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1977 DIGILAW 136 (MAD)

Veerabhadrappa v. State of Karnataka

1977-03-10

D.B.LAL

body1977
Order.- These two criminal petitions presumably under section 482 of the Code of Criminal Procedure, are directed against the two orders made by the Judicial Magistrate First Class, Shorapur, refusing to discharge Veerabhadrappa (A-2) in two cases instituted upon police reports. 2. The case against the petitioner Veerabhadrappa (A-2) is that two First Information Reports were instituted against him and a few others which arc First Information Report 249 of 1976 dated 24th June, 1976 and First information Report 251 of 1976 dated 26th June, 1976. In the first case it was contended that A-2 being Dalpati of the village appointed under section 9 of the Mysore Village Defence Parties Act, 1964, along with others went to the hutments belonging to the two complainants. Presumably A-2 was under the impression that there was encroachment over the Government land and as such he asked them to remove the portion, of the hutment causing encroachment. The First Information Report case was that the accused armed with sticks and other weapons had gone to the place, abused the complainants and also beat them. Thereafter the encroached part of the hutment was forcibly removed. Thus a case was registered against A-2 and others for the offences under sections 147, 342, 427 and 323 of the Indian Penal Code. It was a summons case and under Chapter XX of the Code the learned Magistrate proceeded to enquire about the charges. An oral plea was taken before the learned Magistrate that A-2 was the Dalpati and as such under section 13 of the Mysore Village Defence Parties Act, 1964, previous sanction of the Superintendent of Police was required and as such the prosecution could not proceed. The learned Magistrate dealt with that plea and came to the conclusion, that the plea of previous sanction by the Superintendent of Police was not made out and as such be called upon the accused to present themselves before the Court and proposed to record their plea. Against that order Cr.P.No. 31 of 1977 is filed under section 482. 3. The other First Information report case pertained to these very accused including the petitioner (A-2). Against that order Cr.P.No. 31 of 1977 is filed under section 482. 3. The other First Information report case pertained to these very accused including the petitioner (A-2). The First Information Report was dated 26th June, 1976 and it was alleged that A-2’ being Dalpati of the village along with his brother A-1 went to the house of the complainant and asked him to remove the cattle shed presumably because the Dalpati thought that there was encroachment on Government land. The First Information. Report also stated that the said cattle shed caused obstruction to a passage. Thereafter, A-2 and his brother forcibly removed the cattle shed and for that the police report was instituted for the offences under sections 147 and 427 of the Indian Penal Code. The learned Magistrate treating the case as a summons case, proceeded under Chapter XX of the Code and on behalf of A-2 a similar oral plea was taken that he was the Dalpati appointed under the Act and for his prosecution previous sanction of the Superintendent of Police was needed. It was requested that the prosecution itself could not be instituted for want of that sanction. The plea however did not prevail before the learned Magistrate and he fixed a date for appearance of the accused and for recording their plea. 4. While making the two impugned Orders, the learned Magistrate considered that under Chapter XX of the Code there was no provision to discharge the accused similar to the provision contained in the Code in a warrant case under section 239. That was the additional reason why the learned Magistrate considered that he was unable to discharge the accused and as such refused to entertain the plea. This part of the reasoning adopted by the learned. Magistrate was absolutely incorrect. Section 258 of the Code very much lies in Chapter XX of the Code which was perhaps never brought to the notice of the learned Magistrate. There is a provision to stop the proceedings in certain contingencies. In case the learned Magistrate found that the previous sanction of the Superintendent of Police was a sine qua non to the institution of the prosecution, he could stop the proceeding and could even release the accused and such a realea;e would have had the effect of a discharge. There fore, the jurisdiction was there with the learned Magistrate to proceed under section. There fore, the jurisdiction was there with the learned Magistrate to proceed under section. 258 of the Code. But the question is, as to whether the stage was right to exercise that jurisdiction and there lay the real difficulty in the present two petitions. 5. It is manifest, a plea on behalf of A-2 is yet to be recorded. Ore does not know in what manner the accused A-2 acted nor any material is supplied to the Magistrate to hold as to whether he was acting within the domain of his public duty and as to whether he could be stated to have committed the offences in the course of performance of his public duty. Therefore, it was rather premature on the part of the petitioner to come to this Court under section 482 when sufficient material was not produced before the Magistrate to make an order of discharge under section 258. For that, the petitioner has yet to make his plea before the Magistrate. He has to cross-examine the prosecution witnesses and perhaps he may also give his defence. At any rate, one cannot think at this stage as to the manner in which the petitioner’ would be able or would not be able to substantiate his plea of previous sanction to prosecute by the Superintendent of Police. Thus, the stage for filing the present two petitions is rather premature and the petitioner is at liberty to adduce material by way of his plea or by way of such further evidence which he may like to adduce before the Magistrate and thereafte, he can request the Magistrate to discharge him under section 258 if the proceeding is liable to be stepped and if he is likely to be discharged on the ground of any such plea. 6. The jurisdiction of the High Court under section 482 of the Code is severely restricted. An interference can only be made in a case where there is abuse of the process of the Court or where a situation is made out to preserve the end; of justice. As I have stated above, the petitioner is at liberty to agitate the plea of previous sanction before the Magistrate. As observed by their Lordships in Pukhraj v. State of Rajasthan and another1, facts subsequently coming to light during the course of the trial may establish the necessity for sanction. As I have stated above, the petitioner is at liberty to agitate the plea of previous sanction before the Magistrate. As observed by their Lordships in Pukhraj v. State of Rajasthan and another1, facts subsequently coming to light during the course of the trial may establish the necessity for sanction. Whether or not sanction is necessary will depend on fact disclosed from stage to stage. That being so, the petitioner can very well avail of this plea at the appropriate stage when he produces sufficient material before the Magistrate and calls for him to decide under section 258. 7. In this view of the matter, the present two petitions do not call for any interference with the two orders made by the learned Magistrate. The two petitions are therefore dismissed. This judgment is being given in Cr.P. No. 30 of 1977 and shall form part of the judgment in Cr.P.No. 31 of 1977. A copy of this judgment shall be kept on the record of that case.