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Judgment
Rule made returnable forthwith. Respondent no. 1, who appears in person, waives service. The learned Additional Public Prosecutor, waives
service for the respondent nos. 2 and 3. Heard finally by consent of parties.
All these petitions arise out of order dated 09.12.2016 and 01.06.2017, passed by the learned Sessions Judge at Panaji. They involve common and
connected questions of law and fact and as such, they are being disposed by this common judgment.
The brief facts necessary for the disposal of the petitions may be stated thus:
The petitioner, Dilip Parulekar (accused no. 1) was a member of the Goa Legislative Assembly from the year 2007 to 2012. He was a Minister for
Tourism, Government of Goa from March 2012 till February 2017 and thus, was a public servant within the meaning of Section 21 of the Indian Penal
Code (IPC for short).
The petitioner, Peter Martins (accused no. 2) was an Attorney of the Communidade of Serula for the triennium 2010-13. An Attorney is an elected
officer for a period of three years.
The petitioner, Mrs. Irene Sequeira (accused no. 3) is Administrator of Communidade, who is also a Public Servant under Section 21 of the IPC.
The respondent no. 1 (complainant), filed a complaint with P.S. Porvorim, against the petitioners and others, alleging commission of offences under
Section 119, 120, 420 r/w Section 120B of IPC. The gravamen of allegations are that the petitioners and others, had hatched a conspiracy, in which,
prime property belonging to the Communidade of Serula (Communidade, for short) bearing Survey No. 376/6 of village Soccoro, Bardez Goa, was
given away to the accused no. 1 for a paltry sum, thereby causing wrongful loss to the Communidade and wrongful gain to the accused. It appears
that the learned Magistrate directed investigation into the complaint under Section 156(3) of the Code of Criminal Procedure (Cr.P.C. for short), on
the basis of which, an offence at Crime No. 8/2014 was registered on 17.01.2014, against eight accused, including the petitioners for the aforesaid
offences with P.S. Porvorim. The matter was subsequently transferred to the CID Crime Branch in April 2014 and the investigation was being
monitored by the learned Magistrate. It further appears that as the officers of the Communidade and the Administrator, were found to be public
servants, an offence under Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 (PC Act, for short) was invoked and accordingly, the
matter was taken over by the learned Sessions Judge, under the said Act and was registered as Criminal Miscellaneous Application No. 66/2014. The
investigating agency was submitting periodical reports before the learned Sessions Judge. The respondent no. 1 claimed that the investigating
agency was intentionally dragging its feet as the accused no. 1 was a Minister in the State Government. Be that as it may the investigating agency,
ultimately, on 01.08.2016 filed a 'C' final summary on the ground that the complaint is neither true nor false and that no material was found to proceed
against the accused.
The respondent no. 1 filed a protest petition, opposing the final summary report. The learned Sessions Judge by an order dated 01.06.2017, rejected
the final summary report and took cognizance of the matter under Section 190(1) (a) of Cr.P.C. i.e. on the basis of the complaint filed by the
respondent no. 1, which came to be registered as Private Criminal Case No. 2/2016.
The learned Sessions Judge then recorded the statement of the respondent no. 1 along with three witnesses, namely, AW-1, Agnelo Lobo, who was
the Attorney of the Communidade in the year 1994, AW-2, Srinet Kenawade, who was appointed as an enquiry officer on 24th March 2017, by the
Government to inquire into various irregularities pertaining to the Communidade and AW-3, Mohan Narvekar, a Clerk of the Communidade from the
year 2008. The learned Sessions Judge by an order dated 1st June 2017 has issued process against the accused nos. 1 to 3 (the petitioners herein),
for the offences punishable under Sections 119, 120, 420 read with Section 120B of IPC. Feeling aggrieved by the aforesaid two orders, the petitioners
have approached this Court under Articles 226 and 227 of the Constitution of India.
I have heard Shri Kantak, the learned Senior Counsel for the petitioner in Writ Petition No. 127/2017 and Shri Kamat the learned Counsel for the
petitioners in Writ Petition Nos. 106/2017 and 107/2017. I have also heard the respondent no. 1, who appears in person and Shri Amonkar, the
learned Additional Public Prosecutor for the respondent nos. 2 and 3. With the assistance of the learned Counsel for the parties, I have gone through
the record. The parties have also filed written submissions on record. I have gone through the same.
On behalf of the petitioners the following submissions are made:
(i) That the order dated 09.12.2016, taking cognizance is bad in law, as the same is passed in the absence of a sanction under Section 19 of the PC
Act, as well as Section 197 of the Cr.P.C.. It is submitted that the day on which the said order was passed, the accused no. 1 was a public servant,
being a Minister from March 2012 to February 2017.
(ii) It is submitted that the action of giving of plots and regularisation of the encroachments are alleged to be committed by the accused nos. 2 and 3, in
conspiracy with the accused no. 1, in discharge of their official duties, which would require previous sanction, both, under Section 197 of Cr.P.C. and
Section 19 of the PC Act.
Reliance in this regard is placed on the decision of the Supreme Court in the case of Anil Kumar & Others Vs. M.K. Aiyappa & Another, (2013) 10
SCC 705, P.K. Choudhury Vs. Commander, 48 BRTF (GREF), (2008) 13 SCC 229 and State of Orissa & Others Vs. Ganesh Chandra Jew, (2004) 8
SCC 40.
It is submitted that as held by the Supreme Court, the entire action, including the taking of cognizance and the subsequent order, issuing process would
be rendered void ab initio.
(iii) It is submitted that even on merits, there is no case made out for issuing process, in as much as, there were no sufficient grounds for proceeding
against the accused. For this, reliance is placed on the decision of the Supreme Court in the case of K. Hashim Vs. State of T.N., (2005) 1 SCC
237 and the decision of the Kerala High Court in the case of Vijayachandran K.K. & Another Vs. The Supdt. of Police & Another, (2008) 3 KLT
307.
(iv) It is submitted that the learned Sessions Judge, while taking cognizance and issuing process has failed to consider the order passed by this Court
on 25.02.2014 in PIL Writ Petition No. 25/2013, wherein, the same issue of the alleged illegal allotment and regularisation of the encroachment was
involved. It is submitted that this Court directed the petitioners to proceed with the regularisation of the encroachment. It is submitted that this Court
in categorical terms held that if, the accused no. 1 desired to regularise the encroachment, he must pay the price for it i.e. the value of the land and
such payment would legitimately regularise the otherwise unauthorised occupation of the accused no. 1 (who was respondent no. 4 in the PIL).
(v) It is submitted that in any event, granting of a plot or regularisation of an encroachment can by no stretch of imagination be construed as an
offence and at the highest, it will be a civil wrong, if at all there is any irregularity in the same. It is submitted that there are no allegations, much less
any material suggestive of passing of any illegal gratification, so as to make out an offence of criminal misconduct or otherwise under the PC Act.
(vi) Lastly, it is submitted that the acts alleged are for the period from the year 1996 to 2012. It is submitted that there is nothing to show that the
accused nos. 2 and 3 (the Attorney and the Administrator of the Communidade
respectively), were holding office as such, during the aforesaid period. It is submitted that an Attorney is elected every three years, while the
Administrator is a Government officer and different officers are posted as such, from time to time.
      9.        Shri Rodrigues, the respondent no. 1 in person made following submissions:
(i) No offence can be said to have been committed by the accused in discharge of their official functions and duties. Hence the protection under
Section 197 of Cr.P.C. or Section 19 of the PC Act is not available.
(ii) The original complaint before the Magistrate was not lodged, invoking the provisions of the PC Act. The provisions were invoked by the Crime
Branch for reasons mentioned in the final report. The respondent no. 1, in this regard, has referred to para 8 of the affidavit in reply.
(iii) It is submitted that no public servant can claim protection of Section 197 of Cr.P.C. and for the matter of that Section 19 of the PC Act, in respect
of acts, which have no semblance or nexus with the discharge of the official duties of such public servant. It is not every offence that requires
sanction under Section 197 of Cr.P.C. Reliance in this regard is placed on the decision of the Supreme Court, in the case of Punjab State Ware
Housing Corporation Vs. Bhushan Chander & Another, (2016) 13 SCC 44 and the decision of this Court, in the case of Alka Udhav Khaire & Others
Vs. State of Maharashtra & Another 2017 (3) BOM C.R. (Cri) 759.
(iv) It is submitted that it is not every public servant, who enjoys the protection of Section 197 of Cr.P.C. It is submitted that it is only the public
servants, who are removable save by or with the sanction of the Government can claim such protection. Reliance in this regard is placed on the
decision of the Delhi High Court in the case of L.K. Advani Vs. Central Bureau of Investigation, AIR 1997 CRI. L.J. 2559 (Delhi) and the decision of
the Supreme Court in the case of P.V. Narsimha Rao Vs. State, 1998 (4) SCC 626 and in the case of State of Punjab Vs. Karnail Singh, (2008) 9
SCC 114.
(v) It is submitted that mere fact that the accused no. 1 has not committed any act as a public servant in discharge of his official functions, cannot
exonerate him from the offence, as he has been the beneficiary of the illegal/ criminal acts and also by invocation of Section 34 and/or Section 120 of
IPC.
(vi) The question of sanction cannot arise at the stage of directing investigation under Section 156 of Cr.P.C., since none of the provisions of the PC
Act had been invoked by the respondent no. 1. It is submitted that the question of sanction would arise only at the stage of issuance of process.
(vii) As far as the accused no. 1 is concerned, there are no pleadings to claim that he acted in discharge of his official function, while obtaining the
allotment of the land. As far as the members of the Managing Committee and the Administrator is concerned, the scope of enquiry would be limited to
whether, sanction is required to prosecute them.
(viii) No sanction is required under Section 19 of thePC Act, in respect of a person, who is no longer a public servant. Reliance in this regard is placed
on the decision of the Supreme Court in the case of Parkash Singh Badal & Another Vs. State of Punjab, (2007) 1 SCC 1 and in the case of
Kalicharan Mahapatra Vs. State of Orissa, (1998) 6 SCC 411. Reliance is placed on the decision of the Madhya Pradesh High Court in the case of
Mukesh Kacker Vs. Special Police Establishment, 2010 (3) M.P. L.J. 692, in order to submit that even if, the accused could not be chargesheeted
earlier because no sanction was obtained, there is no bar to file a supplementary charge sheet after retirement.
(ix) Admittedly, the then members of the Managing Committee and the then Administrator, no longer hold these posts and as such, would not be public
servants when the cognizance is taken. It is submitted that at any rate, it is a question of fact, which cannot be gone into at the preliminary stage.
(x) It is submitted that the Court while refusing to accept the final report can either direct further investigation under Section 156(3) of Cr.P.C. or take
cognizance, under Section 190(1)(c) of Cr.P.C.. It is submitted that the learned Sessions Judge has rightly taken cognizance, on the basis of the
prima facie case. Reliance in this regard is placed on the decision of the Supreme Court in the case of Ram Naresh Prasad Vs. State of Jharkhand &
Others, (2009) 11 SCC 299, H.S. Bains Vs. The State (Union Territory of Chandigarh), AIR 1980 SC 1883.
(xi) It is submitted that the case of Anil Kumar (supra) would be distinguishable, in as much as, in that case, in the complaint itself, the offence under
the PC Act was invoked, while in the present case, it was added by the investigating agency.
(xii) Lastly it is submitted that there is no jurisdictional error committed by the learned Sessions Judge, requiring interference and the petitions be
dismissed.
I have carefully considered the rival circumstancesand the submissions made. Having regard to the submissions made, the matter will have to be
looked into and examined in relation to each of the petitioner/accused separately. Now, before doing that, it would be necessary to recapitulate the
legal position in relation to the requirement of sanction under Section 197 of Cr.P.C. and Section 19 of the PC Act (which position is otherwise well
settled).
Sanction under Section 197 of Cr.P.C..
(i) The section is not attracted to the prosecution of every public servant, nor to each and every act, allegedly committed by such public servant.
(ii) In order to attract the section, apart from being a public servant, under Section 21 of IPC, he should also be a public servant removable save by or
under the authority of the Government.
(iii) The alleged acts should be shown to becommitted while acting or purporting to act in the discharge of the official duty of such public servant. In
other words, the acts alleged, must have some reasonable nexus with the discharge or purported discharge of the official duty of such public servant.
Such nexus should be proximate and not remote or illusory.
(iv) Unlike the protection under Section 19 of the PC Act, the protection under Section 197 of Cr.P.C. is available, even after the accused ceases to
be a public servant.
Normally, the requirements at serial no. (ii) above, does not present any difficulty in practice, as the requirement at serial no. (iii) does. The
applicability of this requirement creates a catch 22 like situation. This is because, it is not part of the duty of any public servant to commit any
offence. Thus, if the public servant strictly remains and acts within the bounds of his authority and duty, there cannot be any offence and
consequently, there is no occasion for considering the applicability of the protection of this section. Thus, unless and until, there is some overt act
beyond the permissible authority of the public servant, no occasion for his prosecution can arise. Thus, if the section is interpreted and applied too
strictly, the protection intended by the section would become illusory and at the same time, if it is applied liberally, it would tend to protect acts, which
otherwise are not intended to be protected. This essentially requires a careful examination of the official duty of the public servant vis-a-vis the act
alleged, in order to find out whether, the public servant concerned would be entitled to protection under the said section.
Section 19 of the PC Act.
(i) The protection under this section is available to all public servants as defined under Section 2(c) of the PC Act. However, only during the period
they continue to act as such public servants. In other words, such protection is no longer available after the public servant ceases to be a public
servant
(ii) The section envisages prior sanction of the competent authority before taking cognizance. Thus, the point of time when the requirement of prior
sanction has to be examined is when the cognizance is taken.
(iii) The section applies to offences under Sections 7, 10, 11, 13 and 15 of the PC Act.
In the present petitions, the challenge is to two orders one dated 09.12.2016 taking cognizance, under Section 190(1)(a) of Cr.P.C. (while refusing
to accept the final report) and the order dated 01.06.2017, issuing process under Sections 119, 120, 420 read with Section 120B of IPC and Section
13(1) (c) and (d) of the PC Act. It is necessary to note that while the accused are entitled to be heard, while deciding the question whether, the
final report is to be accepted or not, while deciding to issue process, the accused is neither before the Court nor is entitled to be heard. Thus, at the
stage of issuing process, the Court has to confine itself to the contents of the complaint, the verification and the evidence recorded. The probable or
possible defence cannot be considered at the said stage. It is also pertinent to note that, in the present case, the complaint before the Court, is triable
as a warrant triable case, instituted otherwise than on police report. Thus, as per the applicable procedure, the Court would be obliged to record
evidence before charge, at which stage, the accused gets an opportunity to put up his/their defence. I would now propose to deal with the petitions
individually.
Firstly, I would propose to briefly consider the challenge to the order dated 09.12.2016, by which, cognizance was taken by the learned Sessions
Judge of the original complaint filed by the respondent no. 1, under Section 190(1)(a) of Cr.P.C. The learned Sessions Judge has done so, while
refusing to accept the 'C' final summary. It would be necessary to note the legal position in relation to the complaint under Section 200 of Cr.P.C.
and the powers of the Court to direct investigation under Section 156(3) of Cr.P.C. and the manner in which, the Court can take cognizance.Â
Section 190 of Cr.P.C. provides that the Magistrate can take cognizance of any offence (a) upon receipt of complaint of facts, which constitute
such offence (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.
The Supreme Court in the case of H.S. Bains (supra) has inter alia held that the Magistrate is not bound by the conclusion drawn by the police, on
investigation and the mere fact that he had ordered investigation under Section 156(3) and has received a report under Section 173, will not have the
effect of total effacement of the complaint and therefore, the Magistrate shall not be barred from proceeding under Sections 200, 203 and 204 of
Cr.P.C. Thus, while refusing to accept the final summary report, the Magistrate can take cognizance on the basis of the original complaint. The
question would evidently be one of facts and circumstances of each case.
The learned Sessions Judge has found that the investigation in the matter was only an eye wash and no proper steps were taken for the purpose of
collection of records, material as well as recording the statements of relevant witnesses. The learned Sessions Judge has noticed that every time the
status report was filed, different reasons were given for the purpose of extension of time. For example, at one stage, it was claimed that some
documents were forwarded to CFSL, Hyderabad and the same were not received, while at another stage it was claimed that the file regarding
regularisation of encroachment is pending before the Collector, North Goa and till the decision of the competent authority, the file could not be
attached. When the Court directed to attach the file, the investigating agency claimed that it was decided by the higher authorities not to attach the
file. In the year 2014, it was claimed that the investigation is complete and only sanction is required to be obtained, which would presuppose that the
investigating agency had found some prima facie material in the matter. However, when the order was passed by the learned Sessions Judge on
09.12.2016 (i.e. for a period of two years), no sanction was obtained and in fact, no application was moved by the investigating agency to obtain
sanction. In such circumstances, in my considered view, no exception can be taken to the order of the learned Sessions Judge, taking cognizance
and certainly, this would not be a case where the order of taking cognizance could not be interfered with under Article 226 or 227 of the Constitution
of India.       Â
The petitioner in Writ Petition No. 127/2017, was a member of the Goa Legislative Assembly (MLA) from 1996 to 2012. He was a minister in
the State Government from March 2012 to February 2017. The allegation against the petitioner is that he misused his official position and as a part of
criminal conspiracy, prime property belonging to the Communidade, was obtained by him at a paltry price. Curiously enough, in the petition, a ground
was raised on behalf of the petitioner that neither the petitioner nor the officers of the Communidade are public servants. It is contended that the
Communidade is not a public body. However, the contention now raised is that the order taking cognizance and issuance of process is bad for want
of sanction under Section 197 of Cr.P.C. and Section 19 of the PC Act.
            Thus, at this stage, it is not disputed that the petitioner is a public servant. Now the requirement of sanction has to be
examined in relation to Section 197 of Cr.P.C. and Section 19 of the PC Act. Insofar as Section 197 of Cr.P.C. is concerned, a Division Bench of
this Court in the case of Alka Udhav Khaire (supra), after taking a survey of various decisions of the Supreme Court, including the one in the case of
Punjab Ware Housing Corporation (supra) has held that certain offences such as, under Sections 406, 409, 420 etc. of IPC, by their very nature,
require no sanction. The Supreme
Court in the case of Punjab Ware Housing Corporation (supra) has inter alia held that where the very act or omission is totally alien to the discharge
of official duty of the public servant, question of invoking Section 197 of Cr.P.C. would not arise. One of the offences under which the process is
issued, is under Section 420 of IPC. Even considering the nature of the offences under Sections 119, 120 and Section 120B of IPC, I am of the
considered view that the duties of the petitioner as a MLA or as a Minister, cannot have any reasonable nexus with the acts alleged.
In the present case, there is one more reason why the section will not apply to the petitioner. The case made out against the petitioner is that he
misused his official position in obtaining the land of the Communidade. Thus, it was not the duty of the petitioner to allot the land, which he could have
possibly misused. The allegation essentially is about hatching of a conspiracy with the officers of the Communidade and the Administrator by misusing
the official position/influence to obtain the advantage. Now it cannot be the official duty to misuse such official position or to enter into such criminal
conspiracy by a public servant. Thus, on application of the reasonable nexus test, the contention about absence of sanction under Section 197 of
Cr.P.C., cannot be accepted.
  Insofar as the petitioners in Writ Petition Nos. 106/2017 and 107/2017 are concerned, they are respectively the Attorney of the Communidade
for the triennium 2010 to 2013 and the Administrator of the Communidade. At this stage, I would proceed on the assumption that they are public
servants to whom protection under Section 197 of Cr.P.C. is otherwise applicable i.e. they are public servants, who will be removable, save by or
under the authority of the Government. Although, there is a serious doubt as to whether, the Attorney of the Communidade would be such a public
servant. However, in respect of these petitioners also, it cannot be accepted that the acts alleged against them would have a reasonable nexus with
the duties of these petitioners.
Now coming to the question of sanction under Section 19 of the PC Act, the only requirement is that the accused should be a public servant on the
date on which cognizance is taken. The Supreme Court in the case of Anil Kumar (supra), which was a case under the PC Act, has held that such
sanction is necessary, even when the Court directs investigation under Section 156(3) of Cr.P.C.. The said case has been tried to be distinguished on
behalf of the respondent no. 1, on the ground that in the said case, complaint itself was filed, alleging offence under the PC Act, unlike in the present
case. It is contended that at the stage when the order under Section 156(3) of Cr.P.C. was passed, the provisions of the PC Act were neither invoked
nor were required to be invoked.
It is true that the complaint was not filed, invoking offences under the PC Act. Even when the order under Section 156(3) of Cr.P.C. was passed,
there was no mention of the offence under the PC Act. The investigating agency subsequently invoked the offences under the PC Act. However, the
fact remains that when the cognizance was taken by the learned Sessions Judge on 09.12.2016 inter alia for the offences under the PC Act, the
petitioner was a public servant. Thus, the cognizance for the offences under the PC Act, could not have been taken in the absence of a sanction under
Section 19 of the PC Act. The subsequent order, issuing process under Section 13(1)(c) and (d) of the PC Act would also be bad for want of
sanction under Section 19 of the PC Act. The learned Sessions Judge has not considered this aspect and the effect of the decision in the case of
Anil Kumar (supra).
This takes me to the contention that even otherwise, on facts, no prima facie case is made out to issue process under the IPC sections. Under
Section 119 of IPC, whoever being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an
offence, which it is his duty as such public servant to prevent, voluntarily conceals by any act or omission, the existence of a design to commit such
offence, or makes any such representation, which he knows to be false respecting such design is said to have committed the offence, within the
meaning of the said section. Â
Section 120 of IPC envisages concealing design to commit offence punishable with imprisonment, while Section 120A of IPC defines criminal
conspiracy which is punishable under Section 120B of IPC. A criminal conspiracy is an agreement between two or more persons to do, or cause to
be done (1) an illegal act or (2) an act which is not illegal, by illegal means. Such an agreement between two or more persons is designated as
criminal conspiracy. The proviso appended to Section 119 of IPC says that no agreement, except an agreement to commit an offence, shall amount
to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement, in pursuance thereof.Â
The gravamen of the allegations against the petitioners, as noticed earlier, is about the petitioner (accused no. 1) having misused his official position
and having entered into criminal conspiracy with the accused nos. 2 and 3 to obtain a prime property of the Communidade for a paltry price. Section
420 of IPC deals with cheating and dishonestly inducing delivery of property. Now, such deception can, in a given case, be of a body of persons,
such as a Communidade. An allegation of fraudulently obtaining of the property of the Communidade, if proved, can amount to cheating of the
Communidade and the body of the persons of which it is constituted. It is now well acknowledged that conspiracies are hatched in a surreptitious
manner and direct evidence of such conspiracy is seldom available and cannot be always be insisted upon. The matter is one of reasonable
inference being drawn on the basis of facts, which are established on record. At the stage of issuance of process, the Court has only to find
whether, there are sufficient grounds for proceeding in the matter. In other words, the Court has to see whether, prima facie case exists for
issuance of such process. The Court is not required to see whether, the allegations or evidence are sufficient to entail a conviction. The learned
Sessions Judge has noticed that the Managing Committee of the Communidade has taken a resolution on 15.03.1999 and had permitted the accused
no. 1 to put up a shed in Survey No. 376/6 at annual rent of Rs.600/-, without holding any auction and without following the procedure for lease of
Communidade land. Subsequently, the accused no. 1 was leased an area of 111 square metres, vide certificate dated 12.05.2004, so as to convert
the existing structure into a permanent one. By a certificate dated 12.05.2004, a NOC was given to install a permanent structure in the place of
kiosk in Survey No. 379/1 of village Succorro. That certificate was jointly issued in the name of one Pramod Salgaonkar and the accused no. 1.
The learned Senior Counsel for the petitioner (accused no. 1) submitted that this part of the evidence and the observations of the learned Sessions
Judge are foreign to the complaint. They are not part of the complaint. In my considered view, the contention cannot be accepted, at this stage,
for the reason that a private complaint before the Magistrate or the Court is not governed by strict rules of pleadings as in a civil case. If during the
course of recording of evidence and the statement of the complainant and the witnesses, if any, examined, certain material comes on record, the Court
would not be precluded, from looking into it, if prima facie, material is available to issue process.Â
The learned Sessions Judge has further considered certain circumstances about the resolution dated 12.05.2004 being adopted without any quorum
and has found that a bare reading of the certificate shows that there was no quorum. The complainant had produced a notice dated 23.10.2011,
issued by then Attorney of the Communidade for unauthorised occupation in land survey no. 376/6. The learned Sessions Judge has noticed that the
accused no. 1 has illegally erected a structure, dumped materials and erected fencing without the permission of the Communidade, which was against
the rule of the Communidade. The accused no. 1 sent a reply on 09.11.2011, requesting for regularisation of the unauthorised construction, on the
ground that he had spent lot of revenue to develop the unused land admeasuring 599 square metres in survey no. 376/6, at his own cost. The
learned Sessions Judge has therefore found that the land was admittedly not belonging to the accused no. 1 as the accused no. 1 himself, had applied
for regularisation.Â
The learned Sessions Judge has then considered that the accused no. 2 has made a request in letter dated 15.07.2012 and the same was
forwarded by the accused no. 3 with comments for necessary permission. The Administrative Tribunal by order dated 27.09.2012, granted
permission to the Communidade under Section 380(2) of the Code of Communidade to receive the value of the land, in order to regularise the
construction to the extent of 599 square metres of survey no. 376/6. The order of the Administrative Tribunal was challenged before this Court in
PIL Writ Petition No. 25/2013 and this Court by judgment and order dated 25.02.2014 has quashed and set aside the order of the Administrative
Tribunal pointing to various irregularities.    Â
Shri Kantak, the learned Senior Counsel for the petitioner (accused no. 1) has submitted that even assuming that the act of regularisation was
illegal, at the highest, it would be a wrong act. In the submission of the learned Senior Counsel such an act cannot partake of the nature of an
offence. Secondly, it is submitted that the learned Sessions Judge has not read the judgment of this Court in PIL Writ Petition No. 25/2013 in its
entirety. Shri Kantak, the learned Senior Counsel has strongly urged that this Court has accepted the case of the Communidade (respondent no. 1 in
the said petition), that “some form of settlement about the encroachment may be in orderâ€. However, given the fact that a Communidade is a
public body and is in the position of a Trust, such a settlement can only be little less than the market value of the land. In short, the submission of the
learned Senior Counsel is that the encroachment was held to be regularisable, provided the petitioner pays the price of it, i.e. value of the land.Â
I have carefully considered the contentions as raised above. However, the same cannot come to the aid of the petitioners, particularly, at this
stage. The contention as advanced on behalf of the petitioners, being part of the defence of the accused, cannot be taken into consideration, at the
stage of issuance of process. At the cost of repetition, it is necessary to emphasize that the complaint before the Court, is a warrant triable case, in
which, the Court would be required to record evidence before charge. All such contentions can be taken into consideration by the Court, while
deciding the question whether, the charge is required to be framed and it is at that stage, when the petitioner would get an opportunity to put forth all
such defences.Â
Shri Rodrigues, the respondent no. 1 in person has placed reliance on the decision of this Court dated 06.05.2016 in PIL Writ Petition Nos. 15/2014
and 16/2014. Those petitions were filed by Mr. Trajano D'Mello & Others. In PIL Writ Petition No. 15/2014, the petitioner in Writ Petition No.
127/2017 was respondent no. 4, while the Communidade was respondent no. 2. It was the case of the petitioners in the said petitions that in
violation of the various provisions of the Code of Communidade, the respondent no. 4 (the petitioner in Writ Petition No. 127/2017) has usurped the
land of the Communidade, without following the due process of law, nor the mandatory provisions of the Code were complied with. The lands
which were subject matter of dispute in those petitions are from survey nos. 376/6, 379, 379/1, 380/1 and 389/1. On behalf of the respondent no. 1,
specific reliance is placed on the following observations of this Court:
“We failed to understand how this permission could have been given in the hands of the private respondents who claim to be allottees of the land
when there is no material on record to the effect that any grant has been made in their favour in terms of the Code of the Comunidade. The
respondent no.4 has produced a letter addressed by the President of the Comunidade dated 14.11.2002 which clearly shows that the alleged
accommodation was to the kiosk which was being demolished and the resolution was passed by the Managing Committee. As already pointed out
herein above, the Code of Comunidade does not permit the Managing Committee to take such decision. As such, the powers if any are to be
exercised only by the General Body. Even on perusal of the letter dated 30.12.2002 the Village Panchayat has clearly stated that the kiosk which
was put up would be allowed to be shifted in survey no.379/1 subject to obtaining permission from all the authorities. The contention of the
respondents that the Managing Committee had taken the decision as there was no quorum when the meeting of the General Body was called upon to
deliberate about the alleged rehabilitation, prima facie appears to be erroneous. Looking into the resolution dated 05.11.2003 it clearly shows that it is
the Managing Committee which had taken such decision which they were not authorised to do. No minutes of the number of members who were
present at the meeting have been produced nor does the alleged minutes indicate that the Managing Committee took any decision as the agenda was
transferred to the Managing Committee. Even on perusal of the certificates dated 12.05.2004 and 06.06.2004, we find that only 40 and 60 square
metres of the land was given to put up a shed. There is no provisions in the Code of Comunidade to dispose of or grant such land in such a manner by
the Comunidade. Even accepting the correctness of the said resolution, we find that the alleged construction in the subject property is totally contrary
to the said purported resolution. Besides that all the private respondents have not produced any resolution to show that the erection of the kiosk in the
property surveyed under No.376/6 is legal or that any amounts were being paid for such occupation to the concerned Comunidade.â€
Further, reliance is placed on the following observations in para 22, which read as under:
“22. During the course of the hearing, we had also inquired from the learned counsel appearing for the respondent no.2 as to why action was not
taken against the respondents who according to them are illegally occupying the subject building. The learned counsel submitted that as the records
were not available they were handicapped to take any legal action though a complaint was lodged before the Administrator. We find no justification in
such explanation by the learned counsel appearing for the respondent no.2. The duly elected body of the respondent no.2 is bound to protect the assets
of the Comunidade and look into the welfare on behalf of the share holders of such Comunidade. This appears to be a pretext to shy away to protect
the interest of the Comunidade.â€
Reliance is also placed on the following portion in para 27:
“In the present case, we find that considering the stand taken by the Statutory Authorities, this is followed more in default than in compliance. In
such circumstances, we find from the material on record that the occupation of the respondents No.4 to 14 of the subject-premises without
Occupancy Certificate, nor the Conversion Sanad, cannot be protected and the Authorities are duty bound to take necessary action, in accordance
with law. As pointed out herein above, the licence clearly stipulated that no development could be commenced without obtaining a Conversion Sanad.
In the present case, the respondents No.4 to 14 have detracted the law in going ahead with the development, though there was no allotment of land
legally granted in favour of the said respondents to put up such construction. The alleged allotment in favour of the respondents No.4 to 14 is in gross
violation of the relevant provisions of the Code of Comunidades. The activities carried out by the respondents No.4 to 14 in contravention of the
provisions of the Code would clearly defeat the purpose and objects of the relevant provisions of law.â€
It is submitted that this Court has held that the authorities, which are the custodians of power, cannot be influenced by considerations other than
that for which the power is vested in them in the first place and the authorities cannot be swayed by any motive other than in exercise of its power in
accordance with law. I have carefully gone through the observations of this Court in the judgment, in PIL Writ Petition No. 25/2013 (on which
reliance is placed on behalf of the petitioners) and the observations and findings in the judgment in PIL Writ Petition Nos. 15/2014 and 16/2017 (on
which reliance is placed by the respondent no. 1) and I do find that a prima facie case, for issuance of process was made out and it would be
necessary for the Court to examine all these contentions while deciding whether, a case for framing of charge is made out or not. In my humble
opinion, this is not a case where the complaint can be dismissed at the threshold by quashing the order of issuance of process. Â
The contention that at the highest, it would be a civil wrong and not an offence, also cannot prima facie be accepted at this stage. The essential
difference between the act, which is purely a civil wrong or an offence, lies in the intention of the parties at inception. For the purpose of illustration,
a case of breach of contract simpliciter and cheating can be taken into consideration. The essential difference between a claim of breach of
contract and cheating lies in the intention of the parties, at the inception of the contract. If the intention, since inception is not to abide by the
contract, the breach would travel into the realm of offence of cheating. Thus, it is necessary to emphasize that the matter would again turn on
intention since inception. For this reason, I am unable to persuade myself to accept the contention as raised on behalf of the petitioner.
I would now propose to briefly deal with the petitioners in Writ Petition Nos. 106/2017 and 107/2017. As noticed earlier, the petitioner Peter
Martins was an Attorney of the Communidade for the triennium 2010-2013 and undisputedly, the Attorney is an elected officer for a period of three
years, while the petitioner in Writ Petition No. 107/2017 is an Administrator of the Communidade, who is said to be a public servant under Section 21
of IPC. The learned Sessions Judge in para 19 of the judgment dated 01.06.2017 has noticed the role of the present accused nos. 2 and 3. It is
true that the entire period, to which the complaint refers to, is from the year 1996 to 2012 and the accused nos. 2 and 3 may not be the officers,
holding the post of Attorney of the Communidade and the Administrator of the Communidade respectively, for such a long time. However, the facts
as noticed in para 19 of the impugned order dated 01.06.2017 pertain to the order dated 2012. It would be for the learned Magistrate to examine the
individual role played by the accused while deciding whether, the charge is required to be framed and if yes, under what section, after recording the
evidence before charge. As noticed earlier, I do not find that a case for quashing of the order of issuance of process is made out.Â
I would now briefly deal with the judgments relied upon on behalf of the petitioners. Insofar as the decision of the Supreme Court in the case of
Anil Kumar (supra) is concerned, I have already held that taking of cognizance and the issuance of process under Section 13(1)(c) and (d) of the PC
Act was not competent, in the absence of Section 19 of the said Act.
The case of K. Hashim (supra) pertains to the offence of counterfeiting of currency notes and stamp papers. In the said case, the explanation to
Section 20 of IPC fell for consideration of the Hon'ble Supreme Court. It can thus be seen that the case involved facts, which are not at all similar.
In para 22 of the judgment, on which reliance is placed on behalf of the petitioner, the Supreme Court has dwelt upon the definition of the criminal
conspiracy. In my considered view, the present case would be clearly distinguishable and the case of K. Hashim (supra) cannot come to the aid of
the petitioner.Â
In the case of Ganesh Chandra Jew (supra), it has been held that the protection under Section 197 of Cr.P.C. is available only when the alleged
act done by the public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing the objectionable act.Â
As noticed earlier, the question whether, the act complained of has reasonable and proximate nexus to the duties of the public servant, would depend
upon facts and circumstances of each case. The case of Ganesh Chandra Jew (supra) involved a complaint made against six officers of the Orissa
State Forest Department, in which, the respondent had alleged that he was falsely implicated in an offence under the Orissa Forest Act, 1972 and the
Wild Life (Protection) Act, 1972 and the appellants having seriously assaulted the respondent and of humiliating him publicly.  A perusal of para
20 of the judgment would show that in the background of the facts of that case, the question regarding applicability of Section 197 of Cr.P.C. was
found to have taken a “temporary back seatâ€. On facts, it was found that when the respondent was produced before the Magistrate and was
specifically asked whether, there was any ill-treatment, he informed that there was no ill-treatment and this was found to affect the credibility of the
complaint.  The Hon'ble Supreme Court found that there were inherent improbabilities in the complainant's case and involved patent malafides and
therefore, the continuance of the prosecution was found to be an abuse of the process of law.Â
In the case of P.K. Choudhury (supra), the appellant was serving as a Commandant of BRTF (GREF). He was alleged to have committed
offence under Sections 166 and 167 of IPC. On facts, it was found that the offences had a direct nexus with the commission of criminal misconduct
on the part of the public servant.Â
The case of Vijayachandran K.K. (supra) of the Kerala High Court, also turned on its own facts. In the case of Vijayachandran K.K. (supra),
a conviction and sentence was recorded on trial, for the offences under Section 120B of IPC read with Sections 13(2) and 13(1)(d) of the PC Act,
which was subject matter of challenge. Presently, we are concerned with the case, which is at the stage of issuance of process, where the Court
would be required to record evidence before charge.Â
In the result, the following order is passed:-
 (a) Criminal Writ Petition Nos. 127/2017, 106/2017 and 107/2017, are partly allowed.
(b) The order dated 09.12.2016, taking cognizance of the complaint under Section 190(1) (a) of Cr.P.C., is hereby confirmed.
(c) The part of the order dated 01.06.2017, issuing process against the petitioners, for the offence punishable under Section 13(1)(c) and (d) of the
Prevention of Corruption Act, is hereby set aside, for want of sanction.
(d) The order issuing process against the petitioners for the offences punishable under Section 119, 120, 420 read with Section 120B of IPC, is hereby
confirmed.Â
(e) The Private Criminal Case No. 2/2016, shall be made over to the Court of the Judicial Magistrate First Class at Mapusa, for disposal in
accordance with law.
(f) The learned Magistrate shall decide the issue of framing of charge on its own merits and in accordance with law.
(g) The parties to appear before the learnedJudicial Magistrate First Class at Mapusa on 06.08.2018.
(h) The petitions are disposed of in the aforesaid terms.
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