STATE Vs. A GANESAN

JUDGEMENT

(1.) The de facto complainant/petitioner in Crl.R.C.No.250 of 2007 was running a tea stall within the premises of the Government Hospital at Kilpauk and the said shop was allegedly damaged and the materials and other properties therein were stealthily removed on 01.07.1997 by the accused, whereupon a complaint against the respondent in his capacity as Dean, Kilpauk Medical College, Chennai and A.2/Assistant Engineer, Public Works Department, Chennai came to be lodged resulted in registration of the case for offences punishable under Sections 166, 448, 427, 380, 392 and 506(H) I.P.C. and ultimately, final report has been filed by the petitioner in Crl.R.C.242 of 2007, resulting in the proceedings before the Trial Court. Several writ petitions and criminal original petitions were filed pending proceedings in the criminal case. The second accused was discharged for want of sanction under Section 197 Cr.P.C. by the learned Magistrate and such discharge was set aside by this Court in Crl.R.C.No.1465 of 2003 vide order dated 19.11.2003. Aggrieved thereby, the second accused moved the Supreme Court contending that sanction is absolutely necessary to launch the prosecution against him and the Supreme Court upheld the order passed by the learned Magistrate, discharging the second accused. Based on that, the Respondent/A-1 in the case has also preferred a discharge petition and the learned Magistrate relying on the observations of the Hon'ble Supreme Court, discharged the petitioner by order dated 30.11.2006 passed in Crl.M.P.No.6059 of 2003. Aggrieved against the order impugned, the prosecution as well as the de facto complainant have preferred the above two revision petitions before this Court.

(2.) The learned Senior Counsel appearing for the de facto complainant points out that the de facto complainant was allotted 225 sq. ft. of land inside the precincts of Kilpauk Medical College by Government Order during 1977 and subsequently, the allotment was transferred in favour of the de facto complainant's wife and such transfer was approved by the Public Works Department. "No objection certificate" was also issued by the hospital authorities and the de facto complainant was continuously running the canteen upto 1992. Though the lease was hot extended thereafter, the de facto complainant was continuously paying the rent. While so, on the basis of the directives issued by the Hon'ble Supreme Court and the order of the Government of Tamil Nadu, a notice for eviction was issued and such notice was questioned before this Court and an order was passed not to dispossess the de facto complainant except by due process of law. Under such circumstances, the accused, without resorting to the procedure prescribed, illegally demolished the structure and removed the materials, resulting in registration of the case. According to the learned Senior Counsel, the accused, by committing such an act, caused damage to the properties of the de facto complainant and the resultant loss has not been compensated. A reasonable opportunity was not given to the de facto complainant to vacate the premises. It is submitted that though the Respondent/A-1 is a public servant in his capacity as a Dean, Kilpauk Medical College, Chennai, the act committed by him is not an official act and therefore, the impugned order passed by the learned Magistrate without looking into such aspect is erroneous and therefore, the same may be set aside.

(3.) Per contra, the learned counsel appearing for the Respondent/A-1 submits that, as per the direction issued by the Government and in the absence of valid lease agreement to run the canteen, the premises of the de facto complainant was demolished and only to wreak vengeance, the prosecution has been launched. It is stated that before vacating the de facto complainant from the premises, police protection was sought for and demolition was carried out only on the instructions given by the Executive Engineer, Public Works Department, to the Assistant Engineer, P.W.D and the Respondent/A-1, in his capacity as a Medical Officer, was not directly involved in the act and even so, whatever act committed was in his capacity as a public servant and therefore, sanction is absolutely necessary to launch prosecution against him.