Karnataka High Court
Ashok S/O Channabasayya Mathad vs Maktumhussainsab S/O Abdulghaparsab ... on 16 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.100409/2015
BETWEEN:
1. ASHOK, S/O CHANNABASAYYA MATHAD,
AGE 55 YEARS, OCC: GOVERNMENT SERVANT,
TOWN MUNICIPAL COUNCIL, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD.
2. NAVEEN HULLOR,
AGE 50 YEARS, OCC: GOVERNMENT SERVANT,
MINI VIDHAN SOUDHA, NAVALGUND
TQ. NAVALGUND, DIST. DHARWAD.
3. N. SELVAMANI
AGE 30 YEARS, OCC: GOVERNMENT SERVANT,
TOWN MUNICIPAL COUNCIL, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD.
NOW AT DEPUTY COMMISSIONER OFFICE,
DHARWAD.
4. VEERENDRASINGH P. KAATEWAL
AGE 45 YEARS, OCC: GOVERNMENT SERVANT,
TOWN MUNICIPAL COUNCIL, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD.
5. K.V. SOPPADLA,
AGE 35 YEARS, OCC: GOVERNMENT SERVANT,
TOWN MUNICIPAL COUNCIL, NAVALGUND,
Crl.P. No. 100409/2015
2
TQ. NAVALGUND, DIST. DHARWAD.
6. GADIGEPPA B. MALLADASAR
AGE 35 YEARS, OCC: GOVERNMENT SERVANT
TOWN MUNICIPAL COUNCIL, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD.
7. PURADAPPA R. PUTANI
AGE 51 YEARS, OCC: GOVERNMENT SERVANT
TOWN MUNICIPAL COUNCIL, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD.
8. SIDDALINGAYYA ANGADI
AGE 35 YEAS, OCC: GOVERNMENT SERVANT,
TOWN MUNICIPAL COUNCIL, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD.
.. PETITIONERS
(BY SRI. JAGADISH PATIL, ADV.)
AND:
1. MAKTUMHUSSAINSAB
S/O ABDULGHAPARSAB NADAF
AGE 42 YEARS, OCC: BUSINESS,
R/O NAVALGUND, TQ. NAVALGUND,
DIST. DHARWAD.
2. CHAANDABI,
W/O ABDULGHAPARSAB NADAF
AGE 58 YEARS, OCC: HOUSEHOLD WORK,
R/O NAVALGUND, TQ. NAVALGUND, DIST. DHARWAD.
.. RESPONDENTS
(BY SRI. NEELENDRA D. GUNDE, ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE
PROCEEDINGS IN CONNECTION WITH C.C. NO.20/2015
Crl.P. No. 100409/2015
3
(PRIVATE COMPLAINT NO.49/2014) FOR THE OFFENCES
PUNISHABLE UNDER SECTION 504, 506, 143, 147, 148, 323
AND 427 READ WITH 149 OF IPC AGAINST THE
PETITIONERS, PENDING ON THE FILE OF THE CIVIL JUDGE
AND JMFC COURT, NAVALGUND.
THIS CRIMINAL PETITION COMING ON FOR HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners, who claim themselves as the Government servants, have sought for quashing of Private Complaint bearing No.49/2014, which is now pending in CC No.20/2015 on the file of the leaned Civil Judge and JMFC Court, Navalgund, for the offence punishable under Sections 504, 506, 143, 147, 148, 323 and 427 read with Section 149 of the Indian Penal Code (hereinafter for brevity referred to as 'IPC').
2. The present respondent No.1 is the complainant in the said complaint. The contention of the complainant is that the disputed property bearing Plot No.10 in property bearing CTS No.164 is under their Crl.P. No. 100409/2015 4 ownership purchased by the present-respondent No.2, wherein, after obtaining necessary permission and sanction from the competent authorities, they have put up a house along with compound wall and residing there peacefully. That being the case, on 11.12.2014, the respondents, including a probationary IAS-then working as Probationary Tahsildar of Navalgund taluk, the Tahsildar of Navalgund taluk and several other officials of Town Municipality, Navalgund, according to the complainant, all those ten officials came near their house along with the instruments, without hearing them, demolished the compound wall alleging illegal encroachment of public premises by the complainant. It is also the further contention of the complainant that, in that regard, original suit had been filed by the complainant against the Chief Officer of Pattan Panchayat, Navalgund, for the relief of permanent injunction, which though was dismissed, but Crl.P. No. 100409/2015 5 the Court has come to a clear finding that the plaintiff is the owner in lawful possession of the suit schedule property. The said complaint was registered and cognizance was taken for the offence punishable under Sections 143, 149, 150, 166, 323, 447, 504 and 506 read with Section 34 of IPC.
3. Learned counsel from both side are physically present in the Court.
4. Heard arguments from both side. Perused the material placed before this Court.
5. Learned counsel for the petitioners in his arguments submitted that the petitioners herein are the Government Servants and they have discharged their official function when they have noticed illegal encroachment of the public property by the complainant. He also submitted that the Original Suit filed by the complainant had stood dismissed. A mere finding therein that the plaintiff is in lawful possession of the Crl.P. No. 100409/2015 6 property does not mean that the compound wall put up by them is an authorized one. He gave more emphasis on the aspect that, admittedly, no sanction has been obtained by the complainant before instituting the private complaint in the trial Court. In his support, he relies upon a judgment of the Hon'ble Apex Court in D.Devaraja v. Owais Sabeer Hussain in Criminal Appeal No.458/2020 disposed of on 18.06.2020.
6. Learned counsel for the respondents in his argument submitted that even though the Original Suit filed by the plaintiff was dismissed but the court on Issue No.1 has clearly given a finding that the plaintiff is in lawful possession of the suit schedule property. That being the case, the accused had no right or manner to illegally demolish the compound wall. As such, the complainant was constrained to file a complaint against them. He further submitted that the trial Court has rightly observed that the act of the accused since does Crl.P. No. 100409/2015 7 not fall within the meaning of 'they discharging their official duty', the requirement of sanction was also not necessary.
7. A perusal of the order sheet would go to show that the respondents herein claim that they are the owners of the Plot bearing No.10 in property bearing CTS No.164 within the limits of Town Municipality, Navalgund. It is not in dispute that a residential building along with compound wall surrounding the building was put up and the respondents are residing in the said premises. It is also not in dispute that the Chief Officer of Navalgund, issued a notice to the complainant on 08.02.2006 directing them to remove all alleged encroachment said to have been made by them. It is also not in dispute that in the same year, i.e. 2006, the complainant had filed a suit bearing O.S. No.17/2006 in the Court of the learned Civil Judge and JMFC, Navalgund, against the Chief Officer, Pattan Panchayat Crl.P. No. 100409/2015 8 of Navalgund, for the relief of permanent injunction and the said suit by the judgment of the said Court dated 24.11.2014 came to be dismissed. Further, it is also not in dispute that on 11.12.2014, the Chief Officer, Navalgund Town Municipality, directed the concerned officials of the Town Municipality to remove the encroachment said to have been made by the complainant in the property. On 16.12.2014, the complainant are said to have made a communication to the Chief Officer, Navalgund Town Municipality, objecting for removal of the alleged encroachment. Within two days thereafter, on 18.12.2014, the complainant has filed a private complaint in the trial Court as noticed above.
8. The chronological details and the events go to show that since 2005, the Town Municipality, Navalgund has been alleging that the complainant has encroached some portion of the public property belonging to the Crl.P. No. 100409/2015 9 Town Municipality, Navalgund, and has put up an illegal compound structure thereupon. The complainant has admittedly filed a civil suit for the relief of permanent injunction in O.S. No.17/2006. Though the said suit came to be dismissed, however, the court in the said suit has given a finding on issue No.1 holding that the plaintiff before it, who is respondent No.2 herein, is in lawful possession of the suit schedule property. There is no mentioning from either side that any appeal has been preferred challenging the said judgment. As such, the said judgment in O.S.No.17/2006 has to be taken as having reached its finality. But the major allegation of the complainant in the private complaint under consideration is about the alleged demolition of the compound wall by the accused including the present petitioners on the alleged date of the incident which was on 11.12.2014.
Crl.P. No. 100409/201510
A copy of the official order, which is said to have put the petitioners in action for the alleged act of demolition, is produced by the petitioners at Annexure-D to the present petition, bearing No.PUSANA/SIBBANDI/2014-15, where the Chief Officer of the said Municipality, Navalgund, has directed the concerned officers of the Municipality including the Assistant Engineer and other staff for the demolition of the compound wall said to have been illegally put up by the respondents herein. It is in the process of the execution of the said order, the petitioners are said to have committed the alleged act. Therefore, the only question that remains is whether the said act alleged to have been committed by the petitioners, can be prima facie, said to be an act out side their official duty not calling for any sanction which is required under Section 197 of the Cr.P.C.
Crl.P. No. 100409/201511
9. The Hon'ble Apex Court in D.Devaraja case (supra) at paragraphs 69 and 72 of its judgment was pleased to observe as below:
" 69. Every Offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.
70. & 71. xxxxxxxx
72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority."
10. A reading of the analysis about Section 197 of Cr.P.C. made by the Hon'ble Apex Court as above Crl.P. No. 100409/2015 12 would clearly goes to show that when prima facie it can be opined that the alleged act was performed as a part of their official duty or even, if the act, if it is shown to be done in discharging of his official duty or even if it is an act done under the colour of or in excess of such duty or authority, then obtaining sanction under Section 197 of Cr.P.C. is necessary.
11. In the instant case, the document at Annexure-D produced by the petitioners clearly goes to show that the when the petitioners are alleged to have proceeded to the plot and alleged to have committed certain acts, the same was backed by the Office Order issued by the Chief Officer of Municipality, Navalgund, who has specifically directed the officials to remove the structure of the compound wall put illegally by respondent No.2. Therefore, it cannot be held, at this stage, that the alleged act committed by the petitioners was out side their official duty or it had got no nexus Crl.P. No. 100409/2015 13 with their official duty. This aspect was totally ignored by the trial Court which merely carried away with the finding given on Issue No.1 in O.S. No.17/2006 and jumped to a conclusion that the act committed by the petitioners would not fall in the garb of they discharging their official duty. Since the said finding now proved to be an erroneous finding, it is clear that the plaintiff was required to obtain sanction for instituting a complaint which the plaintiff has not done. Further, till date, the complainant has neither obtained any sanction nor shown any inclination to obtain the sanction. On the other hand, since it is their contention that obtaining sanction is absolutely not necessary and since the same is now proved to be incorrect, the petition succeeds. Accordingly, I proceed to pass the following order.
ORDER The Criminal Petition is allowed. PC No.49/2014 which is now said to have been culminated in C.C. Crl.P. No. 100409/2015 14 No.20/2015 said to be pending in the Court of learned Civil Judge and JMFC Court, Navalgund, for the offence under Sections 504, 506, 143, 147, 148, 323 and 427 read with Section 149 of IPC, stands quashed.
Sd/-
JUDGE kmv