IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Miscellaneous No. M-47800 of 2004
Date of Decision: December 03, 2008
Jagat Raj
.....PETITIONER(S)
VERSUS
Rajinder Kumar & Another
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. N.S. Shekhawat, Advocate, for
the petitioner.
Mr. Jai Parkash Sharma, Advocate,
respondent No.1.
Mr. Narender Sura, Assistant
Advocate General, Haryana, for
respondent No.2.
. . .
AJAI LAMBA, J (Oral)
This petition has been filed under
Section 482 Cr.P.C. for quashing Order dated
22.4.2003 passed by the Chief Judicial Magistrate,
Rewari, summoning the petitioner and order passed by
the Revisional Court dated 17.9.2004 (Annexure P-3).
The only allegation against the
petitioner is contained in Para 6 of the complaint
and is to the following effect:-
“That the accused by conniving with each other and with
illegal intention and with a view to fulfil the common
object, came to village Jatuwas after 5.00 O’Clock in the
evening on 24.1.2001 and threatened Hukam Chand, father
of the complainant and his mother Leela Devi and his wife
Murti Devi that they would demolish the house of the
complainant and if they raised any obstruction, they would
Crl. Misc. No. M-47800 of 2004 [2]be crushed under the Jeep. On the spot, all the accused after
conniving, got the house of the complainant demolished
illegally by using hammers and in this demolition accused
No.3 to 5 demolished the house of the complainant as per
the instructions of accused No.1and 2. Accused No.6 took
out his pistol and threatened that nobody should come near
them and if anybody comes near them or causes obstruction
in the demolition of the house, he would shoot him.
Accused No.7 was showing his lathi….”
In nutshell, as against the petitioner
who has been arrayed as accused No.6 in the
complaint, allegation is that all the accused after
conniving got the house of the complainant
demolished illegally by using hammers and in this
demolition, as per instructions of accused Nos.1 and
2, accused No.6 (petitioner) took out his pistol and
threatened that nobody should come near them and if
anybody comes near them or causes obstruction in the
demolition of the house, he would shoot him. Accused
Nos.1 and 2 in the complaint are Block Development &
Panchayat Officer, Rewari Block, and Bimla Rani,
Sarpanch, Gram Panchayat, Jatuwas, District Rewari.
Learned counsel for the petitioner
contends that the petitioner, who was posted as
Assistant Sub Inspector at that point in time, was
on duty under orders of his senior officers to give
assistance to the Block Development & Panchayat
Officer for removal of unauthorised construction. In
this regard, reference has been made to Annexures
P-4, P-5 and P-6.
Learned counsel has further pointed
out that the respondent-complainant has no regard
for law in so much as after unauthorized
Crl. Misc. No. M-47800 of 2004 [3]
construction had been removed on 24.1.2001, the
encroachment was made during the same night and
FIR had to be lodged. FIR has been placed on
record as Annexure P-7.
The other argument of the learned
counsel is that the petitioner was acting in
discharge of his official duties and cognizance
could be taken only after taking sanction of the
authorities.
I have considered the issue.
It is not in dispute that the
allegations against the petitioner are only to
the effect noticed above. Gist of the allegations
indicates that the petitioner was acting on the
asking of the Block Development & Panchayat
Officer who has been arrayed as accused No.1 in
the complaint.
Perusal of Annexure P-4 indicates
that vide Memo No.5264 dated 16.1.2007, the Block
Development & Panchayat Officer asked the Station
House Officer, Police Station, Sector 3 (Model
Town), Rewari as under:-
“On the aforementioned subject, you are requested
that kindly grant police help at 10.00 AM on 17.1.2000 to
remove the illegal encroachment of Rajnder son of Hukam
and Mahender son of Hukam Chand from the plots of Sh.
Guggan Singh son of Jagat Ram etc. in village Jatuwas, so
that the possession may be given.”
On the same memo, there is an endorsement by the Inspector/ Station House Crl. Misc. No. M-47800 of 2004 [4]
Officer, Police Station, Model Town, Rewari to
the effect that “ASI Jagat Singh to comply with”
i.e. petitioner.
Annexure P-5 is a rapt entered at Serial No.16 in Police Station, Model Town,
Rewari, to the effect that the Block Development
& Panchayat Officer had come to the police
station and as per order dated 16.1.2001, the
possession of plots allotted to Harijans was
required to be restored and encroachment was
required to be removed. The petitioner alongwith
Ram Nath, Head Constable; Niaz Mohammed,
Constable and Hawa Singh, Constable left for
Jatuwas for help with the Block Development &
Panchayat Officer.
Annexure P-6 is a Rapt entered at Serial No.17 in the police station which
indicates that at about 5.30 P.M., the petitioner
alongwith other officials returned after giving
police help in village Jatuwas. The Block
Development & Panchayat Officer had done his job
at the spot.
Considering the facts and
circumstances that flow from the Annexures, it
becomes evident that the petitioner was directed
by the Inspector/ Station House Officer, Sector –
3, Rewari, to comply with order Annexure P-4. In
Crl. Misc. No. M-47800 of 2004 [5]
compliance of the order, the petitioner left the
police station as is reflected from Annexure P-5
and after completing the task returned back to
the police station as is made out from a perusal
of order, Annexure P-6. It is not in dispute that
no injury had been caused by the petitioner to
any person.
The only logical conclusion that
flows from perusal of the documents is that the
petitioner was discharging his official duties.
The encroachment was required to be removed under
orders passed by a competent authority. It was on
an application made by the Block Development &
Panchayat Officer that police help was given
seemingly not only to protect the officer who was
required to execute the job but also to ensure
that obstruction is removed and the original
owners are put in possession. This being the
factual position, I find that the complaint
against the petitioner has been filed for
malafide reasons. Even if all the allegations
made in the complaint are accepted, no offence
can be said to have been committed by the
petitioner. The petitioner was bound by his
official commitment to protect the officials and
also ensure that work of removal of encroachment
was carried out. In my considered opinion, the
Crl. Misc. No. M-47800 of 2004 [6]
complainant being aggrieved by the removal of
encroachment was agitated and so as to put
pressure on the authorities, has filed the
complaint. It becomes evident that it is only so
as to harass the petitioner that the complaint
has been filed. Continuance of such proceedings
would result in demoralising the public servant
who has merely performed his official function.
So as to prevent abuse of process of Court by the
complainant, the prayer made in the petition
deserves to be allowed.
On the other count also, I find that
cognizance could be taken by the Magistrate only
after grant of sanction. The petitioner was
discharging his official duties and under the
circumstances, sanction was required from
appropriate authorities before taking cognizance.
This having not been done, the proceedings as
against the petitioner are required to be quashed
as they are rendered without jurisdiction.
In view of the above, this petition
is allowed. Order dated 22.4.2003 passed by the
Chief Judicial Magistrate, Rewari, summoning the
petitioner and order passed by the Revisional Court
dated 17.9.2004 (Annexure P-3) are hereby set aside.
(AJAI LAMBA)
December 03, 2008 JUDGE
avin