V R PALANIVELAN Vs. GOTHANDARAMA GUPTA

JUDGEMENT

(1.) THIS petition has been filed under Section 482 of the CODE OF Criminal PROCEDURE, 1973, seeking to set aside the docket order passed by the Judicial Magistrate No.1, Uludurpettai in Crl.M.P.No.4128/2009 dated 20.2.2010 and consequently direct the Judicial Magistrate No.1, Ulundurpettai to take the petitioner's complaint on file and conduct enquiry in accordance with the provisions of Sections 201 to 203 of Crl.P.C.

(2.) THE petitioners informs of conducting a telephone booth besides a highway near the Government School at Ulundurpettai, under due permission received from the National Highways Authorities. THE petitioner informs that when such order permitting him to run the telephone booth was produced before the District Revenue Officer, such Officer refused to peruse the same and informed of an order of Court whereunder, he had been directed to remove the telephone booth. When asked for the order of the Court, the District Revenue Officer threatened the petitioner informing that he was a Sub-Divisional Magistrate and had powers to punish persons. THE petitioner further informs that at the instigation of such official, other accused attempted to attack him. On making an application before the District Court at Villupuram, the petitioner learnt that there was no order of Court authorizing the action of the accused persons. THE lower Court had rejected the complaint of the petitioner on the reasoning that the accused had acted in official capacity and in public interest with intent of removing an encroachment. THE lower Court has informed that the action of the accused having been done in the course of their duties, would not amount to commission of offences. As held in the decision of this Court in M.Jeevanantham v. Balaji and Others,(2007) 1 MLJ (Crl) 960, the question of whether the accused persons conducted themselves in the course of their duties so as to attract application of Section 197 Cr.P.C., could be gathered only after recording the statement of the complainant and others, if any.

(3.) BY way of abundant caution, it is to be informed that if on examination of the complainant and the witnesses, if any, the Magistrate finds that no offence stands committed it would be open to him to reject the complaint. If on the other hand, it is found that the offence was one committed in the course of performance of official duties, he may await requisite sanction under Section 197 Cr.P.C., before proceeding further.