Orissa High Court: In a petition filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), challenging the criminal proceedings pending before the Lower Court, the Single-Judge Bench of R.K. Pattanaik, J., set aside the impugned order of the Court below and directed to proceed with the complaint only after receiving sanction under Section 197 of the CrPC, to criminally prosecute the petitioners and not otherwise.
In the matter at hand, the petitioners are the officials and technical staff of the Northern Electricity Supply Company of Orissa Ltd (‘NESCO’). The petitioners went for an inspection and found the husband of the opposite party no. 2 (‘complainant’) and other consumer to be indulged in unauthorized use of electricity, bypassing the meter. While trying to cut the power supply, there was an unlawful gathering, and the petitioners were obstructed from performing their duty. The petitioners were abused, threatened and wrongfully confined in a room. Thereafter, the petitioners lodged an FIR against the consumers, indulged in unauthorized use of electricity and in retaliation, complaint was filed against the petitioners. The Court below took cognizance of the offences against the petitioners, by order dated 08-04-2016, which forms part of the impugned order.
The Court noted that the petitioners were discharging public duty and had been on the spot for verification and to detect unauthorized use of electricity. The Court said that the Court below before taking cognizance of the offences against the petitioners, ought to have conducted a detailed enquiry and if necessary, insisted for sanction under Section 197 of the CrPC. Further, the Court viewed that the petitioners were not on the spot in personal capacity, and even if any excess was committed by the petitioners during the incident, the Court below should have conducted an enquiry, in spirit of law, under Section 168 of the Electricity Act, 2003 (‘Electricity Act’) and Section 202 of the CrPC, in order to ascertain the veracity of the allegations. The Court said that the Court below could not have been oblivious of Section 168 of the Electricity Act, which expressly bars any such prosecution for acts done in good faith.
The Court said that the officers on duty cannot be subjected to undue harassment at the hands of unscrupulous litigants, and to prevent malicious prosecution, provisions such as Section 168 of the Electricity Act are put in place. Further, the Court said that a public servant also enjoys immunity by virtue of Section 197 of the CrPC.
The Court, also noted that the complaint was filed nearly 10 days after the date of incident, and this fact should have influenced the Court below to ponder over the situation, and it ought to have been cautious before taking the cognizance of the offences involving public servants on duty.
Thus, the Court said that considering the facts and circumstances of the case, the Court below failed to insist on sanction under Section 197 of the CrPC. Therefore, the impugned order of cognizance by the Court below was set aside, and the Court below was directed to proceed with the complaint only after receiving sanction to criminally prosecute the petitioners and not otherwise.
[Nihar Ranjan Das v. State of Odisha, 2023 SCC OnLine Ori 1937, decided on 11-04-2023]
Advocates who appeared in this case :
For the Petitioners: Advocate Prasanta Kumar Tripathy;
For the Respondents: State Counsel Tapas Kumar Praharaj, Advocate S.K. Dash.