Sanjay Gupta vs S.C. Sawhney

Bansi Lal Bhat, J.—Through the medium of this revision petition, petitioner (hereinafter referred to as the 'complainant') assails the legality

and correctness of order dated 13th October, 2012 passed by the learned Special Municipal Magistrate, Jammu in Complaint file No. 7/Com.

titled Sanjay Gupta v. Sh. S.C. Sawhney and ors. by virtue whereof learned Magistrate declined to issue process against the respondents

(hereinafter referred to as to 'accused') and dismissed the complaint u/s 203 Cr.P.C. [Refer JK Laws 2nd E-1. 2013 Vol. 6 P-225]. Heard rival

sides and perused the record.

It appears that the complainant, claiming to be in possession of a piece of land measuring 882.75 Sft. comprised of Khasra No. 330-min

situated at Maheshi Gate, Gurudwara Sunder Singh Road Jammu, intended to raise construction on the aforesaid piece of land after obtaining

permission from Jammu Municipality in April 2000, which is claimed to have been extended from time to time till 17th September 2011. However,

he could not raise construction for certain reasons including a dispute with a neighbor Chaina Ram. In the complaint it was alleged that subordinate

officials of accused No. 2 committed tress-pass upon the land of the complainant on the intervening night of 22nd/23rd March 2010, removed

barbed wire fencing and caused damage to the property. These acts of commission were attributed to the officials of Municipal Corporation acting

under the behest of accused No. 2 Mubarak Singh-the then Commissioner, JMC. It was further alleged in the complaint that JMC Officials again

on 19th May 2010, sent men and machinery on spot and leveled the land with the help of JCB. Accused No. 5-Satish Khajuria, Chief

Enforcement Officer, Jammu Municipal Corporation is said to have supervised the whole operation. Complainant further alleged that he was

threatened with cancellation of building permission. Complainant claims to have filed a civil suit before learned Municipal Magistrate, Jammu who

directed the parties to maintain status quo on spot. Complainant also claims to have reported the occurrence to Police Post Residency Road,

Jammu which took no action. Accused No. 2 is, alleged to have placed the building permission of the complainant in abeyance vide order dated

26th May 2010 till the dispute between the complainant and Chaina Ram was settled. Complainant claimed that he had settled the dispute with

Chaina Ram and compromise decree was passed by the Court recording the terms of settlement. Thus the decks were cleared for raising

construction on the said land as the Civil Court restrained the accused from interfering in the suit land. The interim direction was upheld by Higher

Judicial Forums. Meanwhile accused No. 1 had taken over as Commissioner Municipal Corporation from accused No. 2. He too was inimical to

complainant and on 26th May 2011 tress-passed on the land of complainant and stopped him from raising construction. Same act was repeated

on 29th May 2011 when accused No. 1 alongwith JCB committed tress-pass and removed the building material dumped by the complainant on

the land. This operation is alleged to have been supervised by accused No. 5 under the instructions of accused No. 1. Complainant approached

the police but since no action was taken, he filed a complaint before learned Magistrate alleging commission of offence u/s 447, 506, 427, 34 read

with Section 120-B RPC [Refer JK Laws 2nd Ed. 2013 Vol. 27 P-315]. Learned Magistrate decided to inquire into the allegations leveled in the

complaint u/s 202 Cr.P.C. [Refer JK Laws 2nd Ed. 2013 Vol. 6 P-224] and after conducting inquiry himself, he passed the impugned order, on

the basis of a status report filed by accused No. 3, refusing to issue process and dismissed the complaint.

The impugned order is a fairly lengthy order and spells out the reasons that persuaded the Magistrate to decide against issuing of process for

securing presence of accused. Learned Magistrate found that no case was made out to proceed against the accused persons. It appears that in

arriving at a conclusion that there was no sufficient ground to proceed against the accused, learned Magistrate kept in view all aspects of the

matter. Learned Magistrate appears to have not only considered the statement of the witnesses examined during inquiry, but also viewed compact

disc displaying the transaction. Learned Magistrate also called for the record from JMC regarding building permission in favour of the complainant.

He also called for a status report from Joint Commissioner Administration. He noticed that the case for building permission was placed before

BOCA and the Authority desired the demarcation and title verification of the land. With reference to filing of writ petition 628/2012 by

complainant, the Court below noticed that the complainant set up a case of 'deemed permission' in the writ petition whereas exact location of

property and Khasra numbers had not been mentioned in the sale deed under which complainant claimed to have purchased the said plot of land.

Court-below also noticed that the accused claimed the said plot of land as the land belonging to JMC and building permission case could be

considered only after title verification from the Revenue Authority. These facts having been noticed by learned Magistrate, he found the

complainant's version regarding grabbing of land in question by accused No. 2 in conspiracy with accused persons as groundless and ill-founded.

Learned Magistrate found that the accused were public servants and had acted in conformity with procedure. The Court below arrived at

conclusions that object of complainant was to exert pressure on the accused to get his case for building permission cleared by accused. It also

noticed that accused No. 2 stood transferred from the post of Municipal Commissioner in 2010 and occurrence alleged to have taken place in

2011 and 2012 could not be linked with him.

It is futile to contend on the part of learned counsel for the complainant that the material brought on record during inquiry justified issue of

process by learned Magistrate. Section 202 of Cr.P.C. [Refer JK Laws 2nd Ed. 2013 Vol. 6 P-224] empowers a Magistrate to hold a judicial

inquiry himself or direct an inquiry or investigation for the purpose of deciding whether there is sufficient ground for proceeding. The object of

postponement of process is to prevent harassment of innocent persons sought to be roped in on the basis of vexatious complaints. It is within the

domain of Magistrate to postpone the issue of process against the accused in order to enable him to hold an enquiry or direct an investigation for

ascertaining truth or falsehood of allegations in the complaint. Such discretionary power is unfettered and can be resorted to by Magistrate to arrive

at a conclusion whether or not there is sufficient ground for proceeding against the accused. A person nominated as accused in the complaint does

not become an accused before issuance of process against him. He is at liberty to participate in the proceedings as a member of the general public

if his participation in any capacity is necessary or desirable. If the person against whom complaint is filed happens to be a public servant, there is no

rule or law which prohibits any report prepared by him or produced by him before the Court, to be taken into consideration provided process has

not been issued against him. Issue of process against a person arrayed as an accused in a complaint is a serious exercise and if an accused happens

to be a public servant, the Magistrate has to be cautious, while deciding about issue of process, that such public servant to whom a ring of

protection is afforded by law in regard to discharge of official duties, is not subjected to harassment.

The conclusions derived from the inquiry conducted by the learned Magistrate are not alleged to be perverse. The statutory report relied upon

by learned Magistrate does not warrant exclusion from consideration as the same was prepared by a public servant in discharge of his public duty

notwithstanding the fact that such a public servant does not figure as accused in the complaint. Once the sale deed, from which complainant claims

to have derived title, was found lacking in description of the property and JMC staked its claim to the plot of land in respect whereof trespass was

alleged to have been committed by the accused who were none else other than the officers, officials and functionaries of JMC acting to safeguard

the interests of corporation, complainant could not attribute the acts of omissions and commissions to accused as individuals when they were acting

under the color of office and could not be prosecuted without obtaining sanction u/s 197 Cr.P.C. [Refer JK Laws 2nd Ed. 2013 Vol. 6 P-212]

The learned Magistrate acted in conformity with law when he declined to issue process against the accused and dismissed the complaint. I find no

illegality, infirmity or jurisdictional error in the impugned order. There is no merit in this revision petition. Same is, accordingly, dismissed.