Orissa High Court: In a criminal miscellaneous petition filed under Section 482 of the Code of Criminal Procedure, 1973 (‘Code’) challenging the legality and judicial propriety of the impugned order of cognizance, on the ground that it is not tenable in law and hence, liable to be quashed in the interest of justice, R.K. Pattanaik, J. has held that the petitioner seized the vehicle at the behest of another person who was not pulling well with the opposite party, and which could amount to the commission of offences connected to the official duty or having nexus with the investigation and hence, sanction should have been insisted upon before proceeding with the complaint by the Lower Court.
In the present case, one of the opposite parties was ill-treated by the petitioner and other police staff when they seized his bike, claiming it to be stolen and abused him, and did not return his bike even after showing proof of its ownership. Further, false allegations and complaints were made against him, and the Lower Court recorded the initial statement after the complaint was received , conducted an inquiry under Section 202 of the Code and passed the impugned order a without adequately verifying the documents and demanding sanction in terms of Section 197 of the Code, passed the impugned order.
The issue in the present case is whether the Lower Court was to insist upon a sanction under Section 197 CrPC. before taking cognizance of the offences against the petitioner?
The Court interpreted Section 197 of the Code which stipulates that when a public servant 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 of the Government, however, thisdoes not mean that a public servant who is not removable from his office without the sanction of the Government cannot be criminally prosecuted unless a sanction under Section 197 of the Code is obtained, provided that the mischief alleged against him was committed while he was acting or purporting to act in the discharge of official duty.
The Court referred D. Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695, wherein it was held that “the object of Section 197 of the Code is to prevent public servants from being subjected to vexatious proceedings for the acts which are done in the discharge of their official duty or committed in excess of such duty or authority, further, to decide whether sanction is necessary, the test is whether the act is totally unconnected with the official duty or if there is reasonable nexus with the official duty”, and reiterated that if the seizure of the vehicle had been carried out in the due discharge of official duty, the Lower Court should have demanded sanction under Section 197 of the Code, and had it been carried out in mischief and committed excess in the color of discharging duty, no sanction would be required.
Thus, the Court quashed the impugned order and directed the Lower Court to demand sanction under Section 197 of the Code against the petitioner before proceeding with the complaint and taking cognizance of offences.
[Ajaya Kumar Barik v. State of Odisha, 2022 SCC OnLine Ori 3738, decided on 01-11-2022]
Advocates who appeared in this case:
For Petitioner: Senior Advocate Jagbandhu Sahoo;
For Respondent: Additional Government Advocate P.K. Muduli;
Advocate P.S. Das.