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Madhya Pradesh High Court · body

2014 DIGILAW 576 (MP)

Alok Kumar v. Sanjay Kumar Jain

2014-05-09

N.K.GUPTA

body2014
Judgment N.K. Gupta, J.:- 1. The applicant/complainant has preferred the present petition under Section 482 of Cr.P.C. against the order dated 20.4.2006 passed by the learned Additional Judge to the Additional Sessions Judge, Tikamgarh in Criminal Revision No. 20/2005 whereby the order dated 9.11.2004 passed by the Judicial Magisterial First Class, Tikamgarh in Criminal Complaint Case No. 906/2004 was confirmed in which it was directed that the complainant should bring a sanction under Section 197 of Cr.P.C. against the respondents. The brief facts of the case are that the applicant/complainant had lodged a criminal complaint against 21 persons, out of them the respondents were the public servants. It was pleaded in the criminal complaint that the complainant was the owner of the land bearing Survey No. 960 Mouja Madhuvan Tahsil and District Tikamgarh. Part of that land was purchased by the applicant from Rajaram Jain and some part of the land was purchased from Premlal. In this land the applicant was interested to establish higher secondary school and a college. The land was mutated in the name of various landlords. According to the revenue records of the year 1961 Chhotelal Darji was the owner of the land, who transferred the land to Rajaram Jain. Some survey numbers were left in the record but name of Rajaram Jain was mutated on 7.7.1988. After ten years Rajaram Jain sold that land to the applicant. On 15.6.1999 the proposed accused No. 17 Rajendra Adhravaryu wrote a letter in objectionable words claiming sum of Rs. 20,000/- from the applicant and he sent a complaint to the State Minister and the President of the District Planning Committee. The SDO Tikamgarh after enquiry vide order dated 25.6.1999 found that the complaint was baseless and thereafter the proposed accused Rajendra Adhravaryu moved a proceeding under Section 133 of Cr.P.C. which was closed on 11.10.2000. The revision filed was also dismissed vide order dated 4.10.2001. Thereafter the proposed accused Rajendra Adhravaryu moved a criminal revision before the Second Additional Sessions Judge, Tikamgarh. An application for stay regarding construction was moved, which was dismissed on 13.12.2002. On the information given by the proposed accused Rajendra Adhravaryu, the Collector Tikamgarh took sou-motu revision and passed an order dated 30.3.2001 that the aforesaid land be registered in the name of the Govt., if it was a Government land. An application for stay regarding construction was moved, which was dismissed on 13.12.2002. On the information given by the proposed accused Rajendra Adhravaryu, the Collector Tikamgarh took sou-motu revision and passed an order dated 30.3.2001 that the aforesaid land be registered in the name of the Govt., if it was a Government land. Thereafter the revision was filed before the Commissioner, Sagar, but it was dismissed on 26.7.2001. The applicant went to the Revenue Board, Gwalior and vide order dated 2.12.2002 the Revenue Board Gwalior accepted the petition and the sou-motu revision was quashed. The respondents No. 1 and 2 were the Revenue Officers and subordinate to the Revenue Board and they had to follow the orders passed by the Revenue Board. 2. Thereafter the proposed accused No. 1 to 7 moved an application in connivance with the proposed accused No. 17 Rajendra Adhravaryu to initiate proceeding and thereafter on 22.12.2002 at about 8:00 AM when Naresh, brother of the complainant was on the spot, the proposed accused No. 8, 9, 13 and 15 alongwith police went to the spot and tried to get the possession of the property. Some of the proposed accused persons prepared a case file and they arrested Naresh and assaulted him. Under such circumstances, a complaint was moved against as many as 21 accused persons including the respondents No. 1 to 4. 3. The learned JMFC Tikamgarh vide order dated 27.6.2003 registered a criminal complaint for the offence under Sections 447, 332, 506-B of I.P.C. against all the accused persons except the accused No. 16. The various respondents went in criminal revision against the order of registration passed by the learned JMFC Tikamgarh and vide order dated 27.8.2004 the learned Additional Sessions Judge and Special Judge under SC/ST (Prevention of Atrocities) Act, Tikamgarh remanded the case with a direction that the order dated 27.6.2003 passed by the JMFC Tikamgarh is set aside for the public servants against whom no prosecution sanction under Section 197 of Cr.P.C. was obtained by the complainant. In consequence to the order passed by the learned Additional Sessions Judge, the learned JMFC Tikamgarh vide order dated 9.11.2004 directed to get the prosecution sanction for such public servant. Thereafter the applicant went in revision and the learned Additional Judge to the First Additional Sessions Judge, Tikamgarh vide order dated 20.4.2006 dismissed the criminal revision. 4. In consequence to the order passed by the learned Additional Sessions Judge, the learned JMFC Tikamgarh vide order dated 9.11.2004 directed to get the prosecution sanction for such public servant. Thereafter the applicant went in revision and the learned Additional Judge to the First Additional Sessions Judge, Tikamgarh vide order dated 20.4.2006 dismissed the criminal revision. 4. I have heard the learned counsel for the parties. 5. It is admitted that the respondents No. 1 to 4 were the public servants, and therefore prima facie a sanction under Section 197 of Cr.P.C. is required if they have done such an act in exercising of their duties. The learned counsel for the applicant has placed his reliance upon the judgment passed by Hon'ble the Apex Court in the case of "Pukhraj Vs. State of Rajas than", ( AIR 1973 SC 2591 ) to show that if the public servant does an act, which is not done within the exercise of his public duty, then no sanction under Section 197of Cr.P.C. is required. In this context, the respondents have placed their reliance upon the judgment passed by the Full Bench of Hon'ble the Apex Court in the case of "P.K. Pradhan Vs. State of Sikkim" ( (2001) 6 SCC 704 ) in which it is observed that it does not matter that the act exceeds what is strictly necessary for the discharge of the official duty, since that question would arise only later when the trial proceeds and no sanction is required where there is no such connection and the official status furnishes only the occasion or opportunity for the acts. The claim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial giving an opportunity to the defence to prove it. It is also held that question of requirement of sanction for prosecution can be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion or after conviction. In the light of the aforesaid judgment, if the present case is considered, then it would be apparent that the alleged land of the applicant was adjacent to the Government land on which a Government college was being run. In the light of the aforesaid judgment, if the present case is considered, then it would be apparent that the alleged land of the applicant was adjacent to the Government land on which a Government college was being run. According to the pleading of the complaint, it appears that the applicant went to the Revenue Board against the order of the Collector and suo-motu revision was quashed. However, if Principal of the Government College found that the applicant encroached some Government land which was of the Government College, then they ere entitled to move an application to that effect. It is also pertinent to note that when criminal revision was pending before the Additional Sessions Judge relating to order under Section 133 of Cr.P.C. though no stay was granted but the matter was sub-judiced, and therefore if the Revenue Officers found that the applicant was an encroacher, then prima facie they were entitled to remove the encroachment from the Government land, and therefore at this stage it could not be said that the respondents No. 1 and 2 who were the SDO and the Tahsildar of that area acted in a mala fide manner to dispossess the applicant. Similarly, it cannot be said that if the application was given by the various Principals of the Government College to remove encroachment, then it cannot be said that they went away from their public duties. It is the duty of the Revenue Officer to remove the encroachment from the Government land specially when the land of the Government College was alleged to be encroached, then encroachment could be removed after giving a notice and it is pertinent that a notice was given by the respondents No. 1 and 2. 6. If the valid order of removal of encroachment is directed, then simply to comply that order, it cannot be said that me public servants had committed any crime or there was mala fide intention of the respondents in doing so. The yardstick for application under Section 197 of Cr.P.C. is that the overt-act done by the public servant should be in the purview of his public duty. If the public servant during his public duty assaults anyone, then the overt-act of the assault does not fall within his public duty. In the case of Pukhraj (supra) it was complained that the accused was the Postmaster General in the office of the complainant. If the public servant during his public duty assaults anyone, then the overt-act of the assault does not fall within his public duty. In the case of Pukhraj (supra) it was complained that the accused was the Postmaster General in the office of the complainant. The complainant was a Clerk and the Postmaster General kicked the complainant-clerk, and therefore his act of assault was not within his public duty. Looking to the factual difference of the case, the judgment passed in the case of Pukhraj (supra) cannot be applied in the present case. However, the law laid down in that judgment shall be applicable that if there is no nexus to the overt-act of the public servant with his public duty, then there is no necessity of prosecution sanction under Section 197 of Cr.P.C. otherwise such prosecution sanction is necessary for the public servant, who is liable to be prosecuted for his public duty done by him. In the present case the complainant/applicant could not establish that the respondents No. 1 to 4 did any overt-act which was not within the purview of their public duty, and therefore the learned JMFC as well as the learned Additional Sessions Judge has rightly found that a sanction under Section 197 of Cr.P.C. was required to prosecute the respondents No. 1 to 4 for the offences for which the complaint was registered. 7. On the basis of the aforesaid discussion, it would be apparent that initially the respondents went in the revision against the order of registration of complaint and the revisionary Court vide order dated 27.8.2004 remanded the case to pass an order of registration to complaint against the respondents, but it was also held in that order that sanction under Section 197 of Cr.P.C. was required for registration of complaint and unfortunately the applicant did not challenge that order dated 27.8.2004. The trial Court thereafter passed the order dated 9.11.2004 in compliance to the order dated 27.8.2004, and therefore no proceeding could be initiated by the applicant since he did not challenge the order dated 27.8.2004 before any competent Court. 8. On the basis of the aforesaid discussion, the present petition filed by the applicant under Section 482 of Cr.P.C. has no basis. There is no illegality or perversity in the impugned orders passed by the trial Court as well as the revisionary Court. 8. On the basis of the aforesaid discussion, the present petition filed by the applicant under Section 482 of Cr.P.C. has no basis. There is no illegality or perversity in the impugned orders passed by the trial Court as well as the revisionary Court. Therefore, it is not a good case in which inherent powers of this Court may be invoked. Consequently, the present petition under Section 482 of Cr.P.C. is hereby dismissed with costs. The applicant shall pay a sum of Rs. 2000/- to each of the respondents because due to present petition they were unnecessarily called to contest the present petition. The costs shall be paid by the applicant before the trial Court within a period of one month from today, failing which the trial pending before the trial Court shall not proceed against any of the accused persons. A copy of this order be sent to both the Courts below along with their record for information and compliance.