Shashikant S/O Shankarrao Hastak ... vs Madanlal S/O Babulal Parate
2017 Latest Caselaw 8278 Bom

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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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 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

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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

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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

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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

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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

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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:-

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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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