Bombay High Court
Mr. A.D. Shinde vs Unknown on 28 November, 2013
Bench: A.M. Thipsay
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 411 OF 2013
SHRIRAM BALKRUSHNAJI AUTI
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
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Advocate for Petitioner : Mr. A.D. Shinde
APP for Respondent 1 : Mr.P.N.Muley
Mr. V.D.Gunale advocate For R/2
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CORAM : ABHAY M. THIPSAY, J.
ig Dated: November 28, 2013
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ORAL ORDER :-
1. Heard Mr.A.D.Shinde, the learned counsel for the
petitioner. Heard Mr.P.N.Muley, the learned APP for the
respondent no.1. Heard Mr.V.D.Gunale, the learned counsel for
the respondent no.2.
2. The petitioner is the original complainant. He had
filed a complaint against the respondent no.2 herein - who is a
Tahsildar, alleging commission of offences punishable under
sections 166 of IPC, 218 of the IPC and 219 of the IPC, by her. The
learned Magistrate, after examining the petitioner on oath,
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dismissed the complaint holding, primarily, that cognizance of the
alleged offences could not be taken without a sanction of the State
Government as contemplated under section 197 of the Code of
Criminal Procedure (Hereinafter referred to as 'Code'). The
petitioner challenged the order of dismissal of his complaint by
filing an application for Revision but, the Additional Sessions
Judge-1 who heard the revision, dismissed the same. Being
aggrieved thereby, the petitioner has approached this Court
invoking its Constitutional Jurisdiction.
3. I have gone through the complaint and the orders
passed by the Magistrate and the learned Additional Sessions
Judge, Jalna.
4. The substance of the complaint lodged by the
petitioner is as follows :-
That, the petitioner is owner and possessor of
agricultural land bearing gat No.521. That, there were some
disputes between the petitioner and one RasulKhan Pathan, and
as the said Rasulkhan Pathan was obstructing the petitioner's
right, the petitioner had filed a civil suit against him. In the said
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civil suit, decree, by granting perpetual injunction, in favour of the
petitioner and restraining the said Rasulkhan Pathan from
interfering with the petitioner's possession has been passed.
That, inspite of this decision of the Civil Court, the respondent no.
2 who was, at the material time, working as Tahsildar, Jafrabad,
passed an order showing possession of the said Rasulkhan
Pathan in respect of the said agricultural land. Thus, by giving
such a decision, the respondent no.2 is alleged to have committed
offences punishable under Section 166, 218 and 219 of the Indian
Penal Code.
5. It is contended on behalf of the respondent no.2 that
the acts committed by her, do not amount to any offence. It is
contended that there is absolutely no element of criminality in the
alleged acts. There may be substance in this contention but, I do
not wish to go into this aspect of the matter. It is because, it
clearly appears to me that in any case, the cognizance of the
alleged offences could not have been taken in view of the bar
created by Section 197 of the Code.
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6. That, the respondent no.2 falls in the category of
public servants who are afforded protection by Section 197 of the
Code, is not in dispute. In other words, that the respondent no.2
is not removable from her office save and except by or with the
sanction of the State Government, is not in dispute.
7. The question that remains is whether the offences
alleged to have been committed by the respondent no.2 are such
as would be covered by the protective umbrella of Section 197 of
the Code. In other words, whether the offences in question can be
said to have committed by the respondent no.2, while acting or
purporting to act in discharge of her official duty, is the question
needing determination.
8. Clearly, the acts attributed to the respondent no.2
which are said to be constituting the aforesaid offences, have been
committed by her while acting, or at least while purporting to act in
discharge of her official duty. It was the official duty of the
respondent no.2 to decide the question that was before her - i.e.
whether the name of the said Rasulkhan Pathan should be taken
in the relevant record, under the column - 'cultivation'; and the
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same has been decided by her in official capacity.
9. By no stretch of imagination, it can be contended that
for the alleged offences sanction under section 197 of the Code,
would not be necessary.
10. The learned counsel for the petitioner relied upon a
decision rendered by a learned Single Judge of this Court in case
of Uttam Dattatraya Kahane Vs. Chandramohan Hangekar and
others reported in 2012 (1) Bom.C.R.(Cri) 217. This decision
was relied upon by him in support of a proposition that 'where a
public servant refuses to obey the orders passed by a court of law,
he cannot claim that he would be protected by the provisions of
Section 197 of the Code.' I am afraid, this proposition cannot be
brought into play in the present case. It is nobody's case that the
respondent no.2 had disobeyed any direction or order passed by
any Court of law. The substance of the accusations is that inspite
of the verdict of a Civil Court, she took some decision in her
official capacity which was contrary to the finding arrived at by
the Civil Court. This cannot be construed as disobedience to the
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order passed by any Court.
11. It is clear that cognizance of the alleged offences could
not have been taken by the Magistrate without a sanction as
contemplated u/s 197 of the Code of Criminal Procedure. Since no
such sanction had been obtained, the order of dismissal of the
complaint is proper and legal.
12. The petition is rejected.
( ABHAY M. THIPSAY )
JUDGE
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