DAL CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision-petition by the accused is directed against the order dated February 5, 1979, by the Judicial Magistrate No. 3, Udaipur, by which the learned Magistrate over-ruled the preliminary objection raised by the accused under sec. 197, Cr. P. C. that the Court had no jurisdiction to take cognizance of the offence without the previous sanction of the State Government.

(2.) THE relevant facts for appreciating the point of law canvassed before me may be stated within a narrow compass. Petitioner No. 1 is the Sarpanch of Gram Panchayat, Gogunda. Petitioners Nos. 2 to 5 are the Panches of the said Panchayat, petitioner No. 6 Roop Singh is a Peon in the said Panchayat and petitioner No. 7 is the Gram Sewak of village Gogunda. Non-petitioner No. 2 Dal Chand son of Rati Lal (who will hereinafter be referred to as the complainant) filed a complaint under sections 448 and 427, I. P. C. against the petitioners in the court of the Judicial Magistrate No. 3, Udaipur, on December 20, 1978, alleging therein that he had taken on lease a plot of land from Gram Panchayat, Gogunda, on a monthly rent of Rs. 10/-, about five years before the filing of the complaint and had enclosed the plot of land and covered it with a ' Chappar' herein he was carrying on a restaurant. It is alleged that on December 10, 1978, while the complainant had gone out to Udaipur, the accused-petitioners went to the spot and demolished the structure raised by him on the plot in question and took away the articles lying therein. THE complainant further alleged that on account of the aforesaid illegal act of the petitioners, he had been put to loss of Rs. 4000/ -. THE learned Magistrate held an enquiry under sec. 202, Cr. P. C. and thereafter issued process against the petitioners. On December 20, 1978, the petitioners submitted an application to the effect that a false complaint had been filed against them. It was pleaded that the Gram Panchayat had passed an order against the complainant on October 23, 1977, from which the complainant had filed an appeal before the Panchayat Samiti, Gogunda, which, by its order dated December 1, 1977, up-held the order of the Gram Panchayat and directed that the complainant may be dispossessed from the land in question forthwith. THEreafter, the Gram Panchayat served notice dated December 9, 1978, on the complainant directing him to vacate the land within 24 hours failing which the Panchayat would remove the structure and would recover from the complainant the cost incurred. It was also alleged that a meeting of the Panchayat was called on December 12, 1978, and a decision was taken by it that since the complainant had not vacated the land in question in spite of notice, the structure may be got demolish by the Panchayat and the expenses for removal as well as the arrears of rent may be recovered by sale of the articles lying therein. THE case of the accused is that when the complainant, did not comply with the orders of the Panchayat and the Panchayat Samiti, and the notice served in pursuance thereof, the structure on the land in dispute was got removed on December 10, 1978.

(3.) SCOPE of sec. 197, Cr. P. C. came to be considered by the Supreme Court in Pukhraj vs. State of Rajasthan (4 ). It was observed that the law regarding circumstances under which sanction under sec. 197 of the Code of Criminal Procedure is necessary is well settled as a result of decisions in Hori Ram Singh vs. Emperor (5), and Bhagwan Prasad Srivastava vs. K. P. Mishra (6 ). The difficulty really arises in applying the law to the facts of a particular case. Their Lordships observed as follows: - "the offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. No need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. " In Hori Ram Singh's case (supra), Sulaiman J. observed as follows : - "the section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. " In Matajog Dobey vs. H. C. Bhari (7), the Supreme Court summed up as follows: - "there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. " In H. H. B. Gill vs. King (8), Varada Chariar J. observed as follows: - "a public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of the official duty. . . The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. " In the present case, the Panchayat had ordered on October 23, 1977 that the complainant had raised structure on the plot in question against the terms of the lease and that the Panchayat was not competent to grant lease for more than three years under the relevant law. Consequently, the complainant was liable to vacate the land. Aggrieved by this order, the complainant filed an appeal before the Panchayat Samiti which, while dismissing the appeal, gave a positive direction that the complainant shall be dispossessed from the land forthwith. " Of course, no clear provision in the Act has been pointed out to the effect that in such cases the Panchayat may itself dispossess the person in occupation of the land. | However, while passing the order dated October 23, 1977, the Panchayat directed that the complainant shall vacate the land in question within 15 days of the order, failing which a penalty of Rs. 1/- per day would be realised from him. . The execution of this order is sought to be justified under sec. 27 (2) of the Act. This order was upheld by the Panchayat Samiti. At any rate, the accused-petitioners acted in pursuance of this order or under a mistaken belief as to the existence of such duty that in compliance with the orders passed by the Panchayat as well as the Panchayat Samiti the possession of the complainant over the land had to be removed.