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R.K. Anand and ors. Vs. Joginder Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1974CriLJ1007
AppellantR.K. Anand and ors.
RespondentJoginder Singh and anr.
Excerpt:
- .....chief justice magistrate, in a case under section 380 of the indian penal code, wherein the learned magistrate has admitted the complaint of one joginder singh and has issued process against the petitioners under section 204 of the criminal procedure code. the facts of the case which give rise to this petition may briefly be stated.2. one joginder singh filed a complaint before the chief judicial magistrate, wherein he made allegations that he was in occupation of a certain stall situate within the court-yard of the property known as albion house. the mall, simla. he used to sell dried and fresh fruits as retail business at the stall. the municipal corporation wanted to remove the construction as, according to them, it was unauthorised. accordingly, on the night between 11th and.....
Judgment:
ORDER

D.B. Lal, J.

1. This Rule in revision has been obtained by Shri R. K. Anand, Administrator, Municipal Corporation and seven others, against the order of the learned Chief Justice Magistrate, in a case under Section 380 of the Indian Penal Code, wherein the learned Magistrate has admitted the complaint of one Joginder Singh and has issued process against the petitioners under Section 204 of the Criminal Procedure Code. The facts of the case which give rise to this petition may briefly be stated.

2. One Joginder Singh filed a complaint before the Chief Judicial Magistrate, wherein he made allegations that he was in occupation of a certain stall situate within the court-yard of the property known as Albion House. The Mall, Simla. He used to sell dried and fresh fruits as retail business at the stall. The Municipal Corporation wanted to remove the construction as, according to them, it was unauthorised. Accordingly, on the night between 11th and 12th August, 1971 Shri R. K. Anand, Administrator, Municipal Corporation, along with his Executive Officer. Chief Sanitary Inspector, Engineer, Health Officer, Overseer and Architect, who are all accused in this case, appeared on the scene and forcibly removed the construction and further misappropriated the articles of the Stall which, according to the complainant, were of a value of Rs, 8, 000/- In this manner, according to the complainant, the eight accused have committed the offence under Section 380 of the Indian Penal Code.

3. It was further contended by the complainant Joginder Singh, that having come to know about the intentions of the Municipal Corporation, he had filed a civil suit in the Court of the Senior Sub Judge. Simla. In that suit he submitted an application under 0. 39, Rr. 1 and 2 of the- Civil Procedure Code. As submitted by the complainant, he was granted some interim injunction by the Court whereby the Municipal Corporation was restrained from taking forcible possession over his retail Stall. It is contended that the petitioner-accused, despite the order of the Civil Court made a forcible entry inside the Stall and not only removed the construction, but also misappropriated the articles kept therein. The respondent complainant also filed some contempt application with which we are not concerned in these proceedings.

4. The learned Magistrate proceeded under Sections 200 and 202 of the Code of Criminal Procedure, When the petitioner-accused learnt about the complaint, they moved a netition before the Court that they were all public servants and as such the Court could not take cognizance of the complaint without a proper sanction under Section 197 of the Code. The learned Chief Judicial Magistrate considered this objection but repelled the ground and instead held that the complaint was cognizable and as to the applicability of Section 197 he held that the matter was still open and could be decided upon evidence at a later stage in the proceedings. In this manner the learned Magistrate has made his order final as to the issue of process under Section 204 of the Code.

5. The petitioners-accused felt aggrieved of the decision of the learned Magistrate, and came in revision before the learned Sessions Judge, Simla. But, they did not succeed and the learned Sessions Judge also confirmed the order of the learned Magistrate and he too has maintained that process could be issued against the petitioner-accused and that the complaint was very much cognizable by the Magistrate despite the objection under Section 197. The petitioner-accused have now felt aggrieved of the decision of the learned Sessions Judge and have come up in this Court in revision.

6. After hearing the learned Counsel for the petitioners-accused, I am of definite opinion that both the Courts below have grossly erred in understanding the legal situation which had arisen before them and for the reasons to be stated, neither cognizance could be taken by the Magistrate nor the process could be issued under Section 204. In order to appreciate the facts as they arise, a few dates need be noticed and the progress of the case from one stage to the other has got to be understood. The civil suit was filed sometime before 21st June, 1971. An application under O. 39, Rr. 1 and 2 was moved on this date. Interim stav as prayed, was granted by the learned Senior Sub Judge. On 24th June. 1971, it was stated by the learned Counsel representing the Municipal Corporation, that according to the plaintiff, he had only placed a movable table inside the court-yard and that he was selling fresh and dried fruits while storing them on such table. The learned Counsel, therefore, stated before the Court that they would have no objection if such a moving table is retained and the Municipal Corporation would not interfere in the Stall of the plaintiff if at all it is being maintained in the shape of a moving table. Upon this statement of the learned Counsel for the defendant, the interim injunction already granted by the Court was withdrawn.

Later on 24th July. 1971 the plaintiff, Joginder Singh, again moved an application that his table was being removed by the Municipal Corporation, and, therefore, some interim injunction was again required to be issued. The learned Senior Sub Judge thereafter made a spot inspection and as his order dated 6th August, 1971 indicates, the plaintiff had really constructed a permanent fixture in the shape of a shop for which he had neither contended before the Court nor had he obtained permission of the Corporation and to which the interim injunction never related. The learned Senior Sub Judge noted down that the Stall which was previously kept on a moving Table was permanently affixed, with poles at the four corners which were also covered from all the sides, with an entrance door which could be locked up according to convenience. In this manner the moving Stall was converted into a permanent shop. The Municipal Corporation never permitted this type of construction. In fact the learned Senior Sub Judge also noted, that a portion of the Stall at the place where it was fastened to the main building, was cut through so that at the time of inspection the Court might judge it to be a movable structure which in fact it was not from before. With these observations, the learned Senior Sub Judge however thought fit to grant an interim injunction only to the extent related to the removal of the moving Table which, according to him, the plaintiff could keep inside the Court yard and carry on his business. In fact the Senior Sub Judge also remarked that the Municipal Corporation was within its rights to order removal of such like structures in order to prevent 'haphazard constructions in the town'. The order of the learned Senior Sub Judge specifically related to a Table of the dimensions of 12 ft. X 10 ft. and the Municipal Corporation was not required to remove such a Table till the disposal of the suit.

7. Takine advantage of this order granted by the learned Senior Sub-Judge, it appears, the respondent-complainant did not place the moving table of the dimensions specified in the order but retained his construction which was in the shape of a Stall which was more or less a permanent fixture as observed by the learned Senior Sub Judge in his inspection note. Accordingly, the Municipal Corporation again served upon the plaintiff a notice for removal of such a Stall for which no such injunction order was granted by the Court. The complainant did not pay any heed to the notice, served by the Municipal Corporation. Thereafter the disputed occurrence took place and the Stall of the complainant was forcibly removed giving rise to the present complaint.

8. The learned Magistrate had formerly issued process as a result to complaint of 3rd April. 1972. The petitioners-accused filed their objection under Section 197 of the Criminal P.C. on 7th April, 1972. Upon the insistence of the learned Counsel, the learned Magistrate stayed the issuance of process on 11-4-1972. Thereafter the complainant filed his reply on 1st May, 1972 and finally on 17th June, 1972 the process was issued under Section 204. The learned Magistrate has mentioned that he had already made an order issuing process on 9th May, 1972 but that order is not available on the file. Thereafter a contempt petition was filed by the complainant on 13th July, 1972.

9. It is, therefore, abundantly clear that whatever order the Civil Court had passed related to a moving Table of a fixed dimension and the Municipal Corporation wag restrained from removing such a Table. Instead, the complainant had retained his Stall which was more or less a permanent construction as observed by the learned Senior Sub Judge. For such a type of Stall, the injunction order never related. There was no proper sanction from the Municipal Corporation. After giving opportunity to the complainant to remove such a Stall, the officials of the Municipal Corporation went and removed his Stall. Therefore the sheet anchor of the case of the complainant falls and no longer stands, namely, that the petitioners-accused had taken the law in their hands or had violated the order of a Civil Court. In fact they had performed their legal duties, namely, the removal of an Unauthorised construction to which they Were entitled even as observed by the learned Senior Sub Judge. With this evidence on the record, it could not be stated that any sufficient ground was made out to proceed against the petitioners-accused. Therefore, in my opinion both the Courts below have erred in considering that the process could be issued against the petitioners-accused under Section 204. In fact the complaint itself was without any force and should have been initially dismissed without issue of process, under Section 203 of the Criminal Procedure Code.

10. As to the objection under Section 197, sufficient material was made out both before the learned Magistrate and also before the first revising Court that the petitioners-accused were public servants and they were acting in the discharge of their official duty. As is evident from Section 197, before this section can be invoked, two conditions must be satisfied (1) the accused must be a public servant of the kind mentioned in the section, and (2) the offence must be committed by the accused while acting or purporting to act in the discharge of their official duties. Both these conditions were satisfied in the instant case. The applicability of the section, depends not on the nature of the action which involves the offence but on the matter to which the action relates so that the words 'in the discharge of an official duty' might be read as in the 'matter of the discharge of an official duty'. The section applies only if the act complained of is itself done by the public servant in pursuance of his public office, although it may be in excess of the duty or in the absence of such duty. At the same time, a public servant who does not purport to act in the discharge of his official duty but merely uses- his official position to do an illegal act cannot claim the benefit of this section. It would also be correct to say that the section refers to cases where the act constituting the offence is so connected with the official duty or any act which is inseparable from it. Where the acts in the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of his official duty, though Dossibly in excess of the needs and requirements of the situation, the section would have its application.

The learned Counsel for the complainant has rather construed this section too narrowly by arguing that it can never be a part of one's official duty to commit an offence and, therefore, the petitioner no sooner it is held that they did not comply with the order of the Civil Court, could be stated not to have performed the act in the discharge of their official duty and hence Section 197 was not applicable. If such a narrow construction is Riven to Section 197. perhaps no plea under Section 197 can at all be sustained in favour of any public servant because it would be argued in every case that law does not permit a public servant to defy the order of a Civil Court or to commit an offence. The real test would be whether the acts done in the official duty are so inter-related so that it can easily be inferred that offence was committed by the accused while acting or purporting to act in the discharge of his official duty. Following these principles which seem to be apparent from Section 197, it was not difficult to hold that the petitioners-accused who were public servants of the kind mentioned in the section, if at all they committed this offence must have committed it while acting or purporting to act in the discharge of their official duties. Therefore Section 197 applied to the facts of the case and the learned Magistrate could not take cognizance of the complaint.

11. There can be no dispute that the petitioners-accused 1 and 6 are removable from their office by the Central Government while the petitioners-accused Nos. 2, 5 and 7 are removable from their office by the State Government. As such, there can be no doubt that the complaint was not cognizable against these accused. As to the remaining accused, I have already held that there was no merit in the complaint and hardly any sufficient ground existed to issue the process under Section 204 and that the complaint should have been dismissed under Section 203.

12. In view of what I have stated above, the revision is accepted and both the orders of the learned Sessions Judge as well as of the learned Chief Judicial Magistrate issuing process against the petitioners-accused under Section 204 of the Code of Criminal Procedure are set aside. The complaint is dismissed under Section 203 of the Criminal Procedure Code.


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