THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.975 of 2004 Date: 04.03.2011 Between: Bollempalli Subba Rao … Petitioner/A.8 AND Polamarasetti Chinna Rao and others … Respondents/ Complainants THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.975 of 2004 ORDER: A cryptic order was passed by the learned V Metropolitan Magistrate, Visakhapatnam taking the complaint laid by the respondents 1 and 2 herein under Section 427 of the Indian Penal Code (‘IPC’ for short) read with Section 35 IPC. The accused No.8 amongst the accused against whom the case was taken on file preferred the present revision assailing the order of the learned Metropolitan Magistrate. 2. Notice was indeed issued to the respondents 1 and 2 who are the complainants herein. The complainants offered resistance to the claim of accused No.8, who questioned the impugned order. The case of the complaints may briefly be stated at this stage: a) One Polamarasetti Appla Naidu and Koribilli Narasimhulu, fathers of complainants 1 and 2 respectively owned small sites in Survey No.93/7, Yellapuvanipalem. Koilada Appa Rao and Polamarasetti Tatayya possessed lands to the north of the properties of the fathers of the complainants. The cattle sheds of the fathers of the complainants as well as their neighbours were situate on the western part of their respective sites. b) Disputes arose between the father of the first complainant and the father of the second complainant. The father of the first complainant, consequently, laid O.S.No.381 of 1974 on the file of the I Additional District Munsif’s Court, Visakhapatnam. The suit was decreed. A.S.No.26 of 1979 laid by the father of the second complainant from the judgment and decree in O.S.No.381 of 1974 was dismissed on 05.12.1979. The trial Court and the appellate Court declared the title of the father of the first complainant regarding the disputed property. About 10 years thereafter, Besetti Appla Naidu, Koribilli Taviti Naidu and Koribilli Uma Maheshwara Rao tried to get a road laid through the western part of the land in Survey No.93/7, in connivance with the Sarpanch. The father of the first complainant and the members of the family of the second complainant joined hands and laid O.S.No.1586 of 1988 on the file of the II Additional District Munsif’s Court, Visakhapatnam against the aggressors over their properties in Survey No.93/7. The suit was decreed on 15.11.1994. The two complainants thus owned and possessed the properties in Survey No.93/7. c) The first complainant had an asbestos roofed shed and a slabed room up to the drain in his site facing the western side of the road. A small shop was run in the said premises. There were trees in the site owned by the second complainant. Both of them and their families have been in enjoyment of the properties since over 80 years. d) If a straight road is laid by extending the Ganeshnagar Road in a straight line, the road would cut a portion of the house of Yellapuvani Shyamala Devi who is A.4 herein. With the help of the ward member by name Gedala Murali Krishna and A.5 and A.6, who were the President and Secretary of Sri Santosh Yuvajana Seva Sangam, Santhoshnagar, Yellapuvanipalem and the support of A.1 and A.2, who were the Sarpanch and Secretary of Yellapuvanipalem Gram Panchayath and the support of A.7 (sic) Mandal Revenue Officer (who, in fact, is A.8) the family of Yellapu Shyamala Devi has tried to get the road formed with an unnatural bend towards east passing through the constructions in the site of the first complainant and the standing trees in the site of the second complainant. e) Although the accused were aware of the judgment and decree in O.S.No.1586 of 1988 against the Gram Panchayat, they conspired to unauthorizedly and illegally demolish the house and trees in the site of the two complainants in Survey No.93/7. On 20.03.2002 at about 2 p.m., the accused along with their assistants and also with the help of police committed criminal house trespass by breaking open the locks of the premises of the first complainant and tried to remove the movables from the premises of the first complainant. When the first complainant protested the conduct of the officials and produced copy of the judgment and decree in O.S.No.1586 of 1988, the Assistant Sub-Inspector of Police and constables asked the first complainant to keep quiet. The first complainant was indeed beaten. A.8 and his men demolished the houses and felled the trees in the sites at the instance of A.1 to A.6. Some of the accused thereafter had their lunch in the house of Shyamala Devi (A.4) and later departed from the scene of offence. f) Aggrieved by the conduct of the accused, the first complainant got issued notices to A.1, A.2, A.8 and A.9 who are government officials. Although there was no response to the notice, A.8 in turn issued notice dated 24.07.2002 to the first complainant on receipt of the telegraphic notice dated 23.07.2002 directing the first complainant to produce his records. A reply was sent to A.8 on 27.07.2002 on behalf of the first complainant to restore the demolished construction. No action, however, was taken. Hence, the complaint against the accused for the offences u/s.120-B, 166, 323, 427, 445 and 451 r/w Section 35 IPC. As already noticed, the learned Metropolitan Magistrate took the case on file against all the accused u/s.166 and Section 427 r/w Section 35 IPC only. 3. The revision petitioner is A.8. He was the Mandal Revenue Officer at the relevant time. Contending that the complaint is not maintainable against him and asserting that the case could not have been taken on file against him, A.8 filed the present revision. The only contention of Sri T. Rajendra Prasad, learned counsel for A.8 is that the complaint against A.8 is hit by Section 197 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) as the complaint is laid against A.8, who is a public servant without prior sanction from the Government. Section 197 Cr.P.C. contemplates that when a public servant is accused of any offence allegedly committed by him while acting or purporting to act in discharge of his official duty, the Court cannot take cognizance of the case unless Government accorded sanction for prosecution of such public servant. It is the case of the learned counsel for the revision petitioner that the revision petitioner, who is A.8, is a public servant and the offences alleged against him occurred while the revision petitioner was discharging his official duties. It, therefore, is his claim that as the case was filed against A.8 without prior sanction from the Government, the case cannot be taken on file. Admittedly, the complainants did not obtain any permission/sanction from the Government to prosecute A.8. Therefore, whether prima facie a case is maintainable against A.8 without the sanction of the Government is the question. 4. Sri D. Ramalinga Swamy, learned counsel for the complainants urged that the very revision is misconceived. He pointed out that when a Judicial Magistrate of First Class took the case on file, the accused, who is aggrieved of the cognizance of the case by the concerned Judicial Magistrate of First Class, could have filed a revision before the Sessions Court rather than approaching the High Court. Indeed, Sessions Courts are vested with the revisional powers. The powers of the Sessions Courts are identical with the powers of the High Court so far as the criminal revisions are concerned. Consequently, it would be just and proper for the revision petitioner to approach the concerned Sessions Court impugning the order of the V Metropolitan Magistrate, Visakhapatnam. It is not understandable why the revision petitioner directly approached the High Court, instead of approaching the Sessions Court, Visakhapatnam. As rightly submitted by the learned counsel for the complainants, this revision would deserves to be dismissed in limini directing the revision petitioner to approach the Sessions Court, Visakhapatnam. 5. However, the impugned order was passed on 10.02.2003. The very revision was laid in 2004. At this length of time, it would be unjust to direct the revision petitioner to approach the Sessions Court. As the material is available on record, the very revision may be disposed of on merits. I therefore propose to do so. 6. It is the case of the de facto complainants that the accused trespassed into the house property and sites of the complainants unauthorizedly and demolished the house property and that the same was done by the accused in connivance with A.4. A.1 is a Sarpanch of Yellapuvanipalem, Gopalapatnam. A.3 is Panchayat Member of Ward No.3, Yellapuvanipalem Gram Panchayat, A.2 is the Secretary of Yellapuvanipalem Gram Panchayat. A.4 and A.6 are the President and the Secretary of Sri Santhosh Yuvajana Seva Sangam, Santoshnagar, Yellapuvanipalem. A.7 is described to be a retired employee. A.9 is the Sub-Inspector of Police, Gopalapatnam Police Station. A.8, who is the revision petitioner herein, was the Mandal Revenue Officer, Chinagadili Mandal, Visakhapatnam. Thus, A.8 and A.9 out of A.1 to A.9 alone are regular and full time government employees. A.1 to A.3 are elected officials of the Gram Panchayat. A.4 to A.6 are the members of a social organization. A.7 is a retired employee. Obviously, no sanction is needed to prosecute A.1 to A.7. A.8 and A.9 are covered by Section 197 Cr.P.C. To prosecute A.8 and A.9 for any offence committed by them while they were discharging their official functions, sanction from the Government under Section 197 Cr.P.C. is a prerequisite. However, it is the case of the learned counsel for the complainants that the action of A.8 was not during the course of the discharge of the official functions by A.8 and that Section 197 Cr.P.C. has no application to the present case. He pointed out that when A.9 considered that sanction was not needed to prosecute him and consequently did not approach the revisional Court, the same position applies to A.8 also and that in any event, A.8, who alone laid this revision, is not entitled to the benefit u/s.197 Cr.P.C. 7. Section 197 Cr.P.C. is very clear that the action of a public servant is protected in respect of offences committed or allegedly committed by such Government while acting or purporting to act in discharge of his official duty. It is not as though every public servant is protected by Section 197 Cr.P.C. in respect of all acts committed by such public servants. Those activities of the public servant, which were performed in discharge of the official duties or purported to be in discharge of the official duties alone are protected by Section 197 Cr.P.C. Before going into the facts of the case, and examine whether A.8 is entitled to protection u/s.197 Cr.P.C., I may examine the view of the Courts with reference to Section 197 Cr.P.C.. 8. In Binoy Chakravorthy v. State of West Bengal[1], the purpose of Section 197 Cr.P.C. was explained as to guard the innocent persons from vexatious proceedings and to ensure that no proceeding is started against a government servant unless there are good reasons that there is some foundation for the charges. In K. Venkata Ramana Reddy v. Radha[2], it was observed that there could be two categories of cases with fall under the protection of Section 197 Cr.P.C., viz., i) the act complained of is one authorized by a statute or law, but became questionable on account of the fact that it was done with the fraudulent or dishonest intention; and ii) the act complained of, though not authorised by statute or law is intimately and integrally connected with his official or statutory duties and has thus a reasonable nexus to the discharge of the duty. 9. The Allahabad High Court explained in Kailash Setti v. State of Uttar Pradesh[3] that two conditions must be satisfied for the application of Section 197 Cr.P.C. viz., i) that the accused was public servant removable from his office with the sanction of the Government only; and ii) that he must be accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Thus, it is not as though once a public servant is accused of an offence, he is automatically protected by Section 197 Cr.P.C. A public servant is protected from an accusation if the alleged offence was committed by such public servant in discharge of his official duties or while he purported to act in discharge of his official duties. 10. In this connection, in Brijlal v. State of Madhya Pradesh[4], it was observed that the test was if the act complained of was integrally connected to or directly concerned with the discharge of the official duty of the public servant and that such an examination was primarily a question of fact. I n State (Delhi) v. Sube Singh[5], the accused was a police officer in uniform. He was in possession of the warrant of attachment. He unfortunately had indulged in an unruly behaviour which was unbecoming of a public servant. The Court considered that the accused was not acting under the colour of his duty and that sanction from the Government was not necessary to prosecute him in terms of Section 197 Cr.P.C. In Dr. T. Dharma Reddy v. T.V. Sharma[6], it was observed that the test to determine whether an accused fell within the mischief of Section 197 Cr.P.C. was whether the offence alleged had reasonable connection with the discharge of the official duty and that entering into conspiracy to cause disappearance of evidence by forensic experts was not part of the official duty and that consequently the prosecution of the forensic expert without sanction of the Government would not be hit by Section 197 Cr.P.C. The Supreme Court even earlier explained in Om Prakash v. State of Uttar Pradesh[7] that a public servant, who did not purport to act in discharge of his official duties but merely used his official position to do an illegal act, could not claim the benefits of the act complained of. 11. The series of decisions as to the conditions for the application of Section 197 Cr.P.C. were in view of the earlier decisions of the Federal Court in S. Kuppuswami Rao v. The King[8] where it was observed that two conditions must be satisfied for the application of Section 197 Cr.P.C. viz., that i) the public servant is removable from office by the government and ii) the public servant was accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty. 12. As already noticed, the revision petitioner, who is A.8, is a public servant as he was the Mandal Revenue Officer, Chinagadili, Visakhapatnam District at the relevant time. It would appear that by the date of revision, he was working as Administrative Officer in the Collectorate at Visakhapatnam. The case of the revision petitioner is that whether the allegations against him are true or otherwise, a complaint cannot be lodged against him and cognizance of a complaint cannot be taken against him without prior sanction from the State Government in view of the prohibition u/s.197 Cr.P.C. It is the case of the complainants that the revision petitioner indulged himself in unlawful and illegal activity beyond his jurisdiction and in connivance with A.1 to A.6 and that the revision petitioner, therefore, was not discharging his official duties in the course of which he committed the illegalities. 13. In Brijlal’s case (supra), the Supreme Court observed that the test was whether the act complained of was integrally connected to the discharge of the official duty of the public servant. In Dr. T. Dharma Reddy’s case (supra), it was observed that the test to determine whether the case falls within Section 197 Cr.P.C. is to examine whether the action of the accused leading to the commission of the offence had reasonable connection with the discharge of the official duty. In that case, the Court observed that entering into conspiracy to cause disappearance of evidence by a forensic expert was not part of the official duty and that sanction of the Government was not necessary to prosecute such an forensic expert. Reliance was also placed upon P. Arulswami v. State of Madras[9]. After considering the march of law u/s.197 Cr.P.C., the Supreme Court observed: “It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by S.197 of the Criminal Procedure Code will be attracted. An office may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can he no protection. It is only when it is either within the scope of the official duty or in excess of in that the protection is claimable.” 14. In B. Saha v. M.S. Kochar[10], it was held that there must be direct and reasonable nexus between the offence committed and the discharge of the official duty for the accused to fall within the phrase “offence committed in discharge of his official duty” envisaged by Section 197 Cr.P.C. Where the accused was charged for the dishonest misappropriation or conversion of goods which the accused, as the custom authority had seized and ought to have held in trust, the Supreme Court held that the act of the accused was not in discharge of his official duty and that sanction was not necessary. It is the case of the learned counsel for the complainants on the strength of this decision and the decisions already referred to that the revision petitioner was not acting in discharge of his official duty and that the revision petitioner, therefore, was not entitled to the protection u/s.197 Cr.P.C. 15. At the stage of taking cognizance of the offence by a Judicial Magistrate of First Class, the learned Judicial Magistrate is expected to take into consideration whether a prima facie case is made out. He is to examine the material placed by the complainant before him. It is not a stage where he can go into the meticulous details as to whether the offence could be made out on merits. 16. So long as it is not established prima facie that the act complained of has nexus to the discharge of official function of A.8, A.8 cannot question the impugned order on the ground that the complaint is hit by Section 197 Cr.P.C. so far as A.8 is concerned. As already pointed out, it is the case of the complainants that A.8 primarily and along with A.9 connived with A.1 to A.6 on behalf of A.4 and demolished the structures and trees situate in the sites of the two complainants. It is not part of the duty of A.8 to connive with the other accused. It is not part of the duty of A.8 to standby and help the demolition of the structures and fell standing trees in the sites of the two complainants. I wholly agree with the contention of the learned counsel for the respondents 1 and 2 who are the complainants that the alleged action on the part of A.8 prima facie is not part of the official duty of A.8. The question of the actions of A.8 having reasonable nexus with the official duties of A.8 does not arise. The order of the learned Judicial Magistrate of First Class in taking cognizance of the case against the accused including A.8, therefore, cannot be found fault with. 17. Inter alia, the learned counsel for the contesting respondents raised another question regarding the very maintainability of the revision. He contended that the revision is not maintainable against an interlocutory order and that the revision would not lie therefrom. Rajendra Kumar Sitaram Pande v. Uttam[11] directly answers this contention of the learned counsel for the complainants. In that case, when a Magistrate directed issuance of process to the accused, the Supreme Court held that it was not an interlocutory order and that the order of the learned Magistrate was amenable to the revisional jurisdiction. 18. The learned counsel for the revision petitioner on the other hand contended that the learned Judicial Magistrate of First Class did not deliver speaking order and that the same is not permissible. In Gopal Chauhan v. Smt. Satya[12], relied upon by the learned counsel for the complainants, the learned Magistrate passed orders that he was of the view that there was sufficient ground to proceed against the accused for the offences mentioned in the order. The Himachal Pradesh High Court considered that the learned Magistrate has applied her mind in ordering process against the accused. In the present case, the learned Magistrate passed a docket order that on the perusal of the record, the learned Magistrate found that a prima facie case was made out against the accused u/s.166 and 427 IPC r/w Section 35 IPC. It may be recalled that the complaint alleged that the accused committed the offences u/s.120-B, 166, 323, 427, 445 and 421 r/w 35 IPC. Thus, the complaint alleged that the accused committed as many as six offences under different provisions of the IPC, whereas the learned trial Judge considered that the case prima facie was made out under two provisions of the IPC only. The very fact that the learned Magistrate has taken cognizance of only two offences as against six offences alleged against the accused would show that the learned Magistrate has applied his mind. Apart from this fact, the facts and reasoning narrated by me show that the learned Magistrate was perfectly justified in taking cognizance of the cases for the offences u/s.166 and 427 IPC r/w 35 IPC, against A.8, along with other accused.. 19. In conclusion, I point out that A.8 is not entitled to the protection u/s.197 Cr.P.C. in the circumstances of the case. I further hold that although a revision is maintainable from the impugned order, I consider that there are no merits in the revision for the reasons that the learned Judicial Magistrate of First Class took the case on file by judicially applying his mind. I, therefore, see no merits in the revision. 20. The Criminal Revision Case is, accordingly, dismissed. _______________ K.G. SHANKAR, J Date: 04.03.2011 Isn [1] 1972 Crl.L.J. 680 [2] 1991 Crl.L.J. 498 [3] 1978 Crl.L.J. (NOC) 150 [4] AIR 1966 SC 220 [5] 1995 Crl.L.J. 1190 [6] 1978 Crl.L.J. NOC 127 [7] AIR 1957 SC 458 [8] AIR 1949 FC 1 [9] AIR 1967 SC 776 [10] (1979) 4 SCC 177 [11] (1999) 3 SCC 134 [12] 1979 Crl.L.J. 446