TMI Blog1997 (11) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... molish the unauthorised encroached construction on July 3, 1993. On Shri Sita Ram @ Baban Baheti was also one of the Councillors of Jalgaon Municipality. The said councillor however, remained present at the site and tried to stop the attempt of the Municipality to demolish the unauthorised tapri. The respondent No.1, Shri Pandey Ajay Bhushan, was Collector and District Magistrate of Jalgaon and respondent No.2 Shri Dilip G.Shrirao, was Additional Superintendent of Police, Jalgon, respondent 3, Shri Prakash Mahajan, was Sub- Divisional Magistrate, Jalgaon, and respondent No.4, Shri D.S. Jog was Superintendent of Police, Jalgaon, at the relevant time. The said respondents No.1 to 4 were personally present at the site and prevented the staff of the Municipality to demolish the tapri. (b) The appellant was away from Jalgaon and having returned to Jalgaon in the evening, came to know that the respondent were not allowing the demolition of the unauthorised tapri. The appellant went to the spot and protested against the said action of the respondents in preventing the Municipality staff from discharging their statutory obligation to demolish unauthorised construction. The respondents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Section Indian Penal Code. The appellant examined himself as complaint on July 31, 1993. The trial court directed the appellant to produce his witnesses on August 4, 1993. On August 4, 1993 the State Government issued a letter in view of which the Writ Petition No. 2149, 2150 and 2151 of 1993 became infructuous and the High Court disposed of the said Writ Petitions by order dated August 3, 1993. (f) The appellant examined 7 witnesses in support of his complaint. The deposition of the witnesses examined expressly disclosed cognizable offence committed by the said respondents. The trial court, however, discharged the respondent No. 4 on the ground of lack of sanction but issued processes against respondents Nos. 1 to 3. The trial court also dropped the charge under Section 307 IPC. The respondent Nos. 1, 2 and 3 moved a Criminal Writ Petition No. 414 of 1993 before the Aurangabad Bench of Bombay High Court challenging the order issuing process against them, but without disposing of such writ petition, by the order dated February 10, 1994, the High Court gave liberty to the said respondents to move applications before the trial court for recalling the order issuing issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only exception is that such discretion should not be exercised arbitrarily and without application of mind to the facts alleged in the complaint. Mr. Sibal has contended that the learned Chief Judicial Magistrate, Jalgaon had taken more than abundant caution in exercising the discretion which is clearly reflected in the initial order of Chief Judicial Magistrate when he postponed the issuance of process and also in the subsequent order issuing process to respondents Nos.1 to 3 and discharging respondent No.1 after taking into consideration the deposition of the complainant and the number of eye witnesses examined and also the medical certificates issued to the complainant and the injured witnesses. Mr. Sibal has submitted that it was improper on the part of the High Court is not disposing of the writ petition but granting liberty to the said respondents to approach the trial court for recalling the order of issuance of summons by way of an interring direction even though such summons were issued on consideration of the complaint and evidence adduced in support of the complaint. In the application made by the said respondents before the learned Chief Judicial Magistrate, Jalga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly limited-limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (1) on the materials placed by the complainant before the court (2) for the limited purpose of finding out whether a prima facie case for issue of process has been made out and (3) for deciding the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have. It is not the province of the Magistrate to enter into detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is very limited one. In proceedings under Section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. In the decision in Nagawwa s case, this Court has also held that the Magistrate, for the purpose of considering as to whether a process should be issued or not, can take into consideration the inherent improbabilities appearing on the face of complaint or in the evidence led by the complaint in support of the allegations. The Magistrate has been given an undoubted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in Matatajog Dubey Vs. H.C. Bhari (1955 (2) SCR 925). Mr Sibal has submitted that in Matajog Dubey s case, this Court has indicated to be considered as soon as the complaint is lodged and on the allegation contained therein. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty but facts subsequently coming to light on a police or judicial enquiry or even in the course of prosecution evidence at the trial may establish necessity of sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of progress of the case. Mr. Sibal has submitted that the correct principle consistent with the scheme of criminal trial at various stages under the code of Criminal Procedure has been indicated in the case of Matajog Dubey. This Court has indicated in the said decision that it was not necessary for the Court to find out whether a sanction was necessary or not at the time of taking congizance of the complaint. The accused, where sanction is necessary, is not without remedy even if cognizance is taken and process is issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . persons opposing execution. by the municipal staff. But unfortunately, the respondents despite holding reasonable positions in the Government Service, obstructed municipal staff from carrying on their duties and function. When the complainant being the Chairman of the Municipality protested against such improper act on the part of the accused, he and other persons were assaulted, abused and manhandled. Such acts prima facie cannot be held to have been done on purporting to be done in discharge of official duties. Hence, on the face of the allegations, no sanction was warranted. If, however at a later stage when the accused within the scheme of trial under the Criminal Procedure Code, will have occasions to lead evidence in defence they may do so. If on defence evidence, or on materials produced in support of defence case, it transpires that a case of sanction under Section 197 Cr.P.C. has been made out, the court will be justified to stop further proceedings for want of sanction. But it will be illegal if the defence evidence is allowed to be introduced dehors the scheme of trial at a stage when defence evidence could not have been introduced. Mr. Sibal has submitted that the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apari and further told not be obstruct. As accused No.1 did not listen, I along with the complainant, councillor and our staff started removing the stall....... Complainant got flared up. Thereafter, lathi charge took place....Police brought us to the police station. The learned Attorney has also drawn attention to the statement of PW 2 Pandurang Rathunath Kale. The said witness deposed to the following effect. Then he (SDM) told me that he had taken charge of the place and he will not allow the stall to be removed. I again told SDM not to cause obstruction and allow us to do our work. Then he told me not to wait here. At that time S: Sri Jog and Rao and also came. They also told me to go away. Our attention has also been drawn to the statement of PW 6 Babu Gangaram Suryavanshi. The said witness has stated: I am working as Municipal Engineer in Jalgaon Municipal Council. On 3.7. 1993 at 7.30 A.M. as usual our Encroachment Squad went to removed in the encroachment. Shri V.V. Suryavanshi, Assistant Engineer and Shri S.L. Patil, Junior Engineer also went to the spot. At around 10.30 A.M., I got the message that Baban Baheti have opposed the squad in removing the encroa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant and other councillors and municipal staff that the police had taken charge of the place and no one would be permitted to remove the tapari at that point of item. In inspite of that the complaint, councillors and other municipal staff wanted to remove the tapari by force, the respondents had enough justification to prevent them from doing so by exercising force. Mr. Attorney has submitted that the action on the part of the respondents was clearly in the exercise of the official duties and it is immaterial whether in discharging the duties they had exceeded the jurisdiction. Once the acts alleged by the complainant had been done in exercise or even in purported exercise of official duties, requirement of sanction under Section 197 Criminal Procedure Code is fulfilled. The learned Attorney had submitted that in Matajog Dubey s case (supra) even though it was alleged by the complainant that the police officials and Income Tax Officers used force and assaulted, since such action was made in the purported exercise of the official duties, the Court held that a case of sanction had been made out. In Pukhraj s (supra), it has been clearly indicated that even if in discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the scheme of trial under the Code of Criminal Procedure and the stage at which an accused against whom the cognisance of offence has been taken by the learned Magistrate can lead evidence in support of his defence. The question for consideration is when a Magistrate on the basis of a complaint issued process for appearance of the accused on being satisfied that there is sufficient ground for proceeding and the accused appears before the Magistrate and takes the plea that the offence alleged to have been committed by him was in the discharge of his official duty and further he was not removable from his office save by or with the sanction of the Government and consequently the court has no power to take cognisance except with the previous sanction of the Government as required under subsection (1) of Section 197 of the Code of Criminal Procedure than the Magistrate would be required to decide the plea on the materials on record then existed or the accused can produce relevant material to establish the necessary ingredients for invoking Section 197(1) of the Code? According to Mr. Sibal, the Magistrate can examined the plea only with reference to the materials available on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings. In Matajog s case, 1995 (2) SCR 925 the Constitution Bench held that the complaint may not disclose all the facts to decide the question of applicability of Section 197, but facts subsequently coming either on police or judicial inquiry or even in the course of prosecution evidence may establish the necessity for sanction. In S.B. Saha s cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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