CASE TITLE:
Ajaya Kumar Barik Vs. State of Odisha and Anr
DATE OF ORDER:
1 November 2022
JUDGES:
Justice R.K. Pattnaik
PARTIES:
Petitioner: Ajaya Kumar Barik
Respondent: State of Odisha and Anr
SUBJECT
The Orissa High Court has reaffirmed that if a public employee’s alleged misconduct has a “reasonable link” to his official duties, Section 197 of the Criminal Procedure Code must be invoked to impose sanctions. In other words, the Court believed that any action taken by a public worker that has a connection to or relationship with his or her official function cannot be prosecuted without the aforementioned consequence.
IMPORTANT PROVISIONS
Criminal Code of Procedure, 1973
- Section 197 - Prosecution of Judges and public servants. - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office is accused of any offence alleged to have been committed by him while acting in the discharge of his official duty, no Court shall take cognizance of such offence.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
BRIEF FACTS
- Regarding an incident that occurred on February 9, 2008, opposite party No. 2 filed a complaint in the court of learned J.M.F.C. Kodala. It is alleged that the petitioner and other police personnel unlawfully seized his motorcycle by asserting that it was stolen, and that in connection with that, he was mistreated and verbally abused in a filthy manner insofar as the vehicle was not released despite providing proof of ownership. After receiving the complaint, the learned court below took down the complainant’s opening statement and, after conducting an investigation in accordance with Section 202 of the Civil Practice and Procedure Code, issued the impinging order under Annexue-1 and summoned the petitioner under Annexue-2.
- The claimed event involved the confiscation of a Hero Honda motorcycle from the brother of the opposing party No. 2, which was done in response to an Akhay Kumar Mohapatra complaint. Since no legal proof of ownership could be provided, the motorcycle was not released. The petitioner argues that the complaint was filed with false allegations in order to harass opposite party No. 2, and that the learned court below issued the order of cognizance under Annexue-1 without properly verifying the documents or requesting a sanction in accordance with Section 197 Cr.P.C. because the documents submitted by the petitioner failed to establish the ownership of the vehicle.
ISSUES RAISED
- Whether the learned court was required to insist on a sanction under Section 197 Cr.P.C. before taking cognizance of the offences against the petitioner?
ARGUMENTS ADVANCED BY THE PETITIONER
- The learned counsel for the Petitioner contended that given the facts and circumstances of the case, the court below erred by taking notice of the offences without insisting on a penalty, as required by law under Section 197 Cr.P.C. before criminally prosecuting a public employee. In support of this claim, the argument cites an Apex Court ruling on sanctions in the matter of D. Devaraja vs. Owais Sabeer Hussain, decided in Criminal Appeal No.458 of 2020 by a judgement dated June 18, 2020. In addition to the aforementioned, when making a case for sanctions, reference is made to the rulings in Satyabrata Lenka v. State of Orissa and Others MANU/OR/0421/2017 and Sangram Keshari Behera v. Niladri Dhir 2012 SCC 2 Online Ori 316.
- He further contends that the learned court may have extended the benefit of Section 197 Cr.P.C because the alleged overt act of mischief is alleged to have been done while performing official duty, but it chose not to do so and instead illegally proceeded to take cognizance of the offences.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The learned AGA defended the decision of the lower court’s learned judge to take cognizance of the alleged offences. While the knowledgeable attorney for opposite party No. 2 said that the petitioner’s behaviour was unbecoming of a public servant and that he seriously violated the law by seizing the vehicle without cause, so no discipline was necessary. Mr. Das, the knowledgeable attorney for the opposing party No. 2, made this claim while citing cases like Sambhoo Nath Misra Vrs. State of U.P. and Others 1997(2) SCR 1139 and Balbir Singh Delhi Administration Vrs. D.N. Kadian, M.M. Delhi and Another AIR 1986 SC 345.
- The learned counsel for opposite party No. 2 argued that no sanctions were necessary in this case because the events leading to the seizure of the vehicle lacked any legitimate basis. As a result, the learned court below correctly declined to demand sanctions and went on to find the petitioner and others guilty of the offences.
JUDGMENT ANALYSIS
- According to opposite party No. 2, the vehicle that was seized by the petitioner and other police officers in the current case could not have been held without a search warrant and the registration of a case. This seizure was carried out in retaliation for the petitioner having filed a complaint against the aforementioned Bijaya Kumar Mohapatra, who was allegedly responsible for selling him fake and misbranded medication.
- The question is whether the learned court below was required to insist on a sanction under Section 197 Cr.P.C. before taking cognizance of the offences against the petitioner given the circumstances and in relation to the seizure of a vehicle claimed to have been owned by opposite party No. 2 after entertaining the complaint at the latter’s request.
- The petitioner was accused of violating the law when he seized and held the vehicle, humiliating him and causing him further financial loss, according to the opposing party No. 2. The petitioner abused his power during the seizure, according to opposite party No. 2, and even maltreated and abused him. There is no disputing the petitioner’s seizure of the car from opposite party No. 2’s custody.
- If the vehicle seizure was properly conducted in the course of performing an official duty, the learned court below was required to request sanctions under Section 197 of the Criminal Procedure Code. If the situation is different and the petitioner unlawfully took the vehicle by abusing his or her power and position and acting excessively while carrying out his or her duties, no punishment would be necessary.
- The petitioner in the current case is accused of ordering the seizure of the vehicle on the advice of someone with whom the opposing party no. 2 was allegedly not getting along well. The court has reasoned that this excess may have amounted to the commission of crimes, but it was primarily related to the petitioner’s official business or had something to do with the investigation, so punishment should have been instigated.
CONCLUSION
The petition is approved as a result. In accordance with this necessary corollary, the contested order of cognizance from 1CC Case No. 20 of 2009, dated April 16, 2011, under Annexure-1, is hereby revoked with a directive to the learned J.M.F.C., Kodala, Ganjam, to demand sanctions under Section 197 of the Criminal Procedure Code as against the petitioner before moving forward with the complaint and taking cognizance of the offences.
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