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2016 DIGILAW 658 (RAJ)

Kasam Khan v. State of Rajasthan

2016-05-10

VIJAY BISHNOI

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JUDGMENT Vijay Bishnoi, J. S.B. Criminal Misc. Petition No. 258/2007 under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 22.12.2006 passed by the Sessions Judge, Sirohi (hereinafter referred to as 'the revisional court') in Criminal Revision Petition No. 38/2005, whereby the revisional court has accepted the revision petition filed on behalf of the respondent Nos. 2 to 9 and set aside the order dated 05.05.2005 passed by the Judicial Magistrate, First Class, Reodar, District Sirohi (hereinafter referred to as 'the trial court') in Criminal Complaint No. 124/2005, whereby cognizance has been taken against them by the trial court for the offences punishable under Sections 143 and 427 IPC. 2. Learned counsel for the petitioner has submitted that against the impugned order dated 22.12.2006 passed by the revisional court, a revision petition is maintainable before this Court, there fore, he made an oral prayer that S.B. Criminal Misc. Petition No. 258/2007 may be treated as criminal revision petition. 3. Learned Public Prosecutor as well as learned counsel for the respondent Nos. 2 to 9 have no objection if S.B. Criminal Misc. Petition No. 258/2007 is treated as criminal revision petition. 4. Accordingly, S.B. Criminal Misc. Petition No. 258/2007 is treated as criminal revision petition. 5. Brief facts of the case are that the petitioner filed a complaint before the trial court alleging that he was in possession of a land situated in Khasara No. 1025/1 from last 30 years, where he is residing in a house constructed by him. It is alleged that on 28.02.2005 at about 11:00 AM, the respondent Nos. 2 to 9 reached the house of the petitioner and started demolishing it. It is contended that the petitioner and other persons had objected to it but the respondent Nos. 2 to 9 without any authority had demolished his house and, therefore, committed the offences punishable under Sections 147 and 427 IPC. 6. The trial court while taking into consideration the allegations levelled in the complaint and the statements of the complainant petitioner recorded under Section 200 Cr.P.C. and the statements of the other witnesses, in support of the complaint, recorded under Section 202 Cr.PC. took cognizance against the respondent Nos. 2 to 9 for the offences punishable under Sections 143 and 427 IPC. 7. Being aggrieved with the order of the trial court, the respondent Nos. took cognizance against the respondent Nos. 2 to 9 for the offences punishable under Sections 143 and 427 IPC. 7. Being aggrieved with the order of the trial court, the respondent Nos. 2 to 9 preferred a revision petition before the revisional court and the revisional court vide impugned order dated 22.12.2006 has allowed the revision petition and set aside the order dated 05.05.2005 passed by the trial court. Being aggrieved with this, the petitioner has preferred this criminal revision petition. 8. Learned counsel for the petitioner has argued that the revisional court has grossly erred in allowing the revision petition filed by the respondents Nos. 2 to 9 and in setting aside the order passed by the trial court, whereby the cognizance was taken against the respondent Nos. 2 to 9 for the offences punishable under Sections 143 and 437 IPC. It is argued that the respondent Nos. 2 to 9 had no authority to demolish the house of the petitioner and their such act cannot be termed as an act done in official duty and, therefore, the revisional court has grossly erred in quashing the cognizance order passed by the trial court. It is also argued that the revisional court has not taken into consideration the fact that the question whether the respondent Nos. 2 to 9 had acted in the discharge of official duty or not can only be decided during the course of the trial. It is further argued that all the respondents, except the respondent No. 2 - Naib Tehsildar, Mandar, were not public servants and, therefore, protection under Section 197 Cr.P.C. was not available to them but the revisional court without taking into consideration this aspect has passed the impugned order. 9. Learned counsel for the petitioner has argued that in fact the Naib Tehsildar as well as the District Collector had ordered for removing the encroachment of the petitioner only from the 16 Biswas of the land, whereas the respondents have removed the possession of the petitioner from excess land, therefore, the respondent Nos. 2 to 9 are prima facie guilty of commission of crime punishable under Sections 143 and 427 IPC and the trial court has rightly passed the order dated 05.05.2005. 10. 2 to 9 are prima facie guilty of commission of crime punishable under Sections 143 and 427 IPC and the trial court has rightly passed the order dated 05.05.2005. 10. In support of the above contentions, learned counsel for the petitioner has placed reliance on the decisions of the Hon'ble Supreme Court rendered in P.K. Pradhan v. The State of Sikkim reported in 2001 AIR SCW 2648, Raj Kishor Roy v. Kamleshwar Pandey & Anr. reported in 2002 AIR SCW 3254, Parkash Singh Badal & Anr. v. State of Punjab & Ors. reported in 2007(1) WLC (SC) Cri. 250 and the decisions of this Court rendered in Gomda v. Rameshwar Dayal & Ors. reported in 1998 (1) RCD 73 (Raj.) and Sushila Devi Rampuriya (Smt.) v. State of Rajasthan & Anr. reported in 2011 (1) Cr.L.R. (Raj.) 252. 11. Per contra, learned Public Prosecutor as well as learned counsel for the respondent Nos. 2 to 9 have opposed the prayer of the petitioner and argued that the revisional court has not committed any illegality in passing the impugned order, therefore, there is no force in this criminal revision petition and the same is liable to be dismissed. 12. Heard learned counsel for the petitioner and perused the impugned order as well as carefully scrutinized record of the case. 13. It is not in dispute that the then Naib Tehsildar in the Case No. 38/2004, initiated against the petitioner under Section 91 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'the Act of 1956'), vide order dated 24.08.2004 ordered for dispossessing the petitioner from the land of Khasara No. 1025/1 while concluding that the petitioner had made encroachment on 16 Biswas of the land of said Khasara, which is recorded as Gochar land. Thereafter, the District Collector, Sirohi passed the order dated 07.01.2005 directing the respondents to execute the order dated 24.08.2004 passed by the Naib Tehsildar Mandar. 14. The revisional court after taking into consideration the facts and circumstances of the case, has held that the respondent Nos. Thereafter, the District Collector, Sirohi passed the order dated 07.01.2005 directing the respondents to execute the order dated 24.08.2004 passed by the Naib Tehsildar Mandar. 14. The revisional court after taking into consideration the facts and circumstances of the case, has held that the respondent Nos. 2 to 9 have dispossessed the petitioner from 16 Biswas of the land of Khasara No. 1025/1 under the orders of Naib Tehsildar, Mandar passed in the proceedings under Section 91 of the Act of 1956, and in compliance of the order dated 07.01.2005, passed by the District Collector, Sirohi and as such they had acted in the official duty and the protection under Section 197 Cr.P.C. is available to them. 15. There is no quarrel about the principle of law laid down by the Hon'ble Supreme Court as well as this Court in several cases that the question whether any person acted in discharge of official duty or not can be decided at any stage of proceedings and in a given case it can be decided after appreciation of evidence recorded during trial. However, the facts of the above cases are distinguishable from the facts of this case because in this case there are specific orders from the Naib Tehsildar as well as the District Collector to dispossess the petitioner from the Government Land and the respondent Nos. 2 to 9 have acted as per the directions given by the higher authorities. Hence, the revisional court has not committed any illegality in quashing the order dated 05.05.2005 passed by the trial court of taking cognizance against the petitioner for the offences punishable under Sections 143 and 427 IPC in the absence of proper sanction issued by the competent authority. 16. It is noticed that though the petitioner has not raised any objection before the revisional court that all the respondents except respondent No. 2 are not the public servants and, therefore, the protection under Section 197 Cr.P.C. is not available to them, the revisional court has specifically observed that as per the Section 21 of the Indian Penal Code, the revenue officials such as Patwari, Girdawari Qanungos and Sadar Qanungo etc. will be deemed as public servants. 17. will be deemed as public servants. 17. I have also taken into consideration this aspect of the matter and found that Section 262 of the Act of 1956, clearly says that every Patwari, Girdawari Qanungo or Land Records Inspector (Sadar Qanungo) appointed under Chapter III and every person appointed temporarily to discharge the duty of any of them shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. 18. So far as the argument of learned counsel for the petitioner that the respondents have removed the possession of the petitioner from the excess land is concerned, no documentary proof regarding the same was submitted by the petitioner before the revisional court as well as before this Court, hence, the said argument has no merit. 19. In view of the above, I do not find any merit in this criminal revision petition, the same is hereby dismissed.