Naresh Kumar Verma vs Shiv Ram

Heard learned counsel for respondents who is present and with his assistance record has also been examined.

Brief facts giving rise to this case art: that a case was filed by respondents before Trial Magistrate alleging that Shri Shiv Rain respondent is the

owner of the land measuring 14 kanals 5 marlas, situated in village SujmatnaHassanBass Tehsil Banihal District Doda. Petitioner No. 2 to 4 are his

sons and petitioner No. 5 and 6 are his daughtersinlaw. Further case of the respondents as set up in the complaint is that government wanted to

construct PWD Shelter Shed for the benefits of the passengers, drivers and conductothers With a view to achieve this object Naih Tehsildar,

Ramsu called Shiv Ram respondent directing him to appear before the petitioner who was the then Additional Dy. Commissioner, Ramban on 12th

October. 1995

Petitioner thereafter is stated to have asked respondent no. 1 to part with the land in question to the government so as to enable it to construct

Shelter Shed. To this demand Shiv Ram did not agree. Petitioner is alleged to have threatened that there is no question of payment of any

compensation and further nobody can stop him (petitioner) from constructing shelter shed in question.

With a view to carry out aforesaid threat, possession of land was forcibly taken. Petitioner is further alleged to have handed over the

construction of Shelter Shed to one Gulam Nazar son of Shri Khajar Najar resident of Banihal. He is alleged to have reached at the spot with his

labour on 18th October, 1999 and asked his labourers to start work of putting up Shelter Shed. This was objected to by the respondents no. 3 to

5 as well as by late respondent no. 2. This Gulam Nazar is stated to have informed all of them that he has been authorised to carry out the

construction activity by the petitioner. At this point of time, petitioner alongwith his police bodyguards also came at the spot when the incident is

alleged to have been taken place.

Trial court after recording the preliminary evidence and after being satisfied has ordered summoning of the petitioner. When his presence could

not be procured, nonbailable warrant appears to have been issued by the trial court, it was ordered to be returned unexecuted as per orders of the

learned Additional Sessions Judge, Ramban passed on 19th June, 1997.

Main thrust of the plea urged in the petition is that complaint could not have been initiated for want of sanction under section 197 Cr. P.C. and

alternatively trial court did not have the jurisdiction to have issued process under Section 436 R.P.C. Therefore, complaint was liable to be

quashed by allowing present petition, Shri Thakur learned counsel for respondents has forcefully urged that it was no part of the official duty of the

petitioner to have committed criminal acts for which the complaint was filed and secondly process issued by the trial court is not under Section

436, but is under Section 436A RPC, besides other offences under RPC for which the petitioner has been summoned.

It hardly needs to be clarified that in case alleged acts of the petitioner falls within the ambit of his authority that he was exercising in the

discharge of his official duty, obtaining of sanction under Section 197 Cr. P.C. is imperative and unless it is there. He could not have been

prosecuted. There can hardly be any dispute for this legal proposition. But then question that arises in the present case is whether acts attributed to

the petitioner can by any stretch of imagination be termed to have been committed by him while acting or in purported discharge of his official duty.

Answer would be no reason being that it is no part of the official duty of any government servant like petitioner to have either threatened and or to

have tresspassed over the property of the private individuals and thereafter, commit certain other alleged acts and is evident in the complaint and

preliminary evidence recorded before the trial court before he was ordered to be summoned See AIR 1973 SC 2591, Pukhraj, Appellant vs.

State of Rajasthan and Another, and AIR 1948 PC 128 HHB Gill and Another, Appellant vs. The King.

In the face of the above discussion plea based on S. 197 Cr. P.C. of hereby negatived

So far plea of the trial court having resued process under Section 436 RPC concerned, it is factually incorrect in the face summoning order by

the trial court on 27th October, 1995. Therefore, this plea does not holdgood.

For the aforesaid reasons this petition for quashing proceedings is hereby dismissed being without any merit at this stage. It is however,

clarified that petitioner shall be at liberty to approach the trial court by making our proper case for dropping proceedings against him in accordance

with law. In such a case dismissal of this petition under Section 561A Cr. P.C. will not come in the way of the trial court to independently examine

the case and then decide the same in accordance with law as also without being any manner influenced by any of the observations made in this

order. Record of the case of here, it is ordered to be transmitted to the trial court so as to reach before the said court on or before 11th March,

2000 when respondents shall appear before the trial court.

Registry is directed to intimate Sh. C.M. Sharma Advocate for the next date before trial court which will be sufficient notice to the petitioner, it

is clarified that if despite this intimation petitioner fails to appear before trial court on the date fixed or thereafter he will be taken into custody during

the pendency of the trial.