Crl. M.C. No. 2228 of 2003. Case: Sudarsan Das and Ors. Vs Sarojini Mohapatra. High Court of Orissa (India)

Case NumberCrl. M.C. No. 2228 of 2003
CounselFor Appellant: Dillip Kumar Misra and S.C. Mohanty, Advs. and For Respondents: Satyabrata Pradhan, Adv.
JudgesS.K. Sahoo, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 197, 197(1), 202, 47, 482; Indian Penal Code 1860, (IPC) - Sections 147, 148, 149, 294, 307, 323, 324, 325, 336, 34, 341, 35, 353, 354, 380, 427, 448, 456, 506, 506(II)
Judgement DateJanuary 30, 2017
CourtHigh Court of Orissa (India)


S.K. Sahoo, J.

1. The petitioners Sudarsan Das and Baikunthanath Mishra have filed this application under section 482 of the Code of Criminal Procedure challenging the impugned order dated 26.05.2003 passed by the learned S.D.J.M., Nilgiri in I.C.C. Case No. 06 of 2003 in taking cognizance for the offences punishable under sections 456, 427, 354, 323, 380, 506(II) read with section 34 of the Indian Penal Code and issuance of process against them.

2. The opposite party Smt. Sarojini Mohapatra filed a complaint petition in the Court of learned S.D.J.M., Nilgiri against the petitioners and one Arun Mahalik alleging therein that on 09.01.2003 night at about 1.30 a.m., the petitioners along with other police personnels entered inside her house premises, banged on the door and directed the inmates of the house to open the door. In spite of all efforts, when the door was not opened, they forced open the window of the bedroom, focused torch light inside the house and threatened the husband of the complainant directing him to open the door. Out of fear, the family members of the complainant shouted for help remaining inside the house. The accused persons then broke open the wooden door of the backyard and also broke open the second door by means of a crowbar, entered inside the house of the complainant and then into the bed room of her son and daughter-in-law. Then they woke up the daughter-in-law of the complainant, dragged her out of the bed. Thereafter the petitioner No. 1 and co-accused Arun Mahalik tied up the elder son of the complainant and carried him outside. When the daughter-in-law of the complainant came to the rescue of her husband, the petitioner No. 2 assaulted her and made her flat on the ground. The son of the complainant was carried outside and he was assaulted by the petitioner No. 2 by means of a lathi on his back and thigh. Co-accused Arun Mahalik dragged the other son of the complainant outside and all the accused persons kicked open the door of the bedroom. It is the further case of the complainant that when request was made to the accused persons not to enter into the house with shoes as it would affect the religious sentiment of the complainant's family members, they did not pay any heed to such request, on the other hand they demanded Rs. 5,000/- (five thousand only) and threatened to arrest the family members of the complainant and institute a false case against them. The accused persons tried to drag the husband of the complainant who was an old and ailing person and suffering from high blood pressure. The complainant requested the police officials to leave her husband but they did not pay any heed to her request. When the villagers and other witnesses arrived at the spot and protested, the accused persons left the spot giving threat to the family members of the complainant. Co-accused Arun Mahalik snatched away a gold chain from the neck of the complainant on the instruction of petitioner No. 1. The complainant informed the Circle Inspector of Nilgiri Police Station about the occurrence through registered post and on 11.01.2003. She also informed the Superintendent of Police, State Commission for Women regarding the incident through registered post. No action was taken on the representation of the complainant for which the complaint petition was filed on 16.01.2003.

The learned Magistrate recorded the initial statement of the complainant-opposite party, conducted inquiry under section 202 of Cr.P.C., during course of which three witnesses were examined and then passed the impugned order holding that prima facie material are available in respect of the offences.

3. Mr. Dillip Kumar Misra, learned counsel appearing for the petitioners contended that the impugned order suffers from non-application of mind and the ingredients of the offences under which cognizance has been taken are not attracted. It is further contended that the petitioners are the police officers and on the date of occurrence, in due discharge of their official duty, they conducted raid in the house of the complainant to apprehend her two sons namely, Chittaranjan Mohapatra and Suranjan Mohapatra who were the accused persons in Nilgiri P.S. Case No. 121 of 2002 under sections 147, 148, 336, 341, 448, 323, 324, 325, 294, 506(II), 307/149 of the Indian Penal Code and Nilgiri P.S. Case No. 122 of 2002 under sections 448, 341, 353, 294, 506, 323, 324, 325, 307/35 of the Indian Penal Code for which they have been falsely entangled in the case. The learned counsel for the petitioners relied upon the first information report lodged against the sons of the complainant and also the station diary entries Nos. 117, 170 and 173 which indicate that the raiding party called upon the inmates of the house of the complainant to open the door but the husband of the complainant refused to open the door and the sons of the complainant tried to escape for which the police official applying force entered inside the house through the back door and were able to apprehend the sons of the complainant. It is contended by the learned counsel for the petitioners that since the petitioners along with other police officials were instrumental in apprehending the two sons of the complainant, for that reason the complaint petition has been filed with an ulterior motive just to harass the petitioners. It is further contended that since the alleged offences have been committed in due discharge of the official duties, the petitioners are entitled to the protection as envisaged under section 197 of Cr.P.C. The sanction for prosecution being mandatory in nature, having not been taken, the impugned order of taking cognizance is not sustainable in the eye of law and therefore, should be set aside.

The learned counsel for the petitioners relied upon the decisions of this Court in case of Sarat Chandra Rath Vs. Malti Tandi reported in (2014) 59 Orissa Criminal Reports 1, Satyabadi Padhi Vs. Nepal Chandra Kar reported in 2001 (1) Orissa Law Reviews 238, Kremjit Mohananda Vs. Mohanpani Karua reported in 1995 (II) Orissa Law Reviews 284, Rohit Kumar That Vs. State of Orissa reported in (2010) 46 Orissa Criminal Reports 614 and Sangram Keshari Behera Vs. Niladi Dhir reported in (2012) 52 Orissa Criminal Reports 362.

4. Mr. Satyabrata Pradhan, learned counsel for the opposite party-complainant on the other hand contended that the overt act committed by the accused-petitioners in outraging the modesty of the daughter-in-law of the complainant, committing...

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