Ghanshyam Gupta vs State of Rajasthan and Others

Prashant Kumar Agarwal, J.

Heard learned counsel for the parties.

The accused-petitioner has filed this criminal misc. petition under Section 482 Cr.P.C. against the order dated 24.3.2011 passed by the Additional Sessions Judge (Fast Track) No. 2, Karauli in Criminal Revision Petition No. 24/2010 whereby the learned Revisional Court by dismissing the revision petition filed by the petitioner upheld and affirmed the order dated 29.10.2009 passed by the Additional Judicial Magistrate, Karauli in Criminal Case No. 229/2009 whereby the learned trial Court took cognizance against the petitioner and co-accused for the offence under Section 427 IPC.

Brief relevant facts for the disposal of this petition are that complainant-respondent filed a complaint for the offence under Section 427 IPC against the petitioner, who at the relevant time was posted as Tehsildar, and one Shri Choturam Gurjar, the then SDO, Karauli with the averment that for the purpose of construction of his residential house the complainant purchased 52 stone slabs on 19.2.2009 and transported the same by a truck bearing Registration No. RJ-29-1060 to his village, but due to bad condition of the road he could not take the stone slabs to his house and they were unloaded near a school. It was further averred that on 27.2.2009 the petitioner and co-accused alongwith other 10 to 12 persons came at the place of incident at 3:00 pm with a JCB machine and with an intention to cause loss to the complainant destroyed the stone slabs of the complainant. It was further averred that a loss of Rs. 20,800/- was caused to him. In support of the complaint, statement of the complainant under Section 200 Cr.P.C. and his two witnesses under Section 202 Cr.P.C. were recorded by the trial Court and vide order dated 29.10.2009 cognizance was taken, which was challenged by the petitioner by way of the aforesaid revision but without any success.

It was submitted by the learned counsel for the petitioner that it is an admitted fact that at the relevant time the petitioner was posted as Tehsildar, Karauli and even according to the complainant the stone slabs were unloaded by him on public way near a school. It was further submitted that the petitioner at the time of commission of the alleged offence was working in the capacity of a public servant removable only by the sanction of the State Government and the alleged offence was committed by him while acting or purporting to act in discharge of his official duty as a public servant and, therefore, as per Section 197 Cr.P.C. cognizance could not have been taken against him except with the previous sanction of the State Government and, therefore, cognizance taken against the petitioner is bad in law, as it is an admitted fact that no such sanction was obtained from the State Government to prosecute the petitioner. It was further submitted that provisions of Section 197 Cr.P.C. are mandatory in nature and in absence of a valid sanction, the order of cognizance is void ab-initio and is liable to be quashed and set aside. It was also submitted that the petitioner was having authority to remove the encroachment made by the complainant on a public way under order dated 10.2.2009 passed in Case No. 34/2009 and in respect of the removal of the said encroachment, a ''Fard'' report was also prepared on 27.2.2009. It was further submitted that there are/material contradictions with regard to the date on which the encroachment made by the complainant was removed and the manner in which it was done in the complaint filed by the respondent and the statements recorded under Sections 200 and 202 Cr.P.C. It was brought to the knowledge of the Court that as per the averment made in the complaint, the encroachment was removed by the petitioner and co-accused on 27.2.2009, whereas the respondent in his accused on 27.2.2009, whereas the respondent in his statement recorded under Section 200 Cr.P.C. in a very specific manner has alleged that the encroachment was removed on 29.2.2009.

On the other hand, it was submitted by the learned counsel for the complainant-respondent that although cognizance cannot be taken against a public servant for an offence committed by him in discharge of his official duty without previous sanction under Section 197 Cr.P.C. but in the present case no material has been produced by the petitioner even prima facie showing that he was authorised to remove the alleged encroachment made by the respondent on the public way and in absence thereof it cannot be said that cognizance is bad in law. It was further submitted that provisions of Section 197 Cr.P.C. cannot be made applicable at this stage of the proceedings merely by the reason that at the relevant time the petitioner was posted as Tehsildar, Karauli. It was also submitted that the order dated 10.2.2009, which was passed by the petitioner himself under Section 91 of the Rajasthan Land Revenue Act, clearly shows that it was passed against one Shri Ram Khiladi by the reason that he encroached upon a government land and cultivated the crop of wheat and mustard without any legal authority. It has not been explained on behalf of the petitioner how the petitioner was empowered under this order to remove the said encroachment made by the respondent. Similarly, the ''Fard'' dated 27.2.2009 on which reliance has been placed by the petitioner clearly shows that the encroachment made by Shri Ram Khiladi was removed in compliance of the aforesaid order dated 10.2.2009. It was submitted that so far as the other ground taken by the petitioner is concerned, the same can be considered during trial and not at this preliminary stage of the proceedings while considering the order of cognizance.

I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions and the case law.

The relevant part of Section 197 Cr.P.C. provides that when any person, who is a public servant, not removable from his office save by or with the sanction of the State Government is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the State Government if such public servant at the time of commission of the alleged offence was employed in connection with the affairs of such government.

Thus, it is clear that for the applicability of the aforesaid provision it is to be seen that at the time of commission of the alleged offence the public servant was acting or purporting to act in the discharge of his official duty. In the present case, it is not disputed that at the relevant time the petitioner was posted as Tehsildar, Karauli but no reliable material has been produced on behalf of the petitioner showing even prima facie that he was authorised/empowered at the relevant time to remove the encroachment made by the respondent on the public way. It is an admitted fact that no prior notice was issued to complainant. The documents relied upon by the petitioner in support of his submissions are of no help to him at least at this stage of the proceedings. The order dated 10.2.2009 appears to be passed by the petitioner himself under Section 91 of the Rajasthan Land Revenue Act in Case No. 34/2009. As per this order, a decision was taken by the petitioner in the capacity of Tehsildar, Karauli to remove the encroachment made by one Shri Ram Khiladi on Pasture land situated at village Patoli as he trespassed on this land without any authority and cultivated crop of wheat and mustard. It is behind imagination how the petitioner acting as a Tehsildar got authority under this order even to remove the encroachment made by the respondent. Similarly, from ''Fard'' dated 27.2.2009, it is further clear that encroachment so made by Shri Ram Khiladi on Pasture land bearing Khasra No. 822 was removed in compliance of the aforesaid order. This document is also of no help to the petitioner. No other document has been filed by the petitioner in support of his submissions that he removed the encroachment made by the respondent on the public way in discharge of his official duty as a public servant and, therefore, the order under challenge cannot be said to be bad in law in absence of prosecution sanction as required under Section 197 Cr.P.C.

So far as other grounds taken by the petitioner are concerned, they relate to the merit of the case. Merely because there is contradiction with regard to the date on which the incident occurred or the manner in which the encroachment was removed or the stone slabs were destroyed, the order under challenge cannot be held to be illegal or improper at this stage of the proceedings.

Consequently, the misc. petition being meritless is, hereby, dismissed.