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2017 DIGILAW 192 (RAJ)

Mangla Ram v. State of Rajasthan

2017-01-17

VIJAY BISHNOI

body2017
JUDGMENT : Vijay Bishnoi, J. 1. This criminal misc. petition under section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 19.06.2009 passed by Additional Sessions Judge No. 1, Jodhpur (for short 'the revisional court' hereinafter) in Cr. Revision No. 19/2008, whereby it has dismissed the said revision petition. The said revision petition was filed by the petitioner against the order dated 20.02.2008 passed by the Judicial Magistrate Jodhpur City, Jodhpur (for short 'the trial court' hereinafter) in Cr. Case No. 542/2003, whereby the trial court while accepting the application filed on behalf of the respondent Nos. 2 and 3 under section 197 Cr.P.C. has rejected the complaint filed by the petitioner against them for commission of offences punishable under sections 147, 379, 341, 427, 448/149 IPC. 2. Brief facts of the case are that the petitioner filed a complaint No. 2/1993 against the respondent Nos. 2 and 3 before the trial court while alleging that one property belonging to him is situated at Masuriya Pal Road, Jodhpur, wherein two rooms, one bathroom, one tin shed (chhpara) and boundary have been constructed by him. It is alleged that when the Urban Improvement Trust, Jodhpur (for short 'the UIT' hereinafter) forcibly tried to dispossess the petitioner from the said property, he filed a suit No. 24/1987 in the Munsif Court No. 1, Jodhpur, wherein the said civil court vide order dated 05.03.1991 restrained the respondents from dispossessing him from the said land. It is also alleged that on 08.01.1993, respondent No. 2, who is the Secretary of the UIT and respondent No. 3, who is Tehsildar came there along with certain other employees and labours and razed his house with the help of bulldozer and caused loss to him to the tune of Rs. 60,000/-. It is further alleged that one cow belonging to the petitioner has also died in the said operation and on account of that he suffered a loss of Rs. 20,000/-. It is alleged in the complaint that the accused took away the belongings of him lying on the said plot. 3. The statements of the complainant and other witnesses were recorded under sections 200 and 202 Cr.P.C. in support of the said complaint. Thereafter, the trial court vide order dated 24.02.1993 took cognizance against the respondent Nos. 20,000/-. It is alleged in the complaint that the accused took away the belongings of him lying on the said plot. 3. The statements of the complainant and other witnesses were recorded under sections 200 and 202 Cr.P.C. in support of the said complaint. Thereafter, the trial court vide order dated 24.02.1993 took cognizance against the respondent Nos. 2 and 3 for the offences punishable under sections 147, 379, 341, 427, 448/149 IPC. 4. Respondent Nos. 2 and 3 thereafter moved an application under section 205 Cr.P.C. before the trial court seeking exemption from personal appearance. The said application came to be rejected by the trial court on 18.09.1993. Being aggrieved with the same, the respondent Nos. 2 and 3 approached this Court by way of S.B.Cr. Misc. Petition No. 601/1993, which came to be disposed of by this Court vide following order dated 11.12.1993: "This case is squarely covered by a decision of this Court rendered in S.B. Criminal Misc. Petition No. 597/93 Mahesh Chandra Mehta & ors vs. State of Raj. and Anr. decided on October 8, 1993. The operative portion of the orders reads as under: "The order cannot be sustained on this ground alone and it is hereby set aside. The learned Addl. Chief Judicial Magistrate is directed to first consider the application under section 197 Cr.P.C. until application under section 197 Cr.P.C. is decided the petitioners shall remain exempted from personal appearance. However this is without prejudice to the power of Addl. Chief Judicial Magistrate to call upon the petitioner u/s. 205(2) during inquiry into application under section 197 Cr.P.C. which shall be disposed of by the Addl. Chief Judicial Magistrate as far as possible within a period of two months. The question of further exemption from personal attendance of the accused after decision of application u/s. 197 Cr.P.C. is decided, will be decided, only after such decision, afresh in accordance with law and keeping in view the observations made above." This Misc. Petition is also disposed of in light of the aforesaid decision." 5. Pursuant to the aforesaid order, respondent Nos. 2 and 3 moved an application before the trial court under section 197 Cr.P.C. read with section 92(a) of the Urban Improvement Trust Act. The trial court after hearing the counsel for the parties allowed the said application vide order dated 20.02.2008 while observing that the respondent Nos. Pursuant to the aforesaid order, respondent Nos. 2 and 3 moved an application before the trial court under section 197 Cr.P.C. read with section 92(a) of the Urban Improvement Trust Act. The trial court after hearing the counsel for the parties allowed the said application vide order dated 20.02.2008 while observing that the respondent Nos. 2 and 3 acted in discharging their official duty, therefore, cognizance for the offences alleged in the complaint filed by the petitioner cannot be taken against them without previous sanction of the Government. The trial court has also observed that though the civil court in the suit filed by the petitioner has granted temporary injunction to the effect that the petitioner shall not be dispossessed by the UIT from the disputed property without following the procedure laid down under the law but before removing the encroachment of the petitioner over the UIT land, the respondent Nos. 2 and 3 have followed the procedure laid down in the law and issued notice to the petitioner to show his authority to remain in possession over the disputed land, which they termed as UIT land. However, when the petitioner has failed to show any authority to remain in possession of the said land, they have removed the encroachment of the petitioner as per the provisions of law. 6. Being aggrieved with the order dated 20.02.2008 passed by the trial court, whereby it has accepted the application filed by the respondent Nos. 2 and 3 under section 197 Cr.P.C., the petitioner preferred a revision petition before the revisional court, however, the revisional court has dismissed the said petition vide order dated 19.06.2009. Hence, this criminal misc. petition. 7. Learned counsel for the petitioner has argued that as a matter of fact, the action of the respondent Nos. 2 and 3 in destroying the house of the petitioner and taking away his belongings from the disputed plot cannot be said to be a function discharged by them in their official duty. It is also argued that the trial court as well as the revisional court have grossly erred in holding that respondent Nos. 2 and 3 were discharging functions in their official duty, therefore, the protection provided under section 197 Cr.P.C. is available to them. It is also argued that the trial court as well as the revisional court have grossly erred in holding that respondent Nos. 2 and 3 were discharging functions in their official duty, therefore, the protection provided under section 197 Cr.P.C. is available to them. Learned counsel for the petitioner has further argued that once the competent civil court has passed a temporary injunction in favour of the petitioner and restrained the UIT from forcibly dispossessing the petitioner from the disputed land, the action of the respondent Nos. 2 and 3 of dispossessing the petitioner from the disputed land is absolutely illegal and the respondent Nos. 2 and 3 are liable to be prosecuted for the offence alleged in the complaint filed by him. 8. In support of the above contentions, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court rendered in Matajog Dobey vs. H.C. Bhari, AIR 1956 SC 44 , Chandra Deo Singh vs. Prakash Chandra Bose alias Chabi Bose & Anr., AIR 1963, SC 1430, Keshavlal Lallubhai Patel & Ors. vs. Lalbhai Trikumlal Mills Ltd., AIR 1958 SC 512 , Nagraj vs. State of Mysore, AIR 1964 SC 269 , Pukhraj vs. State of Rajasthan & Anr., AIR 1973 SC 2591 , Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Orsl, 1976, CRI.L.J. 1533, B. Saha & Ors. vs. M.S. Kochar, (1979) 4 SCC 177 , B.S. Sambhu vs. T.S. Krishnaswamy, (1983) 1 SCC 11 , State of Punjab vs. Vinod Kumar, 2000(4) Crimes 148 (SC), P.K. Pradhan vs. The State of Sikkim represented by C.B.I., 2001 (3) Crimes 323 (SC), Raj Koshr Roy vs. Kamleshwar Pandey & Anr., 2002 Cr.L.R. (SC) 673, Adalat Prasad vs. Rooplal Jindal & Ors., AIR 2004 SC 4674, K. Kalimutu vs. State of by D.S.P., 2005(2) Crimes 56 (SC), N.K. Sharma vs. Abhimanyu, (2005) 13 SCC 213 , Rakesh Kumar Mishra vs. The State of Bihar & Ors., 2006 (3) SRJ 107, Raghunath Anant Govilkar vs. State of Maharashtra & Ors., 2008 (1) Crimes 346 (SC), Goondla Venkateswarlu vs. State of A.P. and Anr., 2008 (4) Crimes 83 (SC), Choudhary Parveen Sultana vs. State of West Bengal & Anr., (2009) 3 SCC 398, M. Gopalkrishnan vs. State by Additional SP CBI & FC, Bangalore (2009) 3 SCC 681 , L. Narayana Swamy vs. State of Karnataka & Ors., 2016 (166) AIC 1 (SC), Devinder Singh & Ors. vs. State of Punjab through CBI, 2016 CRI L.J. 2658 and in Surinderjit Singh Mand & Anr. vs. State of Punjab & Anr., 2016 CRI.L.J. 3937. Learned counsel for the petitioner has also placed reliance on decision of this Court in Kan Singh Mehta (Dr.) vs. State of Rajasthan, 2000 Cr.L.R. (Raj.) 42, Kannan. He has also placed reliance on decisions of other High Courts viz. Madras High Court, Punjab and Haryana High Court, Allahabad High Court and Patna High Court respectively in Kannan alias Krishna Rajan vs. R.A. Varadarajan, 1995 Cr.L.J. 3059, Rajah Bahadur Narasingerji Gyanaderji vs. Raya Panugathi Rayanim Garu & Ors., AIR 1921 Madras 498, Nirmal Singh Kahlon vs. State of Punjab & Ors., 2009(1) Crimes 498 (P & H), Ram Ganesh Rai vs. B. Rup Narain Rai & Ors., AIR 1925 Allahabad 34 and Sri Darbar Saheb vs. Bare Lal Kandarp Nath Sah Deo, AIR 1936 Patna 275. 9. It is further argued that in the above cited judgments, the Hon'ble Court as well as the various High Courts have categorically held that if an officer of Government acted in excess of his official duty or in contravention of his official duty, the protection under section 197 Cr.P.C. is not available to him. It is contended that the learned trial court as well as the revisional court without taking into consideration the law laid down by the Hon'ble Supreme Court as well as by various High Courts have illegally passed the impugned orders, therefore, the same are liable to be set aside. 10. Per contra, learned counsel appearing for the respondent Nos. 2 and 3 has supported the orders passed by the revisional court as well as the trial court and argued that respondent Nos. 2 and 3 have removed the encroachment of the petitioner over the UIT land after following the due process of law and, therefore, it cannot be said that they have acted in excess of their official duty or in contravention of their official duty. It is contended that once the respondent Nos. 2 and 3 have demonstrated before the courts below that they were discharging their official duty, the trial court has rightly held that cognizance cannot be taken against them without the previous sanction of the State Government as per section 197 Cr.P.C. Learned counsel for the respondent Nos. It is contended that once the respondent Nos. 2 and 3 have demonstrated before the courts below that they were discharging their official duty, the trial court has rightly held that cognizance cannot be taken against them without the previous sanction of the State Government as per section 197 Cr.P.C. Learned counsel for the respondent Nos. 2 and 3 has, therefore, prayed that there is no force in this petition and the same is liable to be dismissed. 11. Heard learned counsels for the rival parties and perused the impugned orders passed by both the courts below. 12. It is not in dispute that before removing the encroachment of the petitioner, the UIT served him a notice and asked him to produce any evidence regarding ownership of the plot in question. In response to the notice issued by the UIT, the petitioner appeared before it through his counsel and also attended the proceedings in person, however, he failed to show any document regarding the ownership of the plot in question. The UIT, on the other hand, has found that the land, on which the petitioner encroached, is belonging to it and, therefore, when the petitioner has failed to satisfy his claim over the land in question, they removed the encroachment of the petitioner over the land as per the provisions of Urban Improvement Trust Act. Though the competent civil court has granted injunction in favour of the petitioner and restrained the respondent UIT from dispossessing the petitioner from the land in question without following the due process of law but respondent UIT has served notice to the petitioner before removing the encroachment and provided an opportunity to him to prove his ownership over the land in question, therefore, it cannot be said that due process of law has not been followed by the UIT before dispossessing the petitioner from the UIT land. The petitioner has failed to prove his ownership over the land in question and in such circumstances when the authorities of the UIT have proceeded to remove the encroachment of the petitioner over the UIT land, it cannot be said that they have acted beyond their official duty or not acted in discharging their official duty. 13. The petitioner has failed to prove his ownership over the land in question and in such circumstances when the authorities of the UIT have proceeded to remove the encroachment of the petitioner over the UIT land, it cannot be said that they have acted beyond their official duty or not acted in discharging their official duty. 13. There is no quarrel about the proposition of law laid down by the judgments referred above by the learned counsel for the petitioner but in the present case, the petitioner has failed to demonstrate that the respondent Nos. 2 and 3 were not acting in discharging their official duty when they have removed the encroachment of the petitioner over the land in question. In such circumstances, the judgments referred by the learned counsel for the petitioner are of no help to the petitioner. 14. In view of the aforesaid discussions, I do not find any merit in this petition and the same is hereby dismissed.