JEEWA RAM Vs. MADAN LAL

JUDGEMENT

(1.) The three petitioners have challenged the order of the learned Chief Judicial Magistrate, Bikaner dated 21.12.82 by which he has taken cognizance of offences under sections 166 and 382 I.P.C. against them.

(2.) The facts giving rise to this application briefly stated are as under:

(3.) Non-petitioner No. J, Madan Lal is a licensee of a piece of land near the temple of Shri Ratan Behariji Hanumanji in Bikaner, under the Municipal Council, Bikaner. He filed a complaint before the learned Chief Judicial Magistrate on 5.1.82 that he had placed wooden stall with iron shutter on this piece of land and was running a cycle shop there, however, the Municipal Council and the D.I.T., Bikaner without following the rules of Tah-bazari and without affording any opportunity of being heard, issued a notice to him directing him to remove the aforesaid stall: He thereupon filed a suit for injunction against the Municipal Council and the U.I.I. and obtained a temporary injunction against them on 30.9.80 after the parties were heard by the court. His case further is that despite this temporary injunction the petitioners. Jeewa Ram Chauhan, Administrator of the Municipal Council; Lalit K Panwar, City Magistrate and Shantilal, Oversear, U.L., Bikaner removed the stall, despite the protest of the complainant and took away the wooden stall in a tractor trolley. The temporary injunction order passed by the Court was also shown to these authorities when they came to the spot but they did not care for it and acted in the aforesaid manner. It was further alleged that on this, the complainant moved an application for taking proceedings against thebe persons for the contempt of Court and also prayed for the recovery of the stall, however, the Court only issued notices to these persons but did not direct the issuance of search warrant for the recovery of the stall and bad directed the complainant to take separate proceedings in this respect and, therefore, this complaint was filed. The learned Magistrate sent this complaint for enquiry under section 202 Cr. P.C. to the AddI. Munsif & Judicial Magistrate No.1, Bikaner, who after enquiry submitted his report to the effect that as the accused persons had removed the stall despite the order of injunction being brought to their notice and also threatened the complainant with the arrest, their act amounted to offence under section 382 I.P.C. and as they also acted in derogation of the injunction, they were also guilty for offence under section 165 I.P.C. According to him since the injunction was only against Jeewa Ram Chauhan, be was guilty under sections 382 and 166 I.P.C. and as the other accused persons had cooperated with him in this illegal act, they were also guilty under the aforesaid offences with the aid of section 34. He also submitted that the act of these officials could not he deemed to be in exercise of their official duty because in committing an offence or abetting it is not a part of official duty. On the basis of this report the learned Chief Judicial Magistrate, Bikaner took cognizance of these offences against these petitioners by his order dated 21.1282. They have, therefore, approached this Court for quashing this order.