apl297.11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [APL] No. 297 of 2011
1. Shashikant son of Shankarrao Hastak,
aged about 53 years,
occupation - Service,
resident of Ramkrishna Nagar,
Nagpur.
2. Chandrashekhar son of Ganpatrao
Dhakate,
aged about 51 years,
occupation - service,
resident of Gurudev Nagar,
Nandanvan, Nagpur.
3. Prabhakar son of Balwantrao
Nerkar,
aged about 59 years,
occupation - service,
resident of Hudkeshwar,
Nagpur. ..... Applicants
Versus
Shri Madanlal son of Babulal
Parate,
aged about 64 years,
occupation - Advocate,
resident of Giripeth,
Nagpur. ..... Non-applicant
*****
Ms. Neeta Jog, Adv., for the Applicants.
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apl297.11
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None for the non-applicant, though served.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 31st October, 2017 ORAL JUDGMENT: 01. By this application filed under Section 482, Criminal
Procedure Code, 1973 [for short "the Code"], the order passed by the learned Judicial Magistrate First Class, Court No.2, refusing to recall the Process as well as the order dated 1st April, 2011 passed by the Sessions Court refusing to exercise revisional jurisdiction in challenge to the aforesaid order are called in question.
02. The facts, in brief, are that according to the non-applicant, he is the owner of property bearing Khasra No. 42/4. Initially, that property was owned by his father who expired on 30th November, 1993. Part of that property was occupied by some tenants who had constructed huts thereon. The applicants herein were officers of the Nagpur Municipal Corporation [for short "the Corporation"] in its Assessment Department. According to the non-applicant, the applicants as Assessment Officers without following the provisions of ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:00:10 ::: apl297.11 3 the City of Nagpur Corporation Act, 1948 [for short, "the said Act"] and the Rules framed thereunder mutated the names of the occupiers - Accused Nos. 5 to 19 as owners. After verifying the records of the Corporation, it was found that the applicants herein had acted illegally. On that basis, the non-applicant on 9th July, 1998 filed a private complaint alleging commission of offences under Sections 217, 218, 220, 425, 420, 466, 467, 468, 469, 471, 474, 109 and 506-B read with Section 34 of Indian Penal Code. The learned Judicial Magistrate First Class issued Process against the accused which included the present applicants. The applicants approached the learned Judicial Magistrate as per application at Exh.31 and sought recall of the summons and dismissal of the complaint. The learned Magistrate rejected that application on 18th May, 2007. The Revision Application filed by the present applicants was rejected by the Sessions Court on 1st April, 2011. Being aggrieved, the present application has been filed for quashing the proceedings.
03. Ms. Jog, learned counsel for the applicants, made two-fold submissions. It was firstly urged that on a reading of the entire complaint, no offence under Sections 217, 218, 220, 425, 420, 466, 467, 468, 469, 471, 474, 109 and 506-B read with Section 34 of Indian Penal Code had been made out. The grievance of the complainant was ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:00:10 ::: apl297.11 4 that without following the prescribed procedure under the said Act, the assessment had been carried out and the names of the accused nos. 5 to 19 had been mutated. In the complaint, it was stated that the acts of the present applicants were contrary to law and, thus, arbitrary. In absence of any the ingredients of the aforesaid Sections being made out, the Process could not have been issued and, in fact, the complaint against the present applicants could not have been entertained. In that regard, the learned counsel placed reliance on the decision in Smt Ruchi [Loyalka] Harsh Ajitsaria Vs. The State of Maharashtra & another [2016 ALL MR (Cri) 4972]. It was then submitted that even if it is assumed that the complaint was liable to be prima facie entertained, it was necessary for the complainant to have first obtained sanction under Section 197 of the Code. The alleged acts done by the present applicants were in their capacity as Municipal servants. At the highest, it could be stated that while doing official acts, the due process as prescribed was not followed. A statutory remedy under provisions of said Act was also available in case the complainant was aggrieved by the mutation entries as taken. In absence of any sanction being obtained, the continuation of the proceedings was bad in law. For said purpose, the learned counsel relied upon the decisions in [1] Gauri Shankar Prasad Vs. State of Bihar & another [ (2000) 5 SCC 15], and [2] Abdul Wahab Ansari ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:00:10 ::: apl297.11 5 Vs. State of Bihar & another [ (2000) 8 SCC 500]. It is, thus, submitted that the impugned orders are liable to be set aside.
04. The non-applicant did not appear on 30th October, 2017 when the learned counsel for the applicants was heard. There is no appearance on behalf of the non-applicant-complainant even today. Hence, with the assistance of learned counsel for the applicants, I have perused the records of the case and I have given due consideration to her submissions.
05. For the purposes of considering as to whether the ingredients of the offences punishable under Sections 217, 218, 220, 425, 420, 466, 467, 468, 469, 471, 474, 109 and 506-B read with Section 34 of Indian Penal Code have been made out, it would be necessary to refer to the complaint as filed. In para 2 of the complaint, it is stated that present applicants were officers of the Corporation and without following the provisions of the said Act and the Rules as framed, they have violated the legal provisions and exceeded their jurisdiction while making mutation entries. In para 4, it is stated that the applicants mutated the names of accused nos. 5 to 19 as owners without seeing the valid documents. In para 5 of the complaint, similar allegations are reiterated and in para 6, it is stated that the action of ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:00:10 ::: apl297.11 6 the applicants of taking the mutation entries was contrary to law and arbitrary. These are the averments made against the present applicants as accused nos. 1 to 3.
06. On a plain reading of the entire complaint, it can be seen that the necessary ingredients of the aforesaid Sections are conspicuously missing. It is well settled that for the purposes of issuing Process, a prima facie case making out an offence as alleged ought to be made out. The complaint ought to contain necessary ingredients so as to constitute offence under those Sections. Except stating that the applicants carried out the mutation without following the prescribed procedure and in a manner contrary to law, the basic ingredients of the aforesaid offences have not been made out. This aspect of the matter has not been taken into consideration by the Sessions Court while rejecting the challenge as raised by the present applicants. Thus, in absence of material averments and ingredients prima facie making out offences as alleged, the learned Magistrate committed an error in issuing Process.
07. In so far as the aspect of requirement of sanction under Section 197 of the Code is concerned, it can be seen that the act of taking mutation entires has a reasonable and rational nexus with the ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:00:10 ::: apl297.11 7 official duties that were required to be carried out by the present applicants. It is not in dispute that the applicants were Assessment Officers and carried out the work of assessment in view of the authority conferred on them. The allegation being that this act of carrying out mutation entries was done in an illegal manner itself indicates that even according to the applicants, said acts were done while discharging official duties. It is, thus, obvious that it was necessary for the complainant to have first obtained the sanction before seeking to prosecute the present applicants. The ratio of the decision in Gauri Shankar Prasad [supra] supports the stand of the applicants. This aspect of the matter has also been incorrectly considered by the Sessions Court. The other decisions relied upon by the learned counsel for the applicants also support her submissions.
08. In view of aforesaid, I find that the learned Magistrate was not justified in issuing Process against the present applicants, especially when the complaint against them did not make out any prima facie offence and further that no sanction was obtained under Section 197 of the Code. On these counts, the applicants are entitled to succeed.
09. In view of aforesaid, the following order is passed:- ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:00:10 :::
apl297.11 8 ORDER [a] The order dated 1st April, 2011 passed by the learned Ad Hoc Additional Sessions Judge-2, Nagpur, in Criminal Revision No. 526 of 2007 as well as the order dated 18th May, 2007 passed by learned Judicial Magistrate First Class, Court No.2, Nagpur, below Exh.31 in Criminal Case No. 343 of 2002 are quashed and set aside.
[b] Application below Exh.31 stands allowed and the complaint filed against the present applicants stands dismissed.
10. Application is allowed in aforesaid terms. No costs.
Judge
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