IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2009 CORAM THE HON'BLE MR.JUSTICE R. REGUPATHI Crl.R.C.Nos.242 and 250 of 2007 State, rep. By The Inspector of Police, G-3 Kilpauk Police Station, Kilpauk, Chennai. [Crime No.1734/1997. .. Petitioner in Crl.R.C.242/07 K.K.Velayudham .. Petitioner in Crl.R.C.250/07 Vs. Dr.A.Ganesan, Retired Dean, Kilpauk Medical College, Chennai – 10. .. Respondent in Crl.R.C.242/07 & Crl.R.C.250/07 Prayer in both C.R.Ps. : Petitions filed under Sections 397 and 401 of Criminal Procedure Code against the order dated 30.11.2006 made in Crl.M.P.No.6059/2003 in C.C. No.4196/2000 on the file of II Metropolitan Magistrate, Egmore, Chennai and to set aside the order. In Crl.R.C.242 of 2007 For petitioner : Mr. J.C.Durairaj Govt. Advocate (Crl.side) For Respondent : Mr. M.Devaraj - - - - - In Crl.R.C.250 of 2007 For petitioner : Mr. R.Shunmugasundaram, Senior Counsel for Mr.K.Venkatesan https://hcservices.ecourts.gov.in/hcservices/ For R-1 : Mr. J.C.Durairaj Govt. Advocate (Crl.side) For R-2 : Mr.M.Devaraj - - - - - COMMON ORDER The defacto complainant/petitioner in Crl.R.C.No.250 of 2007 was running a tea stall within the premises of the Government Hospital at Kilpauk and the said shop was allegedly damaged and the materials and other properties therein were stealthily removed on 01.07.1997 by the accused, whereupon a complaint against the respondent in his capacity as Dean, Kilpauk Medical College, Chennai and A.2/Assistant Engineer, Public Works Department, Chennai came to be lodged resulted in registration of the case for offences punishable under Sections 166, 448, 427, 380, 392 and 506(ii) I.P.C. and ultimately, final report has been filed by the petitioner in Crl.R.C.242 of 2007, resulting in the proceedings before the Trial Court. Several writ petitions and criminal original petitions were filed pending proceedings in the criminal case. The second accused was discharged for want of sanction under Section 197 Cr.P.C. by the learned Magistrate and such discharge was set aside by this Court in Crl.R.C.No.1465 of 2003 vide order dated 19.11.2003. Aggrieved thereby, the second accused moved the Supreme Court contending that sanction is absolutely necessary to launch the prosecution against him and the Supreme Court upheld the order passed by the learned Magistrate, discharging the second accused. Based on that, the Respondent/A-1 in the case has also preferred a discharge petition and the learned Magistrate relying on the observations of the Hon'ble Supreme Court, discharged the petitioner by order dated 30.11.2006 passed in Crl.M.P.No.6059 of 2003. Aggrieved against the order impugned, the prosecution as well as the defacto complainant have preferred the above two revision petitions before this Court. 2.The learned Senior Counsel appearing for the defacto complainant points out that the defacto complainant was allotted 225 sq. ft. of land inside the precincts of Kilpauk Medical College by Government Order during 1977 and subsequently, the allotment was transferred in favour of the defacto complainant's wife and such transfer was approved by the Public Works Department. "No objection certificate" was also issued by the hospital authorities and the defacto complainant was continuously running the canteen upto 1992. Though the lease was not extended thereafter, the defacto complainant was continuously paying the rent. While so, on the basis of the directives issued by the Hon'ble Supreme Court and the order of the https://hcservices.ecourts.gov.in/hcservices/ Government of Tamil Nadu, a notice for eviction was issued and such notice was questioned before this Court and an order was passed not to dispossess the defacto complainant except by due process of law. Under such circumstances, the accused, without resorting to the procedure prescribed, illegally demolished the structure and removed the materials, resulting in registration of the case. According to the learned Senior Counsel, the accused, by committing such an act, caused damage to the properties of the defacto complainant and the resultant loss has not been compensated. A reasonable opportunity was not given to the defacto complainant to vacate the premises. It is submitted that though the Respondent/A-1 is a public servant in his capacity as a Dean, Kilpauk Medical College, Chennai, the act committed by him is not an official act and therefore, the impugned order passed by the learned Magistrate without looking into such aspect is erroneous and therefore, the same may be set aside. 3.Per contra, the learned counsel appearing for the Respondent/A- 1 submits that, as per the direction issued by the Government and in the absence of valid lease agreement to run the canteen, the premises of the defacto complainant was demolished and only to wreak vengeance, the prosecution has been launched. It is stated that before vacating the defacto complainant from the premises, police protection was sought for and demolition was carried out only on the instructions given by the Executive Engineer, Pubic Works Department, to the Assistant Engineer, P.W.D and the Respondent/A-1, in his capacity as a Medical Officer, was not directly involved in the act and even so, whatever act committed was in his capacity as a public servant and therefore, sanction is absolutely necessary to launch prosecution against him. 4.I have meticulously perused the materials available on record having regard to the rival submissions made on either side. 5.The only aspect taken into consideration by the learned Magistrate was regarding sanction under Section 197 Cr.P.C. and, by holding that sanction is absolutely necessary and it was absent in the case of the accused to prosecute him, the learned Magistrate passed orders, discharging the accused. On the same ground, the Hon'ble Supreme Court passed orders in the case in favour of the second accused holding that sanction is absolutely necessary to prosecute the accused by observing as follows:- "Government of Tamil Nadu issued a Government Order containing a policy decision to remove all such kiosks, tea stalls and bunks from the hospital premises in public interest, inter alia, on the ground that food prepared in https://hcservices.ecourts.gov.in/hcservices/ such tea stalls in unhygienic conditions and the same had otherwise been causing nuisance to others. No Court has declared such a policy decision to be ultra vires, We have noticed hereinbefore that, in fact, the validity of such a policy decision has been upheld by this Court in Jagadeesan (supra). If in the aforementioned situation, the Appellant herein only complied with the order of the Executive Engineer asking him to remove the said tea stall; we are of the opinion that thereby he cannot be said to have committed any offence whatsoever. The name of the appellant was taken by the Executive Engineer himself, under whose direction he acted. He, in his statement made before the police, merely stated that the Appellant by his letter dated 2.8.1997 intimated to him that the tea stall had been removed. On the basis of the said statement no inference could be drawn that the Appellant committed an offence purported to be under Section 427 of the Indian Penal Code. From a perusal of the charge sheet, as also the materials which are available on record, it does not appear that there is anything to show as to how and in what manner the Appellant could be said to have committed a mischief or how the ingredients of the said provision stood satisfied." After detailed discussion about the law on the point of sanction, ultimately the Supreme Court held thus:- "Even if the statement of the Executive Engineer on the basis whereof the charge sheet has been filed against the Appellant is accepted to be correct sanction for his prosecution, as envisaged under Section 197 of the Code of Criminal procedure, in the facts and circumstances of this case was necessary." 6.On a careful perusal of the order impugned, I find that the learned Magistrate has surveyed the history of the pending litigation and distinguished the earlier orders passed by this Court in Crl.O.P.No.6435 of 2001 and, by relying on the Hon'ble Supreme Court's judgment, ultimately came to the following conclusion:- "In the light of the above orders of, I consider the case of the petitioner/accused A1 who is a Dean at that time of the Kilpauk Medical Hospital, I am of opinion that the sanction of the Government for the prosecution under https://hcservices.ecourts.gov.in/hcservices/ Section 197 of Criminal Procedure Code, with the facts and circumstances of the case is necessary. Hence, the contention of the petitioner is accepted. The contention of the prosecution is not accepted. Hence the petition filed by the petitioner u/s. 239 Cr.P.C. is allowed and the petitioner/accused is discharged u/s.239 Cr.P.C." 7.Admittedly, the Respondent/A-1 in his capacity as Dean, Kilpauk Medical College, Chennai and A-2 as Assistant Engineer, Public Works Department, Chennai, are public servants. The eviction and demolition carried out on 01.07.1997 was done only in pursuance of the orders issued by the Government of Tamil Nadu. Not only the shop of the defacto complainant but also all such tea stalls, which were considered to be posing health hazard within the precincts of Government hospitals, were directed to be removed by the orders passed by the Government. To implement such orders, the Respondent/first accused and the second accused/Assistant Engineer, Public Works Department, directed their subordinates to remove the tea stall. Since, the accused acted in pursuance of the orders passed by the Government of Tamil Nadu and in the capacity as "public servant", I am of the considered opinion that sanction under Section 197 Cr.P.C is absolutely necessary. The orders passed by the Hon'ble Supreme Court in the case of A.2 holding that sanction is required for launching prosecution are equally applicable to the Respondent/first accused. Therefore, I do not find any merit to disturb the conclusion reached by the learned Magistrate and accordingly, both the criminal revision petitions are dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jrl https://hcservices.ecourts.gov.in/hcservices/ To 1. The II Metropolitan Magistrate, Egmore, Chennai. 2.-do- Thro the Chief Metropolitan Magistrate, Egmore,Chennai. 3. The Inspector of Police, G-3, Kilpauk Police Station, Kilpauk, Chenni- 10. 4. The Public Prosecutor, High Court, Madras. MG(CO) km/30.9. Crl.R.C.Nos.242 and 250 of 2007 https://hcservices.ecourts.gov.in/hcservices/