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Madhya Pradesh High Court · body

2007 DIGILAW 249 (MP)

Ram Babu Jakheniya v. Purushottam Shrimali

2007-03-01

B.M.GUPTA

body2007
ORDER 1. All the four petitions are arising out of one case and having identical question of law, hence, with the consent of the parties they are heard together and are being disposed of by this common order. During the course of arguments there appears no dispute between the parties on the following relevant factual aspects : (A) That respondent No.1 Purushottam Shrimali has filed one complaint dated 17.7.1996 against following 6 persons : 1. Akhlendu Arjariya, Commissioner, Municipal Corporation, Gwalior. 2. Mathuresh Babu Ojha, Additional District Magistrate, Gwalior. 3. Rambabu Jakheniya, Divisional Fire Officer and In-charge of Encroachment Squad, Municipal Corporation, Gwalior. 4. Surendra Singh Bhadauria, Revenue and Property Tax Officer, Municipal Corporation, Gwalior. 5. Surendrachandra Barua, Inspector of Encroachment Squad, Municipal Corporation, Gwalior. 6. Abdul Hameed Siddiki, Assistant In-charge of Encroachment Squad, Municipal Corporation, Gwalior. as accused including (1) Akhlendu Arjariya, (2) Mathuresh Babu Ojha, (3) Rambabu Jakheniya and (4) Surendra Singh Bahdauria, the present four petitioners. The relevant extracts of the complaint is as under : 1- ---- lHkh vfHk;qDr vius ‘kkldh; ,oa mijksDr v)Z ‘kkldh; inksa ij dk;Zjr jgus ds dkj.k Hkk-na-la- dh /kkjk 21 ds v/khu ifjHkkf”kr yksd lsod dh Js.kh esa vkrs gSaA 2- ---- fnukad 4-6-2006 dks le; nksigj yxHkx 12 cts lHkh vfHk;qDrx.k vius }kjk /kkfjr inksa ds vfHkdfFkr fuokZg ds v/khu enk[kyr gVkvks nLrs ds :i esa ifjoknh dh laifÙk ih<+h ¼xqeVh½ tks iku] chM+h] flxjsV vkfn foØ; gsrq thokth pkSd] guqeku eafnj] y’dj ds ifjlj esa fLFkr Fkh] dh rksM+QksM+ dj mldk lkeku ywVdj ys tkus ds leku mn~ns’; ls mlds vklikl ,df=r gq, Fkk vius lkFk uxj ikfydk fuxe ds vU; deZpkjh ,oa iqfyl cy dks Hkh ysdj vk;s rFkk vfHk;qDr Ø-1 o 2 us ‘ks'k vfHk;qDrksa ls dgk fd ifjoknh dh nqdku ih<+h dks u”V dj nks o mldk lkjk lkeku tcju fudky dj ys pyksA 9- ;g fd] ifjokn esa of.kZr vfHk;qDr yksd lsod gksus ds dkj.k rFkk vijk/k laKs; gksus ds dkj.k U;k;ky; Jheku ls fuosnu gS fd izdj.k esa rRdky /kkjk 156¼3½ na-iz-la- ds v/khu foospuk gsrq funsZ’k nsuk U;k;laxr gSA (B) After recording statements under section 200 and 202 of CrPC the learned Magistrate vide order dated 3.5.2003 dismissed the complaint on the ground that accused persons are public servants, hence, no cognizance can be taken against them without previous sanction under section 197 of CrPC. (C) This order dated 3.5.2003 was challenged in revision and vide order dated 17.11.2003 passed by learned 3rd Additional District and Sessions Judge, Gwalior, in Criminal Revision No.151/03, the order of the learned Magistrate was set aside while observing that the learned Magistrate did not consider the evidence recorded under sections 200 and 202 of CrPC. It was directed to consider this evidence and then to pass order. (D) In compliance of the aforementioned order of the revisional Court dated 17.11.2003, the learned Magistrate passed subsequent order dated 29th April, 2004 taking congnizance against the petitioners. It is this order which has been impugned in the three petitions, i.e. 2026/04, 2025/04 and 2027/04 by Surendra Singh Bhadoria, Ram Babu Jakheniya and Akhilendu Arjariya. The fourth petition No.25 10/04 by Mathuresh Babu Ojha has been filed impugning the aforesaid order dated 17.11.2003 passed by revisional Court. 2. During the course of arguments the learned counsel for all the four petitioners have drawn the attention of the Court on the averments of the respondent mentioned at paras 1 and 2 in the complaint that the petitioners are public servants under section 21 of the IPC and the disputed act has been done by them in discharge of duties of their respective posts or which they are posted. In support, they have drawn the attention of the Court on the order passed by another Bench of this Court in Civil Revision No. 159/94 at para 11 reported as Banarsi Das and another v. Ram Krishna and others [ AIR 1995 M.P. 147 ], and has submitted that as ordered by this Court, the petitioners were removing the encroachments from the streets of Gwalior and they were discharging their official duties. They have further drawn the attention of the Court on the following judgments : 1. Rakesh Kumar Mishra v. State of Bihar [ (2006)1 SCC 557 ]; 2. Sankaran Moitra v. Sadhana Das and another [ (2006)4 SCC 584 ]; 3. Raghav Chandra v. Trivendra Kaur [ 2003(1) MPHT 151 ]. and have submitted that without taking sanction as provided under section 197 of CrPC no cognizance can be taken against them. 3. It is also contended on behalf of the petitioners that in aforementioned Revision Petition No.151/03 the petitioners were not heard while no order could be passed against them without hearing as provided under section 401(2) of CrPC. and have submitted that without taking sanction as provided under section 197 of CrPC no cognizance can be taken against them. 3. It is also contended on behalf of the petitioners that in aforementioned Revision Petition No.151/03 the petitioners were not heard while no order could be passed against them without hearing as provided under section 401(2) of CrPC. The petitioners have been prejudiced on the ground that initially the order of the trial Court was in their favour but subsequently the order dated 17.11.2003 has been passed against them without hearing. 4. In addition to the contentions raised on behalf of all the petitioners jointly, Shri P.D. Bidua, the learned counsel for the petitioners in MCrC Nos.2025/04, 2026/04 and 2027/04, has further submitted that petitioners in these petitions were municipal officers and they were performing their duties in such capacity. As provided in section 410 of the Municipal Corporation Act, these officers were public servants and as provided in section 402 of this Act, no suit or proceeding can be maintainable against them on any act done by them in their capacity. In case they did not comply the aforementioned order of the High Court in Civil Revision No. 159/94 for removing the encroachments, they could have been held responsible for contempt, because it was a general order and not specific for Banarsidas only. He further submitted that as mentioned in para 2 of the petitions, the Gumti of the respondent was on the way encroaching the public street and it was necessary to remove the same alongwith other shops. The said Gumti of the respondent No.1 was removed on 4.6.1996 with the help of the police force and employees of the Municipal Corporation in compliance of the order of the High Court. In the last, he has submitted that there is no allegation against the petitioners that the alleged act of them was based on mala fide. 5. Shri B.B. Shukla, the learned counsel for the respondent No.1, countering the contentions has submitted, that the aforementioned direction of the High Court was issued in the case of Banarasidas and in compliance of that order the shop possessed by the respondent was also removed in the garb of removing the encroachments. That shop was owned by Hanuman Temple and respondent was the tenant thereof. That shop was owned by Hanuman Temple and respondent was the tenant thereof. In compliance of the order passed in the case of Banarsidas, they have removed the structure possessed by respondent Purushottam and in that way, they have exceeded their duties. While drawing the attention of the Court at paras 6 and 7 of the order dated 17.11.2003, he has submitted, that only after appearance of the petitioners in the Court, this point of 197 of CrPC can be decided and not before that. In support he has drawn the attention of the Court on the following judgments : 1. Prakash Singh Badal and another v. State of Punjab and others, reported in 2007(1) MPJR 1 (para 36) 2. Suresh Chand Jain v. Shri Mahendra Kumar Bhadkaria [1997 (II) MPWN 234]. 3. Gajraj Singh Rawat v. State of M.P. [1987(1) MPWN 253]. 4. Bhaskar Datta Mishra v. State of M.P. [1987(1) MPWN 173]. 5. D.R. Longre and others v. State of M.P. [ 2002(1) MPHT 421 ]. 6. In para 11 of the order dated 24.5.1994 passed in Civil Revision No.159/94 in the case of Banarsidas (supra), following direction was given with regard to removing the encroachments from the streets of Gwalior town : "11. Encroachment on public streets and public places is every day happening. It would be apt to remind the Corporation that it occupies a status of trustees and it would be useful to refer to what was said in Attorney General v. Corporation Sutherland [(1876)2 Ch.D.634]. It was observed that the position of Municipal Corporation in regard to public parks, gardens, squares and streets was that of a trustee and Corporation would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by law. It is hoped that Corporation would show the same alertness in the matter of removing encroachments as it has shown in this case." On perusal of the direction, it appears that it was a general direction for removal of all the encroachments from the public streets of Gwalior town. In view of this direction, the contention of Shri Shukla cannot be accepted that it was a specific direction for removing the encroachment of Banarsidas only. 7. In view of this direction, the contention of Shri Shukla cannot be accepted that it was a specific direction for removing the encroachment of Banarsidas only. 7. On perusal of the averments mentioned in para 2 of the complaint, as quoted hereinabove, it appears that the disputed Gumti was situated within the premises of Jiwaji Chowk, Hanuman Mandir, Lashkar. About the same, it has been contended on behalf of the petitioners that it was an encroachment on a public street which was removed alongwith the other shops. This fact appears admitted on behalf of the respondent on three counts; (1) it is nowhere averred in the complaint that the disputed Gumti was not on public street or it was situated on any private land owned by the landlord of the respondent; (2) in para 2 of the complaint it is admitted that it was removed by the petitioners during their alleged act of moving the encroachments from the street; and (3) that no malice has been averred by the complainant against petitioners. That apart, even during arguments, it is not contended that the Gumti was not on public street. The contention advanced on behalf of the petitioners that Gumti was on public street, which was removed at the time of removal of other encroachments, this act was in discharge of duties of the petitioners and not based on any malice, has not been even countered. In view of this, this contention on behalf of the petitioners appears correct, that the disputed Gumti was on public street which was removed during the act of removal of encroachments from the streets in compliance of the aforementioned order of the High Court. Hence, there appears a direct link in between the duties assigned to the petitioners and their alleged act of removing the Gumti. Thus, it is a case in which nothing further is required to be established that the act of the petitioners is covered by the umbrella provided to the public servant by the provisions of section 197 of CrPC, relevant part of which is as under : "S.197. Thus, it is a case in which nothing further is required to be established that the act of the petitioners is covered by the umbrella provided to the public servant by the provisions of section 197 of CrPC, relevant part of which is as under : "S.197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction. (a) ........... (b) ........... (Provided ..................) (2) .......... (3) .......... (4) .......... [Emphasis supplied] 8. Although no excess has been alleged, however as observed by the apex Court in the case of Rakesh Kumar Mishra (supra). Even if the public servant acted in excess of his duty, if there exists the said reasonable connection, the excess will not deprive him of the protection. In that case of dacoity, the house of the complainant was searched to arrest the son of the complainant. On the ground that no search warrant was obtained and also that the search was motivated for harassing and humiliating the complainant, the complaint was filed. These allegations were contended that the factual scenario clearly proves the bona fides and all possible procedures were taken to follow the mandate of the law in this dispute. In these facts, the following observation was made by the apex Court in para 6 : "6. The protection given under section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything dope by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if it chooses to exercise it, complete control of the prosecution. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything dope by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if it chooses to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty : if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of section 197 does not get immediately attracted on institution of the complaint case." [Emphasis supplied] 9. It is true that as observed by the Hon'ble apex Court in the case of Prakash Singh Badal (supra), as well as in the case of Rakesh Kumar Mishra (supra), the concept of section 197 of CrPC does not get immediately attracted on institution of a complaint case. But in both the cases, as per the averments in the complaint, the action of the accused was countered that it was not in the official capacity. In the case of Prakash Singh Badal (supra), it was also argued that the allegations are vague, lack in details and even if accepted at the face value, did not show the commission of any offence. However, to understand the necessity of the presence of the accused persons in the Court, it will be better to persue the observation of the apex Court in the case of Prakash Singh Badal (supra), in para 36 in which the same observation has been reproduced as it was observed in the case of Rakesh Kumar Mishra (supra) : "The protection given under section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. This aspect makes it clear that the concept of section 197 does not immediately get attracted on institution of the complaint case." [Emphasis supplied] 10. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. This aspect makes it clear that the concept of section 197 does not immediately get attracted on institution of the complaint case." [Emphasis supplied] 10. As it has been mentioned hereinabove in the present case, it is unambiguously established that the alleged act of the petitioners was in discharge of their duties as such of public servants. In view of this factual difference, in this particular case this requirement does not appear essential. Because the cause for which this requirement of the presence of the accused in the Court has been felt by the apex Court, does no longer exist in this case. That apart, it is also to be kept in mind that a period of more than 10 years has been passed and as argued except petitioner Madhuresh Babu Ojha, rest of the petitioners have retired. In view of the aforesaid facts directing the petitioners first to remain present in the Court and thereafter they are to be discharged in the case in view of the aforesaid protection of section 197 of CrPC does not appear justified. Thus, the facts being different, the observation of the apex Court does not support the contention of Shri Shukla on behalf of the respondent in this case. In the case of Suresh Chand Jain (supra), also the averments in the complaint that the accused acted in his official capacity were denied and in these facts it was observed that this dispute cannot be decided before appearance of the accused. 11. In the case of Gajraj Singh (supra), Bhaskar Datta (supra) and D.R. Longre (supra), observation of this Court in these cases is same, the discharge of official duty and the act constituting offence should be within the scope of official duty or there should be reasonable nexus in between act and official duty. This observation stands satisfied in the present case, in view of the aforesaid discussion. 12. About the contention of the petitioners mentioned hereinabove in para 3, that an opportunity of being heard was required to be provided to the petitioners by the learned Sessions Judge is concerned, the nature of the order is to be seen. This observation stands satisfied in the present case, in view of the aforesaid discussion. 12. About the contention of the petitioners mentioned hereinabove in para 3, that an opportunity of being heard was required to be provided to the petitioners by the learned Sessions Judge is concerned, the nature of the order is to be seen. A complaint filed by respondent No.1 against the petitioners was dismissed by the learned Magistrate under section 203 of CrPC. This order of the Magistrate was challenged by the complainant before the Third Additional Sessions Judge, Gwalior in Criminal Revision No. 151/03. Vide this order, it was observed by the learned Sessions Judge that only the provisions of section 197 CrPC have been considered and the evidence recorded under section 200 and 202 CrPC has not been considered, while passing the order. In view of this, it was directed by the learned Judge, that a fresh order is required to be passed by the learned Magistrate after considering the aforesaid evidence. It does not appear that upto that stage, any order was passed by the learned Judge against the petitioners. In view of this, as the petitioners were not present during inquiry before the learned Magistrate, their presence were not required at the time of hearing of the revision. If, any order was to be passed against the petitioners then only an opportunity of hearing was required to be provided. But as it appears by this order, nothing adverse was directed by the learned Judge against the petitioners, hence this contention raised on behalf of the petitioners does not appear forceful. 13. Another contention raised on behalf of the petitioners and as quote herein above in para 4 is that the petitioners in MCrC No.2025, 2026 and 2027 of 2004 are admittedly Municipal Officers. As provided in section 410 of M.P. Municipal Corporation Act, 1956 (herein after referred to as the Act) these petitioners are public servants which is also admitted by the complainant in the complaint. It is contended on behalf of the petitioners that having this capacity by these petitioners and as they were removing the encroachments from the streets of Gwalior town, their act was in their official capacity and which was done in good faith. For such act of them, no suit or prosecution is maintainable against them as provided by section 402 of the Act. For such act of them, no suit or prosecution is maintainable against them as provided by section 402 of the Act. Section 402 of the Act goes as under : "402. Indemnity for act done in good faith : No suit or prosecution shall be maintainable against the Corporation or the Mayor-in-Council, or Councilor or any Corporation Officer or servant, or any person acting under or in accordance with the direction of the Corporation or Mayor-in-Council or any Corporation officer or servant, or of a Magistrate, in respect of anything in good faith done or intended to be done under this Act or under any rule or bye-law made thereunder. [Emphasis supplied]" On perusal of this provision, the contention appears forceful and on this ground also, the complaint filed against them is not maintainable. 14. As discussed hereinabove, in absence of sanction under section 197 of CrPC, the cognizance taken against the petitioners appears erroneous and deserves to be set aside. Consequently, the petitions are allowed. Criminal Case No.635/04 pending before the JMFC, Gwalior stands quashed.