1. The present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicants-original accused nos. 2 to 5 to quash and set aside the impugned Complaint, being Criminal Case No. 4164/2008 arising out of Inquiry Case No. 33/2008 pending in the Court of learned Chief Judicial Magistrate, Gandhidham as well as the order dated 28/08/2008 passed by the learned Chief Judicial Magistrate, Gandhidham taking cognizance upon the Complaint and issuing process for the offences punishable under Sections 147, 148, 149, 447, 427, 504, 506(2) and 114 of the Indian Penal Code.
2. Respondent no. 1-original complainant had filed one Complaint against the applicants and others in the Court of learned Additional Sessions Judge, Gandhidham for the offences punishable under Sections 147, 148, 149, 447, 427, 504, 506(2) and 114 of the Indian Penal Code for the incident alleged to have happened on 09/04/2008 at 12:30 p.m. alleging interalia that he alongwith his father was in possession of the disputed land in question and was running a factory for manufacturing cement blocks. It is further averred in the Complaint that with respect to the land in question a civil suit filed by his father was pending before the Civil Court against one S.R.C Ltd., being Civil Suit No. 46/2002. It is alleged in the said Complaint that on 09/04/2008 when the manufacturing of the cement blocks was in process and the labourers were working at that time the accused persons came in blue coloured jeep and entered the land with sticks and hockey with a malafide intention and started using abusive language and started damaging the factory and gave threats that if the factory is not closed they will be killed and because of this the labourers ran away. It is further alleged in the said Complaint that during the scuffle the father of respondent no. 1-original complainant got injured and became unconscious and immediately he was taken to the hospital where he was given treatment. It is alleged in the Complaint that at the relevant time he did not go to file the Complaint as his father and other family members were afraid. It is further alleged and averred in the said Complaint that the police informed him that a Complaint be filed in the Court and thereafter if the Court passes an order, they will inquire into the Complaint and, therefore, he has filed private Complaint before the learned Magistrate. It is required to be noted that the said Complaint has been filed before the concerned Magistrate on 25/04/2008. The learned Magistrate passed an order for inquiry under Section 202 of the Code of Criminal Procedure by himself and thereafter after recording the statement of the original complainant on affidavit, the learned Magistrate passed an order on dated 28/08/2008 taking cognizance of the Complaint against the applicants and another and has directed to issue process against the applicants for the offences punishable under Sections 147, 148, 149, 447, 427, 504, 506(2) and 114 of the Indian Penal Code. Thereafter, the applicants preferred Revision Application No. 47/2008 before the learned Sessions Court, Gandhidham and the learned revisional Court vide impugned order dated 18/03/2010 dismissed the said Revision Application solely on the ground that the same is not maintainable. Hence, being aggrieved and dissatisfied with the impugned Complaint, the order passed by the learned Judicial Magistrate First Class, Gandhidham, Kutch dated 28/08/2008 taking cognizance of the Complaint and directing to issue process against the applicants and the order passed by the learned revisional Court dated 18/03/2010, the applicants have preferred the present application under Section 482 of the Code of Criminal Procedure.
3. Ms. Varsha Brahmbhatt, learned advocate appearing on behalf of the applicants has submitted that as such the applicants have not committed any offence as alleged. It is submitted that the father of the complainant had in fact submitted one Complaint before the Police Inspector, City Police Station Gandhidham on 09/04/2008 in which no allegations were made against the applicants with respect to the incident in question. It is submitted that the applicants had gone on 09/04/2008 for the purpose of measurement of the plot in question while performing their official duties as Officers of the Nagarpalika and, therefore, it is submitted that as such the learned Magistrate could not have taken cognizance of the Complaint against the applicants and ought not to have taken cognizance of the Complaint against the applicants and ought not to have issued process against the applicants for the offences punishable under Sections 147, 148, 149, 447, 427, 504, 506(2) and 114 of the Indian Penal Code without prior sanction as required under Section 197 of the Code of Criminal Procedure. It is further submitted that as such the original complainant and his father were in unauthorized possession of the disputed land in question and they were neither the owner of the land in question nor the factory land was leased to them. It is further submitted that subsequently the possession of the land in question has been taken over by the Gandhidham Nagarpalika after following the due procedure as required and at present there is no factory on the land and even neither the original complainant nor his father are in possession of the land, which has now been given to the Gandhidham Nagarpalika for public purpose. It is submitted by Ms. Brahmbhatt, learned advocate appearing on behalf of the applicants that there was no material before the learned Magistrate making out even a prima facie case to issue process against the applicants for the offences alleged. It is submitted that there was no material produced before the learned Magistrate with respect to even the injury sustained by the father of the original complainant as alleged and/or any treatment taken by his father except one prescription and, therefore, it is submitted that even on merits also the learned Magistrate has materially erred in directing to issue process against the applicants for the offences punishable under Sections 147, 148, 149, 447, 427, 504, 506(2) and 114 of the Indian Penal Code and, therefore, it is submitted that the impugned Complaint is nothing but a vexatious and a malafide Complaint with a view to pressurize the Officers of the Nagarpalika and, therefore, the same is nothing but an abuse of process of law and Court and, therefore, it is requested to quash and set aside the impugned criminal proceedings against the applicants.
4. The present application is opposed by Shri Ramnani, learned advocate appearing on behalf of the respondent no. 1- original complainant. It is submitted that the learned Magistrate has directed to issue process against the applicants for the offences alleged after holding necessary inquiry under Section 202 of the Code of Criminal Procedure and after considering the material on record and having been satisfied that there is a prima facie case made out against them and, therefore, it is submitted that the same is not required to be interfered with in exercise of powers under Section 482 of the Code of Criminal Procedure. It is submitted that whatever has been stated on the part of the applicants, are their defenses, which are required to be considered at the time of trial. It is further submitted by Shri Ramnani, learned advocate appearing on behalf of the original complainant that only if a case is made out as per the law laid down by the Hon’ble Supreme Court in the case of State of Haryana & Ors. Vs. Ch. Bhajanlal & Ors. reported in AIR 1992 SC 602 the powers under Section 482 of the Code of Criminal procedure can be exercised and the criminal proceedings can be quashed and set aside. It is submitted that the present case does not fall in any category as laid down by the Hon’ble Supreme Court in the case of Bhajanlal & Ors (Supra) and, therefore, it is requested to dismiss the present application.
4.1. Shri Ramnani, learned advocate appearing on behalf of the original complainant has further submitted that as the act on the part of the applicants was illegal, they cannot get the protection under Section 197 of the Code of Criminal Procedure and in the present case sanction under Section 197 of the Code of Criminal Procedure is not required. With respect to his above submission he has relied upon the decision of the learned Single Judge in the case of Khandwala (IPS) & Ors. Vs. State of Gujarat & Ors. reported in 2002 (3) GLH 556 as well as the decision of the Hon’ble Supreme Court in the case of Matajog Dobey Vs. H.C. Bhari reported in AIR 1956 SC 44. It is further submitted by Shri Ramnani, learned advocate appearing on behalf of the original complainant that time and again the Officers of the Nagarpalika, inclusive of the applicants, acted illegally and used force for getting the possession of the land on which the original complainant and his father were having the factory for manufacturing cement blocks. Making the above submissions and relying upon the above decisions, it is requested to dismiss the present application.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the applicants-original accused nos. 2 to 5 are the employees serving with Gandhidham Nagarpalika on different posts and respondent no. 1-original complainant and his father were found to be in unauthorised occupation and possession of the disputed land in question and there was long pending litigation. After the father of the original complainant failed to get any injunction in civil proceedings, before taking any action for dispossession, the applicants went to the site for the purpose of measurement and it is alleged that at that time the applicants have committed the offence as alleged in the Complaint. Thus, at the relevant time, the applicants were on duty and had reached the spot and acted during the course of performance of their duty and, therefore, before taking any cognizance of the offence against the applicants the sanction to prosecute them as required under Section 197 of the Code of Criminal Procedure was required. The learned Magistrate could not have taken cognizance against the applicants without the contemplated sanction as required under Section 197 of the Code of Criminal Procedure. It is required to be noted that with respect to some similar incident that had happened earlier in fact the father of the original complainant had approached the appropriate authority for sanction under Section 197 of the Code of Criminal Procedure. Under the circumstances and considering the decision of the Hon'ble Supreme Court in the case of Sankaran Moitra (Supra), the learned Magistrate has committed an error and/or illegality in taking cognizance of the Complaint for want of sanction under Section 197 of the Code of Criminal Procedure.
6. Even otherwise, it is required to be noted that the impugned Complaint seems to be vexatious and has been filed with a malafide intention with a view to pressurize the Officers of the Nagarpalika. It is required to be noted that the original complainant and his father were in unauthorised possession of the disputed land in question, who were neither the owners of the land in question not the land was leased to them and they also failed to get any injunction from the civil Court and the land in question has been given to the Nagarpalika for public purpose and subsequently, the possession of the disputed land in question has been taken over after following the due procedure as required and at present the Nagarpalika is in possession of the disputed land in question. Considering the aforesaid facts and circumstances of the case, it appears to the Court hat the impugned Complaint is nothing but an abuse of process of law and Court, which is required to be quashed and set aside in exercise of the powers under Section 482 of the Code of Criminal Procedure. It also appears that as such there was no material before the learned Magistrate produced on behalf of the original complainant in support of his case with respect to the alleged incident that had taken place on 09/04/2008. It is required to be noted that as such on the very day, i.e. 09/04/2008 the date of the alleged incident, the original complainant/his father gave one complaint to the Police Inspector, City Police Station, Gandhidham, however, in the said Complaint, there is no reference to the alleged incident that happened on 09/04/2008 for which the Complaint has been filed after a period of 15 days i.e. 25/04/2008.
7. Under the circumstances, this Court is of the opinion that the impugned Complaint is vexatious one and has been filed with a malafide intension to pressurize the aforesaid Officers of the Nagarpalika and, therefore, this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the criminal proceedings.
8. In view of the above and for the reasons stated hereinabove, the present application succeeds and the impugned criminal proceedings, being Criminal Case No. 4164/2008 arising out of Inquiry Case No. 33/2008 pending in the Court of learned Chief Judicial Magistrate, Gandhidham as well as the order dated 28/08/2008 passed by the learned Chief Judicial Magistrate, Gandhidham taking cognizance upon the Complaint and issuing process for the offences punishable under Sections 147, 148, 149, 447, 427, 504, 506(2) and 114 of the Indian Penal Code are hereby quashed and set aside. Rule is made absolute.
(M.R. SHAH, J.) siji