Bombay High Court
Deepak Chandmal Verma vs Sumatilal Shantilal Baldota on 17 February, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.2086 OF 2019
Deepak Chandmal Verma,
Age 56 yrs., Occ. Business,
R/o Bhosale Akhada, Burudgaon road,
In front of Raut Kirana Store,
Shelke Building, Ahmednagar.
... Petitioner.
... Versus ...
1 Sumatilal Shantilal Baldota,
Age 49 yrs., Occ. Notary,
2 Shantilal Zumbarlal Baldota,
Age 76 yrs., Occ. Money lending,
3 Rajendra Shantilal Baldota,
Age 43 yrs., Occ. Business,
4 Ashok Shantilal Baldota,
Age 53 yrs., Occ. Business,
5 Mrs. Ratnaprabha Ashok Baldota,
Age 51 yrs., Occ. Business & Household,
Nos.4 & 5 are r/o Sukhada Apartment,
Plot No.13, Mankeshwar Galli,
Manik Chowk, Ahmednagar.
6 Vijay Yashwant Kulkarni,
Age 51 yrs., Occ. Service,
Commissioner, Municipal Corporation,
Ahmednagar.
7 S.K. Ithape,
Age 50 yrs., Occ. Service,
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2 Cri.WP_2086_2019
8 Ashok T. Sabale,
Age 50 yrs., Occ. Service,
9 R.W. Gaikwad,
Age 53 yrs., Occ. Service,
10 Suresh Dharma Misal,
Age 48 yrs., Occ. Service,
and other 20 employees.
Encroachment Department,
Municipal Corporation, Ahmednagar.
11 State of Maharashtra,
Through G.P., High Court,
Aurangabad Bench.
... Respondents.
...
Mr. D.K. Kulkarni, Advocate for petitioner
Mr. P.G. Borade, APP for respondent No.11
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 17th FEBRUARY, 2020
ORDER :
1 Present petition has been filed by the original complainant invoking the Constitutional powers of this Court under Article 227 of the Constitution of India, to challenge the Judgment and order passed by learned Additional Sessions Judge, Ahmednagar in Criminal Revision Application ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 ::: 3 Cri.WP_2086_2019 No.214/2014 dated 13.11.2019, thereby rejecting his revision filed under Section 397 of Cr.P.C., to challenge the dismissal of his complaint by learned Judicial Magistrate First Class (Court No.1), Ahmednagar on 05.12.2014. 2 The factual matrix leading to the writ petition are, that the present petitioner had filed private complaint against in all 10 persons contending that they have committed offence punishable under Section 395, 427, 323 read with Section 34 of the Indian Penal Code. It was contended that the complainant had installed shop on road. He was the tenant in House No.3586. Accused Nos.1 to 4 are the illegal owners and had filed Regular Civil Suit No.461/1988 against the father of the complainant. Illegal possession was obtained by accused Nos.1 to 4 by filing Regular Darkhast No.164/1991 on 05 and 06 November, 2012. Since then the complainant was conducting his shop from the place owned by Municipal Corporation. The Corporation was charging Rs.10/- from him. Municipal Corporation had filed Regular Civil Suit No.1150/2012 before Civil Court. He had gone to attend the date in that suit in Court on 08.01.2013. His sons were running the said shop on that day. Around 11.30 a.m. to 12.00 p.m. the Anti Encroachment Vehicle belonging to the Municipal Corporation came on the say of accused Nos.1 to 5. There were employees of the Corporation accused Nos.7 to 10 and 20 other employees. Though the sons of the complainant ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 ::: 4 Cri.WP_2086_2019 resisted, yet all the articles of the shop were seized and illegally taken in the vehicle brought by the accused persons. Accused No.2 and 7 told that they have been directed by the Commissioner to remove the encroachment and take all the articles with them. It was stated that no panchnama was drawn at that time and after half of them articles were dumped in vehicles, accused Nos.1, 3, 4 and 5 came. They also helped to other employees to put the articles in the vehicle. When complainant received the information and came to the spot, at that time, all the articles were already dumped in the vehicle. The cash box as well as the articles, in all worth Rs.83562/- have been taken away forcibly. Complainant says that he had not made any kind of encroachment on the road. On the contrary, the vehicle belonging to the Municipal Corporation was causing obstruction to the traffic. He, therefore, prayed for action to be taken against the named accused persons for the offences they have committed.
3 After considering the complaint, verification statement, inquiry report of the Police Station Officer, Kotwali, witnesses examined by the complainant and documents on record; as well as hearing the learned Advocate for the complainant, learned Trial Judge found that no prima facie evidence has been made out by the complainant. The action was taken within the four corners of law for the removal of encroachment. Prior ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 ::: 5 Cri.WP_2086_2019 sanction to prosecute the public servant has not been obtained and under such circumstance, the complaint came to be dismissed. 4 The said order was challenged by the complainant in the Criminal Revision Application No.214/2014 and as aforesaid, it was dismissed on merits after hearing both sides on 13.11.2019, hence, present writ petition.
5 Heard learned Advocate Mr. D.K. Kulkarni for petitioner and learned APP for State-respondent No.11.
6 Taking into consideration the submissions made and the documents on record, there is absolutely no necessity to issue notice to respondent Nos.1 to 10.
7 It has been vehemently submitted on behalf of the petitioner that both the Courts failed to consider that the Municipal Corporation was charging daily Rs.10/- and was allowing the complainant to carry out his business from the footpath. Under such circumstance, without adopting due procedure of law, he could not have been dispossessed from that place and his articles could not have been seized from the spot. Definitely cognizable offence was made out and there was no question of obtaining previous sanction from the superiors of the Government employees, as the act done by ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 ::: 6 Cri.WP_2086_2019 those persons i.e. forcibly taking away all the articles, cannot be said to be within the official duty of the Government servants. Both the Courts have unnecessarily placed insistence on the point of sanction to prosecute. The complaint ought not to have been dismissed under Section 203 of Cr.P.C.. 8 At the outset, it can be said that after the complaint was presented, taking into consideration the contents of the complaint and verification, the learned Judicial Magistrate First Class had postponed the issuance of process and had ordered inquiry under Section 202 of Cr.P.C.. Thereafter, it appears that when the negative report came, complainant was allowed to lead evidence under the inquiry. Thereafter, he has examined employee of the Municipal Corporation in order to bring it on record, as to whether any notice was issued to the complainant prior to taking action, his articles were seized and any suit was filed by the complainant. The witness has claimed ignorance. After considering the learned Magistrate has heard the Advocate of the complainant. Perusal of the police report showed that due to the Judgment and order passed against the complainant he got annoyed with the accused Nos.1 to 5 and they have been implicated. It was clearly stated, that it had come on record, that the action was taken by the Municipal Corporation, taking into consideration the fact that the complainant was running the shop from the footpath/pavement without any ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 ::: 7 Cri.WP_2086_2019 licence. When prima facie case has not been made out, the complaint was dismissed. The Revisional Court also considered the point that prior sanction to prosecute the public servants has not been obtained by the complainant under Section 197 of Cr.P.C..
9 Though the complainant has filed certain receipts issued by the Municipal Corporation, which is styled as, "egkuxjikfydk gn~nhe/;s egkikfydk tkxsoj O;olk;kdjhrk jlrk ekaM.kh Qh", yet the complainant cannot claim protection from any action, on the count of removal of obstruction to the road, especially taken under Section 231 of the Maharashtra Provincial Municipal Corporation Act. Further, the claimant has not stated any specific words that the way he used to display his shop was exactly in front of the property owned by accused Nos.1 to 4, and therefore, they had made any kind of complaint with Municipal Corporation or whatever action was taken on that day, was at their behest. Even if for the sake of argument we accept, that such kind of complaint might have been made by accused Nos.1 to 4, yet, it can be seen that it was their right. The obstruction for the access to their property cannot be justified in any manner. Therefore, if on the basis of complaint lodged by them, if action is taken, then at the most it may give rise to civil proceedings and not under criminal. There appears to be absolutely no mala fide action on the part of the Municipal Corporation. When the ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 ::: 8 Cri.WP_2086_2019 employees of the Municipal Corporation went at the place and saw the situation, then they were justified in removing the obstruction. It is absolutely not necessary that in each and every case a prior notice should be given and principle of natural justice should be adhered to. When the act, on the part of the complainant himself, is high handed he cannot expect that the principles of natural justice should be given to him. 10 Section 197 of Cr.P.C. intends to protect the action done in good faith by the public servant while performing his duty or purporting to have been done in discharge of his duty. The purpose of Section 197 of the Cr.P.C. is to protect the public servant from any offence alleged to have been committed by him while acting to purporting any act in discharge to his official duty. However, the scope is limited. If it is shown that such act or omission has been done due to some correct practice or under the guys of protection with mala fide intention, then such protection is not available. Reliance can be placed on the decision in Devinder Singh and others vs. State of Punjab through CBI, (2016) 12 Supreme Court Cases, 87, it has been observed -
"39.1 Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 :::
9 Cri.WP_2086_2019 39.2 Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Cr.P.C. has to be construed narrowly and in a restricted manner.
39.3 Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 Cr.P.C.. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4 In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 Cr.P.C., but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 Cr.P.C. would apply.
39.5 In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6 Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 :::
10 Cri.WP_2086_2019 39.7 Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8 Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.
39.9 In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."
Earlier in Prakash Singh Badal vs. State of Punjab, 2007 1 SCC 1, it has been held by Apex Court, that the principle of immunity protects all acts, which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception where a criminal act is performed under the colour of an authority, to which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.
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11 Cri.WP_2086_2019 Recently in CBI vs. B.A. Srinivasan and another, (2020) 2 Supreme Court Cases 153, it has been observed thus -
"Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed "while acting or purporting to act in discharge of their official duty", but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected."
"It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression "while acting or purporting to act in discharge of their official duty", would get crystallised only after evidence is led and the issue of sanction can be agitated at a later stage as well."
11 Herein, in this case, the complainant himself has stated that he was running the shop from the pavement and he was not holding any licence. At the costs of repetition, it can be said, that though some amount was collected from him, that does not give him protection from the real action. Under such circumstance, whatever act was done by the Municipal Authority was in good faith, that too while in discharge of their official duty. Therefore, they were protected under Section 197 of Cr.P.C.. Since the complainant had not obtained prior sanction the learned Magistrate could not have taken cognizance of the offence, and therefore, the complaint was rightly ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 ::: 12 Cri.WP_2086_2019 dismissed.
12 Both the Courts below have not erred either on facts or on law. Therefore, the use of Constitutional powers of this Court in favour of petitioner does not arise. Writ Petition stands dismissed.
( Smt. Vibha Kankanwadi, J. ) agd ::: Uploaded on - 11/03/2020 ::: Downloaded on - 10/06/2020 08:30:31 :::