PHOOL KUMAR Vs. VIJAY KUMAR

JUDGEMENT

(1.) This petition under section 482 of the Code of Criminal Procedure, 1973 (for short the Code) is directed against the judgment dated 7 December 1996 of Sh.Raghubir Singh, Additional Sessions Judge, Delhi, passed in respondent no.1 and 2's criminal revisions no.132/96 and 134/96, setting aside the summoning order dated 24 July 1996 passed by Sh.Sudhir Kumar Jain, Metropolitan Magistrate, in petitioners' complaint under sections 451, 427 and 506 IPC, inter alia, against the Sub Divisional Magistrate, Kotwali, (respondent no.1) and Patwari Halka, Nangal Thakran, Delhi (respondent no.2) for want of sanction under section 197 of the Code.

(2.) It is pleaded that there was no material before the learned Additional Sessions Judge to set aside the summoning order; the impugned order being illegal, arbitrary and without jurisdiction, the same may be set aside and that of the Metropolitan Magistrate be restored.

(3.) Petitioners herein filed a complaint under the aforenoted sections against respondents no.1 and 2 and some others, alleging that they came to their village with police force on 29 February 1996 and in conspiracy with others, in the absence of the petitioners, illegally bulldozed and demolished their houses in village Nangal Thakran, built by them between the years 1954 to 1964, on the land belonging to them, under orders of respondent no.1, who threatened and intimidated them and thus committed offences punishable under sections 451, 427 and 506 IPC. The learned Metropolitan Magistrate, after recording preliminary evidence, under section 202 of the Code, by order dated 24 July 1996, summoned the accused including respondents no.1 and 2, who respectively filed Criminal Revisions No.132/96 and 134/96 for quashing the summoning order passed by the Metropolitan Magistrate, dubbed as illegal for want of sanction, requisite under section 197 of the Code. Respondent no.1 claimed that he was Sub Divisional Magistrate, Kotwali and Revenue Assistant, Kanjhawala as also Deputy Director, Panchayat (exercising judicial and executive powers) and as such a custodian of gaon sabha land, charged with duty to protect it, and duly authorised as such to remove the encroachments on gaon sabha land. He also claimed this authority under section 18 (i) of the Delhi Panchayat Raj Act, 1954; section 133 of the Code and section 86 of the Delhi Land Reforms Act, 1954. Respondent no.2 claimed that he was Patwari Halka, Nangal Thakran; was ordered by the Block Development Officer to remain present in the village on 29 February 1996 along with the revenue record of the village; he did so; pointed out the encroachments on the gaon sabha land in Khasra No.166, mentioned in his earlier report, of which measurements were again taken and it was confirmed under the supervision of Kanungo that the structures already mentioned in the site plan still existed and were on the gaon sabha land; he only pointed out the encroachments and had nothing to do with demolition. Both the respondents thus claimed that what they did was in the discharge of their official duties and as such they could not be prosecuted without prior sanction under section 197 of the Code, which having not been obtained the summoning order was illegal and be quashed. The learned Additional Sessions Judge by his impugned order, dated 7 December 1996, held that the protection of public land and removal of encroachments thereon was a part of the general duty (emphasis supplied) of the Sub Divisional Magistrate/Revenue Assistant and the act of demolition, if constituted an offence, was committed in the course of the duty or under colour of office; Prior sanction under section 197 of the Code was necessary to the cognizance of offence being taken, which being not there, the order dated 24 July 1996, summoning the two respondents was bad in law and he thus set aside the same. Against this order the complainants have filed the present petition, stating that their houses are thirty years old and there was no encroachment on gaon sabha land; there was not even a single document before the Additional Sessions Judge to even remotely suggest that the two respondents had the authority or territorial jurisdiction to demolish the houses; in any case service of any notice for removal of encroachment or demolition order on the petitioners or their family members has also been denied and it is asserted that no sanction under section 197 of the Code was required to prosecute the said respondents.