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2002 DIGILAW 484 (RAJ)

Mahesh Sharma v. K. K. Bagra

2002-02-25

ASHOK PARIHAR

body2002
Judgment Ashok Parihar, J.-The petitioner filed a complaint before the Court of the Additional Civil Judge (Sr. Div) No. 1, Jaipur City, Jaipur on 8.3.2000, against the Respondents No. 2 and 3, alleging offence under Sections 147, 148, 447, 427 and 379 IPC. it has been alleged that the petitioner is running a Chit-fund company, the office of which is situated in the Shop No. 10 and Chaat Market, Ram Niwas Garden, Jaipur. It has further been alleged in the complaint that Respondents No. 2 and 3, along with their employees, demolished the constructions of the above shops of the petitioner and also took the articles with them, thus, causing loss to the petitioner not only of the property but also of his businesses well. It has also been alleged that Respondents No. 2 and 3 had not acted during the course of their official duty and the whole action was taken by the above respondents out of mala fides. 2. The police, after investigation, submitted a Final Report, however, on a Protest Petition been filed by the petitioner, the trial Court took cognizance against all the respondents in the present petition for the offence under Sections 143, 427, 447 and 379 IPC vide order dated 12.2000. 3. Aggrieved by the order dated 12.2000, taking cognizance, the respondents preferred a revision petition before the appellate Court. The revision petition was allowed by the appellate Court vide order dated 7.2001, quashing the order dated 12.2000, taking cognizance. The order dated 7.2001 passed by the appellate Court is under challenge in the present revision petition. 4. Mr. Pankaj Gupta, learned Counsel for the petitioner, contended that the petitioner was running his Chit-fund company in the above shops of Chaat Market in the Ram Niwas Garden, Jaipur. The respondents had no authority to demolish the constructions without prior notice. He has further submitted that since the respondents had not acted in their official capacity, sanction under Section 197 CrPC was not required to be obtained before cognizance been taken by the trial Court. Mr. Gupta has relied upon the judgment of the Supreme Court in the case of P.K. Pradhan vs. The State of Sikkim, JT 2001 (5) SC 610, in case of” K.N. Shukla vs. Navnit Lal Manilal Bhatt & Anr., AIR 1967 SC 1331 , and judgment of this Court in the case of” Bachan Singh & Ors. Mr. Gupta has relied upon the judgment of the Supreme Court in the case of P.K. Pradhan vs. The State of Sikkim, JT 2001 (5) SC 610, in case of” K.N. Shukla vs. Navnit Lal Manilal Bhatt & Anr., AIR 1967 SC 1331 , and judgment of this Court in the case of” Bachan Singh & Ors. vs. State of Rajasthan, 1999 CriLJ 1952. 5. Mr. M. Rafiq, learned Additional Advocate General, appearing on behalf of the respondents, on the other hand, has contended that all the respondents are government servants and are gazetted officers except Respondent No. 5. The respondents, at the relevant time, have been working in the State Government Department, as such, prior sanction under Section 197 CrPC was essential. It has further been submitted by Mr. Rafiq that the State Government decided to remove all unauthorised constructions and encroachments from the government land, as such, in the city of , Jaipur, Operation Pink City was also started. It was during the above operation that unauthorised constructions over the government land were identified and the same were removed accordingly. In the present matter also, the petitioner had unauthor-isedly encroached upon two stalls of the Chaat Market, situated in the Ram Niwas Garden, the main public park of the city of Jaipur, and had also made constructions thereon without any permission. The whole action against the petitioner had teen taken strictly in accordance with law, after giving him due notice. 6. Mr. Rafiq has further submitted that, against the alleged demolition of shops, the petitioner also submitted a writ petition before this Court, however, the same was dismissed. Even the writ petition filed by the petitioner, for directing the State authorities to issue licence for running Chit-fund schemes, has been dismissed by this Court and the application for issuing licence for running the Chit-fund schemes has also been rejected by the concerned authorities mainly on the ground of antecedents and criminal record of the petitioner. Mr. Rafiq has relied on the judgment of the Supreme Court in The case of” Gauri Shankar Prasad vs. State of Bihar & Anr., 2000 (5) SCC 10, and in the case of” Abdul Wahab Ansari v. State of Bihar & Anr., 2000 (8) SCC 500 . 7. Mr. Rafiq has relied on the judgment of the Supreme Court in The case of” Gauri Shankar Prasad vs. State of Bihar & Anr., 2000 (5) SCC 10, and in the case of” Abdul Wahab Ansari v. State of Bihar & Anr., 2000 (8) SCC 500 . 7. After having considered the submissions made by learned Counsel for the parties, 1 have carefully gone through the order impugned in the present petition, the original record of the trial Court as also the judgments cited at the Bar. 8. Ashas come on record, two stalls alleged to be occupied by the petitioner in the Chaat Market, Ram Niwas Garden, Jaipur, were initially allotted to two persons namely; Bhanwar Singh and Nanag Ram. The stalls in the Chaat Market were allotted to different persons with licence to sell the eatable articles only. Both Bhanwar Singh and Nanag Ram were issued licences for selling ice cream and cold drinks in the above stalls. After some time, both the persons left the place and the petitioner, somehow, not only occupied the stalls but made certain constructions also and opened the office of Chit-fund company without any authority or permission. 9. It has further come on record that the authorities of the garden had been sending regular complaints in regard to unauthorised occupation and construction made by the petitioner to the higher authorities. In a public interest litigation, in regard to maintenance of Ram Niwas Garden, this Court issued “directions to the State Government to remove all unauthorised constructions from the garden and also shift the Chaat Market to other appropriate place outside the garden. 10. Ashas been submitted on behalf of the respondents that after the meeting been held by the higher authorities to remove unauthorised constructions in the Ram Niwas Garden also, during the Operation Pink City, the petitioner was given a written notice on 3.2000 to remove unauthorised construction within 24 hours. On 3.2000, the petitioner was again verbally reminded to remove unauthorised constructions. It has further been submitted that on 3.2000, the petitioner himself removed all the goods and articles from the shops and only thereafter the unauthorised constructions were removed. On 3.2000, the petitioner was again verbally reminded to remove unauthorised constructions. It has further been submitted that on 3.2000, the petitioner himself removed all the goods and articles from the shops and only thereafter the unauthorised constructions were removed. Initially, in the complaint submitted before the trial Court, the petitioner made allegations against the Respondent No. 2 and 3 only and it was only in the Protest Petition that other Respondents No. 1, 4, 5 and 6 were added as accused by the petitioner. 11. As has already been referred above, the writ petition filed by the petitioner against the alleged demolition has already been dismissed by this Court. Even the licence for running Chit-fund schemes has not been granted to the petitioner by the State Government. In the complaint as well as in the present petition, the petitioner has given the address of the offence, the company as Shops No. 1 and 10, Chaat Market, Ram Niwas Garden, Jaipur, whereas, in the application submitted before the State Government for granting licence for running the Chit-fund schemes, the address has been given as D-29, Subhash Marg, C-Scheme, Jaipur. The petitioner has also failed to produce any documents to show that the alleged shops in the Chaat Market were ever allotted to him by the concerned authorities or even permission to make the construction was granted. It has also not been brought on record as to how (he petitioner came into possession of the stalls/shops in dispute. Admittedly, when the cognizance was taken by the trial Court, the respondents were in service of the State Government and, further, the whole action was taken during the course of their official duly. 12. On facts apart, the cognizance against the respondents could not have been taken without prior sanction of the Stale Government as provided under Section 197 CrPC In my opinion, the present matter Is .squarely covered by the judgments of Hie Supreme Court in the case of Gauri Shankar Prasad (supra) as also abdul Wahab Ansari (supra), wherein, it has been held that where the act alleged has a reasonable nexus with the official duty of the accused, no criminal proceedings could be initialed against them without obtaining sanction. The judgments cited by the learned Counsel for the petitioner are not applicable in the fact and circumstances of the present case. 13. The judgments cited by the learned Counsel for the petitioner are not applicable in the fact and circumstances of the present case. 13. After having carefully gone through the detailed impugned order passed by the appellate Court, I find no error or illegality in the same so as to call for any further Interference of this Court In the present matter. 14. Accordingly, I find no merit in this revision petition and the same is dismissed. There will be no orders as to costs. The record be sent back.