Arun Kumar Sarangi Vs. Madan Pattnaik and ors. - Court Judgment

Excerpt:
criminal - cognizance - quashing of - sections 325 and 504 of indian penal code, 1860 (ipc) and section 197 and 482 of code of criminal procedure, 1973 (cr.p.c.) - petitioner (police officer) gave two heavy blows on head of opposite party no. l and then gave successive blow on his body - opposite party no. 1 filed complaint case before trial court - after investigation cognizance taken by trial court under section 325 and 504 of ipc- hence, present application under section 482 of cr.p.c. for quashing of cognizance - held, applying ratio of anadicharan jena v. bijaya kumar mohanty, this court decided that court below should not have framed charge against officers without sanction and should have discharged them - facts and circumstances proves that petitioner had gone to spot in due discharge or performance of his duty and thus provision of section 197 of cr.p.c. will apply - story so advanced is not at all believable and in view of statement of opposite party no. 1 that no ill-treatment had been made by police, it is clear that there is credible materials to show that petitioner had neither abused or assaulted opposite party no. l - application allowed - 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]. - the copy of the case diary was produced and from the statement' of prafulla recorded therein it reveals that the sister of prafulla complained before him that on 16.4.1993 she was misbehaved by pramod ch. medical college and hospital for treatment and was discharged on 20.4.1993, whereafter he was produced before the learned magistrate on 21.4.1993. it also appears from the aforesaid orders that the accused madan did not complain any ill-treatment by the police. the court had observed that before coming to a conclusion whether the provisions of section 197 of the code of criminal procedure will 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; (1998) 1 scc, 205 relying upon matajog dobey's case (supra) and bearing in mind the legislative mandate engrafted in sub-section (1) of section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the government concerned held that the said provision is a prohibition imposed by the statute from taking cognizance and as such the jurisdiction of the court in the matter of taking cognizance and, therefore a court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the concerned government servant.b.p. das, j.1. this is an application under section 482 of the code of criminal procedure with a prayer to quash the order dated 16.8.1995 passed by the learned s.d.j.m., jajpur, in i.c.c. case no. 1 80 of 1 993 taking cognizance against the petitioner for the offence under sections 325 and 504 of the indian penal code.2. the brief facts of the case are that the sister of one prafulla kumar das, who was reading in m.h.d. mahavidyalaya.chhatia, was alleged to have been misbehaved by pramod chandra das (o.p.no.2) a lecturer, on 16.4.1993 for which the principal of the college called the said prafulla kumar das through one arjuna ch. sethi on 17.4.1993 to decide the matter. as per the request of the principal, it is alleged, prafulla kumar das along with one khirod kumar sahu went to the office of the principal in his vehicle bearing no. oru-2895 being driven by his driver madan patnaik (o.p.no.l). it is further alleged that after reaching the college, prafulla and khirod went to the principal's office room. a few minutes thereafter when prafulla in order to drink water asked his driver-opposite party no.l to bring water-bottle from the car. opposite party no.l went inside the principal's office room with the water-bottle and handed over the same to prafulla. by that time, it is alleged, the present petitioner who was then the asst. s.p. (u/t) and was posted as o.i.c., badachana police station, along with s.i. b.n.sahu, arrived there and entered inside the office of the principal with lathi. it is alleged that the present petitioner abused o.p. no.l and when o.p. and no.l protested to the same, he gave two heavy blows on the head of o.p.no.l and then gave a push to his head, as a result of which his head dashed against the wall and opposite party no.l sustained bleeding injuries and fell down. thereafter the petitioner gave five to six blows by means of a lathi on his body as a result of which opposite party no. 1 became senseless. on these allegations, opposite party no. 1 filed a complaint case against the petitioner and others in the court of s.d.j.m., jajpur which came to be registered as i.c.c. case no. 180 of 1993. enquiry under section 202, cr. p.c. was conducted and as many as 11 witnesses were examined and ultimately charge was framed against the petitioner as aforesaid.3. the case of the petitioner is that he is in no way connected with the aforesaid allegation of assault and the complaint case has been filed with an ulterior motive in order to harass a young police officer, who is known of his honesty and uprightness. the further case of the petitioner is that on 17.4.1993 at about 11 a.m. on receipt of a telephonic message from the president of chatia college students' union, the petitioner along with s.i. b.n.sahu proceeded to the college and on their arrival, one pramod ch. das, a lecturer of the college, presented a written report at the spot alleging therein that the present opposite party no.l along with two others, namely, prafulla kumar das and khirod kumar sahu forcibly entered into the class room while he was busy in teaching education to +3 arts 1st year student in room no. 8 and the said prafulla kumar das caught hold of his neck and tried to strangulate him. at that point of time the other associate of prafulla kumar das brought out a knife and threatened him with dire consequences and they dragged him out of the class room by giving him pushes on his neck. seeing this the students of the college along with some colleagues of pramod das came and rescued the informant from the clutches of the miscreants. thereafter out of fear pramod das ran into the principal's room to save his life. on receipt of the f.i.r., barchanap.s. case no. 61 of 1993, corresponding to g.r. case no. 420/93 of the court of learned s.d.j.m., jajpur, was registered and s.i.b.n. sahu was directed to take up investigation. in course of investigation, the present opposite party no. 1 and two others were apprehended and forwarded to the court who ultimately remanded to jail custody. thereafter, opposite party no.l was sent to barchana p.h.c. and thereafter to s.c.b. medical college and hospital, cuttack for medical treatment. on being discharged, he was forwarded to custody and thereafter released on bail. according to the petitioner, the complaint case has been filed by opposite party no.l as a counter-blast to the aforesaid g.r. case in order to save his skin from the criminal liability. after enquiry under section 202, cr.p.c. was made, cognizance has been taken under sections 325, 504/34, i.p.c. against the present petitioner and some others.4. learned counsel for the petitioner argues that even if the complaint petition is taken in its totality, no prima facie case is made out against the petitioner to frame charge under sections 325, and 504, i.p.c. that apart, the petitioner had gone to the college premises on being informed by the president of the college union that there was apprehension of breach of peace which might ultimately lead to law and order problem in the college campus. the f.i.r. lodged by opposite party no. 2 also corroborates the aforesaid facts. learned counsel for the petitioner submits that the petitioner had gone to the spot in order to discharge his official duty and, as it appears from the f.i.r. annexed to this application as annexure- 1, prafulla along with two others forcibly entered into the class room when the informant was busy in teaching education to +3 1 st year students in room no. 8 and assaulted him and threatened him at the point of dagger as the informant was alleged to have taken away the incriminating matarials used for adopting unfair means from the possession of the sister of prafulla in the examination hall.5. while, according to the learned counsel for the petitioner, on the direction of prafulla opposite party no.l and khirod entered into the college premises, as per the counsel for the opposite party no. 1, the said prafulla went to the college premises along with khirod and the driver of his car on being called by the principal of the college. the copy of the case diary was produced and from the statement' of prafulla recorded therein it reveals that the sister of prafulla complained before him that on 16.4.1993 she was misbehaved by pramod ch. das, who pulled her hair in the examination hall and touched her body in order to search for the incriminating materials used for adopting unfair means in the examination. on hearing this, he decided to come to the college to ask the lecturer about the incident and the other two accused persons had accompanied him. he also stated that after he arrived in the college, he found that pramod ch. das was teaching in the class room. so, his companions went there and called the lecturer to come outside, at the same time madan and khirod went inside the class room and brought him outside. this statement was recorded by the investigating officer while investigating into the aforesaid p.s. case no. 61 of 1993. though lam not placing any reliance on the statement so recorded by the police in course of investigation, but i find that the aforesaid statement of prafulla corroborates the f.i.r. story that the said prafulla along with his driver opposite party no. 1 and khirod went to the college and there is nothing to indicate that the principal had called the said prafulla kumar das to the college save and except the statement of arjun sethi so recorded in the complaint case. that apart, the supervisory note of the superintendent of police, jajpur, indicates that there is absolutely no role to play by the present petitioner in the alleged offence. no reason has also been ascribed by opposite party no. 1 as to why he had not filed an f.i.r. to this effect, and no material has been placed before me to indicate that actually the principal had called prafulla kumar das, and along with him his driver and khirod to come to the college, rather, on perusal of the case diary, i find that the present petitioner along with other police officer entered into the college premises in order to save prafulla kumar das who was being assaulted by the students of the college. materials are also there to indicate that the opposite party no. 1 and others who entered into the college premises were resisted by the students and lecturers. they also surrounded the anti-socials alleged to have been accompanied the opposite party no.l and pelted stones towards them and capsized the car brought by them. the principal and the staff of the college gave protection to the opposite party no. 1, including prafulla kumar das and kept them inside the office room till the arrival of the police in the college. in this situation, the petitioner and the sub-inspector entered inside the college premises in order to discharge their duties and opposite party no.l and his associates sustained injuries due to the assault by the students and they were rescued by the police and treated medically. from the remand order passed on 21.4.1993 by the learned s.d.j.m. in g.r. case no. 420 of 1993, it appears that accused-madan patnaik (opp. party no.l) was arrested on 17.4.1993 and sent to s.c.b. medical college and hospital for treatment and was discharged on 20.4.1993, whereafter he was produced before the learned magistrate on 21.4.1993. it also appears from the aforesaid orders that the accused madan did not complain any ill-treatment by the police. the story of the complainant shrouds with doubt because the opposite party no.l being a conscious man, who has come forward to file a complaint petition against a police officer had earlier denied to have been ill-treated by the police while in custody when produced before the magistrate. this being the position, the mystery remains, why and how opposite party no.l. the complainant, and his master (prafulla kumar das) entered into the college premises. that apart, there is nothing in the complaint petition to indicate as to why the petitioner chose the driver of prafulla kumar das to be the victim of his wrath when the said prafulla kumar das himself was available before him.6. learned counsel for the petitioner draws my attention to a decision reported in (1990) 16 ocr (sc) 530 (n.k.ogle v. sanwaldas alias sanwalmal ahuja) wherein the apex court relied upon a constitution bench decision of the said court in 1955 (2) scr 925 (matajog dobey v. h.c. bhari) which enunciated that where a power conferred or a duty is imposed by statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it caries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. the court was considering in the said case the allegation that the official authorised in pursuance of a warrant issued by the income tax investigation commission in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put, the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him mercilessly causing injuries and for such act a complaint had been filed against the concerned public officers. the court, however, came to hold that such a complaint cannot be entertained without a sanction of the competent authority as provided under section 197, cr.p.c. the court had observed that before coming to a conclusion whether the provisions of section 197 of the code of criminal procedure will 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 the course of the performance of his duty. the supreme court in the case of suresh kumar bhikamchand jain v. pandey ajay bhushan and ors. (1998) 1 scc, 205 relying upon matajog dobey's case (supra) and bearing in mind the legislative mandate engrafted in sub-section (1) of section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the government concerned held that the said provision is a prohibition imposed by the statute from taking cognizance and as such the jurisdiction of the court in the matter of taking cognizance and, therefore a court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the concerned government servant. so, in order to attract the provisions of section 197, cr.p.c. there should be some evidence to indicate or suggest that the act was committed by the petitioner in due discharge of his official duty. here is a case where definitely the case diary in g.r. case no. 420 of 1993 indicates that the present petitioner, who is a law enforcing officer, had gone to the place of occurrence in due discharge of his official duty.7. learned counsel for the opposite party no. 1 draws my attention to a decision reported in 2000 (1) olr, 222 (sri nilam naik v. state of orissa and anr.) wherein this court while deciding a case of this nature, ultimately held that there was no scrap of paper available before the sessions judge to show or suggest that the opposite party did the alleged act in due discharge of his official duty. for the aforesaid reason, this court set aside the order of the learned sessions judge and restored the order in taking cognizance of the offence. the facts of this case were quite different from that of the case at hand, the reason being there are materials before this court to hold that the petitioner had gone to the spot in due discharge of his official duty. but on the other hand, there is nothing to explain the reason why opposite party no.l and his master prafulla kumar das and one khirod sahoo went to the college along with the vehicle. the f.i.r lodged by pramod chandra das rather substantiates the case of the petitioner and proves the fact that opposite party no.l and his master prafulla kumar das along with one khirod sahoo entered into the college unauthorisedly and started making trouble inside the college premises. the story so advanced in the complaint petition, as it appears,is a counter blast to the f.i.r. filed against him.8. in a case, similar nature reported in 1991 (1) crimes 321 (anadicharan jena v. bijaya kumar mohanty) this court has decided that the court below should not have framed charge against officers without sanction and should have discharged them. in my opinion, the story so advanced is not at all believable and in view of the statement of opposite party no. 1 that no ill-treatment had been made by the police, it is clear that there is credible materials to show that the petitioner had neither abused or assaulted the complainant-opposite party no.l. the facts and circumstances proves the presence of the petitioner had gone to the spot in due discharge or performance of his duty.9. in above view of this matter, the proceeding initiated in i.c.c. case no. 180 of 1993 is hit by section 197, cr.p.c. therefore, the application is allowed and the impugned order framing charge against the petitioner is quashed.