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"no Court shall take cognizance of such offence except with the previous sanction____"SEC.197 OF Cr.P.C/

posted 28 Feb 2011, 04:13 by murali mohan Mandagaddi   [ updated 28 Feb 2011, 04:26 ]


the complainant is stated to have filed O.S.1165/2003 in
Principal Junior Civil Judge Court, Visakhapatnam and filed I.A. No.449/2003
therein for restraining the Municipal Corporation, VUDA and 22 flat owners in
Siripuram towers from interfering with his peaceful possession and enjoyment of
the property.  It is claimed that the Civil Court granted interim injunction on
22.04.2003 against the Municipal Corporation in I.A. No.449/2003.  It is alleged
that in spite of service of notice to Corporation authorities by the Civil
Court, the authorities high handedly behaved and went to Siripuram towers on
07.02.2005 and forcibly demolished structures of the complainant in unruly
manner and that the city planner and other accused persons were present at the
time of demolition work with the assistance of A-5 and A-6.  It is further
alleged that when injunction orders are shown to the Municipal Corporation
authorities, they have thrown the complainant on ground and that A-2 and A-6
confined and obstructed the complainant from moving from that place and that A-2
to A-4 confined the complainant and restricted movements on that day and that A-
2 to A-6 threatened the complainant with dire consequences of doing away his
life and that when the complainant tried to videograph the demolition work, A-1
to A-6 snatched camera and video and handed over the same in the police station.








THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU                
Criminal Petition No.3242 of 2006

19-01-2010 

Municipal Corporation of Visakhapatnam, Visakhapatnam  

The State of A.P., through
Public Prosecutor and another

Counsel for the Petitioner : Sri N.Ranga Reddy

Counsel for the 1st Respondent:  Public Prosecutor
Counsel for the 2nd respondent: Venkata Ranga Das Kanuri  

:ORDER:  

        This petition is filed by the 1st accused under Section 482 Cr.P.C for
quashing proceedings in C.C. No.389/2006 on the file of II Additional
Metropolitan Magistrate, Visakhapatnam relating to offences punishable under
Sections 448, 427, 506(part-II)/34 I.P.C.

        2) The 2nd respondent filed private complaint in the lower Court against
A-1 to A-6 for certain offences.  A-1 is described as "the Municipal Corporation
rep. by its Commissioner N.Srikanth, --- Visakhapatnam".  A-2 to A-4 are
K.Ananda Babu (City planner), Assistant City planner G.Babu, Building Inspector
Ch.Raghunatha Rao.  A-5 and A-6 are private parties, A-5 being a house wife and
A-6 is stated to be Professor in Economics, Andhra University, both of them
being residents of Siripuram towers, which is subject matter in dispute.  The
2nd respondent/complainant is a contractor in construction field.  He is partner
in Siripuram towers located in Siripuram Junction of Visakhapatnam and its
builder.  When the Municipal Corporation issued notice to State Bank of
Hyderabad located in part of the disputed premises for vacating the premises and
for demolition of that portion and when A-6 also issued another notice and when
the Municipal Corporation threatened the complainant with demolition of
constructions, the complainant is stated to have filed O.S.1165/2003 in
Principal Junior Civil Judge Court, Visakhapatnam and filed I.A. No.449/2003
therein for restraining the Municipal Corporation, VUDA and 22 flat owners in
Siripuram towers from interfering with his peaceful possession and enjoyment of
the property.  It is claimed that the Civil Court granted interim injunction on
22.04.2003 against the Municipal Corporation in I.A. No.449/2003.  It is alleged
that in spite of service of notice to Corporation authorities by the Civil
Court, the authorities high handedly behaved and went to Siripuram towers on
07.02.2005 and forcibly demolished structures of the complainant in unruly
manner and that the city planner and other accused persons were present at the
time of demolition work with the assistance of A-5 and A-6.  It is further
alleged that when injunction orders are shown to the Municipal Corporation
authorities, they have thrown the complainant on ground and that A-2 and A-6
confined and obstructed the complainant from moving from that place and that A-2
to A-4 confined the complainant and restricted movements on that day and that A-
2 to A-6 threatened the complainant with dire consequences of doing away his
life and that when the complainant tried to videograph the demolition work, A-1
to A-6 snatched camera and video and handed over the same in the police station.

        3) On a perusal of the entire complaint, there is no specific allegation
made by the complainant against the Commissioner by name N.Srikanth.  Complaint   
of the complainant is against the Municipal Corporation and A-2 to A-6.  Since
the Municipal Corporation is an inanimate body, the complainant had shown the
corporation as A-1 represented by its commissioner.  When it is questioned as to
how a criminal complaint is maintainable against the Municipal Corporation,
which is an inanimate body, the 2nd respondent's counsel contended that the
Municipal Corporation is a body corporate and has got legal entity.  But, the
2nd respondent's counsel could not point out any provision in the Hyderabad
Municipal Corporation Act describing the Municipal Corporation as a juristic
person like a company under the Indian Companies Act.  This is not a civil
matter where the Municipal Corporation may sue or may be sued when it is
represented by the Commissioner; and when an order is passed by the Civil Court,
it would be binding on not only the Commissioner but also on his subordinates
working in the same Municipal Corporation.  In this complaint, the complainant
did not allege and the lower Court did not take cognizance of any offence under
any special enactment having special provision to prosecute a body corporate,
against A-1-Muncipal Corporation of Visakhapatnam.  All the offences alleged and
for which the lower Court took cognizance against A-1 are offences punishable
under the Indian Penal Code only.

        4) The lower Court took cognizance of the case against A-1 to A-4 for
offences punishable under Sections 448, 427, 506(part-II)/34 I.P.C.  Though it
is alleged that the demolition was in violation of injunction order passed by
the civil Court, the lower Court did not take cognizance of the said allegation
in this criminal case because it is a subject matter which has to be enquired
and decided by the civil Court for violation of the injunction order, in case
the complainant approaches the civil Court by way of another complaint in this
regard.  As pointed out earlier, as per allegations in the complaint, it was A-2
to A-6 who are alleged to have threatened the complainant with dire consequences
of doing away his life.  A-1-Municipal Corporation has no participation in
offence punishable under Section 506(part-II) I.P.C.

        5) It is contended by the petitioner's counsel that what all A-1 is
alleged to have done in this case was in exercise of powers under the Hyderabad
Municipal Corporation Act and that therefore taking cognizance of the complaint
against A-1 is illegal as the complainant did not obtain prior sanction for
prosecution of A-1 as required under Section 197 Cr.P.C.  On the other hand, it
is contended by the 2nd respondent's counsel that demolition of construction in
violation of civil Court injunction order cannot be part of official duty of A-1
and that therefore, no prior sanction for prosecution of A-1 under Section 197
Cr.P.C. is contemplated by law and that in any event, the petitioner should have
approached the lower Court on this aspect and should have questioned decision of
the lower Court before this Court in case it was against its contention.  The
petitioner is not debarred from maintaining a petition under Section 482 Cr.P.C
praying for quashing of criminal proceedings pending in the lower Court, in case
the petitioner had not approached the lower Court on these aspects.  It is not a
condition precedent for the petitioner to raise the points before the lower
Court and to obtain decision of the lower Court on those points and then only to
approach this Court questioning decision of the lower Court.  Under Section 482
Cr.P.C., the aggrieved party is always at liberty to approach this Court at any
stage of the criminal proceedings seeking redressal from this Court in the
interest of justice.

        6) The question to be decided in the pending case before the lower Court
is not whether there is violation of civil Court injunction order; but the
question is whether the accused and more particularly A-1 had criminally
trespassed and committed mischief by way of demolition of the construction made
by the 2nd respondent, which acts are punishable under Sections 448 and 427 
I.P.C.  The petitioner contends that the alleged activity was done during the
course of exercise of official powers under the Municipal Corporation Act and
that the activity was in purported exercise of his duty.

        7) The Supreme Court in Pukhraj V. State of Rajasthan1 observed that while
the law regarding circumstances under which sanction under Section 197 Cr.P.C is
necessary is well settled, the difficulty really arises in applying the law to
facts of any particular case.  The Supreme Court laid down:
        "The intention behind the section is to prevent public servants from being
unnecessarily harassed.  The section is not restricted only to cases of anything
purported to be done in good faith, for a person who ostensibly acts in
execution of his duty still purports so to act, although he may have a dishonest
intention.  Nor is it confined to cases where the act, which constitutes the
offence, is the official duty of the official concerned.  Such an interpretation
would involve a contradiction in terms, because an offence can never be an
official duty.  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.  Nor 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.  Expressions such as the "capacity in
which the act is performed", "cloak of office" and "professed exercise of
office" may not always be appropriate to describe or delimit the scope of the
section"

On facts, the Supreme Court came to the conclusion that kicking of the
complainant and abusing him when he submitted his representation for
cancellation of his transfer, by the Post Master General at the time of his
inspection, could not be said to have been done in purported exercise of his
duty.

        8) In Raghunath Anant Govilkar  V. State of Maharashtra2 it was held that
entering into criminal conspiracy for committing breach of trust is not part of
duty of public servant and that therefore no sanction for prosecution under
Section 197 Cr.P.C. is required for taking cognizance of offence punishable
under Section 409/120-B I.P.C. alleged against the offender who is a public
servant. In Anjani Kumar V. State of Bihar3 it was held by the Supreme Court:

"If on facts, therefore, it is prima facie found that the act or omission for
which the accused was charged had reasonable connection with discharge of his 
duty, then it must be held to be official to which applicability of Section 197
of the Code cannot be disputed"

        9) Having regard to the above case law rendered by the apex Court, if
facts of the present case are analysed, it is evident that demolition of
construction made by the petitioner was done in purported exercise of official
powers by A-1 to A-4 who are all officials of Municipal Corporation of
Visakhapatnam and it was not outside scope of their duties under the Municipal
Corporation Act.  In case the construction is unauthorised and without prior
approval of the Municipal Corporation, the Municipal Corporation authorities are
entrusted with duty as well as power to demolish such unauthorised structure.
When the said power was exercised, it cannot be said that A-1-Corporation
exceeded or grossly exceeded its official limits.  I have no hesitation to come
to the conclusion that the alleged demolition of construction of the 2nd
respondent made by A-1 and other officials was done in exercise of their
official duties and purported to have been done in exercise of official
functions and that therefore sanction for prosecution of A-1 under Section 197
Cr.P.C is a pre-requisite for taking cognizance of the complaint against A-1.

        10) Placing reliance on Desaibhai Khushalbhai Patel V. Emperor4 of the
Bombay High Court, Manzur Ali V. Emperor5 and Arjan Singh V. Emperor6 of the  
Lahore High Court, it is contended by the 2nd respondent's counsel that it is
open to the complainant to obtain sanction for prosecution under Section 197
Cr.P.C at any time before commencement of trial and conviction of the accused
and that failure to obtain such sanction prior to filing of the complaint is
only an irregularity which does not vitiate the criminal proceedings
particularly when there is no prejudice caused to the petitioner.  The above
reported decisions and reasoning contained therein are contrary to wording
employed in Section 197 Cr.P.C and therefore are not able to pursuade this Court
to accept those decisions.  Relevant words contained in Section 197 Cr.P.C are
to the effect;

        "no Court shall take cognizance of such offence except with the previous
sanction____".

Therefore, sanction for prosecution is a condition precedent for taking
cognizance of such a case against the public servant.  Sanction has to be
previous in point of time and it should be previous to taking cognizance of the
offence by the Court or the Magistrate.  Subsequent sanction if any obtained
cannot cure initial or inceptual defect attached to the case.  It is not a
curable defect which can be rectified at subsequent stage of the proceedings or
before final decision is taken by the criminal Court.  The prohibition is in
respect of taking cognizance of the offence against the public servant; and the
prohibition is not for either commencement of trial or for final decision by way
of recording conviction or acquittal.  When there is legal prohibition for
taking cognizance of the offence, question of the criminal Court proceeding with
trial of the case does not arise at all.  The criminal Court takes cognizance of
offence by issuing of summons or warrant to the accused under Section 204 Cr.P.C
after following the procedure contained in Sections 200, 201 and 202 Cr.P.C and
if not resorted to Section 203 Cr.P.C.  Therefore, sanction for prosecution
under Section 197 Cr.P.C shall be obtained and presented before the Magistrate
prior to stage of issuing of process to the accused under Section 204 Cr.P.C.
At the same time, no sanction under Section 197 Cr.P.C is required for
presentation of a complaint before the Magistrate or for recording of sworn
statement of the complainant by the Magistrate.  Question of applicability of
Section 197 Cr.P.C has to be considered after examination of the complainant and
his witnesses if any, by way of recording of their sworn statements by the
Magistrate.  There is no option for the criminal Court except to dismiss the
complaint in case sanction required under Section 197 Cr.P.C is not obtained
prior to issuing of process to the accused.  The prohibition for taking
cognizance of offence contained under Section 197(1) Cr.P.C is a mandatory
prohibition and has to be considered at the threshold of the case and not at a
subsequent stage.  Therefore, taking cognizance of the case against the
petitioner/A-1 in this case by the lower Court is not in accordance with law and
is liable to be quashed.
        11) In the result, the petition is allowed quashing proceedings against
the petitioner/A-1 in C.C. No.389/2006 on the file of II Additional Metropolitan
Magistrate, Visakhapatnam. 

?1 AIR 1973 SUPREME COURT 2591(1)      
2 2008(2) ALD(Crl.) 134 (SC)
3 2008(2) ALD(Crl.) 547 (SC)
4 A.I.R 1938 Bombay 50  
5 A.I.R 1939 Lahore 1
6 A.I.R 1939 Lahore 479
.
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