SANJAY GUPTA Vs. S.C. SAWHNEY

JUDGEMENT

(1.) Through the medium of this revision petition, petitioner (hereinafter referred to as the 'complainant') assails the legality and correctness of order dated 13th October, 2012 passed by the learned Special Municipal Magistrate, Jammu in Complaint file No. 7/Com. titled Sanjay Gupta v. Sh. S.C. Sawhney and ors. by virtue whereof learned Magistrate declined to issue process against the respondents (hereinafter referred to as to 'accused') and dismissed the complaint under Section 203 Cr.P.C. [Refer JK Laws 2nd E-1. 2013 Vol. 6 P-225]. Heard rival sides and perused the record.

(2.) It appears that the complainant, claiming to be in possession of a piece of land measuring 882.75 Sft. comprised of Khasra No. 330-min situated at Maheshi Gate, Gurudwara Sunder Singh Road Jammu, intended to raise construction on the aforesaid piece of land after obtaining permission from Jammu Municipality in April 2000, which is claimed to have been extended from time to time till 17th September 2011. However, he could not raise construction for certain reasons including a dispute with a neighbor Chaina Ram. In the complaint it was alleged that subordinate officials of accused No. 2 committed tress-pass upon the land of the complainant on the intervening night of 22nd/23rd March 2010, removed barbed wire fencing and caused damage to the property. These acts of commission were attributed to the officials of Municipal Corporation acting under the behest of accused No. 2 Mubarak Singh-the then Commissioner, JMC. It was further alleged in the complaint that JMC Officials again on 19th May 2010, sent men and machinery on spot and leveled the land with the help of JCB. Accused No. 5-Satish Khajuria, Chief Enforcement Officer, Jammu Municipal Corporation is said to have supervised the whole operation. Complainant further alleged that he was threatened with cancellation of building permission. Complainant claims to have filed a civil suit before learned Municipal Magistrate, Jammu who directed the parties to maintain status quo on spot. Complainant also claims to have reported the occurrence to Police Post Residency Road, Jammu which took no action. Accused No. 2 is, alleged to have placed the building permission of the complainant in abeyance vide order dated 26th May 2010 till the dispute between the complainant and Chaina Ram was settled. Complainant claimed that he had settled the dispute with Chaina Ram and compromise decree was passed by the Court recording the terms of settlement. Thus the decks were cleared for raising construction on the said land as the Civil Court restrained the accused from interfering in the suit land. The interim direction was upheld by Higher Judicial Forums. Meanwhile accused No. 1 had taken over as Commissioner Municipal Corporation from accused No. 2. He too was inimical to complainant and on 26th May 2011 tress-passed on the land of complainant and stopped him from raising construction. Same act was repeated on 29th May 2011 when accused No. 1 alongwith JCB committed tress-pass and removed the building material dumped by the complainant on the land. This operation is alleged to have been supervised by accused No. 5 under the instructions of accused No. 1. Complainant approached the police but since no action was taken, he filed a complaint before learned Magistrate alleging commission of offence under Section 447, 506, 427, 34 read with Section 120-B RPC [Refer JK Laws 2nd Ed. 2013 Vol. 27 P-315]. Learned Magistrate decided to inquire into the allegations leveled in the complaint under Section 202 Cr.P.C. [Refer JK Laws 2nd Ed. 2013 Vol. 6 P-224] and after conducting inquiry himself, he passed the impugned order, on the basis of a status report filed by accused No. 3, refusing to issue process and dismissed the complaint.

(3.) The impugned order is a fairly lengthy order and spells out the reasons that persuaded the Magistrate to decide against issuing of process for securing presence of accused. Learned Magistrate found that no case was made out to proceed against the accused persons. It appears that in arriving at a conclusion that there was no sufficient ground to proceed against the accused, learned Magistrate kept in view all aspects of the matter. Learned Magistrate appears to have not only considered the statement of the witnesses examined during inquiry, but also viewed compact disc displaying the transaction. Learned Magistrate also called for the record from JMC regarding building permission in favour of the complainant. He also called for a status report from Joint Commissioner Administration. He noticed that the case for building permission was placed before BOCA and the Authority desired the demarcation and title verification of the land. With reference to filing of writ petition 628/2012 by complainant, the Court below noticed that the complainant set up a case of 'deemed permission' in the writ petition whereas exact location of property and Khasra numbers had not been mentioned in the sale deed under which complainant claimed to have purchased the said plot of land. Court-below also noticed that the accused claimed the said plot of land as the land belonging to JMC and building permission case could be considered only after title verification from the Revenue Authority. These facts having been noticed by learned Magistrate, he found the complainant's version regarding grabbing of land in question by accused No. 2 in conspiracy with accused persons as groundless and ill-founded. Learned Magistrate found that the accused were public servants and had acted in conformity with procedure. The Court below arrived at conclusions that object of complainant was to exert pressure on the accused to get his case for building permission cleared by accused. It also noticed that accused No. 2 stood transferred from the post of Municipal Commissioner in 2010 and occurrence alleged to have taken place in 2011 and 2012 could not be linked with him.