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2004 DIGILAW 1237 (RAJ)

Priyavrat Pandya v. Sundar Lai

2004-08-31

N.N.MATHUR

body2004
JUDGMENT 1. - These eight revision petitions arise from the common. order dated 21.10.1997 passed by the Additional Chief Judicial Magistrate No. 2, Udaipur in Cr.Cases No. 258/97, 259/97, 260/97 and 261/97. 2. Briefly stated the facts of the case giving rise to the instant group of revision petitions are that certain shops belonging to Roshan Lal and Rupesh on the National High Way No. 8 near Udaipur in the city of Udaipur were rented out to the complainants-Umesh Chandra Agarwal, Veni Chand, Sundar Lal, Prabhu Lal, Kalu Lal and Moti Lal. It is alleged that the land- lord Roshan Lal and Rupesh entered into a conspiracy with the officials of the Municipal Council, Udaipur namely accused- Priyavrat Pandya, Commissioner, Samrath Singh Babel, Junior Engineer and Brij Mohan Sharma, Revenue Officer to dispossess them from the rented premises. As a result of the conspiracy the shops were demolished. The tenants namely Prabhu Lal, Veni Chand, Sundar Lal and Umesh Chandra Agarwal filed separate complaints in the Court of Additional Chief Judicial Magistrate No. 2, Udaipur on 22.4.1997 which was registered as Criminal Case Nos. 258/97, 259/97, 260/97 and 261/97 respectively. It is alleged that the petitioners herein in Cr.Revision Petition No. 45/98, 46/98, 47/98 and 48/98 namely Priyavrat Pandya, Commissioner, Samrath Singh Babel, Jr. Engineer and Brij Mohan Sharma Revenue Officer of Municipal Council, Udaipur in conspiracy with Roshan Lal and his son Rupesh demolished the shops in illegal and unauthorized manner and depriving them from their property. The learned Magistrate recorded their statements under section 200 Criminal Procedure Code After recording the statements of witnesses under section 202 Criminal Procedure Code the learned Magistrate by order dated 1.9.1997 took cognizance against all the accused persons i.e. Priyavrat Pandya, Samrath Singh Babel, Brijmohan Sharma, Roshan Lal and Rupesh for offence under section 120-B, 454, 427 and 161 Indian Penal Code. The learned Magistrate procured their attendance by issuing warrant of arrest. 3. An application was filed on behalf of the officials of the Municipal Council, Udaipur referred to above under section 197 Criminal Procedure Code for dropping proceedings against them in absence of sanction. The learned Magistrate procured their attendance by issuing warrant of arrest. 3. An application was filed on behalf of the officials of the Municipal Council, Udaipur referred to above under section 197 Criminal Procedure Code for dropping proceedings against them in absence of sanction. Another application was filed by the land-lord Roshan Lal and Rupesh for dropping the proceedings in view of the provisions of Section 196 Criminal Procedure Code The learned Magistrate by the impugned order dated 21.10.1997 allowed the application filed by Roshan Lal and Rupesh and dropped the proceedings in view of the prohibition provided under sub-cl. (2)of Section 196 Criminal Procedure Code The applications filed on behalf of officials of the Municipal Council namely Priyavrat Pandya, Samrath Singh Babel and Brij Mohan Sharma were kept pending. The four revision petitions arising from each complaint vis. 45/98, 46/98, 47/98 and 48/98 have been filed by Priyavrat Pandya, Samrath Singh Babel and Brij Mohan Sharma aggrieved with the order to proceed with the trial while keeping the applications under section 197 Criminal Procedure Code pending. The other four revision petitions being S.B. Criminal Revision Petition Nos. 541/99, 540/99, 539/99 and 537/99 have been filed by each complainants in their respective criminal case aggrieved of the order of dropping proceedings against Roshan Lal and Rupesh. 4. I have heard the learned counsel for the parties and perused the impugned order. I have also carefully gone through the entire record. It appears that on the National High Way No. 8 at a place near Udaipur in view of congestion creating traffic problem it was decided to remove the bottle neck created by lack of space to widen the road. The Urban Improvement Trust, Udaipur proceeded to acquire the constructed area creating obstruction by way of land acquisition proceedings. The shops occupied by the complainants-Veni Chand, Prabhulal, Umesh Chandra, Sundar Lal, Kalu Lal and Motilal were demolished. The said tenants challenged the acquisition proceedings by way of filing a suit which was ultimately concluded in a compromise decree. As per the terms of the compromise it was agreed that the Municipality will provide them alternative shops in lieu of the shops sought to be demolished. Thus, the petitioners herein who are officials of the Municipal Council, Udaipur demolished the shops in question in execution of the decree passed by the competent civil Court. As per the terms of the compromise it was agreed that the Municipality will provide them alternative shops in lieu of the shops sought to be demolished. Thus, the petitioners herein who are officials of the Municipal Council, Udaipur demolished the shops in question in execution of the decree passed by the competent civil Court. Thus, they being public servants acted in discharge of their official duty. In such circumstance, there appears to be substance in the contention raised by the learned counsel for the petitioners that as some dispute took place as to the place where the shops were allotted has led to the filing of the criminal complaint. The entire purpose of the prosecution is to pressurise the council to allot a land as per their choice. 5. Section 197 Criminal Procedure Code affords protection to a public servant not removable from his office save by or with the sanction of the Government against any offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The object of the section is to save officials from vexatious proceedings. In the instant case the act complained of by the respondent against the petitioners have a reasonable nexus with their official duty. Thus, petitioners are entitled to protection provided under section 197 Cr.P.C. 6. As regards the criminal revision petitions filed by the complainants against the impugned order, so far as it relates to quashing the proceedings against the land-lord i.e. Roshan Lai and Rupesh under section 196(2) Cr.P.C., it is significant to notice that the cognizance against them has been taken only for offence under section 120B Indian Penal Code. Section 196 provides prohibition of taking cognizance for offence against the State and for criminal conspiracy to commit such offences which are not punishable with death, imprisonment for life or rigorous imprisonment for 2 years or upwards unless the State or the District Magistrate has consented in writing to the initiation of the proceeds. The provision reads as follows : 196. The provision reads as follows : 196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.-(1) No Court shall take cognizance of (a) any offence punishable under Chapter VI or under section 153-A, of the Indian Penal Code, 1860 (45 of 1860), or (b) a criminal conspiracy to commit such offence, or (c) any such abetment, as is described in Section 108-A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. (1-A) No Court shall take cognizance of (a) any offence punishable under section 153-B or sub-section (2) or sub-section (3) of Section 505 of the Indian Penal Code, 1860 (45 of 1860), or (b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. (2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings; Provided that where the criminal conspiracy is one to which the provisions of Section 195 apply, no such consent shall be necessary. (3) The Central Government or the State Government may, before according sanction [under sub-sec, (1) or sub-section (1-A) and the District Magistrate may, before according sanction under sub-section (1-A)] and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of Section 155." 7. Section 454 Indian Penal Code provides lurking house-trespass or house- breaking in order to commit offence punishable with imprisonment. The sentence provided for said offence is 3 years. Section 427 Indian Penal Code provides imprisonment of 2 years for mischief and thereby causing damages for an amount of Rs. 50/- or upwards. In view of the fact that the sentence provided under section 454 Indian Penal Code is above two years the provisions of Section 196(2) Criminal Procedure Code are not attracted. Section 427 Indian Penal Code provides imprisonment of 2 years for mischief and thereby causing damages for an amount of Rs. 50/- or upwards. In view of the fact that the sentence provided under section 454 Indian Penal Code is above two years the provisions of Section 196(2) Criminal Procedure Code are not attracted. The learned Magistrate has committed error in dropping the proceedings against Roshan Lal and Rupesh by invoking the provision of sub-section (2) of Section 196 Cr.P.C. 8. Consequently, S.B. Criminal Revision Petition Nos. 45/1998, 46/1998, 47/1998 and 48/1998 are allowed. The order of the Additional Chief Judicial Magistrate No. 2, Udaipur dated 21.10.1997 so far as it relates to keeping the application filed by the petitioners herein under section 197 Criminal Procedure Code pending is quashed and set aside. The application under section 197 Criminal Procedure Code filed by the petitioners is allowed. The proceedings against them in all the criminal cases i.e. Cr.Case Nos. 258/97, 259/97, 260/97 and 261/97 are quashed and set aside. The petitioners herein stand discharged. S.B. Criminal Revision Petition Nos. 540/99, 539/99, 537/99 and 541/99 are also allowed and the order of the learned Additional Chief Judicial Magistrate No. 2, Udaipur dropping the proceedings as against Roshan Lal and Rupesh are quashed and set aside. The learned Magistrate is directed to pass fresh order after hearing the parties so far as in case of Roshan Lal and Rupesh is concerned. The record of the case be returned forthwith.Revision petition allowed. *******