LAL SINGH Vs. KHEM CHAND

JUDGEMENT

(1.) THESE proceedings have been preferred by the petitioners Lal Singh and others with regard to the quashing of the proceedings to have been taken against them by the learned Sub Judge Judicial Magistrate, Reasi, whereby, on a complaint to have been instituted by one Khem Raj "here -in after referred to as the complainant" against the petitioners "here -in -after referred to as the accused" were ordered to cause their appearance for facing the proceedings U/S 427 RPC with regard to which, cognizance was taken by the said Magistrate.

(2.) AFTER the accused appeared before the learned trial Magistrate, an application was moved before him by the accused to the effect that the accused No. 1 who was the Executive Officer of the Notified Area Committee was legally authorised to demolish any construction, raised in violation of the provision of Municipal Act, and any action taken by him in that regard was made by him in the discharge of his official duties, and the same could not become the subject matter of criminal complaint and he could not be prosecuted without the leave of the State Government. The application was also dismissed by the learned Magistrate holding that accused No. 1 was not competent to enter upon the property of the complainant, and he could not demolish the construction of the complainant without observing the procedure as laid down under law.

(3.) AGGRIEVED of the said order, and the order of process to have been issued by the said Magistrate, these proceedings have been initiated on the ground that the order of learned trial Magistrate in having issued the process and refusing to withdraw the same, and also having held that no sanction of the Government was necessary, is violative of the provisions of law and the same, therefore, requires to be quashed. That the accused No. 1 is an executive Officer appointed by the Government and the accused No. 2 is an Assistant Engineer, which fact is certified by the Executive Engineer, R&B, Reasi. Accused No. 3 is a Naib Tehsildar with the powers of First Class Magistrate. All the three officers are Gazetted Officers and the other officials have also been appointed by the Government. That the trial Magistrate has misled himself by mis -construing the provisions of law to believe that, although, the accused have been appointed by the Government, but it could not be presumed that they could be removed by the latter only. He has mis -understood the provisions contained in Section 197 of the Cr.P.C. and in order to see whether the order of the magistrate was barred by Section 197 of the Cr.P.C. he had to see that the public officer against whom accusation was made, was removable from office by the Government only.