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
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 125 OF 2007
Uttam Daulat Baviskar,
V
Amitabh Roy Choudhary,
CORAM : V.K. JADHAV, J.
Dated: November 18, 2016
Citation: 2017 ALLMR(CRI)1051
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. 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
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
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
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.1original accused and thus, wrongly allowed the
revision petition and dismissed the complaint.
6. Learned counsel for respondent no.1original
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
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
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 Cooperative
Credit Society, Bhusawal. Said witness
Godhwani is a wardboy in the hospital run by the
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
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.
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
petitioneroriginal 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
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]
(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
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 subsection
(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.
Petitioneroriginal complainant after lodging complaint
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
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.
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
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
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. 1accused 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
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
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.
III. Criminal Writ Petition accordingly disposed
off.
( V.K. JADHAV, J. )
of Criminal Procedure, respondent no.1 was rightly
protected by the revisional court and, accordingly
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 125 OF 2007
Uttam Daulat Baviskar,
V
Amitabh Roy Choudhary,
CORAM : V.K. JADHAV, J.
Dated: November 18, 2016
Citation: 2017 ALLMR(CRI)1051
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. 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
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
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
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.1original accused and thus, wrongly allowed the
revision petition and dismissed the complaint.
6. Learned counsel for respondent no.1original
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
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
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 Cooperative
Credit Society, Bhusawal. Said witness
Godhwani is a wardboy in the hospital run by the
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
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.
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
petitioneroriginal 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
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]
(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
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 subsection
(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.
Petitioneroriginal complainant after lodging complaint
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
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.
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
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
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. 1accused 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
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
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.
III. Criminal Writ Petition accordingly disposed
off.
( V.K. JADHAV, J. )
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