K.S. Lodha, J.
1. The three petitioners have challenged the order of the learned Chief Judicial Magistrate, Bikaner dated 21-12-82 by which he has taken cognizance of offences under Sections 166 and 382 I.P.C. against them.
2. The facts giving rise to this application briefly stated are as under: Non-petitioner No. 1, Madan Lal is a licensee of a piece of land near the temple of Shri Ratan Behariji Hanumanji in Bikaner, under the Municipal Council, Bikaner. He filed a complaint before the learned Chief Judicial Magistrate on 5-1-82 that he had placed wooden stall with iron shutter on this piece of land and was running a cycle shop there, however, the Municipal Council and the UIT, Bikaner without following the rules of 'Teh-bazari' and without affording any opportunity of being heard, issued a notice to him directing him to remove the aforesaid stall. He thereupon filed a suit for injunction against the Municipal Council and the UIT and obtained a temporary injunction against them on 30-9-80 after the parties were heard by the court. His case further is that despite this temporary injunction the petitioners, Jeewa Ram Chauhan, Administrator of the Municipal Council, Lalit K. Panwar, City Magistrate and Shantilal, Overseer, UIT, Bikaner removed the stall, despite the protest of the complainant and took away the wooden stall in a tractor trolley. The temporary injunction order passed by the court was also shown to these authorities when they came to the spot but they did not care for it and acted in the aforesaid manner. It was further alleged that on this, the complainant moved an application for taking proceedings against these persons for the contempt of court and also prayed for the recovery of the stall, however, the court only issued notice to these persons but did not direct the issuance of search warrant for the recovery of the stall and had directed the complainant to take separate proceedings in this respect and, therefore, this complaint was filed. The learned Magistrate sent this complaint for enquiry under Section 202 Cr. P.C. to the Addl. Munsif & Judicial Magistrate No. 1, Bikaner, who, after enquiry submitted his report to the effect that as the accused persons had removed the stall despite the order of injunction being brought to their notice and also threatened the complainant with the arrest, their act amounted to offence under Section 382 I.P.C. and as they also acted in derogation of the injunction, they were also guilty for offence under Section 166 I.P.C. According to him since the injunction was only against Jeewa Ram Chauhan he was guilty under Section 382 and 166 I.P.C. and as the other accused persons had cooperated with him in this illegal act, they were also guilty under the aforesaid offences with the aid of Section 34. He also submitted that the act of these officials could not be deemed to be in exercise of their official duty because in committing an offence or abating it is not a part of official duty. On the basis of this report the learned Chief Judicial Magistrate, Bikaner took cognizance of these offences against these petitioners by his order dated 21-12-82. They have therefore, approached this Court for quashing this order.
3. I have heard the learned Counsel for the parties as also the learned P.P.
4. It is urged by the learned Counsel for the petitioners that as matter of fact even if the complaint is taken on its face value no offence under Section 166 or 382 I.P.C. can be said to have been made out against the accused persons-because according to the allegations in the complaint itself, the complainant was a licensee and his licence had been revoked by giving him a notice and, therefore, the Municipal Council was within its rights to remove his cabin which was not of any permanent nature. His second contention was that the disobedience, if any, of the injunction granted by the court can be punishable either under the Contempt of Courts Act or under Order XXXIX, Rule 2 C.P.C. but it does not amount to any offence under Section 166 I.P.C. He further contended that the removal of the stall in the aforesaid circumstances does not amount to any offence under Section 379 or 382 I.P.C. and lastly, he urged that as the petitioners No. 1 and 2 were acting in discharge of their official duties as is apparent from the allegation in the complaint itself, cognizance of the aforesaid offence could not have bean taken by the learned Magistrate without the previous sanction of the State Government as these officials were not removable from their posts without the order of State Government. In this connection he relied upon a few authorities.
5. The learned Counsel for the complainant in the first instance urged that at present the court has only taken cognizance of the offences on the finding that there was prima facie case for proceeding with the matter and, therefore, at this stage this Court should not interfere with the order of the trial court and should leave the petitioners to raise all these objections before the trial court itself when they appeared before it. In this connection he placed reliance upon Smt. Nagawwa v. Veeranna Shivalingappa Konjalaia and Ors. : 1976CriLJ1533 and Hareram Satpathy v. Tikaram Agarwal and Ors. : 1978CriLJ1687 . He further urged that the injunction issued by a court is also a direction of law contemplated under Section 166 I.P.C. and disobedience of the same is, therefore, punishable under that section and the removal of the stall despite the injunction clearly shows the dishonest intention of the petitioners as also their intention to cause wrongful loss to the complainant. Therefore, offence under Section 382 I.P.C. also is made out. He supported the order of the trial court also on the ground that this act of the petitioners cannot be deemed to be in discharge of their official duties.
6. I have given my careful consideration to these contentions,
7. I may first take up the objection raised by the learned Counsel of non-petitioner No. 1 to the effect that Court should not exercise its power under Section 482 Cr. P.C. for interfering with an order taking cognizance. In my opinion, this contention cannot be accepted in the circumstances of this case, in as much as even according to the authorities relied upon by the learned Counsel himself interference has to be made at this stage because according to me even if the complaint is accepted on its face value no offence under Section 166 or 382 I.P.C. can be said to be even prima facie made out. In Smt. Nagawwa's case (supra) their Lordships have clearly laid down that in certain exigencies which have been noted as 1,2,3 and 4 by them the order taking cognizance or ordering issue of process against the accused can be set aside or quashed and the first amongst them is where the allegations made in the complaint or the statement of the witnesses recorded in support of the samr taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.
8. Now let me advert to the question whether from the facts brought before the trial court in complaint any of the aforesaid offence is made out. For the application of Section 166 I.P.C. it has to be shown that a public servant knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant intending to cause, or knowing it to be likely that he will by such disobedience, cause injury to any person. Therefore, the disobedience must be of a direction of law and not an order of a court. Further this direction must be with respect to the conduct of such public servant and the disobedience must be with the intention to cause injury to any person or the disobedience must be with the knowledge that it is likely to cause injury to any person. In the present case so far as the removal of the stall is concerned there is not an iato of allegation in the complaint that this was done in disobedience of any direction of law. Learned counsel for the non-petitioner drew my attention to Section 203 of the Rajasthan Municipalities Act in order to show that certain procedure had been laid down for the removal of encroachments etc. and that was not followed in this case. All that I may state here is that Section 203 of the Municipalities Act is not at all applicable to the present case. As already stated above it is the complainant's own case that the Municipal Council had issued him a notice revoking licence and asking him to remove the stall and it was thereafter that the stall was removed. He has not been able to point out how this notice was bad or in disobedience of any direction of law nor it has been shown in the complaint that this notice was issued with the requisite intention or knowledge referred to in Section 166 I.P.C. His only grievance is that the stall had been removed despite the temporary injunction. The disobedience of the temporary injunction is not contemplated as an offence under Section 166 I.P.C. and for that recourse could have been taken to Order XXXIX, Rule 2 C.P.C. or for proceedings for contempt of court as has already been done by the complainant. It further appears from the bare reading of the complaint that the petitioners would have been satisfied if in these proceedings before the civil court, the court had directed issuance of a search warrant for the recovery of the stall but because such an order had not been passed, the complainant had to approach to the criminal court.
9. The next question for consideration is with regard to the offence under Section 382 I.P.C. Section 382 relates to an aggravated form of Section 379 which provides the punishment for theft. Theft has been defined in Section 378 I.P.C. which reads 'whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.' The term dishonestly is defined under Section 24 I.P.C. as 'whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly'.
10. Now in this case taking of the stall by the petitioners is not alleged to be with the required dishonest intention because according to the complaint itself this was being done after notice had already been served upon the complainant to remove the stall as his licence had been revoked. There is absolutely no allegation of any dishonesty on the part of the accused for the removal of the stall so as to bring the case within the definition of theft. However, the learned Counsel for the complainant drew my attention to para 5 of the complaint wherein it has been stated that the stall had been removed forcibly and without jurisdiction. I am afraid this allegation by no stretch of imagination can be interpreted to mean that the petitioners had been acting dishonestly. Acting forcibly or without jurisdiction is not necessarily acting dishonestly.
11. It was further contended by the learned Counsel for the complainant that the very fact that the accused had removed the stall despite the injunction issued by the civil court would go to show their dishonest intention. I am unable to persuade myself to accept this contention also. The intention must be to cause wrongful loss to any other person. Here when the accused petitioners were acting in pursuance of the notice already issued by them, it can not be said that their intention was to cause wrongful loss to the complainant. The removal of the stall may entail loss to the complainant but that does not mean that it was wrongful or the intention of the accused was to cause him wrongful loss. Under Section 60 of the Easements Act a licence is revoked and under Section 63 of that Act the possession can be taken after removing the temporary structure etc. I am, therefore, clearly of the opinion that in the circumstances of this case the complaint does not disclose the offence under Section 382 I.P.C. also and, therefore, the learned Magistrate had acted rather perversely in taking cognizance of the offence under Sections 166 and 382 I.P.C. against the accused persons.
12. In view of the fact that cognizance could not have been taken of the aforesaid offences I need not go deep into the third contention of the learned Counsel for the petitioners based on Section 197 Cr. P.C. Suffice it to say that according to the complainant himself the petitioners No. 1 and 2 were acting in their official capacity and there is no dispute that these two officials are not removable from their office save by or with the sanction of the State Government. Sanction for their prosecution was, therefore, necessary. The third petitioner, namely, Shantilal was only acting under their direction and, therefore, if cognizance could not be taken against the first two, there was no question of prosecuting the third. I will content myself by referring to a decision of this Court in Pukhraj v. Ummaidram 1964 RLW 238. There are other authorities of this Court as well as that of the Hon'ble Supreme Court but, I need not multiply the authorities in view of what has been stated above.
13. The result, therefore, is that this petition is allowed and the order of the learned Chief Judicial Magistrate Bikaner dated 21-12-82 is set aside and proceedings against the petitioners are quashed.