Rajendra Kumar Jain vs Shrikant Nigam

Dipak Misra, J.

Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ in the nature of certiorari for quashment of the order dated 30-4-1998 passed by the First Additional Civil Judge, Class-I, Murwara, Distt. Katni in Complaint Case No. 1/98.

The facts; as have been unfolded, are that the petitioner''s mother Shyambai filed a civil suit for eviction of the respondents and certain other persons. Along with the plaint map of the suit house No. 76 and 112, Subhash Ward, Katni was filed and this was shown by red colour in the said map. This civil suit No. 20-A/77 was decreed by the Second Civil Judge, Class-II, Murwara Distt. Katni on 20-7-1978. Assailing the same the aggrieved respondents filed a Second Appeal No. 557/79 before this Court which was allowed on 2-5-1981. Against the above decision the respondents feeling dissatisfied preferred SLP No. 2233 (N)/81 before the Apex Court wherein leave was granted and the matter was converted into an appeal. The Apex Court by order dated 22-2-1989 directed the appeal to be dismissed as withdrawn and granted some time to vacate the suit premises. It was directed by the Apex Court that decree for eviction shall not be executed till 31-11-1989 provided that the appellant shall file an unconditional undertaking within four weeks. The judgment-debtors did not deliver the possession in spite of undertaking given before the Apex Court. Being constrained the decree-holder filed a contempt petition before the Hon''ble Supreme Court. The contemner tried to assert that the decree was filed in respect of house No. 76. The Apex Court clarified that the suit property bearing house Nos. 76 and 112 was situated at Subhash Ward, Katni. It was further directed that the possession be taken forthwith and delivered to the decree-holder and the matter was directed to be listed after four weeks. In compliance of the order of the Apex Court the possession was delivered. Eventually the matter was disposed of and cost was awarded. After the matter came to end as far as the possession is concerned the judgment-debtor, Shrikant Nigam filed an application under Sections 195 and 340 of the Code of Criminal Procedure alleging that the decree-holders'' agent had changed the map in the execution proceedings so that the possession of the entire house could be given. In the said proceedings the present petitioner was not noticed and evidence was recorded behind his back and eventually vide order Annexure P-8 directing to file a complaint against the petitioner in respect of the offences punishable under Sections 466, 467, 468 and 471 of the Indian Penal Code was passed.

The petitioner preferred an appeal before the learned Additional District Judge, Murwara, Distt. Katni, against the said order. This appeal was preferred as there was judgment of this Court rendered in the case of Harishankar Kamarlal Vashiya Vs. Khayalichandra Roopchand Goyal 1992 MPLJ 15, wherein this Court held that an appeal lies against such an order. When the appeal was pending the petitioner came across the decision rendered in the case of Surendra Gupta Vs. Bhagwan Devi (Smt) and Another, , wherein the Apex Court has directed that an application u/s 340 of the Cr.P.C. cannot be construed as complaint. The relevant portion of the said decision reads as under :--

"An order directing to file complaint against Rent Control and Eviction Officer under Sections 200/202/245/197/34 of Penal Code cannot be construed as complaint and hence, no appeal could be filed against it u/s 341, Cr.P.C.. Therefore, dismissal of an application filed u/s 482 against an order directing to file complaint on ground that said order was appealable u/s 341, Cr.P.C. would not be proper."

Being aware of the same the present writ petition has been filed for quashment of the order contained in Annexure P-8. Mr. Patel, learned counsel for the petitioner has fairly submitted that he will withdraw the appeal pending before the Court of Additional District Judge, Murwara, Distt. Katni, as the same is not maintainable.

Mr. N.K. Patel, learned counsel for the petitioner has contended that the aforesaid order has been passed without giving notice to show-cause to the petitioner and without holding proper inquiry and, therefore, the same is indefensible in law. In support of his submission he has placed reliance on the decision rendered in the case of Navnithbhai R. Kapasiawala and others Vs. Bhagwandas Vaniram Trivedi and others, U.J. (SC) 829, wherein it has been held that if sanction for prosecution is granted without notice, the order of sanction is unsustainable. The learned counsel has also drawn the attention of this Court, to the decision rendered in the case of Mohd. Zahid Vs. The Govt. of NCT of Delhi, , wherein the Apex Court in Para 11 expressed thus :--

From the materials on record, discussed above, we are also of the opinion that it is expedient in the interest of justice that an enquiry should be made in accordance with sub-section (1) of Section 340, Cr.P.C. into commission of offences under Sections 193, 195 and 211, IPC by Sub-Inspector Gopi Chand (P.W. 6) and under Sections 193 and 195, IPC by Assistant Sub-Inspector Chander Bhan (P.W. 5) and Head Constable Premvir Singh (P.W, 4). We, therefore, in exercise of the powers conferred by sub-section (2) of Section 340, Cr.P.C., call upon the above three persons to show cause, on or before July 17, 1998, why a complaint should not be made against them for the aforesaid offences. Let a copy of the judgment along with this order be served upon them through the Commissioner of Police, Delhi. Registry is directed to keep the Daily Diary Book in a sealed cover until further orders of this Court."

From the aforesaid enunciation of law it is graphically clear that the prosecution cannot be sanctioned without issuing notice to show cause to the person concerned and without holding an enquiry.

In view of the aforesaid, I think it apposite to quash the order contained in Annexure P-8 and the same is accordingly quashed. It will be open to the executing Court to proceed in accordance with law.

The writ petition is accordingly allowed without any order as to costs.

Writ Petition allowed.