Lal Singh and Ors. vs Khem Chand

These proceedings have been preferred by the petitioners Lal Singh and others with regard to the quashing of the proceedings to have been

taken against them by the learned Sub Judge Judicial Magistrate, Reasi, whereby, on a complaint to have been instituted by one Khem Raj ""berein

after referred to as the complainant"" against the petitioners ""hereinafter referred to as the accused"" were ordered to cause their appearance for

facing the proceedings U/S 427 RFC with regard to which, cognizance was taken by the said Magistrate.

After the accused appeared before the learned trial Magistrate, an application was moved before him by the accused to the effect that the

accused No. 1 who was the Executive Officer of the Notified Area Committee was legally authorised to demolish any construction, raised in

violation of the provision of Municipal Act, and any action taken by him in that regard was made by him in the discharge of his official duties, and

the same could not become the subject matter of criminal complaint and he could not be prosecuted without the leave of the State Government.

The application was also dismissed by the learned Magistrate holding that accused No. 1 was not competent to enter upon the property of the

complainant, and he could not demolish the const ruction of the complainant without observing the procedure as laid down under law.

Aggrieved of the said order, and the order of process to have been issued by the said Magistrate, these proceedings have been initiated on the

ground that the order of learned trial Magistrate in having issued the process and refusing to withdraw the same, and also having held that no

sanction of the Government was necessary, is violative of the provisions of law and the same, therefore, requires to be quashed. That the accused

No. 1 is an executive Officer appointed by the Government and the accused No. 2 is an Assistant Engineer, which fact is certified by the Executive

Engineer, R&B, Reasi. Accused No. 3 is a Naib Tehsildar with the powers of First Class Magistrate. All the three officers are Gazetted Officers

and the other officials have also been appointed by the Government. That the trial Magistrate has misled himself by misconstruing the provisions of

law to believe that, although, the accused have been appointed by the Government, but it could not be presumed that they could be removed by

the latter only. He has misunderstood the provisions contained in Section 197 of the Cr. P.C. and in order to see whether the order of the

magistrate was barred by Section 197 of the Cr. P.C. he had to see that the public officer against whom accusation was made, was removable

from office by the Government only.

Even if, it is presumed that such an officer is not removable by the Government, but is removable by some other authority working under the

Government, even then, the sanction for prosecution of such public officer is required. That the land upon which the offence is alleged to have been

committed by the accused, has since been acquired by the Public Works Department for the benefit of Notified Area Committee, Katra, and the

said land was earmarked for construction of bus stand It is from the date of the notification U/S 4 of the Land Acquisition Act read with

subsequent notification, and not from the date of the award that the land will be deemed to have been acquired. The learned Magistrate seems to

have allowed himself to be influenced by the most irrelevant consideration, as is apparent from his observation made in the order that the question

relating to the propriety of the acquisition proceedings is yet to be decided. It was also extended that from the conduct of the Judicial Magistrate,

Reasi, a bonafide impression was drawn that they would not get justice from him, for the accused were not dispensed with from their personal

appearance and were humiliated on every hearing, in the open court. It was, therefore, prayed that the order of the Judicial Magistrate^ Reasi,

dated : 25.2.19&8 as also the complaint titled Khem Raj vs. Shri Lal Singh and other quashed, or in the event of this court coming to the

conclusion that such complaint cannot be quashed, the same may kindly be transferred to any other court or competent jurisdiction at Jammu.

Heard learned counsel for the parties; also had a thoughtful consideration over the record on the file.

It is an admitted case of the parties that the accused No. I La! Singh, who happened to be the Executive Officer of Notified Area Committee,

Katra, without observing the procedure as laid down under the J&K Municipal Act, demolished some khokhas at Katra in connection with the

extension of Bus stand at Katra, which, according to the complainant, belonged to him and the same were dismantled with out the procedure

having been followed by the said Executive Officer. These khokhas were constructed by the complainant without having sought any permission

from the Notified Area Committee, and the same, as per the contents of the complaint, constructed by him some 4/5 months back, before these

were demolished by the Administrator and the other accused. According to the complainant, his whole furniture, refrigerator and other articles

were thrown out, as a result of which, a great toss was caused to him, which is valued at rupees one lakh.

No doubt, the Executive Officer has proceeded in the matter without a notice having been issued to the complainant, as is contem plated under

the provisions of the J&K Municipal Act, and dismantled the said khokhas, which be could otherwise dismantle, for the same were constructed by

the complainant without a permission to have been granted by the competent authority. The Executive Officer should have been very much

cautious in issuing a notice to the complainant in the first instance, but in promptness of the circumstances of the case, he dismantled such khokhas

without having followed the procedure laid down under law.

It is a well settled principle of law that where any injury is compensable by payment of money, the matter should be got settled by the civil

proceedings and no criminal prosecution should be launched, unless the circumstances of the case, so warrant, and a great physical or bodily injury

has been caused to any person, who can claim both for compensation and criminal prosecution of the person, at whose hands he has met with such

a civil and criminal injury

In the case on hand, the complaint simply in nutshell relates that a civil wrong has been caused to the complainant that his property has been

destroyed, as a result of which, a loss has been caused to him in the amount of rupees one lakh. No doubt, the accused No. 1 has done such an

act in the discharge of his public duty, that he has dismantled the khokhas to have been constructed illegally by the comp lainant, and, for that, the

complainant could be compensated by wav of money, by having instituted a suit against the State for grant of compensation against such a civil

injury to have been caused to him at the hands of accused No. 1, who worked as an officer under the authority of the State.

Once, it is observed that he (the accused No. 1) while functioning as a Government servant at the relevant point of time has done something in

the discharge of his public duty, therefore, the sanction of the Government for his prosecution was a must, as is contemplated U/S 197 of the Cr.

P.C.

It has not been shown as to what part has been placed by the other accused, with respect to the demolition of such khokhas illegally possessed

and occupied by the complainant at the relevant point of time, and the fact that they being the Government servants, were present at time the

khokhas were dismantled, does not constitute any offence to have been committed by them, as it has not been specific part in the commission of

the act, was played by each of the accused. Therefore, the doctrine of sever ability comes in.

It was the duty of the complainant to show that as to what part was played by each of them (accused). As that has not been done, therefore, I

fee), that the learned trial Magistrate has fallen in factual and legal error in issuing process against all the accused, who, in no way, were connected

with the commission of the crime. If hundered people were engaged in the demolition of such khokhas, it was under the direction of accused No.

who being the Executive Officer, had ordered for demolition of such khokhas by such hundred people, whose names do not figure in the

complaint. The complainant in order to harass all the Government servants posted at Katra, has involved them in the commission of the crime,

when excepting accused No. 1, none of them was involved in the demolition of the khokhas, and no part was played by them in such an action.

Shri Gian Chand Khajuria, who was the Naib Tehsildar at the relevant point of time, being the Magistrate of spot, was supposed to be present

on the spot, to see that no law and order problem could take place in view of the fact that the Executive Officer/accused No. 1 had ordered for

the demolition of the said khokhas. If other officers by chance were present on the spot, that does not mean that they played any part in the

demolition of the property/khokhas. Accused No. 1 is a Gazetted officer, and no prosecution could be launched against him unless the sanction as

contemplated U/S 197 of the Cr. P.C. was obtained from the Government.

The learned trail Magistrate has fallen into error to say that the acquisition proceedings were pending disposal before the District Judge and,

therefore, the Notified Area Committee Was not competent to hold that they were holding the possession over the property, upon which such

khokhas had been constructed by the complainant illegally.

Assuming but not presuming, that the property upon which such khokhas were in existence belonged to the complainant, and that does not

mean that no sanction was required for the prosecution of the accused, because such an act was done by the accused No. 1 in discharge of his

public duties, although, without observing the procedure as laid down under the J&K. Municipal Act. At best, the complainant could lodge a civil

proceeding against him and ask for compensation for such khokhas were dismantled by the accused No. 1 without following the procedure laid

down under the J&K Municipal Act, and, in this regard, I am told, that the civil proceedings filed in this regard before the High Court have been

finally disposed of, and also a writ petition preferred by the complainant has been disposed of against the complainant.

It is a well settled principle of law that where the same issue arise for decision in the civil suit and in the criminal proceeding between the same

parties, and there is involvement of some complicated question of fact and mixed questions of fact and law, the proper forum will be the civil court.

In the matter in question, the civil suit already filed before the High Court has come to close, and a writ petition filed in that regard has been

dismissed. It shows that the matter has been disposed of by a competent court of law finally, and in these circumstances of the case as well, I feel

that these proceedings did not require any cognizance by a criminal court of law, as from a perusal of the complaint, the ingredients of the offence

are not apparent. In absence of the ingredients of the offence appearing from the complaint, the criminal proceeding is liable to be quashed.

It was argued by the learned counsel for the complainant that the accused No. 1 in performing the duties of ad Executive Officer was not

supposed to conduct in such a manner, which would result in the demolition of the property of the complainant without a notice having been given

to him, as contemplated under the provisions of J&K Municipal Act. In this regard, he has made reference to AIR; 1987; 4 Supreme Court cases;

page 663. In that case, the Hon'ble Supreme Court had found that the sanction Under Sections 196 and 197 of the Cr. P. C. was not required, for

the Police officer had caused grievous injuries and death of a person, in conducting raid and search and bad discharged his duty while exceeding

his limits of official duty. Therefore, it was held that the cognizance of the offence could be taken by the Court without the sanction for prosecution

of the accused officer, to have been sought by the complainant from the Government.

In the case on hand, the matter is not of such a consequence, but it simply relates to some Khokhas illegally constructed by the accused No. 1

in promptness, without having followed the procedure as laid down under the J&K. Municipal Act, and be has not inany way caused any bodily

injury to the complainant, and, thereby, in the discharge of his official duties, has exceeded his powers as a public servant. He has, no doubt, by the

discharge of his official duties, caused loss to the complainant, which is compensable in terms of money, and such a matter can only be decided by

a civil court of law.

In view of the above discussion, in exercise of the inherent powers Under Section 561 of the Code of Criminal Procedure, the criminal

proceedings instituted against the accused in the Court of learned Sub Judge Judicial Magistrate, Reasi, by way a complaint, including the

impugned order dated : 25.2.1989 passed by him upon such proceedings, are quashed, and the complaint is ordered to be consigned to the

records. The petition file be consigned to records.