Heard the learned counsel for the petitioner and the learned counsel for the State. No
ne appears for the opposite party no.2.
2. This application under Section 482 of the Code of Criminal Procedure (for short Cr.P.C
.) has been filed challenging the order dated 02.06.2009 passed by the learned J.M.F.C., Umerk
ote in I.C.C. Case No.4 of 2008 taking cognizance of the offences under Sections 294, 323, 342
and 385 of IPC and Section 3(1)(i) of the S.C. & S.T. (PoA) Act against the present petitione
r.
3. As it appears, in this case, a complaint was lodged against the petitioner, the then O
.I.C. of Jharigam Police Station who had detailed the opposite party no.2-complainant and othe
rs in the Police Hazat, indecently behaved with them, demanded money from them, kept them in c
onfinement, abused and assaulted them. On receipt of the complaint petition, the learned Magis
trate recorded the initial statement, so also inquiry under Section 200 of Cr.P.C. was made an
d thereafter cognizance of the offences having been taken vide Annexure-3, the petitioner has
challenged the same in this petition on the ground that the act complained of having nexus in
discharge of the official duty inasmuch as they were taken during investigation of the case to
the Police Station by the petitioner, the prosecution against the petitioner is bad and, as s
uch, is liable to be quashed.
4. Learned counsel for the petitioner in this regard places reliance in a decision of thi
s Court in the case of Raj Kumar Mahala and two others vrs. State of Orissa and another, 2015
(I) OLR 391 wherein this Court has taking exception of the cognizance taken on filing of the c
omplaint before recording of the initial statement and examination of the witnesses and therea
fter posting the case for initial statement and recording of the evidence of the witnesses and
proceeding against the petitioner to have no sanction of law, quashed the prosecution. So als
o, the learned counsel for the petitioner relies upon a decision of this Court in the case of
Sri Prasanta Kumar Rout and another vrs. Gourahari Sethy, 2013 (II) OLR 1005 wherein it has be
en held that the facts and circumstances indicate that the opposite party with an ulterior mot
ive in order to cause harassment to the petitioners filed complaint case, the Magistrate in ab
sence of sanction from the Authority was required under Section 197 Cr.P.C. could not have tak
en cognizance, more particularly when the issue of certificate has nexus with discharge of off
icial duty by the petitioners, as such, quashed the cognizance. So also, the learned counsel f
or the petitioner relies upon a decision of the Apex Court in the case of D.T. Virupakshappa v
rs. C. Subash, 2015 (II) OLR (SC) 409 wherein it has been held that the allegation that the ap
pellant exceeded in exercising his power during investigation of a criminal case and assaulted
the respondent in order to extract some information with regard to the death of one S and in
that connection, the respondent was detained in the police station with the discharge of the o
fficial duty, the Magistrate could not have taken cognizance without the sanction under Sectio
n 197 Cr.P.C. and quashed the prosecution. In the case of D.T. Virupakshappa (supra), the Apex
Court has placed reliance on a decision in the case of Om Prakash and others vrs. State of Jh
arkhand Through the Secretary, Department of Home, Ranchi and another, (2012) 12 SCC 72 wherei
n it has been held as follows :-
