SATISH CHANDRA Vs. UNION OF INDIA

JUDGEMENT

(1.) Railway gave a contract for running the book stall at New Delhi Railway Station to M/s Gulab Singh & Sons (hereinafter called the Firm). The said contract was renewed from 1st January,1976 upto 31st Dccember,1984. Since its services were not found satisfactory hence the licence was not renewed thereafter. Firm filed a Writ Petition and sought stay. The same was dismissed by this Court on 11th March,1987. Against that order, the Firm filed Special Leave Petition , the same was also dismissed on 6th May,1987. The Supreme Court, however, while dismissing the Special Leave Petition granted time till 31st May,1988 to the Firm to wind up the business on an undertaking to be given by the Firm that thereafter it will surrender the possession of the book stall to the Railway Authorities. One Mr.Vijay Kumar Malhotra was an employee of the Firm. He filed a Writ Petition in Supreme Court challenging the order of Railway Administration and ascerting his right on the Book Stall. The same was dismissed with the observation that respondent Railway Administration may consider the feasibility of granting the petitioners any appropriate stall where there were vacancies and to absorb as many of them as possible taking into consideration their experience and other relevant factors. Railway Administration informed the petitioner the places where the vacancies were available. As the period of 31st May,1988 expired hence Railway Administration served the Firm with a notice to handover vacant possession of the Book Stall. The said notice was issued on 1st June,1988. the Firm did not handover the possession, therefore, the Railway Administration look possession and put its lock on the Book Stall at New Delhi Railway Station. The complainant Vijay Kumar Malhotra, in the meantime. Filed a suit for injunction in the Court of Sub Judge, Delhi. Sub Judge granted interim injunction in his favour on 4th June,1988. On 6th June, 1988 the Station Supdt. lodged report with D.R.M., New Delhi that the complainant Vijay Kumar Malhotra broke open the locks. The D.R.M, in turn instructed the Station Supdt., New Delhi on 7th June,1988 to lodge FIR with the G.R.P., New Delhi. On 8th Junc,1988 the Station Supdt. wrote to the S.H.O./G.R.P., New Delhi to register a case against Vijay Kumar Malhotra. Mr.Vijay Kumar Malhotra on receipt of the information that Station Supdt. had written a letter to S.F.O./ G.R.P. for registering a case against him, wrote to the Station Supdt. that case may not be lodged against him because he was not a representative of the Firm. The Railway Administration feeling aggrieved with the injunction granted by the Sub Judge filed a revision before the District Judge who after hearing the parties vacated the stay vide his order dated 20th June,1988. But in the evening of the same day, the said Additional District Judge stayed the operation of his own order till 23rd June,1988. The complainant Vijay Kumar Malhotra filed a revision in the High Court against the order of Additional District Judge dated 20th Junc,1988. The said petition was dismissed by the High Court on 23rd June,1988. After dismissal of the revision and there being no stay operating, the Railway Administration took possession of the book stall. On account of possession having been taken by the Railway Administration, the complainant Vijay Kumar Malhotra filed a suit before the Senior Sub Judge. This suit was dismissed on 20th August,1988 being infructuous because by then possession had already been taken over by the Railway Administration. After having lost battle in the Civil Court, the complaint Vijay Kumar Malhotra filed a criminal complaint against the petitioner on 24th Novembcr,1989. The Metropolitan Magistrate issued summons to the petitioner and the Station Supdt., New Delhi for appearance vide his order dated 28th September,1990.

(2.) It is against this order of summoning dated 28th September,1990 that the petitioner has felt aggrieved. He wants to challenge the same, inter alia, on the grounds that the petitioner being public servant no complaint could be instituted against him without the prior sanction of the competent authority as stipulated under Section 197 of the Code of Criminal Procedure (hereinafter in short called 'Code'). Secondly, under Section 186 of the Indian Railway Act,1989, no prosecution or other legal proceedings could be initiated against a railway servant for anything done by him in good faith or intended to be done pursuance to the said Act or any rules or order made thereunder. The petitioner's contention is that the book stall was got vacated and possession taken pursuance to the order of competent authority of the Railway Administration hence the petitioner only discharged his official function. The competent authority of the Railways passed the order after the stipulated period fixed by the Supreme Court for the Firm to vacate the premises i.e. 31st May,1988. That the complainant was unauthorisedly occupying the Book Stall belonging to the Railway Administration and the stay sought against the Railway Administration had already been vacated. At the time of dismissing his petition the Court had observed that Mr.Vijay Kumar Malhotra had no prima facie right over the book stall, hence the petitioner under order of his superior was within his right to take possession of the stall. Moreover, he discharged his duties in good faith. Since he took possession in discharge of his official duly hence without the sanction of the competent authority, he could not have been prosecuted. No criminal case could be initiated nor could summons be issued. The criminal proceedings had been initiated by the complainant with an ulterior motive to avenge his defeat as he had lost his battle in the Civil Court.

(3.) Mr.Anil Soni appearing for the State strenuously argued that petition is not maintainable because petitioner is neither a public servant nor his act of taking forcible possession of the stall was in discharge of his official duties. In the absence of any nexus between the act done and the offence committed State was justified in filing a criminal complaint against him and finally the order of summoning being interlocutory order, no petition to the High Court can lie. The proper course for the petitoner is to take all these objections before Metropolitan Magistrate who issued the summons. If satisfied the Metropolitan Magistrate would discharge the petitioner. Moreover, documents which the petitioner wants to rely arc volumenous in nature these having not been filed nor relied by the State before the Trial Court, hence cannot be looked into by this Court in this petition.