2006 ALL MR (Cri) 2443
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
A.V. MOHTA, J.
Subhash S. Agrawal & Anr.Vs.State Of Maharashtra & Anr.
Criminal Writ Petition No.61 of 1999
17th July, 2006
Petitioner Counsel: Shri. N. B. SURYAWANSHI
Respondent Counsel: Smt. R. D. REDDY
Criminal P.C. (1973), S.197 - Penal Code (1860), S.21 - Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), S.302 - Sanction to prosecution - Servants of Municipal Council - Are "Public Servants" within meaning of S.21 of Penal Code - Prosecution against them without obtaining sanction under S.197 of Criminal P.C. - Cannot be justified. (1999) Vol. 101(1) Bom.L.R. 886 and 2006 AIR SCW 3095 - Referred to. (Para 5)
JUDGMENT :- The petitioners have challenged the impugned order dated 26-06-1998 passed by 2nd Additional Sessions Judge, Dhule (Sessions Judge), whereby the matter has been remanded for issuance of summons after following the procedure of Sections 202, 204 of Cr.P.C. The earlier order of issuance of summons against the accused persons were cancelled. Therefore, present Writ Petition.
2. Petitioner No.1 at the relevant time was Engineer of Municipal Council, Dhule. Petitioner No.2 at the relevant time was serving as Inspector of Municipal Council, Savada, Dhule. As per official instructions and communications, they were discharging their duties by removing the unauthorised construction which included the construction of the complainant. The Complainant therefore, has filed the complaint U/ss.147, 395, 504, 506, 192, 464, 34 of I.P.C. before the Court of Judicial Magistrate First Class (J.M.F.C.) Dhule.
3. As recorded above, the order of issuance of process was quashed and set aside, in view of the earlier proceedings initiated by the petitioners. The issue therefore, need to address at this stage which goes to the root of the matter is that there is no sanction obtained and/or placed on record by the concerned authorities as contemplated U/s.197 of the Criminal Procedure Code (Cr.P.C.).
"302. Councillors, officers, servants, etc. to be public servants:- Every Councillor and every officer or servant of a Council, every contractor or agent appointed by it for the collection of any tax and every person employed by such contractor or agent for the collection of such tax, shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code."
5. The petitioners therefore, being officers and servants are entitled for the protection as contemplated under the Municipal Council Act being "public servants" within the meaning of Section 21 of I.P.C. The sanction U/s.197 of Cr.P.C. therefore, is a must. In absence of any material on record, undisputed position is that there is no sanction till this date, on the record to justify the criminal prosecution.
6. In Shri. H. B. Bhongale Vs. Smt. Zarina Shoukatali Jafar and others, (1999) Vol. 101(1) Bombay Law Reporter 886, this Court while considering the provisions of Section 197 of Cr.P.C. read with action by Municipal Council employees of removing unauthorised construction of the complainant held that sanction to prosecute is necessary as at the relevant time the action was in the capacity of the public servants. The petition was accordingly allowed and the accused petitioners were discharged as there was no sanction obtained U/s.197, Cr.P.C.
7. The Apex Court in Jayasingh Vs. K. K. Velayutham and another, 2006 AIR SCW 3095, observed that the Executive Engineer who took the steps to remove unauthorised tea stall under the direction of the Executive Engineer cannot be prosecuted without obtaining the sanction for prosecution U/s.197, Cr.P.C. and accordingly granted relief to the said officer who was discharging his duties under the directions of the higher authority. The Apex Court therefore, opined that no case was made to frame the charge against the appellant therein.
8. Taking all into account, that is undisputed facts on record and the law as laid down by the Apex Court, I see there is no reason now that petitioners should face the criminal trial as directed by the impugned order. The petitioners were performing their duties as per directions of the higher authority. The impugned action therefore, cannot be said to be in excess of their duties and/or directions issued by the higher authority. In this background, the complaint as lodged against the petitioners, and basically for want of sanction, need to be dismissed at this stage itself.
9. In view of this, the impugned order dated 26-06-1998 against the petitioners is quashed and set aside. The complaint is dismissed against the petitioners. The Writ Petition is therefore, allowed in terms of prayer clauses (B) and (C). No costs.