1. By this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) the petitioner – original accused No.1 seeks quashing of Criminal Case No.10548/2008 pending before the learned Judicial Magistrate First Class, Ahmedabad (Rural) at Mirzapur qua the present petitioner.
2. The facts of the case stated briefly are that the respondent No.2 – original complainant lodged a complaint in the court of the learned Judicial Magistrate, Ahmedabad against the petitioner and sixteen other named accused and other officers of the Ahmedabad Urban Development Authority (AUDA) alleging commission of the offences punishable under sections 166, 341, 379, 384, 427, 447, 506 (2) and 114 of the Indian Penal Code which came to be registered as Court Inquiry Case No.400/04. The petitioner who at the relevant time was the Chairman of AUDA has been arraigned as accused No.1 in the said complaint. In the said proceeding, the learned Magistrate passed an order dated 26th October, 2004 observing that the complainant in the complaint has stated that a written complaint has been given to Aslali Police Station in respect of which the statement of the complainant has been recorded on 25th October, 2004, hence, before making any inquiry in respect of the offence, the Aslali Police Station may first submit a report as to what action has been taken on the complaint and thereafter further proceedings may be taken in connection with the said complaint. Accordingly, report of the Aslali Police Station was called for within ten days thereof and the proceedings were stayed under section 210 of the Code till further orders. The learned Magistrate, thereafter took cognizance of the offence and recorded the statement of the complainant on 3rd December, 2004 and vide order dated 3rd December, 2004, ordered a court inquiry under section 202 of the Code and directed issuance of summons to the complainant as well as the accused. On 22nd April, 2008, the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur passed an order which as translated into English reads thus:-
“Heard the learned advocate for the complainant. Perused the complaint and verification of the complainant and statements made on oath. Upon considering the documentary and oral evidence, as there appear to be sufficient reasons for proceeding against the accused in respect of the offences under sections 166, 341, 379, 384, 427, 447, 506(2) and 114 of the Indian Penal Code, order is being made under section 204 of the Code that the complaint be taken on register and upon process fee being paid, summons be issued to the accused in respect of the aforesaid offences. Copy of the complaint be enclosed.”
It is at this stage that the petitioner has filed the present petition seeking quashing of the aforesaid complaint qua him.
3. Mr. Mihir Thakore, Senior Advocate appearing for the petitioner drew the attention of the court to the following facts: the proposal for acquisition of various parcels of lands for the purpose of construction of Sardar Patel Ring Road was forwarded by AUDA on 15th February, 2001; notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') came to be issued on 29th May, 2001 and was published in the Official Gazette on 7th June, 2001; notification under section 6 of the Act came to be issued on 10th June, 2002 and was published in the Official Gazette on 9th July, 2002;
public notice came to be issued under section 9 of the Act on 7th October, 2002 and individual notices under section 9 of the Act came to be served upon the heirs of the original owner viz. Ratanben Dolatbhai and others whose names were reflected in the revenue record. It was submitted that insofar as the complainant is concerned, his name came to be entered in the record of rights on 26th July, 2002 on the basis of a will dated 30th March, 1993 executed by the original owner in favour of the complainant in the year 1993. That though the original owner Dolatbhai had expired on 23rd May, 1993, the name of the complainant had not been entered in the record of rights at the relevant time. Moreover, the mutation entry made on 26th July, 2002 came to be set aside on 3rd March, 2003 in suo motu proceedings. On 14th August, 2003, an agreement came to be executed by AUDA and Ratanben Dolatsing and constructive possession of 20 Are 31 square metres out of the land bearing Block No.136 of village Kamod came to be handed over to AUDA and possession receipt dated 14th August, 2003 came to be signed by one Rajuben on behalf of Ratanben. It was submitted that in the meanwhile, on account of change in the alignment lesser area of land was required to be acquired out of the lands in question. Hence, a fresh proposal was forwarded to the State Government. On 26th December, 2003, AUDA took possession of the lands in question in respect of which a written complaint was given on 11th January, 2003 to Aslali Police Station alleging that his greenhouse had been damaged however the police did not register any FIR and on inquiry found that no offence is made out. It was further submitted that pursuant to the fresh proposal, necessary procedure under the provisions of the Land Acquisition Act came to be followed which culminated into an award dated 12th October, 2006 made under section 11 of the said Act. It was further submitted that AUDA had executed agreements with thirty persons and cheques were given to all of them and possession was to be taken.
3.1 It was emphatically argued that the petitioner has not committed any of the illegal acts alleged in the complaint and that as Chairman of AUDA, there is no vicarious liability in respect of illegal acts, if any, committed by the officers of AUDA. Thus, for invoking the offences alleged against him, the petitioner should be personally responsible for commission of the same.
3.2 One of the main contentions raised by the learned counsel was that the alleged offences, insofar as the petitioner is concerned, are in respect of acts pertaining to the performance of the official duties of the petitioner as Chairman of AUDA. The petitioner as Chairman of AUDA was a public servant within the meaning of the said expression as envisaged under section 21 of the Indian Penal Code and as such, the learned Magistrate could not have taken cognizance of the offence unless necessary sanction had been obtained under section 197 of the Code. In support of his submissions, the learned counsel placed reliance upon the decisions of the Supreme Court in the case of Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668, S.K. Alagh vs. State of Uttar Pradesh and Others, (2008) 5 SCC 662, Bholu Ram v. State of Punjab and Another, (2008) 9 SCC 140 and more particularly paragraphs 59 and 60 thereof, B. Saha and others v. M.S. Kochar, (1979) 4 SCC 177 and P.K. Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC 229.
3.3 Elaborating upon the above submission, the learned counsel submitted the actual mischief whereby damage has been caused to the property of the complainant is not the act of the petitioner and that it is in this background that it has to be examined as to whether the petitioner has acted in his official capacity. It was submitted that the main allegation against the petitioner is that he did not accede to the request and letters of the complainant which is clearly indicative of the fact that the offence alleged is in respect of acts or omissions of the petitioner in his official capacity. Reliance was placed upon the decision of the Supreme Court in the case of Raghunath Anant Govilkar vs. State of Maharashtra and Others, (2008) 11 SCC 289, for the proposition that use of the expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and should have been in discharge of his duty. The said section does not extend its protective cover to every act or omission done by a public servant but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his official duty. Reliance was also placed upon the decision of the Supreme Court in the case of Sankaran Moitra vs. Sadhna Das and another, (2006) 4 SCC 584, and more particularly to the contents of paragraph 23 thereof. The learned counsel contended that it was the official duty of the petitioner to take possession of the land and construct the road. While doing so, he may have exceeded his authority in not verifying who is in actual possession. That, in so acting, assuming though not admitting there may be some irregularities, however, it cannot be said to be an act unconnected with his official duties. Under the circumstances, it is apparent that the alleged acts of the petitioner are in his official capacity and as such, the provisions of section 197 would be squarely applicable.
3.4 As regards the allegations made in the complaint, it was submitted that for the purpose of constituting an offence under section 166 of the Indian Penal Code a public servant should knowingly disobey any direction of law as to the way in which he is to conduct himself as such public servant intending to cause, or knowing it to be likely that he will, by such disobedience cause injury to any person. It was submitted that insofar as the petitioner is concerned, AUDA had taken steps for forwarding a proposal for acquisition of land to the concerned authority as required under the provisions of the Land Acquisition Act. Insofar as taking over possession is concerned the same was taken over with the consent of the concerned landholder after issuing cheques in their favour. However, insofar as the proceedings under the Land Acquisition Act are concerned, there is no direction in law under which the petitioner is required to act under the said Act. It was argued that the allegations made in the complaint pertain to irregularities committed in proceedings under the Land Acquisition Act which were taken by the concerned authorities under the said Act, viz. the Collector and Land Acquisition Officer, hence the provisions of section 166 IPC would at best be applicable to them. That when AUDA took possession, it was not under the provisions of the Land Acquisition Act, under the circumstances, section 166 IPC would not be attracted qua the petitioner as it cannot be said that he has disobeyed any direction of law as to the way in which he was required to conduct himself as such public servant under the provisions of the Act.
3.5 As regards the offences under sections 341, 378, 383 and 506(2) I.P.C., referring to the allegations made in the complaint, it was pointed out that no allegations constituting the said offences have been made. Insofar as the offence under section 427 is concerned, it was submitted that it is an admitted position that the petitioner was not present when the said offence was allegedly committed. That there are no allegations in the complaint that the petitioner had caused destruction and that in effect and substance, the petitioner is sought to be made vicariously liable for the acts of the officers of AUDA. Under the circumstances, though the provisions of section 427 may apply to some of the accused, the same would not be attracted insofar as the petitioner is concerned. As regards the offence under section 447 I.P.C., it was submitted that mere trespass does not amount to an offence and that in any case, the petitioner not being personally present during the commission of the alleged offence, the said provision would not be attracted insofar as he is concerned. It was urged that under the land acquisition proceedings, the petitioner may incur civil liability and if any irregularities are found in acquisition proceedings the complainant can take recourse to the Land Acquisition Act but no criminal proceedings will lie and in any case he cannot be held to be vicariously liable for the alleged criminal acts of the officers of AUDA. It was argued that insofar as the offences of criminal trespass and mischief are concerned, there is no direct allegation against the petitioner and as such, the cognizance taken by the learned Magistrate in respect thereof is bad in law. Hence, insofar as the petitioner is concerned, the complaint is required to be quashed.
4. Vehemently opposing the application, the respondent No.2 - Mr. Jagdishbhai Ambalal Vyas who appears in person drew the attention of the court to the record of the case to point out that AUDA had awarded a contract for construction of the ring road to the contractor on 1st August, 2002 prior to the issuance of notifications under the provisions of the Land Acquisition Act by taking over possession forcibly. Attention was invited to the letter dated 10th October, 2002 of Somabhai Virabhai (Annexure 15 to the affidavit-in-reply filed by the said respondent) addressed to the Additional Special Land Acquisition Officer, inter alia, stating that normally possession is taken after payment of 80% of the amount of compensation, whereas without informing them, work had been started on the land. Reference was made to the letter dated 11th November, 2002 (Annexure 16 to the affidavit-in-reply) of one Vashrambhai Ramabhai Makwana addressed to the petitioner for releasing land of Block No.147 which was illegally included in the Sardar Patel Ring Road. It was submitted that ordinarily AUDA does not come into the picture till the land acquisition proceedings are over and the land vests in the Government, whereas in the present case, without completion of the land acquisition proceedings, possession has been taken over forcibly and work of the road has commenced which is evident from the documentary evidence produced on record. Referring to various documents placed on record, the attention of the court was invited to various irregularities/illegalities committed by the officers of AUDA like taking over possession of lands without drawing proper panchnama of the trees and other construction thereon; instead of carrying out valuation of the properties at site, the valuation report as submitted by AUDA was mechanically approved by the Deputy Executive Engineer, Roads and Building Department. Referring to the statement showing calculation of the amount payable for taking advance possession of the lands under acquisition annexed at page 60 to the application, it was pointed out that the farmers have accepted the cheques with objections. It was further submitted that according to AUDA, 80% of compensation had been paid while taking possession of the lands in question and that a cheque for Rs.16,248/- had been handed over to Ratanben Dolatsing, whereas the value of the said land as per the award made under section 11 of the Land Acquisition Act is Rs.4,98,933/-, which makes it evident that the advance compensation was not 80% of the amount. It was accordingly urged that intentionally no compensation has been given while taking over possession of the land. The attention of the court was drawn to the averments made in Criminal Miscellaneous Application No.12404/2009 made by the petitioner herein seeking permission to place annexures P/1 to P/10 on record of the main special criminal application to submit that the valuation of the structure on the land in question was done after the structure was removed. It was pointed out that the cheque issued to Ratanben had been returned back to the authorities and that copies of the forwarding letter had been sent to the concerned officers, despite which, in the said application which is made on oath by the petitioner herein, it has been stated that they have never received back the cheque, though it is a matter of record that the cheque was in fact received back by them. Referring to the award under section 11 of the Act, the attention of the court was drawn to the fact that though the said cheque for advance compensation had been returned the said amount is shown to have been paid. It was further submitted that initially pursuant to the first proposal for acquisition of land, notifications had been issued under section 4 and 6 of the Land Acquisition Act, but subsequently a fresh proposal had been forwarded and valid notification under section 6 of the said Act came to be issued only in the year 2004, hence, taking over possession of the lands in question was without authority of law. It was submitted that all the correspondence made by him was addressed to the petitioner herein, however, the petitioner had not paid any heed to the same and as such, is deemed to have connived in the action of the officers of AUDA and as such, is an abettor in relation to the criminal acts committed by the officers of AUDA. It was submitted that, therefore, the offences alleged would also be attracted qua the present petitioner.
4.1 Reliance was placed upon the decision of a Full Bench of the Andhra Pradesh High Court in the case of the Andhra Pradesh Agricultural University, Rajendranagar vs. Mahmoodunnisa Begum and another, AIR 1976 A.P. 134, for the proposition that possession can be taken only by the Collector under the provisions of the Land Acquisition Act after the award is made. It was, accordingly, submitted that AUDA had no authority to take possession of the lands in question before the making of the award by the Collector under the provisions of the Land Acquisition Act. Reliance was also placed upon the decision of this High Court in the case of Lekhraj Sabumal and another vs. State of Gujarat and others, AIR 1980 Guj. 47, wherein the court had held that the notification under section 6 which was issued after a delay of six years and nine months from the date of issuance of the notification under section 4 was invalid. It was submitted that in the facts of the present case also, there was a vast gap between the issuance of notification under section 4 and section 6 of the Land Acquisition Act and as such, the entire land acquisition proceedings were invalid on the ground of non- issuance of notification under section 6 within the period prescribed therefor.
4.2 As regards the submission made on behalf of the petitioner that the Mutation Entry No.1296 dated 26th July, 2002 whereby the name of the complainant was introduced in the revenue record was subsequently deleted in exercise of suo motu powers, it was submitted that the said order had been challenged by the complainant and had been set aside by the higher authority and as such, the said mutation entry was sustained.
4.3 Next, it was submitted that the contract for construction of the Ring Road was given in the year 2001 prior to any proceedings having been taken under the Land Acquisition Act. Possession of the lands of the farmers had been taken over without issuing any notice under section 9 of the Act. Though the possession receipt records that possession has been taken over on 14th August, 2003, actual possession of the land in question was taken over on 26th December, 2003 and valuation was done on 18th June, 2005. Thus, all acts in relation to the acquisition were illegal and nothing was done in the discharge of his official duty by the petitioner, right from the grant of the contract till the taking over of the possession of the lands in question. It was submitted that therefore, the petitioner is not entitled to the protection of section 197 of the Code as the said provision would not apply to illegal acts which are not committed in the course of discharge of his official duties. It was further submitted that though the complainant has filed a detailed affidavit to the effect that the actions taken by them are wrong, no counter affidavit has been filed by the petitioner controverting the said averments. It was, accordingly, urged that the offences alleged are clearly made out from the averments made in the complaint and as such, the learned Judicial Magistrate was justified in issuing process to the petitioner.
5. Ms. Krina Calla, learned Additional Public Prosecutor submitted that the allegations made in the complaint clearly indicate that the possession of the lands in question was not taken in accordance with law. It was further argued that the provisions of section 197 of the Code would not be attracted qua the petitioner herein as he did not occupy a post from which he could be removed by the Government. Reliance was placed upon the decision of the Supreme Court in the case of M. Gopalakrishnan vs. State (2009) 3 SCC 681, wherein the appellant therein was the Chairman and Managing Director of Indian Bank at the relevant time when the offence was alleged to have been committed. It was contended on behalf of the appellant therein that in the absence of any sanction under section 197(1)(a) of the Code, the cognizance taken by the court was illegal and invalid since he was a public servant. The court observed that the capacity or the position of the appellant as that of public servant is an admitted position. The High Court held that though the appellant is described as a public servant it has to be seen whether he comes within the meaning of “such public servant who cannot be removed from his office except by or with the sanction of the Government”. The court in the facts of the said case after considering the provisions of the Banking Regulation Act, 1949 and the Scheme which was formulated under section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 held that the appellant cannot claim that he is a public servant not removable from his office, save by or with the sanction of the Government.
6. In the background of the aforesaid facts and contentions, two questions arise for consideration: firstly as to whether the offences alleged can be said to have been committed by the petitioner in the discharge of his official duties so as to entitle him to protection of the provisions of section 197 of the Code; and, secondly, as to whether on the averments made in the complaint, the offences as alleged can be stated to have been made out against the petitioner. For this purpose, it would be necessary to refer to the allegations made in the complaint in detail.
7. The complaint, as translated into English reads thus:-
(1) The complainant is in possession of Block No.136 of Kamod village since the year 1993 wherein he is carrying out experiments under different projects and has been corresponding with the Agricultural Department and other departments of the State Government as well as other states. The complainant has constructed a greenhouse in the said area and is doing research work and is trying to increase the yield of food grains. In the greenhouse, he has been trying to make experiments at different periods by adopting different procedures for obtaining yield through water tanks, generators, engine, flogger, drip system as well as circulating system. In the context of the aforesaid, a room, kitchen, toilet and bathroom and other facilities have been put up for residence and in view of such projects, day by day there is increase in the yield. The complainant is wholly managing and taking care of the greenhouse.
(2) All the accused residing in the Ahmedabad area being officers of AUDA and other employees under the jurisdiction of the Police Commissioner as well as residents of Naroda, Memnagar and Kamod, had started construction of a 60 metre wide and approximately 76 kms long Ring Road around Ahmedabad which is known as Sardar Patel Ring Road. However, in this regard, without following any procedure in accordance with law, without any map or measurement, the accused No.1 to 10 took possession of the lands situated in Kamod, Lambha of Daskroi area by means of bulldozers. The accused No.10, in connivance with accused No.1 to 9, without informing and in abuse of powers took possession of the lands of poor illiterate farmers residing in the said areas by means of bulldozers, causing damage to the trees, standing crops and other properties. That while the complainant was carrying on research work at his greenhouse, the accused No.7 and others came to his place and had orally informed him that they would give him reserved land and that when the T.P. Scheme is introduced, he would get land, however, the complainant had clearly refused.
(3) On 11th January, 2003, in the night time, without in any manner informing the complainant, keeping aside all legal principles as well as the provisions of the Land Acquisition Act, the accused, that is, the officers of AUDA and their accomplices broke the fencing of the complainant's premises bearing Block No.136 and destroyed the crop of lemon and trees etc. and caused damage. In this regard, the complainant lodged a complaint with the Aslali Police Station, however, they refused to lodge a complaint against AUDA. In this regard, he had given a detailed writing to the concerned authorities on 10th February, 2003 including the Collector, Land Acquisition Officer, AUDA and Crime Branch. However, he did not receive any reply. The Crime Branch however, forwarded the application to the Rural Police Commissioner on 10th March, 2003 which was received by the Aslali Police Station in connection with which his statement came to be recorded. He has also given evidence of the illegal action of the accused alongwith photographs, but the statements of the accused were not recorded. However, a false statement of the accused No.10 was recorded. No legal action was taken in respect of the said application which was sent back to the office of the Police Commissioner. In this regard, upon inquiry about the reason for filing (disposing of) the application, the accused No.15 - Shri Chauhan had informed that the complainant had informed that he would initiate court proceedings. In this regard, upon asking for the statement, the same was shown to him and upon perusing the same, he was very surprised as the same has been added without his knowledge. In the context of the aforesaid, he had informed them to take proceedings once again, in connection with which the said application dated 18th April, 2003 was again submitted to Aslali Police Station and alongwith the same, he had also given another written application to carry out due investigation against the accused and take appropriate steps.
There is no paragraph (4).
(5) In the meanwhile, he had made application to the Free Legal Service Centre seeking relief for taking steps through Free Legal Service Centre in connection with which on 3rd March, 2003, the Legal Service Centre, Duffnala, Shahibaug, by a detailed letter addressed to AUDA, asked them to remain present on 12th March, 2003 but no cooperation was received. Hence, on 13th March, 2003 and 26th March, 2003, letters were written to remain present at the Centre on 24th March, 2003 and 8th April, 2003 and give cooperation; however, no reply was received. In the context of the aforesaid, a sealed letter was given to the Free Legal Service Division, Old High Court for engaging an advocate.
(6) On the other hand, the Aslali Police Station made several efforts to record AUDA's statement and informed them about the complainant's application. However, instead of giving reply as regards the damage caused on 18th April, 2003 to Block No.136, Kamod, it was informed that the land is going under acquisition as well as “in the 7/12 record in respect of the said Block, the name of the complainant is not shown but the name of Ratansing Dalpatram Vaghela as owner and occupier is running”. Besides, notifications under section 4 and section 6 have been published in the Government Gazette as well as in the village square as specified by the Government. Thereafter, notices for hearing have been issued under section 9 and 10 and the agriculturists land holders have been personally heard. The aforesaid statement had been given by the accused No.2 who authoritatively pressurized filing (disposing of) of the complaint. The aforesaid statement was false to the knowledge of the accused and as such, serious offences under section 166, 341, 379, 384, 427, 447, 506(2) and 114 of the Indian Penal Code have been committed. A copy of the record of rights and village form No.7/12 was submitted to demonstrate the criminal acts of the accused.
(7) On 19th February, 2003, Vashrambhai who is the owner of Block No.147 who had not received any reply in connection with his application. Though being a citizen and an agriculturist and belonging to the backward caste, AUDA without any reason, as a part of their illegal activities has taken possession of his land in the year 2000. Later on, it came to be learnt that the said land was not found in the map and in this regard, a detailed application dated 11th November, 2002 was made to the accused despite which no legal action was taken thereon. In this regard, the office of the Land Acquisition Officer had also not given any kind of cooperation. Thus, accused No.11 to 15 had not been able to stop the illegal activities of AUDA. Instead of stopping that action, it appeared as if action which was unjust to the agriculturist was being taken thus, all the accused are involved in the illegal acts.
(8) In view of the complainant's letters dated 10th February, 2003, 15th February, 2003, 19th February, 2003 as well as 28th May, 2003, the authorities found that their illegal acts were being exposed, hence, on 1st June, 2003, the accused No.3 – Smt. Kapadia, accused No.4 – Shri Parmar as well as accused No.6 – B.R. Gohel gathered at the village square of Kamod and starting giving details about measurements etc. in the presence of the Talati and Sarpanch and upon being asked to keep the agriculturists present while taking measurements, it was informed that the said work has been entrusted to a private agency. The complainant, therefore, addressed a detailed letter in this regard to the concerned officers on 2nd July, 2003 informing that no action had been taken as per the maps. However, none of the authorities accepted their fault and those who are at fault have not been punished and it is only the agriculturists who are being punished.
(9) The perpetrators of the aforesaid offences did not rest at that and members of the unlawful assembly who are habituated to committing crimes, namely accused No.3 – Smt. Kapadia, accused No.4 – Shri Parmar as well as accused No.6 – B.R. Gohel came to his house to take over possession of Block No.136 whereupon he had asked AUDA to give in writing as regards the incident of 11th January, 2003, however, they informed him that they were not in a position to do so. Hence, he told them to pay 80% of the compensation for handing over the possession. In this regard, he was asked to give a detailed writing and he wrote a detailed letter in this regard on 10th October, 2003 and had gone to the cabin of the accused No.5 – Shri J.D. Patel for personal discussion with him, who had informed him that he would give a reply after discussing the same with the accused No.1, that is, the petitioner herein. In the said reply, he had also given details that earlier accused No.2 – the Chief Executive Officer had given a false reply to the effect that the possession was handed over by Smt. Rajuben in respect of which a cheque of Rs.16,248/- had been handed over to her and possession had been taken, which fact is totally false as the said cheque has been sent back to AUDA on 22nd September, 2003. A copy of the said letter returning the cheque had been sent to the Collector as well as the Land Acquisition Officer, Revenue Bhavan. Thus, intentionally true facts have been suppressed as well as in respect of other illegal activities wrong information has been given in respect of which everything has been discussed in detail in their reply.
(10) AUDA acquired land beyond its jurisdiction and forcibly took over possession without taking any measurement or taking into consideration any map and no action has been taken as per the notifications. No record has been made of trees, houses, crops etc. in respect of any block of land mentioned in the notification under section 6 of the Act and possession has been taken at site without any entry in the panchnama and without taking any consent agreement. Compensation is payable in respect of fruit trees and houses in the award under section 11 of the Act, under the circumstances, unless the award is declared, how could 80% of the compensation have been paid. When possession of land belonging to Government departments like the Forest Department came to be taken for the purpose of Ring Road, they have paid full value of trees etc. The amount was paid in February, 2003 and thereafter, possession was taken wherein 100% of the amount has been paid. Gazette Notification has not been issued in accordance with law and has not been placed at the village square. The said notifications have not been published in the daily newspapers in the said areas. There is a breach of time limit between two notifications and in case there is any objection to the notification under section 4, it is the responsibility of the Land Acquisition Officer to give an opportunity of hearing which has not been granted to the agriculturists, due to which tremendous loss has been caused to Block No.136. Notifications under section 4 and 6 have not been affixed in the panchayat office and the agriculturists have not been informed about the same because possession was taken over during the period 2000-2001. Initially, out of Block No.136, 0-38-58 was going under acquisition however, thereafter, 0-20-031 land is being acquired. The reason is because action has not been taken as per the map. Also, other additional lands of other agriculturists have been taken. The reason for change in alignment of the Ring Road is the illegal action and negligence, whereby agriculturists have been kept in the dark and without informing the Collector and without taking him along, without taking measurement, without drawing panchnama, possession has been taken resulting in anarchy and disorder. It has been further informed that the agriculturists were asked to remain present at the panchayat office on 10th October, 2002 and were given understanding as regards change in the alignment which fact is totally false because the change is due to illegal actions. AUDA even today is not in a position to explain the same in writing. Agriculturists have received notices to remain present in the office of the Additional Special Land Acquisition Officer on 10th October, 2002 which would give an indication of the extent to which the statement given by accused No.3 – Bharat Raval is false. The office of the Additional Special Land Acquisition Officer has not declared any award. The agriculturists have not been taken into confidence and the proposal for acquisition has not been approved. Thus, without giving 80% of the amount in respect of trees, house and well etc. in accordance with the provisions of law, without claiming ownership and occupation and without any intimation for demolition and taking possession everything has been misappropriated. Thus, the reply of the Chief Officer of AUDA is prima facie deliberately tainted with jealousy.
(11) On 26th December, 2003, the accused No.1 to 9 and 16 and 17 remained present to demolish the greenhouse of Block No.136, used bulldozer No.GJ-9E-7060 and GJ-18-H-7503 as well as Ambassador car No.GJ-1-V-2267 and other vehicles and forcibly alongwith police and security staff illegally restrained him and took over possession in respect of which no action has been taken in accordance with law. Also, no time had been given to remove the goods. On coming to know of the same, he had remained present alongwith camera and taken photographs of the illegal action. In the context of the aforesaid action, the cheque issued earlier to Rajuben being with her, with a view to show that the said action was legal, on 20th January, 2004, the Talati, AUDA as well as through their accomplices, Smt. Ratanben was tempted and given the cheque and her signature was obtained. On his coming to know of the same, he had sent back the cheque on 21st January, 2004 and a copy of the same was sent to the concerned authorities. Thus, the AUDA authorities who are engrossed in carrying on illegal activities are committing illegal actions giving them the colour of legality however, nothing is happening accordingly and they are continuing to commit criminal acts.
(12) In connection with the aforesaid incident, he had addressed a detailed written complaint to the Police Commissioner as well as other concerned authorities on 30th September, 2004 despite which no action had been taken and he was required to file the present complaint before the court.
[Un-numbered paragraph] Thus, the accused No.1 to 10 are either directly or indirectly involved in the offence in question and the action taken, by keeping aside all rules and regulations and in abuse of powers with a view to protect their accomplices, the accused have committed serious criminal offences. Despite all these facts being prima facie facts evident through the correspondence and photographs and having seen the place of incident personally despite which ignoring the provisions of law, the accused in connivance with each other have caused damage of lakhs of rupees and as such, he has lodged the present complaint.
8. In the complaint, the complainant has arraigned the petitioner the then Chairman of AUDA as the accused No.1. Accused No.2 to 7 are officers of AUDA. Accused No.8 and 9 are construction companies. Accused No.10 is one Ashwin @ Chako of Kamod. Accused No.11 is the Collector, Ahmedabad. Accused No.12 is the Additional Special Land Acquisition Officer, Daskroi taluka. Accused No.13 is PSI – Shri Solanki, Aslali Police Station, accused No.14 is Pravinsinh, Police Constable, Aslali Police Station, accused No.15 is Shri Chauhan, Assistant Police Commissioner, Rural Meghaninagar, Ahmedabad, accused No.16 is Chimanbhai Patel, Talati, Kamod Gram Panchayat, accused No.17 is Karsanbhai, Sarpanch, Kamod Gram Panchayat and accused No.18 are other officers of AUDA.
9. The statement on oath made by the complainant before the learned Magistrate, as translated into English reads thus:-
“That he holds Block No.136 of village Kamod under ownership rights and by constructing a greenhouse thereon is carrying on agricultural research. On 11th January, 2003, at night hours, personnel of AUDA came. He was not aware as to who had come and upon asking their names, Gokalbhai, Lalbhai, Chako etc. had come and had removed the lemon crop and fencing. He had asked them as to why they were doing so whereupon they said that they had done it by mistake. Hence, he had written to AUDA, Collector, Ahmedabad, Land Acquisition Officer as well as Gram Panchayat about the incident and informed them but nothing had happened. The Gram Panchayat sent his application to Aslali Police Station. Aslali Police Station had recorded his statement in connection with which he had given copies of photographs of the illegally removed fencing etc. Thus, he had made representation to the Police Commissioner also however, something was written in his papers whereby it was said that he wanted a writing as regards the wrong which has happened, and as such, he had filed a complaint in this regard but nothing had happened. Thereafter, on 26th December, 2003 again construction was demolished and he had come at the spot and taken photographs and M.A. Kapadia who was present had informed him that the demolition was legal. The Land Acquisition Officer had informed him that no rights of acquisition had been given and that by these actions, the proceedings have become complicated and as such, he had given an application to the police. Thereafter, the police had not taken any steps and hence he had lodged the complaint before the court praying to take action against the accused.”
10. The learned Judicial Magistrate after recording the aforesaid statement directed registration of the offence and ordered a court inquiry under section 202 of the Code vide order dated 3rd December, 2004. Thereafter, vide order dated 22nd April, 2008, the learned 5th Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur after perusing the verification and statement on oath and documentary and oral evidence, directed issuance of process under the above referred provisions of the Indian Penal Code under section 204 of the Code against all the accused persons.
11. A bare perusal of the complaint shows that the gravamen of the allegations made in the complaint is as regards various irregularities that have taken place during the course of land acquisition proceedings as well as while taking over possession of lands of agriculturists in the concerned areas for the purpose of constructing the Sardar Patel Ring Road. From the allegations made in the complaint, it is apparent that insofar as paragraph (1) is concerned, the same refers to the activities carried out by the complainant and the facilities established on the land in question. The allegations made in paragraph (2) are general in nature as regards the possession taken over of lands for the purpose of Ring Road in the year 2000-2001. In the said paragraph, an averment has also been made that the accused No.7 who as an officer of AUDA had offered to give him lands under reservation or under the T.P. Scheme however, he had refused to accept the same. In paragraph (3), which would be relevant for the present purpose, allegations are to the effect that on 11th January, 2003 officers of AUDA and their accomplices had removed the fencing as well as lemon trees on the lands in question and caused damage to the complainant. The other averments made in the said paragraph make reference to the complaint made by the complainant to the various authorities and the communications in this regard. Paragraph (5) pertains to the remedy sought for by the complainant before the Free Legal Service Centre. In paragraph (6), the averments relate to the reply given by AUDA in respect of his application made before the Aslali Police Station. It has been alleged that the accused have stated incorrect facts and that relevant facts have been suppressed by them and as such, legal procedures have been ignored and actions which are unjust to the complainant are being taken. Paragraph (7) refers to an application made by one Vashrambhai as regards his lands of which possession was taken in the year 2000. Paragraph (8) refers to the officers of AUDA coming to the village square and giving information to the agriculturists. Paragraph (9) refers to the accused No.3, 4 and 6 coming to the place of the complainant for the purpose of taking over possession of the lands in question and offering 80% of the compensation. The other allegations made therein are with regard to the possession having been taken through Shri Rajuben on 14th August, 2003 after giving a cheque of Rs.16,248/- which according to the complainant was a false fact as the said cheque was sent back on 22nd September, 2003. Paragraph (10) refers to payment of full amount to Government departments and non-grant of any opportunity to the agriculturists under the provisions of the Land Acquisition Act as well as various other illegalities in relation to the proceedings under the Land Acquisition Act. The main allegations are contained in paragraph (11) of the complaint wherein it is stated that on 26th December, 2003, the accused No.1 to 9 and 16 and 17 had remained present and with bulldozers and other vehicles, demolished the greenhouse of the complainant. Thus, on a plain reading of the entire complaint, it is apparent that the only specific offences alleged are in relation to the removal of lemon trees and fencing on 11th November, 2003 as alleged in paragraph 9 and demolition of the greenhouse and other facilities on 26th December, 2003 as stated in paragraph 11.
12. A perusal of the statement made on oath by the complainant shows that the complainant has not specifically stated as to who were the persons who had remained present on 26th December, 2003 at the time when the greenhouse came to be demolished. On a query by this court, it had been candidly admitted by the complainant that the petitioner herein was not present at the relevant time. Under the circumstances, it is evident that the petitioner has been named as an accused because according to the complainant, the officers of AUDA were acting under his control and management and because he (the complainant) had addressed various letters as regards the irregularities in taking over possession of the land as well as in the land acquisition proceedings to the petitioner, on which he (the petitioner) had not taken any action. While it is not in dispute that the petitioner happened to be the Chairman of AUDA at the relevant time, but at the same time, it is a settled proposition of law that one cannot draw a presumption that a Chairman of a Corporation is responsible for all acts committed by or on behalf of the Corporation. In the entire body of the complaint, there is no allegation that the petitioner had personally participated in any of the alleged criminal acts.
13. Examining the allegations made in the complaint, in the light of the offences alleged, it may be noted that the offences alleged are under section 166 I.P.C. which relates to public servant disobeying law, with intent to cause injury to any person. Under section 166 IPC a person is liable for punishment if he, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person. From the allegations made in the complaint, it is not discernible as to which direction of law as to the way in which the petitioner was required to conduct himself as such public servant, has been disobeyed by him. As noticed hereinabove, most of the allegations pertain to irregularities in the conduct of the land acquisition proceedings which are proceedings that are required to be carried out by the Collector or the Special Land Acquisition Officer and the petitioner herein is, in no manner, concerned with the proceedings under the said Act. It may be that the petitioner is responsible for taking over possession of land and construction of the road. However, in case any illegality is committed by the officers of AUDA while taking over possession of the lands, unless the petitioner has personally and directly participated in the said Act, he cannot be held liable inasmuch as none of the offences alleged in the present case are of the nature in respect of which a Chairman of the Corporation can be held vicariously liable for the acts of his officers.
14. The Supreme Court in the case of Maksud Saiyed vs. State of Gujarat (supra) has held that where a jurisdiction is exercised on a complaint petition filed in terms of section 156(3) or section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations, which would attract the provisions constituting vicarious liability. In the facts of the present case, the provisions of the Indian Penal Code in relation to which offences are alleged to have been committed by the petitioner, do not contain any provision for attaching vicarious liability on the part of the Chairman of the Corporation and as such, the petitioner cannot be made vicariously liable for any offence committed by the officers of AUDA.
15. Insofar as the offence under section 341 I.P.C. is concerned, the same makes provision for punishment for wrongful restraint. Section 339, which defines “wrongful restraint”, says that whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said wrongfully to restrain that person. On a perusal of the allegations made in the complaint, it appears that there are no averments to the effect that the complainant was at any time wrongfully restrained. The complaint lacks the basic averments to make out a case of wrongful restraint. Moreover, insofar as the petitioner is concerned there is no specific allegation that he was present during the commission of the alleged offence. Under the circumstances the ingredients for constituting the said offence are clearly not present. Insofar as the provisions of section 379 I.P.C. are concerned, the same provide for punishment for theft. Theft has been defined under section 378 IPC, which lays down that whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft. On a bare reading of the allegations made in the complaint, it is apparent that there is no allegation that any movable property had been dishonestly taken out of the possession of the complainant. Under the circumstances, the ingredients of section 379 IPC are singularly lacking in the complaint. The said provision would, therefore, not be attracted in the facts of the present case. As regards the offence under section 384 I.P.C., the same provides for punishment for extortion. Section 383 IPC which defines extortion says that whoever, intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion. A perusal of the complaint shows that there is not even a whisper that the accused persons had intentionally put the complainant in fear of any injury thereby dishonestly inducing him to deliver any property or valuable security to them so as to fall within the ambit of section 384 of the Indian Penal Code. Under the circumstances, section 384 IPC is clearly not attracted in the facts of the present case.
16. As regards the allegations of section 427 IPC which provides for mischief causing damage to the amount of fifty rupees, it appears that the said provision would be attracted as it is alleged that on 26th December, 2003, the accused had come with bulldozers and had demolished the greenhouse put up by the complainant. However, insofar as the petitioner herein is concerned, it is nobody's case that he was present at the site when the offence was committed. Under the circumstances, the said provision would not be attracted qua the petitioner inasmuch as he cannot be held to be vicariously liable for any criminal acts committed by the officers of AUDA.
17. Insofar as section 447 of the Indian Penal Code which makes provision for punishment for criminal trespass is concerned, it may be germane to refer to section 441 which defines criminal trespass to mean whoever enters into or upon property in possession of another, with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence. In the present case, on the allegations made in the complaint, the offence of criminal trespass cannot be said to have been made out. In any case, insofar as the petitioner is concerned, since he was not personally present at the time of commission of the offence, he cannot be stated to have committed the offence of criminal trespass. As regards the offence under section 506 (2) I.P.C., there is no allegation in the complaint to the effect that any threat to cause death or grievous hurt or to cause destruction of any property etc. had been given to the complainant so as to attract the said provision. Under the circumstances, insofar as the petitioner is concerned, none of the offences alleged would be attracted qua him.
18. Assuming for a moment that an offence is made out against the petitioner, even in that case, from the allegations made in the complaint, it is apparent that the same relate to the duties of the petitioner in the discharge of his official functions inasmuch as, the main grievance against the petitioner is to the effect that despite several letters having been written to him and the illegalities and irregularities having been brought to his notice, he had not taken any action thereon. Under the circumstances, it is apparent that the alleged offences insofar as the petitioner is concerned are in respect of his official duties and as such, the provisions of section 197 of the Code would be clearly attracted. In B. Saha and others. v. M.S. Kochar (supra), the Supreme Court held thus:-
“17. The words “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, “it is no part of an official duty to commit an offence, and never can be”. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed.
The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J., in Baijnath v. State of M.P., “it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted”.
18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.
19. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar, J. of the Federal Court in Dr. Hori Ram v. Emperor, is generally applied with advantage. After referring with approval to those observations of Varadachariar, J., Lord Simonds in H.H.B. Gill vs. King tersely reiterated that 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”.
20. Speaking for the Constitution Bench of this Court, Chandrashekhar Aiyer, J., restated the same principle, thus:
[I]n the matter of grant of sanction under Section 197, the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty . . . . 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. (emphasis supplied)
19. In Raghunath Anant Govilkar vs. State of Maharashtra and Others (supra), the Supreme Court reiterated the law laid down in its earlier decision in B. Saha vs.
M.S. Kochar.
20. In the light of the law laid down by the Supreme Court in the above referred decisions, what is required to be seen is as to whether the offences are alleged to have been committed by the complainant while acting or purporting to act in the discharge of his official duty. The test laid down in this regard is as to whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. Adverting to the facts of the present case, the action taken by the officers of AUDA of taking possession, cannot be said to be dehors the official duties of the petitioner herein inasmuch as the petitioner was entrusted with the work of constructing the road and taking over possession of the lands for that purpose. From the record of the case, it is apparent that advance possession had been taken by handing over cheques to the concerned persons and the possession of the land had been taken over in respect of which the owners had executed possession receipts. Insofar as the case of the complainant is concerned, there may be some illegality having been committed in that regard, inasmuch as according to the complainant, he was in possession of the land in question whereas the officers of AUDA paid the cheque to Ratanben and got the possession receipt executed by Rajuben on behalf of Ratanben. However, the acts of the officers, in the entire act of taking over possession, were in the discharge of the official duties of the petitioner. Hence, any illegality committed in respect of the one parcel of land by the officers of AUDA cannot be said to be outside the scope of the official acts of the petitioner. Under the circumstances, the provisions of section 197 of the Code would be clearly attracted and as such, the learned Judicial Magistrate could not have taken cognizance of the offence without sanction having been obtained as contemplated under section 197 of the Code.
21. As regards the decision of a Full Bench of the Andhra Pradesh High Court in the case of The Andhra Pradesh Agricultural University, Rajendranagar vs. Mahmoodunnisa Begum and another, AIR 1976 A.P. 134, which was cited for the proposition that possession can be taken only by the Collector under the provisions of the Land Acquisition Act after the award is made, it is true that under the provisions of the Land Acquisition Act it is the Collector who takes possession of the lands under section 16 of the Act after making the award under section 9. However, there is no bar against the authorities in entering into negotiations with the land holders and taking advance possession with their consent. Under the circumstances, the said decision would not be applicable to the facts of the present case. As regards the decision of this High Court in the case of Lekhraj Sabumal and another vs. State of Gujarat and others, AIR 1980 Guj. 47, wherein the court had held that the notification under section 6 which was issued after a delay of six years and nine months from the date of issuance of the notification under section 4 was invalid, in the instant case the court is dealing with a complaint lodged in connection with commission of offences under the Indian Penal Code. In case the complainant is aggrieved by any irregularities in the proceedings taken by the authorities under the Land Acquisition Act, the remedy lies elsewhere. The complainant is required to institute appropriate proceedings in respect thereof, which are in the nature of civil proceedings. The irregularities, if any, committed in the land acquisition proceedings, cannot be mixed up with offences under the Indian Penal Code. As is apparent from the contents of the complaint, the complainant has mixed up two issues, namely illegalities/irregularities in the land acquisition proceedings and alleged offences under the Indian Penal Code. Under the circumstances, the aforesaid decision of this court would also have no applicability to the facts of the present case.
22. The submission made by the learned Additional Public Prosecutor, based on the decision of the Supreme Court in M. Gopalkrishnan v. State (supra), to the effect that the petitioner though having been appointed by the State Government cannot be removed by the State Government, is required to be stated only to be rejected. Section 5 of the Gujarat Town Planning and Urban Development Act, 1976 clearly provides for constitution of an area development authority by the State Government, consisting of the Chairman, Chief Town Planner and other members as stated in sub-section (3) thereof. Sub-section (6) thereof provides that if the State Government is of the opinion that any member of an area development authority is guilty of misconduct in the discharge of his duties or is incompetent or has become incapable of performing his duties as such member or should for any other good and sufficient reasons be removed, the State Government may, after giving him an opportunity to be heard, remove him from office. Thus, the statute itself provides for appointment of the Chairman who is a member of the area development authority by the State Government as well as for removal by the State Government. Moreover, section 116 of the said Act specifically lays down that every member and every officer and other employees of the appropriate authority shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code. Appropriate authority is defined under section 2(iii) to mean in relation to a development area, an area development authority or an urban development authority as the case may be. Section 5 provides for constitution of area development authority and for appointment of members thereof. Under the circumstances, the Chairman of the Ahmedabad Urban Development Authority would clearly fall within the ambit of section 116 of the Gujarat Town Planning and Urban Development Act and would be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code. In view of sub-section (6) of section 5, he would be a public servant who cannot be removed from his office except by or with the sanction of the Government. In the above referred decision, the Supreme Court on facts had come to the conclusion that though the appellant therein was a public servant as envisaged under section 21 IPC, he could not claim to be a “public servant” not removable from his office, save by or with the sanction of the Government. The petitioner herein, satisfies both the requirements. Under the circumstances, reliance placed upon the said decision of the Supreme Court is misconceived and does not carry the case of the respondents any further.
22. In the light of the aforesaid discussion, this court is of the view that this is a fit case for exercise of powers under section 482 of the Code. The petition, therefore, succeeds and is accordingly allowed. Criminal Case No.10548/2008 pending before the learned Judicial Magistrate First Class, Ahmedabad (Rural) at Mirzapur as well as the order dated 22nd April, 2008 passed by the learned 5th Joint Magistrate and Additional Civil Judge (S.D.), Ahmedabad (Rural), Mirzapur are hereby quashed and set aside qua the petitioner – Surendrabhai Patel (Chairman of AUDA) alone. It is also held that in the absence of sanction under section 197 of the Code, the learned Judicial Magistrate could not have taken cognizance of the offence in question qua the petitioner and as such, taking cognizance of the offence against the petitioner is bad in law. Rule is made absolute accordingly with no order as to costs.
23. Registry is directed to forthwith send back the record and proceedings to the concerned court.
( Harsha Devani, J. ) hki