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2003 DIGILAW 193 (PNJ)

Sukhdev Singh v. Om Parkash

2003-01-31

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - The present revision petition has been filed by Sukhdev Singh son of Pritam Singh (complainant) against the impugned order of learned Additional Sessions Judge, Sirsa dated 15.3.2001 setting aside the order dated 23.12.1995 of learned Chief Judicial Magistrate, Sirsa vide which the respondents were summoned. 2. Subhash Chander respondent No. 1 had expired during the pendency of this petition and this factual position has not been controverted by the learned counsel for the petitioner. Thus, the present revision petition survives against Om Parkash, Block Development Officer, Rania District Sirsa (respondent No. 1) only. Before proceeding further, it may be mentioned that learned counsel for the petitioner has moved a miscellaneous application bearing Crl. Misc. No. 3224 of 2003 for placing on record the copy of order passed by this Court in Civil Revision No. 3618 of 1999 decided on April 23, 2002. Since the learned counsel for respondent No. 1 had no objection to it, the same was allowed and the copy of order in the said Civil revision was taken on records vide order dated 24.1.2003. 3. The petitioner (complainant) had infact filed a complaint before the learned Chief Judicial Magistrate, Sirsa against 28 persons including respondents herein, under Sections 440/148/149/506/342 Indian Penal Code. All the 28 accused were summoned by the learned Chief Judicial Magistrate, Sirsa vide order dated 23.12.1995 to face the trial for the offences alleged in the complaint. 4. The facts as emerge from the complaint are that the petitioner and his brothers had purchased some residential plots from Gram Panchayat of village Rania way back in 1969 and had constructed their houses upon the same. In the recent past they had some apprehension from the hands of Ajit Singh and others (accused No. 1 to 22 in the original complaint) that they would forcibly have the possession of the houses or would encroach their property and as such the petitioner had filed a suit for permanent injunction restraining the said persons from taking the land into their own hands. It is then the case of the petitioner that the said civil suit was dismissed by the learned trial court but the said judgment and decree was subsequently modified by the lower appellate court (Additional District Judge) vide judgment dated 13.2.95 on the basis of a compromise between the parties. It is then the case of the petitioner that the said civil suit was dismissed by the learned trial court but the said judgment and decree was subsequently modified by the lower appellate court (Additional District Judge) vide judgment dated 13.2.95 on the basis of a compromise between the parties. It may be mentioned that the property of Gram Panchayat Rania then vested in Municipal Committee, Rania. It is then the case of the petitioner that the Municipal Committee, Rania who was not a party before the Additional District Judge came up to this Court by way of filing a civil revision petition No. 3618 of 1999 challenging the said compromise decree between the parties and in the said civil revision petition, it has been ordered by this court that the revision against the judgment dt. 13.2.95 is just an abuse of the process of the court and is not at all maintainable. The contention of the petitioner, thus, is that the judgment passed by the learned appellate Court on the basis of the compromise between the parties is still intact and final. It is then the case of the petitioner that accused Ajit Singh etc. (No. 1 to 22 in the original complaint) in connivance with respondent No. 1 being Block Development Officer/Administrator Municipal Committee Rania, Subhash Chander, Secretary Municipal Corporation Rania (since deed) and other four Safai sewaks of Municipal Committee Rania namely Faquir Chand, Darshan Lal, Mehar Chand and Sawar Singh who are also the accused in the complaint had taken the law into their hands and forcibly demolished the pucca houses of the petitioner and his brothers. The petitioner, thus, was constrained to file a complaint under sections 440/148/149/506/342 Indian Penal Code against Om Parkash respondent No. 1, Subhash Chander respondent No. 2 (since dead) and other 26 persons. 5. Learned Chief Judicial Magistrate, Sirsa after recording the preliminary evidence prima facie found it to be a fit case in which all the 28 accused should be summoned to face trial for the offences alleged in the complaint and consequently they were summoned vide order dated 23.12.1995. 6. 5. Learned Chief Judicial Magistrate, Sirsa after recording the preliminary evidence prima facie found it to be a fit case in which all the 28 accused should be summoned to face trial for the offences alleged in the complaint and consequently they were summoned vide order dated 23.12.1995. 6. Both the respondents, thereafter filed a revision in the Sessions Court at Sirsa against the order of summoning on the ground that they being the public servants had acted in the discharge of their official duties under the lawful orders and as such they cannot be prosecuted in view of protection under section 197 Criminal Procedure Code without prior sanction. 7. The learned revisional court allowed the revision petition filed by respondent No. 1 and his co-accused Subhash Chander and set aside the order of learned Chief Judicial Magistrate, Sirsa and both were, consequently discharged. 8. Hence this revision petition by Sukhdev Singh complainant. 9. I have heard Mr. S.C. Chhabbra, learned counsel for the petitioner and Mr. P.L. Goyal, learned counsel for respondent No. 1 and with their assistance I have also gone through the record of the case. 10. At the very outset, Mr. Chhabra has contended that the order of the learned Additional Sessions Judge, Sirsa (revisional court) is not sustainable in the eyes of law because the learned revisional court has committed an illegality on the face of it by travelling beyond its jurisdiction. Developing his arguments Mr. Chhabra has further contended that it was not the domain of the learned revisional court to comment upon the judgment of lower appellate court (Additional District Judge). He has referred to that particular portion of the impugned judgment which reads as under :- "It is not possible to comprehend that how the judgment and decree of the trial court has been set-aside without summoning the Gram Panchayat and ascertaining the factum of said compromise and therefore, the judgment of the trial court still subsists in so far as the rights of the Gram Panchayat, Rania are concerned and Gram Panchayat, Rania is not bound by the decision of the appeal. 11. Learned counsel for the petitioner further submits that the revisional court should not have commented upon the decision of the appellate court which is binding between the parties in which Gram Panchayat Rania/now Municipal Committee infact went un-represented. 11. Learned counsel for the petitioner further submits that the revisional court should not have commented upon the decision of the appellate court which is binding between the parties in which Gram Panchayat Rania/now Municipal Committee infact went un-represented. He has also referred to the order of this Court passed in Civil Revision No. 3618 of 1999 filed by Municipal Committee, Rania against the petitioner and his brothers and the said revision petition has been dismissed on the ground that the revision petition on behalf of the Municipal Committee is an abuse of the process of the court being not maintainable. It is also observed in the said revision petition that the remedy available to the petitioner (Municipal Committee) was to file Regular Second Appeal in the High Court instead of filing the revision petition. In the said judgment there is also a reference to a fact that the Collector had found that there was no encroachment on the part of the petitioner (respondent in civil revision) and the plots were found to be correct in accordance with the record and were sold by Gram Panchayat Rania to the petitioners in the year 1969. The learned counsel also refers to the order of Commissioner dated 10.12.93 which is in favour of the petitioner. Picking up thread, Mr. Chhabbra thus, contended that as there was no encroachment on the part of the petitioner or his brothers over the plots, respondent No. 1 or respondent No. 2, (since dead), were not justified to join hands with Ajit Singh etc., to demolish the property of the petitioner by taking the law into their hands. 12. The other submission made by learned counsel for the petitioner is that it is pre-mature at this stage to discharge the respondents because on the basis of the preliminary evidence, the learned Chief Judicial Magistrate had found it to be a fit case for issuance of process and in the instant case, the summoning order does not suffer from any illegality or irregularity on the face of it. Mr. Mr. Chhabra, thus, contends that at this stage there was nothing before the revisional court to conclude that the respondents were discharging their official duty under the lawful order as to have protection under section 197 Criminal Procedure Code It is then contended that even if the respondents wanted to have any shelter under the said act, they should have moved an application for discharge before the trial court showing their bonafides on the basis of any document authorising them to undertake the job of demolition of the houses. Learned counsel for the petitioner has relied upon two judgments of this Court rendered in Jodh Singh v. Chandi Ram, 1988 SCCases 73, Hardev Singh v. State of Punjab, 1996(1) RCR(Criminal) 84. 13. On the other hand, Mr. Goyal has contended that both the respondents have acted in the discharge of their official duty and as such they are protected under section 197 of Criminal Procedure Code It is then contended by Mr. Goyal that the learned revisional court has not bye-passed its jurisdiction while commenting upon lower appellate court order in a civil appeal because the judgment by the lower appellate court was not at all binding on Municipal Committee, Rania because a fraud was played before the appellate Court in obtaining judgment on the basis of the compromise by ousting Gram Panchayat and therefore, the lower appellate court judgment is to be ignored being nullity and non est in the eyes of law. In support of his arguments, reliance has been placed on a judgment of Apex Court rendered in S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs and others, 1995 PLR 293. Summing up his arguments, Mr. Goyal contends that infact the petitioner and his brother had encroached upon the land of Municipal Committee Rania and respondent No. 1 the Block Development Officer/Administrator, Municipal Committee and respondent No. 2 as Secretary, Municipal Committee, Rania acted in the discharge of their official duty and sanction for prosecution was indeed required in this case under section 197 Criminal Procedure Code before the learned trial court could take cognizance of the offences. 14. I find force in the submissions made by the learned counsel for the petitioner. 14. I find force in the submissions made by the learned counsel for the petitioner. It is an admitted position that the petitioner and his brothers had constructed their house on a land which they had purchased from Gram Panchayat of village Rania now Municipal Committee, Rania. It is worth mentioning here that the Municipal Committee has not been able to come with any cogent proof that the petitioner or his brothers had encroached upon its land the perusal of order passed in Civil Revision No. 3618 of 1999 shows that no Regular Second Appeal was filed by the Gram Panchayat Rania against the judgment passed by the lower appellate court. Therefore, the Municipal Committee Rania cannot have any right as on today over the property till the judgment of the lower appellate court dated 23.12.1995 is set-aside. If that is the situation, respondent No. 1 or respondent No. 2 had no right to take the law into their hands for the purpose of demolishing the property of the petitioner or his brother in the company of Ajit Singh and others. Had there been any lawful order, the respondents could place the same before the revisional court or could even show to the trial court by moving an application for discharge but it is not the position in this case. No other defence of the appellant can be seen at this initial stage. The trial Court has rightly summoned the respondents on the basis of preliminary evidence. The judgments relied upon by the learned counsel for the petitioner in Jodh Singh v. Chandi Ram, and Hardev Singh v. State of Punjab, (supra) are fully applicable to the facts of the present case. 15. There cannot be any dispute that the power laid down under section 197 Criminal Procedure Code is mandatory and can be raised at any stage of trial if the protection is available to the accused but at the same time the accused must have some material availing the same in his favour. As stated above respondent No. 1 could not show any document or any other evidence whatsoever which bring his case within the four corners of section 197 Criminal Procedure Code In this eventuality the court is left with no option except to look into the allegations made in the complaint or the evidence adduced before the trial Court for issuance of process. There is no doubt that the protection provided under Section 197 Criminal Procedure Code can be extended at the initial stage but the act complained of must fall within the scope of the range of the duty of a public servant and he should be directly connected with his official duty. On the other hand if the act in question is too remote or totally unconnected with the official duty, provisions of section 197 Criminal Procedure Code cannot apply. 16. In the present case, in my considered view, respondent No. 1 or respondent No. 2 (since dead) had no lawful authority to join hands with other 22 accused to remove the encroachment and as such the protection under Section 197 Criminal Procedure Code is not available to them. 17. To be fair to Mr. Goyal, in my view, the judgment relied upon by him in S.P. Chengalvaraya Naidu (supra) is not at all applicable to the facts of the present case. No other point has been urged. 18. Consequently, the present revision petition is allowed, the impugned judgment dated 23.12.1995, passed by learned Additional Sessions Judge, Sirsa, discharging respondent No. 1 and respondent No. 2 (since dead), is set-aside. Respondent No. 1 would now face the trial on the basis of the summoning order passed by the learned Chief Judicial Magistrate, Sirsa. However, he shall be at liberty to move an application for discharge before the trial court at the appropriate stage, if he so intends and the trial court would decide the same according to law. 19. The parties with their counsel would appear before the trial Court (Chief Judicial Magistrate, Sirsa) on 4.3.2003 for further proceedings. 20. Since the complaint relates to the year 1995, it is expected of the trial court that an endeavour would be made to finish the trial expeditiously preferably within six months from the next date of hearing. The records of both the Courts below which were requisitioned by the order of this court be sent back without any delay. Revision allowed.