 and 3, who are also police officers attached to bidanasi police station came to the quarter of the complainant and enquired about his son lokanath. as the complainant wanted to know why his son was required by him, it is alleged that the petitioner without disclosing the reason directed the complainant to come with his son to the police station. however, later on it was disclosed by the petitioner that the son of the complainant was wanted in a theft case to give evidence and would be interrogated to which the complainant and his wife replied that as their son lokanath was sleeping he would go to the police station only on the next day. hearing this, the accused made an attempt to trespass into the house of the complainant and abused the complainant's wife in most filthy languages. further, it is alleged by the complainant that the accused forcibly entered inside the house, brought his son by giving him push upto the police jeep. thereafter, it was found that bibhu prasad, a friend of lokanath had also been brought by the petitioner and he was sitting inside the police jeep. ultimately they were taken to bidanasi police station and were wrongfully confined. at about 12.30 a.m. on 14/15.3.1995 one dipak kumar pradhan was also brought to the police station by the petitioner and all the three . boys were detained in the police station where they were mercilessly assaulted by the petitioner. seeing this, the complainant-opp. party no. 1 who followed his son to the police station, protested to the alleged assault on his son but it is alleged that the petitioner gave threat to the complainant and directed him to leave the police station. subsequently the petitioner also brought one aswini kumar singh and he was also assaulted when he declined to confess to have committed the theft of one gold chain of sujata swain alongwith the other three boys. on 15.3.1995, aswini and dipak were brought to lalbag police station and thereafter to garibdas matha of tulsipur where they were further assaulted by the police by lathi causing multiple injuries on their person and ultimately on 16.3.1995 bibhu prasad and lokanath were released from lalbag police station by the petitioner. the injured dipak kumar pradhan was confined till 16.3.1995 whereas the other injured aswini was not released till 17.3.1995. it was further alleged that in spite of injuries, on the person of the injured, the petitioner and opp. party nos. 2 and 3 did not take any step for their medical treatment for which the complainani- opp. party no. 1 approached this hon'ble court in ojc no. 1805 of 1995 and on the direction of this court on 21.3.1995, the injured persons were examined by the c.d.m.o., cuttack on 23.3.1995. on the basis of the aforesaid allegations, opp. party no. 1 has filed the above complaint case for the offence as alleged.8. initial statements were taken and enquiry under section 202, cr.p.c. was conducted by the magistrate. altogether five witnesses were examined on behalf of the complainant namely, purna chandra mishra, the father of bibhu prasad mishra, lokanath kar, 'dipak kumar pradhan, bibhu prasad mishra and aswini kumar singh. there was also allegation that the petitioner demanded a sum of rs. 5,000/- from each of them and the complainant paid rs. 2,000/- to the petitioner out of fear.9. the trial court while taking cognizance of the offence, has come to the conclusion that the act complained of against the petitioner and others does not come in discharge of their official duty. the court did not therefore, think it proper to get a sanction under section 197. cr.p.c. before proceeding against the petitioner and opp. parties 2 and 3 in the aforesaid complaint case.10. the case of the petitioner is that the complaint petition has been filed maliciously and in order to harass the petitioner, who is a brilliant police officer having several awards to his credit. it is stated in the petition that on 14.3.1995 at about 8.30 a.m., one sarbeswar swain of sribihar colony lodged an fir in bidanasi police station to the effect that on 13.3.1995 at 7.15 p.m. his daughter-in-law while getting down from rickshaw in front of his house, two boys in a motor cycle came from sun-clinic lane and snatched away her gold chain and escaped through the lane leading towards stewart patna chhak. accordingly, the petitioner who was then posted as s.i. of police, bidanasi police station, took up investigation and in course of investigation, the daughter- in-law of the complainant and one arundhati swain stated that the 'said motor cycle appeared to them to be kawasaki bajaj and the age of the boys were stated to be between 16 and 20. on 15.3.1995 the present petitioner got information that on 13.3.1995 at about 7 p.m. one kuna alias bibhu prasad mishra, lokanath kar and aswini singh and dipak pradhan were standing at the entry point to sribihar colony near sun- clinic with a deep green colour kawasaki bajaj motor cycle. the appearance of the boys as stated by the informant resembles with aswini kumar singh and dipak pradhan. it was further brought to his knowledge that at about 7.45 p.m. babu alias lokanath kar, kuna alias bibhu prasad mishra, dipu alias dipak pradhan and aswini singh came with a kawasaki motor cycle from deula sahi side and aswini and dipak drank water in a medicine shop. the further case of the petitioner is that there were rampant incident of snatching in the locality and he had been directed by the authorities to be vigilant to nab the culprits. that apart, it was submitted that dipak pradhan and bibhu prasad mishra had antecedent of criminal activities and they have been arrayed as accused in g.r.case no. 706 of 1992 for the offence under section 379/34, ipc. similarly aswini singh had also criminal antecedents and was facing various trials in different g.r. cases. it is the further case of the petitioner that on getting the above information, station diary entry no. 446 was made in bidana'si police station at 7 p.m. on 15.3.1995 and in the evening of 15.3.1995 the petitioner alongwith the i.i.c. proceeded towards the residence of pc.mishra and interrogated about his son namely, bibhu prasad mishra. in course of enquiry, his son bibhu admitted that he had gone to kanika chawk with the kawasaki bajaj motor cycle which belonged to his father, alongwith babu, dipu and aswini on 13.3.1995 at 7 p.m. it was further ascertained that at kanika chhak kuna took dinner, and the other three boys took his motor cycle and went towards biju patnaik chhak. after 30 to 40 minutes they came from stewart patna chhak side and then all the four returned home with the kawasaki bajaj motor cycle via deula sahi. the description of the criminals so described by the informant tallied with aswini singh, thereafter the son of the complainant alongwith bibhu prasad mishra and dipak pradhan were brought to bidanasi police station at about 8 p.m. this fact was also noted in the station diary entry no. 447 dated 15.3.1995. after interrogation, as there was no sufficient evidence against them, they were let off at 1 i p.m. the complainant-opp. party no. l's son and bibhu prasad mishra were allowed to go to their home with their respective brother and father, who agreed to produce them in the police station as and when required. the relevant station diary entries were also annexed to the application as annexure-1 which reveal that bibhu, dipak were let off with their father and lokanath was let off with his elder brother on the condition that they will produce their boys at 9.30 a.m. on 16.3.1995 before the i.i.c. for further interrogation, if necessary. the son of the complainant/ opposite party alongwith bibhu who is the son of pc.mishra and aswini singh filed ojc no. 1805 of 1995 and it is stated in the present application that this court directed the director-general of police to make enquiry and submit a report on the allegations made in the aforesaid writ application. the director general of police caused an enquiry and accordingly, report was submitted before this court, the copy of which is annexed to this application as annexure-3. the said report under annexure-3 reveals that aswini kumar singh denied to have been taken to bidanasi police station and assaulted by the petitioner. the report so submitted by the superintendent of police, who conducted enquiry in pursuance of the direction issued from the state police headquarters indicates that there is no evidence that s.i. satyabadi padhi assaulted aswini kumar singh. the report further indicates that on examination of the complainant- opp. party no. 1, nepal chandra kar, chandra mohan pradhan and purna chandra mishra, denied to have seen the assault on their sons by the petitioner, but they had only stated that their sons alleged that police had beaten them mercilessly at bidanasi and lalbag police stations. it is further revealed from the report that the son of the complainant nepal chandra kar and bibhu prasad mishra and deepak pradhan were suspected to have committed the crime in bidanasi p.s.case no. 32 of 1995 alongwith aswini kumar singh. the report further reveals that aswini kumar singh was sent up in a criminal case vide cantonment p.s.case no. 27 of 1995 for the offence under sections 341, 323, 324 and 506, 1pc and dipak pradhan and bibhu mishra were sent up in bidanasi p.s.case no. 55 of 1992 for the offence under sections 379/34, ipc. that apart non-bailable warrants were pending against both of them.11. the aforesaid being the position, let me see whether the learned magistrate, who has taken cognizance of the aforesaid offences, without awaiting for sanction under section 197, cr.p.c can be sustained in the eye of law. though on the date of hearing of this petition, learned counsel for the opp. party no. 1 was absent, but subsequently on 26.6.2000 a note of citation was submitted on his behalf wherein relying on the decision reported in 64 (1987) clt659 (abani ch. biswal v. state of orissa) it is submitted that no person can claim blanket privilege for all the acts and uncalled for overdoing while discharging any public duty. relying on another decision reported in 1985 (ii) crimes 150 (som bhai v. mohanlal and others), it is submitted that sanction is not necessary as soon as complaint is filed. the act constituting the offence must have been done or purported to be done in discharge of official duty whether sanction is necessary or not may be determined from stage to stage. necessity may reveal itself in course of progress of the case. in another decision reported 1977 cri.l.j. 1382 (v.s.chochalingam v. t.kanapan), it has been held that if there is no necessary connection between the act complained of and the official duty and the performance of those duties and official status furnish only the occasion or opportunity for the acts, no sanction would be required.12. in this regard, i may refer to a decision of this court reported in 60 (1985) cut 164 (bishnu prasad mohapatra v. ramesh sahu), wherein it has been held that the object of section 197 of the code of criminal procedure is to guard against vexatious proceedings against public servants and to secure the well-considered opinion of the superior authority before a prosecution is launched against them. to find out as to what is the true and correct meaning of the phrase 'acting or purporting to act in the discharge of his official duty' courts have considered different situations and no hard and fast rule has been laid down. let me see whether sanction is necessary under section 197, cr.p.c. in the fact and circumstances so presented in the case at hand. it is an admitted fact that after receiving the fir investigation was taken up by the present petitioner. it is also a fact that there are number of criminal cases against the son of the complainant pending in different police stations. he was taken for the purpose of interrogation during the course of investigation into the allegations made in the fir. on perusal of the record, it is seen that the petitioner was acting as the investigating officer of the case at that point of time. in the case of n.k.ogle v. sanwaldasa/mssanwalmal ahuja hi999) 16 ocr (sc) 530, the apex court held that before coming to the conclusion whether the provisions of 197, cr.p.c. can apply, the court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim that he did it in course of the performance of his duty.13. in another case reported in 1995 (ii) olr 284 (kremjit mohananda v. mohanpani karua and anr.), it has been observed by this court that the principle embodied under section 197, cr.p.c. is well established. before the provision of section 197, cr.p.c. is invoked, two conditions must be first fulfilled i.e., (i) the public servant is not removable from his office except by or with the sanction of the state government or the central government, as the case may be, and (ii) he is accused of any offence alleged to have been committed by him. after these two pre- conditions are satisfied, a further enquiry is necessary to be made as to whether the alleged offence was committed by the public servant while acting or purporting to act in the discharge of his official duty. it is in this connection that the expression 'purporting to act in the discharge of official duty' assumes importance. ultimately it is held that the right to approach to the problem lies between the two extremes. a middle line which is adopted is that it is not every offence committed by a public servant in course of performance of his official duty, which is entitled to the protection of section 197(1), cr.p.c. what comes under the protective umbrella is an act constituting an offence, which directly or reasonably connects with his official duty. protection of section 197 does not extend to acts done purely in a private capacity by public servant. in the case at hand, as well as in the complaint so lodged, the son of the opp. party no. 1 was taken to the police station for interrogation by the petitioner on the strength of an fir which discloses the commission of a cognizable offence. it is also an admitted fact that the son of the opp. party no. 1 was also involved in some criminal cases previously. so, the petitioner taking the consent of the opp. party no. 1 took his son to the police station for the purpose of interrogation. the allegation so made might be in excess of performance of official duty, but cannot be said to be total unconnected with the official duty or cannot be held to be in non-performance of his official duty. it is not disputed that the petitioner is not removable from his office except by or with the sanction of the state government. the learned magistrate has taken cognizance without dealing with the aforesaid aspect and in a mechanical manner.14. for the aforesaid reasons, the petitioner is entitled to the protective umbrella under section 197, cr.p.c. the requirement of obtaining sanction for his prosecution being mandatory and admittedly no sanction having been taken, the impugned order taking cognizance against. the petitioner cannot be sustained. the order of the learned magistrate taking cognizance of the offence is bad and is accordingly, set aside.15. criminal misc. case is accordingly allowed.16. in view of quashing of the order taking cognizance nothing remains to be decided in the criminal revision, which is accordingly disposed of.