Madras High Court
K. Subramanian vs K. Rajendran And Ors. on 21 April, 2007
Equivalent citations: 2007CRILJ4092
ORDER T. Sudanthiram, J.
1. This petition has been filed to quash the proceedings pending against the petitioner herein who is 7th accused in C. C. No. 3 of 2005, on the file of the Judicial Magistrate II, Mettur Dam.
2. The first respondent herein filed a private complaint against the petitioner and six other accused for offences under Sections 109, 148, 448, 420, 427 and 453 IPC, and the complaint was taken on file for offences under Section 148, 448, 427, 453 and 109 IPC.
3. The first respondent filed a private complaint alleging that there was enmity between himself and A. 1 to A.4. The first accused was constructing house in poramboke land in S. No. 32/1 and in order to provide pathway in the patta land of the first respondent, accused Nos. 5 to 7 have made attempts. On 17-5-2003 at 8.00 a.m. while the first respondent went to see the Tahsildar, he was brought to Mettur Police Station, saying that a complaint has been given by the first accused. He was also informed that A. 5 to A. 7 are to demolish the house of the accused in order to provide pathway, he was retained in the police station at 10.00 p. m. When he was released and went to his house, he was informed that A. 1 to A. 7 along with others, had demolished the house. It is alleged in the complaint that in order to provide pathway to the first accused, through the house of the first respondent and his patta land, A. 5 to A 7 had deliberately demolished the house of the first respondent herein. The accused 1 to 7 using their influence had confined him in the Mettur Police Station on 17-5-2003 from 7.30 a.m. to 9.00 p. m.
4. Mr. S. Packiaraj, learned Counsel appearing for the petitioner submitted that the petitioner was working as a Deputy Tahsildar at Mettur Taluk office during the year 2003. During the period March, 2003 to April 2003, the Tahsildar received several complaints from the general public that they were very much disturbed by the first respondent herein, as he blocked the street by constructing wall across the street and obstructed. The Tahsildar issued a notice to him, but he did not evince any interest to answer to the show cause notice. Subsequently, the Tahsildar, Mettur Dam, issued an order in his proceedings for removing the wall blocked by the first respondent herein. As the first respondent did not remove the wall after the receipt of the notice the petitioner herein accompanied with the Village Administrative Officer, Revenue Inspector and Inspector of Police of Karumalalkujdal and others went to the place and after observing formalities, he had demolished the wall and constructed across the street on 17-5-2003.
5. It is further submitted by the learned Counsel appearing for the petitioner that he acted only officially and only on the basis of the order passed by the Tahsildar of Mettur, and as such, no offence is committed, taking cognizance of the complaint by the Magistrate is illegal. It was also further contended by the learned Counsel appearing for the petitioner that as the petitioner acted only to comply the order of the competent authority, and if at all the petitioner had exceeded his official capacity, the first respondent herein if aggrieved, ought to have obtained sanction required under Section 197 of the Code of Criminal Procedure, before instituting proceedings against him. As there is no sanction in this case, the complaint is not maintainable, and therefore, the proceedings has to be quashed.
6. The learned Counsel appearing for the petitioner in support of his contentions relied on the decisions of the Honourable Supreme Court reported in N.K. Ogle v. Sanwaldas alias Sanwalmal Ahuja 1999 Cri. L.J. 2105 and in Abdul Wahab Ansari v. State of Bihar and Anr. .
7. The learned Counsel appearing for the first respondent was also heard in respect of the contentions raised by the learned Counsel appearing for the petitioner.
8. Mr. S. Ayyadurai, learned Counsel appearing for the first respondent herein vehemently contended that 5th accused being the Village Administrative Officer, 6th accused being the Revenue Inspector and the 7th accused being the Deputy Tahsildar, joined together and considered to act against the first respondent herein in order to help the first accused deliberately at any cost. He further contended that the petitioner herein has not acted officially, since no order was served to the first respondent and no formalities were observed. He further submitted that the petitioner herein misusing his position had acted independently and therefore, no sanction is necessary to initiate criminal proceedings against him.
9. This Court after hearing the arguments of both sides and on going through the records, considering the position observes as follows:
It is an admitted fact by both parties that during the relevant period of occurrence, the petitioner was the Deputy Tahsildar of the Mettur. The petitioner herein also has filed a copy of the order passed by the Tahsildar, Mettur in proceedings in Na. Ka. No. 18 of 2003 dated 24-3-2003. As per that order, the Revenue Inspector of Mettur and the Village Administrative Officer of Konur East Village were asked to remove the encroachment on 26-4-2003 and report it to the Taluk office immediately. A copy was forwarded to the Deputy Regional Tahsildar for taking proper action. On the basis of the copy of this order, the contention of the petitioner that he acted only as per the direction of the Superior and therefore, he had acted only in the official capacity; is to be considered for arriving to a conclusion.
10. In the decision reported in N.K. Ogle v. Sanwaldas alias Sanwalmal Ahuja 1999 Cri LJ 2105, it has been held thus:
7. The Constitution Bench decision of this Court in, Matajog Dobey's case (supra) clearly enunciates when, a power is conferred or a duty is imposed by statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a things to be done, it authorises the performance of whatever may be necessary for executing its command. The Court was considering in the said case the allegation that the official authorised in pursuance to a warrant issued by the Income Tax Investigation Commission in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him mercilessly causing injuries and for such act a complaint had been filed against the concerned public officers. This Court, however, came to hold that such a complaint cannot be entertained without a sanction of the competent authority as provided under Section 197, Cr. P.C. This Court had observed that before coming to a conclusion whether the provisions of Section 197 of the Code of Criminal Procedure will apply the Court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim that he did in the course of the performance of his duty. Applying the aforesaid ratio to the case in hand, the conclusion is inescapable that the act of the Tahsildar in seizing the scooter of the respondent was in discharge of his official duly which he was required to do on the basis of the order issued by the Collector for getting the lease money from the respondent and the said act cannot be said to be pretended or fanciful claim on the part of the Tahsildar. The High Court, in our view committed error at that stage in examining the flaw or legality of the order of attachment issued by the Tahsildar.
8. In, Surest Kumar's case 1998 AIR SCW 544 : 1998 Cri LJ 1242 (supra) relying upon, Maiajog Dobey's case AIR 1956 SC 44 : 1956 Cri LJ 140 (supra), and bearing in mind the legislative mandate engrafted in sub-section of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned this Court has held that the said provision is a prohibition imposed by the statute from taking cognizance and as such the jurisdiction of the Court in the matter of taing cognizance and, therefore a Court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the concerned government servant.
9. In the aforesaid circumstances and in view of our earlier conclusions as to the circumstances under which the order of attachment was issued and the scooter was seized we have no hesitation to hold that the acts complained of by the respondent against the Tahsildar had been committed in discharge of the official duty of the such Tahsildar and, therefore, no cognizance can be taken by any Court without prior sanction of the Competent Authority. Admittedly there has been no such sanction of the Competent Authority.
11. In the decision reported in Abdul Wahab Ansari v. State of Bihar and Anr. , it has been held thus:
7. Coming to the second question, it is now well settled by the Constitution Bench decision of this Court in Matajog Dobey v. H.C. Bhari that in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure by offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. In other words, there must be a reasonable connection between the act and the discharge of official duty; the act. must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. In the said case it had been further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. This decision was followed by this Court in Suresh Kumar Bhikamchand Jain's case and in a recent judgment of this Court in the case of Gauri Shankar Prasad v. State of Bihar . The aforesaid case has full force even to the facts of the present case inasmuch as in the said case, the Court had observed (Para 14 of AIR SCW):
It is manifest that the appellant was present at the place of occurrence in his official capacity as Sub- Divisional Magistrate for the purpose of removal of encroachment from Government land and in exercise of such duty, he is alleged to have committed the acts which from the gravamen of the al-legations contained in the complaint lodged by the respondent. In such Circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without, sanction provided under Section 197, Cr. P.C. It is not necessary for us to multiply authorities on this point and hearing in mind the ratio of the aforesaid cases and applying the same to the facts of the present case as indicated in the complaint itself, we have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him under the orders of the Magistrate and in that view of the matter, the provisions of Section 197(1) applies to the facts of the present case. Admittedly, there being no sanction, the cognisance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of Court.
12. In view of the above said two decisions, if the petitioner is able to establish that there was an order to act against the first respondent herein and he acted only in discharge of the official duty, then it is for the trial Court to decide the issue and come to the conclusion, whether it is possible to proceed against the petitioner without any sanction.
13. The petitioner has filed the copy of the docket order of the Judicial Magistrate-II, Mettur Dam in CMP No. 275 of 2004 in C. C. No. 3 of 2005. Certain irregularities in the proceedings of taking the complaint of file also was brought to the notice of this Court.
14. The docket order of the Judicial Magistrate-II, Mettur Dam read thus:
On 5-2-2004 : Petitioner; present sworn statement recorded for receiving further witness. Call on 9-2-2004.
On 9-2-2004 : Petitioner present. Heard Record perused. Sworn statement recorded. Issue summons to accused. Call on 25-2-2004.
On 25-2-2004 : Complainant Present, Accused not present. Call on 10-3-2004.
On 10-3-2004 : Complainant present. Accused present copies furnished. Call on 5-4-2004. On 5-4-2004 : Complainant present Al to 6 present, A. 7 petition filed and allowed. Call on 4-5-2004....
15. After this, as a surprise on 5-1-2005, the docket order is as follows:
Complainant present. Heard. Record perused. Sworn statement and statement of other two witnesses present main up (sic) records also perused. In the complaint and Statement, it has been stated that without any orders, in the Authorities his building was demolished. Hence, there are ground in believing that there is a prima facie in the complaint. Hence taken on file Under Section 148, 448, 427, 453 and 109 IPC. Issue process to the Accused by 10-1-2005.
16. Now it is surprising to see howfar carelessly the Magistrate had acted in taking the complaint on file and issuing summons to the accused. On 5-2-2004, the learned Magistrate after recording the sworn statement of the complainant on 9-2-2004 and on perusing the sworn statement issued summons to the accused. Subsequently, the accused had appeared and copies also have been furnished to them on 10-3-2004. Though on 9-2-2004, the summons were issued, it was not mentioned as to what were all the offences for which the complaint was taken on file.
17. It is very strange that after the appearance of the accused and issuing copy, the learned Magistrate observing in the docket on 5-1-2005 that "in the complainant statement, it has been stated that without any orders, the building was demolished." Further, the Magistrate observing that there was a prima facie case in the complaint; taken the complaint on file under Sections 148, 448, 427, 453 and 109 IPC. The docket order dated 5-1 -2005 shows that the learned Magistrate had taken the complaint on file for the offences stated above only several hearings after the issuance of the summons to the accused.
18. As per Section 204 Cr. P. C, either summons or warrant issued to the accused by the Magistrate, after taking cognizance of an offence, if in his opinion that there is sufficient room for proceeding. Prior to the stage of Section 204 Cr. P. C, under Section 200 Cr. P. C, Magistrate may take cognizance of the offence on a complaint on examining upon oath, the complainant and the witness present if any. Under Section 202 Cr. P. C, the Magistrate also postpone the issue of process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such officer as it thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
19. Here in this case, the learned Magistrate after issuing process under Section 204 Cr. P.C. had gone back to the position under Section 202 Cr. P.C. and examined and recorded the statement of two more witnesses and thereafter once again taken the complaint on file. The learned Magistrate has committed irregularities in the proceedings which shows that while considering the complaint at the first instance, he was not careful enough, and further after the appearance of the accused, he had chosen to examine and record the statement of two more witnesses which is not permissible under the Criminal Procedure Code.
20. Anyhow, the complaint has been taken on file on 5-1-2005 against all the accused for offence under Sections 148, 448, 427, 453 and 109 IPC. As per Section 460 of Criminal Procedure Code, the irregularities which do not vitiate proceedings are mentioned. Section 460-(e) is that "to take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of Section 190." Therefore though an irregularity occurred in the procedures followed before taking the complaint on file, it would not vitiate the further proceedings. This Court also feels that no prejudice would be caused to the accused, if he is given a chance to show that the complaint is not maintain-able against him, or the charges are groundless.
21. The petitioner herein is permitted to file an application under Section 245(2) Cr. P. C, since this is a case instituted otherwise than on police report. Under Chapter XIX of the Cr. P. C, the petitioner would be in a position to place the materials showing that he is a public servant coming under the category of 197 Cr. P. C, and sanction is necessary in order to proceed against him. The first respondent is also authorised to place his rival contentions.
22. If any application is filed by the petitioner herein before the learned Magistrate, it should be considered expeditiously and disposed of according to law.
23. Under Section 483 of the Code, High Court is to exercise its superintendence over the Court of Judicial Magistrates, subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrate. Under the above said circumstances, this Court feels that the concerned Magistrate who had been responsible for passing the docket order on 5-2-2005 is bound to give an explanation. The concerned District Judge shall call for an explanation from the concerned Magistrate on this aspect.
24. In the cause title of the Quash petition, Tahsildar is shown as second respondent, who is not an accused in the complaint filed by the first respondent. The petitioner had unnecessarily made the second respondent as party, who is unconnected to this case.
25. With the above said observation, this criminal original petition is dismissed.