Municipal Corporation Of ... vs The State Of A.P.

, Through on 19 January, 2010

THE HONOURABLE GOVINDARAJULU SRI JUSTICE SAMUDRALA

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-1Muncipal 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