RAJENDRA KUMAR Vs. STATE & ORS

JUDGEMENT

(1.) The instant miscellaneous petition has been filed by the petitioner complainant against the order dated 8.5.2006 passed by the learned Judicial Magistrate No.1, Bhilwara in complaint case no. 23/2004 whereby the lerned Magistrate rejected the complaint filed by the petitioner by holding that the accused were protected by Section 197 Cr.P.C. and the order dated 10.12.2008 passed by the learned Addl. Sessions Judge (F.T) No. 1, Bhilwara whereby the petitioner's revision against such rejection has been dismissed.

(2.) Learned counsel for the petitioner contends that the petitioner filed a complaint with a specific allegation that his property is located in the village Gram Panchayat Aatun and the respondents who are all employees of the Municipal Council, Bhilwara illegally came to his property and damaged the boundary wall after trespassing into the property causing aloss worth more than Rs. 40,000/- to the petitioner. Learned counsel submits that the petitioner filed the complaint mentioning by way of abundant caution that if sanction of State Government is required the same may be obtained while as a matter of fact no sanction was required for prosecuting the respondents as the act done by them was not committed in the discharge of official duties. Learned counsel submits that admittedly the property of the petitioner was located in the Gram Panchayat Aatun and the demolition thereof was carried out by the employees of the Municipal Council, Bhilwara. Thus, he submits that the act complained of could not be said to be an act done in the discharge of official duties of the accused, and therefore, the orders passed by the learned courts below deserve to be quashed and the learned Magistrate should be directed to proceed against the respondents.

(3.) Per contra learned counsel for the respondents submits that the complainant himself mentioned in his complaint that if the sanction is required, the sanction for prosecution of the accused may be procured. He submits that from the documents of the complainant itself, it is apparent that the property was located in the territory of Municipal Council, Bhilwara and thus the respondents rightly exercised jurisdiction in the case for demolishing the encroachment. He thus prays that the learned Magistrate has committed no error in rejecting the petitioner's complaint.