B.K. Nayak, J.In this application under Section 482, Cr.P.C., the petitioners have prayed for quashing the order dated 05.01.2011 passed by the learned S.D.J.M. Bargain in I.C.C. Case No. 53 of 2009 taking cognizance of offence under Sections 457/354/323/294/379/506/34 of the I.P.C. and directing issuance of process against them.

2. Opposite Party No. 2-complainant filed I.C.C. Case No. 53 of 2009 against the petitioners and one Jagadish Naik. The petitioners were the Sub-Inspectors of Police of Bargarh Town Police Station on the alleged date of occurrence, i.e. on 24.08.2009. It is alleged in the complaint petition that on the date of occurrence at about 12.30 A.M., the accused persons along with some others came by two vehicles and called the name of complainants husband, Narayan Meher and commanded for opening the door of the house. The complainants husband was absent since turn days and the complainant without opening the door came down, to the ground floor, woke up her in-laws and saw that the accused persons had climbed on the Khappar (tile roof) of her boundary wall and been shouting for opening the door. In the meantime petitioner No. 1 broke the Tin Gate of western side of the house and petitioner No. 2 along with other accused persons rushed to the house of the complainant. Petitioner No. 1 pushed the complainant and tied her hands with her saree and abused her in filthy language. On the asking of the complainant the petitioners gave their identity and disclosed that they had come for search of the articles which the complainants husband had stolen. It is further alleged that petitioner No. 1 pushed the complainant, who fell down on the ground and some companion of the accused persons went to the first floor and searched there. On hearing the hullah the witnesses came to the spot and the accused persons left and while leaving threatened the complainant for withdrawal of the case initiated by her against Mr. Agarwal and his staff. Later the complainant found that her gold bangle from her right hand was missing. On going to the bed room in the up-stairs she found articles lying scattered and her purse was lying empty in which she had kept Rs. 9,500/- It was further alleged that she had lodged report at Bheden Police Station about such occurrence and subsequently reported the matter to the Superintendent of Police, Bargarh, but no action was taken.

3. On consideration of the allegations in the complaint petition and the statements of the complainant and witnesses recorded during enquiry. the learned S.D.J.M., Bargarh took cognizance of the offences as aforesaid by the impugned order.

4. Learned Counsel for the petitioners submits that one Pramod Kumar Agarwal, who deals in grocery business had lodged an F.I.R. at Bargarh Police Station giving rice to Bargarh Town P.S. Case No. 265 of 2009 against the husband of the present complainant-opposite party No. 2 and another person of having cheated the informant therein of Rs. 54.00 lakhs by fraudulent transaction from the month of September, 2008. The present complainants husband was purchasing grocery articles from the informants shop for his own business and being in collusion with some staff of the informant had not paid for the articles worth Rs. 54.00 lakhs and with the help of the informants staff made lake entries in the computer showing payment. The matter being brought to the notice of the present complainants husband he admitted that along, with Subash Nila he had misappropriated the grocery articles. Subsequently he returned grocery articles worth Rs. 3,50,000/-and paid cash of Rs. 1,70,000/-. for the purpose of amicable settlement, the informant Mr. Agarwal agreed to receive a further a sum of Rs. 18.00 lakh, from the present complainants husband who agreed to pay the same by 07.02.2009. To that effect he executed an agreement dated 17.01.2009 but did not pay anything. In connection with investigation of the said case, the petitioners left for the residence of the complainants husband at Bheden by making station diary entry at Bargarh Police Station on 24.08.2009. They went to the Bheden Police Station and made requisition for the assistance of Bheden Police and to that effect a Station Diary Entry bearing No. 434 dated 24.08.2009 was made. They went along with staff of Bheden Police Station to raid the house of present complainants husband for his arrest. The accused (complainants husband) being not available in the house, the petitioners and other Police personnel came back and made a further Station Diary Entry about absence of the complainants husband in his house.

In the aforesaid background, it is submitted by the learned Counsel for the petitioners that the complainant has lodged a false complaint against the petitioners though the offences alleged were never committed. It is submitted by him further that the petitioners being Police officers, the learned S.D.J.M., could not have taken cognizance without there being sanction under Section 197, Cr.P.C. it is further submitted that even otherwise the allegations in the complaint and the statements of witnesses during enquiry under Section 202, Cr.P.C. do not prima facie make out the offence for which cognizance has been taken.

5. Learned Counsel for opposite party No. 2 (complainant) submits that the accusations in the complaint petition and the statements of the complainant and those of witnesses recorded during enquiry under Section 202 Cr.P.C. prima facie make out the offences for which the learned S.D.J.M. has taken cognizance. It is further submitted by him that the acts complained of constituting the alleged offences do not come within the purview of official duty of Police officers and not permitted to be done during the course of investigation of a crime and, therefore, the petitioners are not entitled.to the protection of Section 197 Cr.P.C.

6. Sub-section (1) of Section 197, Cr.P.C. which is relevant, provides as under:

"(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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.

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at that time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression" Central Government" were substituted."

7. In the case of Choudhury Parveen Sultana v. State of West Bengal and anr., (2009) 42 OCR (SC) 535, the Honble Apex Court held as follows:

"14. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastavas case (supra) holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197, Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastavas case (supra), the underlying objection of Section 197, Cr.P.C. is to enable the authorities to scrutinise the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated here in above, if the authority vested in a public servant is misused for doing tilings which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned."

It was held in that case that where the Investigating Officer committed acts of extortion and criminal intimidation while conducting investigation into a case, such acts cannot be considered to "be a part of the duty of the investigating Officer.

8. It is the settled principle of law that protection under Section 197, Cr.P.C. is available only where the alleged act done by the public servant is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act. In order to avail the protection under Section 197, Cr.P.C., it must be shown that the official concerned had committed certain acts in due discharge of his official duty, though the acts may be in excess of exercise of the power and has reasonable connection with discharge of his official duty. If the acts complained of are in no way connected with the discharge of the official duty, then the official cannot have the protection of Section 197, Cr.P.C. Offences of theft, criminal intimidation etc. by a Police Officer in course of investigation of a crime cannot be said to have any relation to the discharge of his official duty of conducting investigation.

9. Keeping in view the allegations made in the complaint petition in the instant case, it cannot be said that the petitioners are entitled to protection of Section 197, Cr.P.C.

10. From the averments made in the complaint petition filed by opposite party No. 2 and the statements of the witnesses recorded during enquiry, no offence under Section 354, I.P.C. is prima facie found to have been committed by the petitioners inasmuch as the allegation of the complainant is that petitioner No. 1 tied her hands by her saree. There is no allegation or material to show that the tying of hands of the complainant was with an intention to outrage her modesty. That apart it is also found that petitioner No. 1 allegedly abused the complainant in filthy language inside her house, which is not a public place. Unless, the obscene act or words are done or uttered in or near a public place,no offence under Section 294, I.P.C. cannot be said to have been committed. Therefore, no cognizance of the offences under Sections 354 and 294, I.P.C. could have been taken.

11. In the light of the aforesaid discussion, the CRLMC is allowed in part and the cognizance of offence under Sections 354 and 291 I.P.C. only as per the impugned order, stands quashed.

Final Result : Disposed