S.197 CrPC | Sanction Must Be Obtained To Prosecute Public Servant If Impugned Act Has 'Reasonable Nexus' With Official Duty: Orissa HC Reiterates

"If the seizure of the vehicle has been carried out in due discharge of official duty, in that case, the learned court below was to demand sanction under Section 197 Cr.P.C. If it is otherwise and that the petitioner did mischief and illegally seized the vehicle by misutilising the authority and official position and committed the excess in the colour of discharging duty, no sanction would be required."

Factual Background:

The opposite party No. 2 filed a complaint in the court of the J.M.F.C. Kodala with regard to an incident dated 9th February, 2008 during which it was alleged that the petitioner and other police staff illegally seized his motorcycle claiming it to be stolen and he was ill-treated and abused in filthy language. Further, the vehicle was not released despite showing proof of its ownership.

After the complaint was received, the Court recorded the initial statement of the complainant and after conducting an enquiry in terms of Section 202, Cr.P.C., the impugned order of cognizance was passed and the petitioner was summoned. Aggrieved by such order, the petitioner approached the High Court for quashing the same.

Contentions of the Petitioner:

Mr. Jagabandhu Sahoo, Senior Advocate appearing for the petitioner contended that the court below fell into error in taking cognizance of the offences without demanding sanction which is statutorily required in view of Section 197, Cr.P.C. before criminally prosecuting a public servant. While contending so, the decision of the Supreme Court in D. Devaraja v. Owais Sabeer Hussain was relied upon.

Contentions of the Respondents:

Mr. Pravat Kumar Muduli, Additional Government Advocate argued in favour the decision of the Court below whereby cognizance of the alleged offences was taken. The counsel appearing for opposite party No. 2 contended that the conduct of the petitioner was unbecoming of a public servant and he committed serious illegality by making seizure of the vehicle without any justification and therefore, no sanction was required. To this effect, he cited the decisions of the Apex Court in Sambhoo Nath Misra v. State of U.P. & Ors. and Balbir Singh Delhi Administration v. D.N. Kadian, M.M. Delhi & Anr.

Court's Observations:

The Court noted the observations made in D. Devaraja (supra), wherein the top Court while dealing with a matter concerning sanction held that an application under Section 482, Cr.P.C. is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court.

Therein, it was also observed that to decide whether sanction is necessary, the test is whether the act is totally unconnected with the official duty or if there is a reasonable nexus with the official duty. The Supreme Court in the above case concluded that if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if he has exceeded the scope of his powers and/or acted beyond the four corners of law.

Consequently, the Court concluded,

"In the case at hand, the seizure of the vehicle was carried out by the petitioner which is alleged to be on the instigation of a person with whom opposite party No.2 was not pulling on well and in good terms and that some excess was committed by him which in the considered opinion of the Court may have amounted to commission of offences, however, basically connected to the official duty or having nexus with the investigation and hence, sanction should have been insisted upon before proceeding with the complaint which is a view derived from the ratio of the Apex Court in D. Devaraja."

Accordingly, the petition was allowed.

Case Title: Ajaya Kumar Barik v. State of Odisha & Anr.

Case No.: CRLMC No. 4453 of 2011

Judgment Dated: 1^st November 2022

Coram: R.K. Pattanaik, J.

Counsel for the Petitioner: Mr. Jagabandhu Sahoo, Senior Advocate

Counsel for the Opposite Parties: Mr. Pravat Kumar Muduli, Additional Government Advocate (for the State) & Mr. P.S. Das, Advocate (for Opposite Party No. 02)

Citation: 2022 LiveLaw (Ori) 154