Rajasthan High Court - Jodhpur
Rajendra Kumar vs State & Ors on 23 January, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CRL. MISC. PETITION NO. 1224/2009 Rajendra Kumar Vs. State & Ors.
Date of order : 23.1.2013 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. N.K.Rastogi, for the petitioner.
Mr. M.A.Bhurat, P.P. Mr. Tribhuvan Gupta, for the respondents.
REPORTABLE <><><> The instant miscellaneous petition has been filed by the petitioner complainant against the order dated 8.5.2006 passed by the learned Judicial Magistrate No.1, Bhilwara in complaint case no. 23/2004 whereby the lerned Magistrate rejected the complaint filed by the petitioner by holding that the accused were protected by Section 197 Cr.P.C. and the order dated 10.12.2008 passed by the learned Addl. Sessions Judge (F.T) No. 1, Bhilwara whereby the petitioner's revision against such rejection has been dismissed.
Learned counsel for the petitioner contends that the petitioner filed a complaint with a specific allegation that his property is located in the village Gram Panchayat Aatun and the respondents who are all employees of the Municipal Council, Bhilwara illegally came to his property and damaged the boundary wall after trespassing into the property causing a loss worth more than Rs. 40,000/- to the petitioner. Learned counsel submits that the petitioner filed the complaint mentioning by way of abundant caution that if sanction of State Government is required the same may be obtained while as a matter of fact no sanction was required for prosecuting the respondents as the act done by them was not committed in the discharge of official duties. Learned counsel submits that admittedly the property of the petitioner was located in the Gram Panchayat Aatun and the demolition thereof was carried out by the employees of the Municipal Council, Bhilwara. Thus, he submits that the act complained of could not be said to be an act done in the discharge of official duties of the accused, and therefore, the orders passed by the learned courts below deserve to be quashed and the learned Magistrate should be directed to proceed against the respondents.
Per contra learned counsel for the respondents submits that the complainant himself mentioned in his complaint that if the sanction is required, the sanction for prosecution of the accused may be procured. He submits that from the documents of the complainant itself, it is apparent that the property was located in the territory of Municipal Council, Bhilwara and thus the respondents rightly exercised jurisdiction in the case for demolishing the encroachment. He thus prays that the learned Magistrate has committed no error in rejecting the petitioner's complaint.
Heard and considered the arguments advanced at the bar. Perused the record.
The complainant in his complaint has specifically come out with a case that his property was demolished without following due process of law. The complainant has specifically averred that the property is located in Gram Panchayat, Aatun and the accused who were allegedly acting as being authorised in this behalf on behalf of the Municipality, Bhilwara had no right to enter into the property and demolished the same. The learned Magistrate has dismissed the complaint holding that the protection of sanction was available to the respondents.
However, in the opinion of this Court such a conclusion was not based on any material available on the record of the complaint. For the purpose of protection of sanction to be extended to a public servant under Section 197 Cr.P.C. or a like provision, there has to be material on record to show that the public servant complained of, performed the offending act while discharging his official duty. Whether or not the demolition of the petitioner's property was carried in the discharge of official duty assigned to the respondents has to be proved by bringing material on record. At the stage when the summoning of the accused was being considered there was no material with the Magistrate so as to have reached to such a conclusion. Therefore, it would have been proper for the learned Magistrate to have directed enquiry by police under Section 202 Cr.P.C. before proceeding to the stage u/s. 203/204 Cr.P.C. An enquiry under Section 202 Cr.P.C. could have made the things crystal clear as the police would be in a better position to collect the material for bringing all the material facts on record.
In view of the aforesaid discussion, this Court is of the opinion that the order passed by the learned Magistrate dismissing the petitioner's complaint is patently illegal and amounts to abuse of the process of the Court.
Accordingly, the miscellaneous petition succeeds. The impugned orders dated 10.12.2008 passed by the learned Addl. Sessions Judge (F.T.) No., Bhilwara and the order dated 8.5.2006 passed by the learned Judicial Magistrate No.1, Bhilwara are quashed. The learned Magistrate is directed to have an inquiry conducted by the police under Section 202 Cr.P.C. and thereafter upon receiving the enquiry report he shall pass a fresh order on complaint after providing an opportunity of hearing to the complainant.
While parting with the matter this Court is of the opinion that the criminal courts are being faced with numerous complaints involving allegations regarding the official acts of the public servants which are claimed to be falling in the definition of offences. Such public servants are protected by the umbrella of sanction under Section 197 Cr.P.C. or under the like provisions. The Hon'ble Apex Court in the case of "Costao Fernandes v. State at the instance of D.S.P. C.B.I. Bombay" reported in AIR 1996 S. C.1383 = 1996 AIR SCW 992 and numerous other decisions has time and again held that the public servants who are acting in the bonafide discharge of duties should not be subjected to frivolous prosecutions.
In cases wherein the matter is reported or sent to the police either under Section 154 Cr.P.C. or under Section 156(3) Cr. P.C., it is expected that the police would collect all the relevant material so that the Court can apply its mind as to whether it should proceed further in the matter or not?
But on the other hand the law in regard to the consideration of a complaint at the stage of summoning is also very clear that the Court is only supposed to apply its mind to the facts mentioned by the complainant in his complaint and the evidence led in support thereof. When a complainant files a complaint under Section 190 Cr.P.C., he would be having the ambition to have his complaint carried through for the purpose of prosecuting the person against whom the complaint is filed. In such circumstances, where the complaint is filed against a public servant, it would be futile to expect the complainant to place on record all the facts before the Court so that it can examine the matter with the angle as to whether the protection of an umbrella of sanction should be granted to the public servant involved. This more often then not leads to cognizance being taken and process being issued against the public servants for facing trial without the court being made aware of the other side of the coin.
Thereafter the public servant concerned is made to run from pillar to post for establishing that he ought to have been prosecuted in the case because he was bonafide discharging his official duties when the incident took place and that he cannot be prosecuted without prosecution sanction.
For a pragmatic approach to the whole situation so that complaints are not thrown out unnecessarily and also that the public servants are not prosecuted needlessly, a mechanism has to be adopted for ensuring that all the relevant facts are brought on record of the Court in such cases before summoning of accused can be considered.
Thus, this Court whilst exercising its supervisory powers over the Courts of the judicial Magistrates and for ensuring proper disposal of cases, exercising the powers enshrined in the Court under Section 483 Cr.P.C. is of the opinion that a direction needs to be issued to all the Magistrates in the State that whenever the Court is dealing with any complaint under Chapter XV Cr.P.C. which has been filed against public servant/servants, the Court shall generally resort to an inquiry/investigation under sub-section (1) of Section 202 of the Cr.P.C. so that the complete factual material/scenario in relation to the act alleged can be collected and brought on record for the consideration thereof by the concerned Magistrate for proceeding further under Sections 203/204 Cr.P.C.
In this view of the matter, the following direction is issued to all the Magistrates in the State of Rajasthan Court exercising supervisory powers of this Court under Section 483 Cr.P.C.:-
"whenever any complaint received by the Court under Section 190(1)(a) Cr.P.C. is being proceeded with by the Court under Chapter XV of the Cr.P.C. i.e. under the provisions of Section 200 and 202 Cr.P.C. against public servant/servants wherein the allegations give rise to a reasonable belief that the same may have been filed in relation to an act committed by the public servant in the discharge/purported discharge of official duty, the Court shall generally resort to an inquiry/investigation by the police under Section 202 Cr.P.C. before proceeding further in the matter."
Copy of this order be sent to all the Sessions Judges in the State for onward circulation.
(SANDEEP MEHTA), J.
/Sushil/