Uttam Daulat Baviskar vs Amitabh Roy Choudhary And Anr
2016 Latest Caselaw 6523 Bom

                                           1                CRI WP 125.2007.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                                
                CRIMINAL WRIT PETITION NO. 125 OF 2007




                                                        
                 Uttam Daulat Baviskar,
                 age 48 yrs, Occ. Service,
                 R/o Ordinance Factory Estate,




                                                       
                 Bhusawal, Jalgaon, Dist. Jalgaon.
                                                                  Petitioner/
                                                            Orig complainant.
                 VERSUS




                                          
         1.      Amitabh Roy Choudhary,
                             
                 age 51 yrs, Occ. Service,
                 R/o Estate Officer, Ordinance
                 Factory, Bhusawal, Dist. Jalgaon.
                            
         2.      The State of Maharashtra.                        Respondents.

                                     ...
         Advocate for Petitioner : Mr K.B.Jadhav h/f A D Shinde 
      


           Advocate for Respondent 1 : Mr S.V.Hange h/f Mr. 
                                R.N.Dhorde
   



                APP for Respondent No.2: Mr S P Tiwari
                                     ...
                       CORAM : V.K. JADHAV, J.

Dated: November 18, 2016

...

ORAL JUDGMENT :-

1. By way of this writ petition, the petitioner seeks

quashing and setting aside of the judgment and order

dated 8.12.2006 passed by the learned Adhoc Additional

Sessions Judge, Jalgaon in Criminal Revision

No.368/2005.

2 CRI WP 125.2007.odt

2. Brief facts, giving rise to the present writ petition

are as under :-

The petitioner had filed a private complaint against

respondent no.1 for having committed the offence

punishable under Sections 448, 379, 427 of Indian

Penal Code and Section 3(1)(x) of The Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for the sake of brevity hereinafter referred to as "the

Atrocities Act") . It has alleged in the complaint that,

the petitioner has been working in the Ordinance

Factory, Bhusawal since last 25 years and he has been

allotted one Government residential Quarter by the

employer and he was residing in the said quarter. It has

further contended in the complaint that, petitioner

belongs to 'Mahar' Scheduled Caste and due to his caste

respondent no.1 used to behave with him in a rude and

bad manner. Even, he had managed to cancel the

allotment of the quarter to the petitioner. It has further

alleged in the complaint that, on 1.8.2005 when the

petitioner was on duty respondent no.1 got vacated

quarter without giving any intimation to him. Even

during the course of the said eviction, respondent no.1

3 CRI WP 125.2007.odt

had abused the petitioner on his caste basis and further

insulted the feelings of petitioner by throwing photo

frame of Dr. Babasaheb Ambedkar on the ground. The

petitioner has, therefore, approached City Police Station,

Bhusawal and lodged the complaint, however, police did

not take any action and, therefore, he has filed

complaint in the court.

3.

Learned Magistrate after taking verification and on

perusal of the documents issued process against

respondent no.1 for the offence p/u/s 3 (1) x) of the

Atrocities Act. So far as other offences are concerned, as

alleged in the complaint the Magistrate has declined to

issue process under the said offence.

4. Being aggrieved by the same, respondent no.1

preferred a Criminal Revision Application no.368/2005

before the Sessions Court, Jalgaon and the learned

Adhoc Additional Sessions Judge, Jalgaon by its

impugned judgment and order dated 12.12.2006

quashed and set aside the order dated 9.12.2005 passed

by the J.M.F.C. Bhusawal in RCC No. 362/2005

4 CRI WP 125.2007.odt

thereby issuing process under section 3 (1) (x) of the the

Atrocities Act and further dismissed the complaint.

Being aggrieved by the same, original complainant

preferred this criminal application.

5. Learned counsel for the petitioner submits that,

petitioner was being harassed solely on the ground that

he belonged to the scheduled caste by respondent no.1.

Learned counsel submits that, in order to get the

quarter vacated, respondent no.1 has used the force. In

fact, on 24.6.2005 the petitioner has submitted his

explanation in respect of vacating said quarter and

inspite of the said explanation, respondent no.1 has

proposed and implemented such action of eviction of the

quarter. Learned counsel submits that, during the

process of said vacating of the quarter, respondent no.1

has abused petitioner on his caste and further hurt his

feelings by throwing on ground photo frame of Hon'ble

Dr. Babasaheb Ambedkar. Learned counsel submits

that, even though, petitioner had approached police

station, however, no cognizance was taken and

therefore, petitioner constrained to file a complaint

5 CRI WP 125.2007.odt

before the Court. Said incident was also witnessed by

one S.K.Mehata and one S.J.Godhwani. Learned

counsel submits that, respondent no.1 has committed

an offence punishable under the Atrocities Act for which

sanction u/s 197 of the Cr.P.C. is not required. Learned

counsel submits that, abusing the petitioner on his

caste basis cannot be a part of official duties of

respondent no.1 and, thus, no sanction is required as

provided under section 197 of the Cr.P.C. Learned

counsel submits that, even the petitioner has challenged

eviction proceeding before the District Court and the the

District Court has allowed the appeal of the petitioner.

Learned counsel submits that revisional court has

considered the probable defence available to respondent

no.1-original accused and thus, wrongly allowed the

revision petition and dismissed the complaint.

6. Learned counsel for respondent no.1-original

accused submits that, quarter of the present petitioner

is in the premises of residential estate of the Ordinance

Factory, Bhusawal which is a Government of India

defence unit. Petitioner was not residing in the said

6 CRI WP 125.2007.odt

residential quarter as he had built his own house.

There were some complaints that quarter was given to

some one else by subletting it. There was a pending

seniority list of some employees of Ordinance Factory

awaiting for allotment of the Government Quarter. In

view of that, a necessary preliminary inquiry was

conducted and it was found that, present petitioner was

not residing in the said quarter but his nephew and his

family members were residing there as unauthorized

occupants. Thus, after examining the facts, General

Manager, Ordinance Factory, Bhusawal transferred the

case to respondent no.1, who happened to be an Estate

Officer for initiation of eviction proceeding of

unauthorized occupant as per the provisions of The

Public Premises (Eviction of Unauthorized Occupants)

Act, 1971 (hereinafter referred to as 'the said act').

Thus, respondent no.1 has issued notices to petitioner

under the provisions of the said Act. Learned counsel

submits that, in view of the provisions of Section 8 of

the said Act, respondent no.1 being Estate Officer is

holding a quasi judicial post, the action taken by him in

accordance with the provisions of Section 5 of the said

7 CRI WP 125.2007.odt

Act is in discharge of his official duties. Learned

counsel submits that, in view of the same, respondent

no.1 is protected by the provisions of Section 197 of the

Cr.P.C. and Magistrate should not have taken

cognizance of the complaint as complaint suffered from

a fundamental defect of requirement of sanction.

Learned counsel submits that, further respondent no.1

by way of performing his duties as Estate officer is

empowered by the provisions of law to record evidence

and pass an order of eviction and, therefore, respondent

no.1 is also protected by The Judges (Protection) Act,

1985. Learned counsel further submits that, respondent

no.1 has maintained proceedings of eviction and even

panchnama was also drawn in presence of police for

evicting unauthorized occupant of the said government

quarter.

7. Learned counsel submits that, petitioner has cited

name of one S.J. Godhwani as witness who happened to

be a Chairman of the Ordinance Factory Employees Co-

operative Credit Society, Bhusawal. Said witness

Godhwani is a ward-boy in the hospital run by the

8 CRI WP 125.2007.odt

Ordinance Factory, Bhusawal, and there were several

complaints by the staff against him. Thus, after making

necessary preliminary inquiry, department has issued

several charge sheets against him for the misconduct

which include serious charges. Even respondent no.1

has issued two charge sheets on 20.7.2005 and

5.8.2005 under the provisions of Central Civil Service

Classification Control Rules (CCS) (CCA) as per decision

taken by the disciplinary Authority. Even said witness

had approached the Industrial Court, however, his

petition came to be dismissed as not maintainable.

Thus, in order to pressurize the Management and since

respondent no.1 was also holding post of Additional

General Manager (Administration) petitioner under the

guidance of said Godhwani filed a false complaint.

Learned counsel submits that, petitioner made

allegations against respondent no.1 and act complained

of is the part of discharging of the official duties and

sanction as provided under section 197 of Cr.P.C. is

therefore required. Learned counsel submits that,

petitioner has lodged complaint in the police station and

in the preliminary inquiry conducted by the police, it

9 CRI WP 125.2007.odt

was revealed that, complaint was false. It has

specifically mentioned in the said report that, police

force was present when eviction proceedings were

initiated and, no such incident happened as alleged in

the complaint. Learned counsel submits that, petitioner

has suppressed these material facts and filed false

complaint against respondent no.1 by making wild

allegations.

8. Learned counsel for respondent no.1 in order to

substantiate his contention placed his reliance on the

following cases :-

1. Gauri Shankar Prasad Vs. State of Bihar and another reported in reported in 2000 ALL MR 1691 (S.C.).

2. Abdul Wahab Ansari Vs. State of Bihar and another reported in 2001 ALL MR (Cri) 183 (S.C.)

3. Pepsi Foods Limited and another Vs. Special Judicial Magistrate 1998 (1) Mh.L.J. 599 and

4. D.T. Virupakshappa Vs. C. Subash Criminal appeal No. 722 of 2015, delivered on 27.04.2015 by Supreme Court.

10 CRI WP 125.2007.odt

9. I have also heard the learned APP for the

Respondent State.

10. It is not disputed that the petitioner was employee

of the Ordinance Factory and he was residing in a

Government Quarter allotted to him. Further, the

petitioner-original complainant has not denied that he

has built his own house. In his complaint the petitioner

has stated that some of members of his family residing

in a Flat in Golani Complex. It is also not disputed by

the learned counsel for the petitioner that, on 2.7.2005

a notice of eviction under section 4 of the said Act, was

issued by respondent no.1 to the petitioner and on

5.7.2005 personal hearing was given to the petitioner in

the office of respondent no1- Estate Officer wherein time

of 7 days was granted to the petitioner at his request.

However till 13.7.2005 petitioner did not vacate the

same, and, therefore, notice u/s 5 of the said Act was

issued to him. On 1.8.2005 in view of the notice u/s 5

as aforesaid, the petitioner was evicted from the

Government quarter by drawing a necessary

panchnama and material was kept under the safe

11 CRI WP 125.2007.odt

custody. Copy of the panchnama is also placed on

record and the same is not disputed. It is a matter of

record that, even said panchnama was also signed by

the police staff present there to facilitate eviction of the

petitioner from the Government quarter.

11. Respondent no.1 was working as Estate officer and

he had initiated said proceeding as directed to him by

the General Manager. As per the provisions of section 3

of the said Act, Central Government by notification in

official gazette make appointment of Estate Officer for

the purposes of said Act. Section 3 of the Act of 1971

reads as under :-

Section 3 of Act of 1971 :-

Appointment of Estate officers.--The Central Government may, by notification in the Official Gazette,

(a) appoint such persons, being gazetted officers of Government 8 [or of the Government of any Union Territory] or officers of equivalent rank of the 2[statutory authority], as it

thinks fit, to be estate officers for the purposes of this Act:

[Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with Speaker of the Lok Sabha: Provided further that an officer of a statutory authority shall only be appointed as an estate officer in respect of the public premises controlled by that authority; and]

12 CRI WP 125.2007.odt

(b) define the local limits within which, or the categories of public premises in respect of which, the estate officers shall

exercise the powers conferred, and perform the duties imposed, on estate officers by or under this Act.

12. Further as per provisions of section 8 of the said

Act, an Estate officer shall, for the purpose of holding

any inquiry under this Act, have the same powers as

vested in a civil court under the Code of Civil Procedure,

1908, when trying a suit in respect of the following

matters, namely :-

a] Summoning and enforcing the attendance of any

person and examining him on oath ;

b] requiring the discovery and production of documents'

c] any other matter which may be prescribed.

13. In terms of the provisions of section 5 of the said

Act, eviction of an unauthorized occupant can be

carried out. Section 5 of the Act of 1971 reads as

under :-

Eviction of unauthorized occupants.--

(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and 1[any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorized occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified

13 CRI WP 125.2007.odt

in the order, by all persons who may be in occupation thereof or any part thereof, and cause a

copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any person refuses or fails to comply with the order of eviction 1[on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (1), whichever is later,] the estate officer or any other officer duly

authorized by the estate officer in this behalf 1[may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary.

14.

In view of sub section (2) of Section 5 of the said

Act, if any person refuses or fails to comply with the

order of eviction before the date specified in the order or

within 15 days of the date of its publication under sub-

section (1), whichever is later, the Estate officer evict

that person from and take possession of the public

premises and may, for that purpose use such force as

may be necessary.

15. It is a part of record that respondent no.1 after

following due procedure evicted said government quarter

occupied by unauthorized persons in the presence of

police staff and also drawn panchnama to that effect.

Petitioner-original complainant after lodging complaint

14 CRI WP 125.2007.odt

in the police station approached the court by filing

private complaint.

16. It is a part of record that before filing of the

complaint in the Court, concerned police station has

carried out preliminary inquiry and submitted a report

to the superior officer that allegations made by the

petitioner in the complaint are false and that, no such

incident had taken place as alleged in the complaint. It

appears that petitioner has not brought this fact to the

notice of the Magistrate. On the other hand, petitioner

has suppressed this material evidence.

17. On careful perusal of the panchnama, I find that

panchnama is signed by staff members of Ordinance

Factory as well as police staff including respondent.

Further, the material also kept under the safe custody.

It is also a part of record that petitioner was not residing

in the said quarter and his one of the relatives was

unauthorizedly occupying said Government Quarter.

18. In a case Gauri Shankar Prasad (supra) relied

15 CRI WP 125.2007.odt

upon by learned counsel for respondent no.1, in

paragraph no.14 the Supreme Court has made following

observations :-

14.Coming to the facts of the case in hand, it is manifest that the appellant was present at the place of occurrence in his official capacity as Sub- Divisional

Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it

cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows,

therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 Cr.P.C. Therefore, the High Court erred in holding that Section 197 Cr.P.C. is not

applicable in the case.

19. In a case Abdul Wahab (supra) relied upon by the

learned counsel for respondent no.1 wherein the

Supreme Court has observed that previous sanction of

the competent authority being a precondition for the court

in taking cognizance of the offence if the offence alleged

to have been committed by the accused can be said to be

an act in discharge of his official duty, the question

touches jurisdiction of the Magistrate in the matter of

taking cognizance and, therefore, there is no requirement

that, accused should wait for taking such plea till the

charges are framed.

16 CRI WP 125.2007.odt

20. In Pepsi Foods Ltd. Vs. Special Judicial

Magistrate (1998) 5 SCC 749, in paragraph

no.28 of the judgment, the Supreme Court has

made the following observations:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be

set into motion as a matter of course. It is not that the

complainant has to bring only two witnesses to support his

allegations in the complaint to have the criminal law set into motion. The order of the

Magistrate summoning the accused

must reflect that he has applied his mind to the facts of the case and the law applicable

thereto. He has to examine the nature of allegations made in the complaint and the evidence

both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator

17 CRI WP 125.2007.odt

at the time of recording of preliminary evidence before

summoning of the accused. The

magistrate has to carefully scrutinize the evidence brought on record and may even himself

put questions to the complainant and his witnesses to elicit answers to find out the

truthfulness of the allegations or otherwise and then examine if

any offence is prima facie committed by all or any of the

accused."

21. In the instant case, material brought on record

and admitted facts unequivocally indicates that there is

a reasonable nexus in the act complained and official

duties to be performed by respondent no.1. Respondent

no.1 was directed to get the Government Quarter

vacated which was occupied by unauthorized person by

following procedure as laid down in the said Act. Thus,

the offence alleged is related to the matter with

discharge of the official duties of the respondent no.1-

original accused. The Supreme Court in case of Pepsi

Food Limited (supra) has observed that summoning of

18 CRI WP 125.2007.odt

accused in criminal case is serious matter and criminal

law cannot be set into motion as matter of course. In

the case in hand, the petitioner has approached the

court with two witnesses and insisting the court to

ignore record available with authorities and issue

process against respondent no. 1-accused for having

committed a serious offence as alleged in the complaint.

22.

In the case of D.T. Virupakshappa Vs. C.

Subash, (supra) relied upon by learned counsel for the

respondent no.1, the Supreme Court in para 6 of the

said order has referred the case of Omprakash and

others vs. State of Jharkhand, through the

Secretary, Department of Home, Ranchi 1 and

another and quoted paragraph 41 of the said judgment.

Paragraph no.41 read as under:-

41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public

19 CRI WP 125.2007.odt

servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous

sanction is a precondition for taking cognizance of the offence and therefore, there is no requirement that the accused must wait till the

charges are framed to raise this plea. ..."

23. The Supreme Court in the aforesaid case has

observed that, there may be unassailable and

unimpeachable circumstances on record which may

establish at the outset that the police officer or public

servant was acting in performance of his official duty

and is entitled to protection given under Section 197 of

Cr.P.C. The Supreme Court has further observed that, it

is not possible for the Court to hold that in such a case,

the Court cannot look into any documents produced by

the accused or the public servant concerned at the

inception Thus the learned Additional Sessions Judge

has rightly considered the documents which are not

disputed by the petitioner produced before him during

the course of hearing of the criminal revision.

24. In light of the provisions of Section 197 of the Code

of Criminal Procedure, respondent no.1 was rightly

protected by the revisional court and, accordingly

20 CRI WP 125.2007.odt

dismissed the complaint. Even in terms of the

provisions of The Judges (Protection) Act, 1985 a judge

means not only every person who is officially designated

as a Judge but also every person - who is empowered by

law to give in any legal proceeding a definitive judgment.

25. In the instant case, respondent no.1 has passed

the order after conclusion of the inquiry directing

eviction of the petitioner and failing therein issued

notice to the petitioner as provided under section 5 of

the said Act. In view of the provisions of section 197 of

the Criminal Procedure Code, respondent no.1 also need

to be protected.

26. In view of the above discussion, and ratio laid

down by the Hon'ble Supreme Court in the cases as

referred above, I do not find any substance in the writ

petition. Writ Petition is devoid of any merits and the

same is liable to be dismissed. Hence, following order.

O R D E R

I. Criminal Writ Petition is hereby dismissed.

                   II.    Rule discharged.





                                            21             CRI WP 125.2007.odt

III. Criminal Writ Petition accordingly disposed

off.

( V.K. JADHAV, J. )

...

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