Jammu & Kashmir High Court
Pawan Singh Rathore vs Union Territory Of J&K on 21 November, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
Reserved on 12.11.2024. CRM(M) No.33/2021
Pronounced on: 21 .11.2024. &
CRM(M) No.31/2021
CRM(M) No.33/2021
Pawan Singh Rathore .....Petitioner(s)
Son of S.D.Rathore
R/o 82 Sector D Sainik
Colony Jammu.
Vs
Union Territory of J&K ..... Respondent(s)
and ors
CRM(M) No.31/2021
1 Devinder Singh Katoch
2.Shruti Bhardwaj
.... petitioners
vs
1 Satpal Sharma
2 Ishan Sharma
3.Hardev Singh
....respondents
For petitioners:
Mr. Asheesh Singh Kotwal Advocate
Mr. Adarsh Sharma Advocate.
Mr. Atul Verma Advocate.
For respondents:
Mr. P.D.Singh Dy.AG
Mr. K.S.Johal Sr. Adv with
Mr. S.S.Johal Advocate.
CORAM: HON'BLE MR JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 By this common order, the afore-titled two petitions
challenging order dated 15.03.2019 passed by the learned Chief
2
Judicial Magistrate, Jammu („CJM‟ for short) on the applications filed
by the private respondents under Section 156(3) of Cr.P.C against the
petitioners, are proposed to be disposed of.
2 The private respondents filed three separate applications
before the learned CJM alleging therein that they are owners in
possession of land measuring 30 marlas (10 marlas each) situated at
Channi Rama near Railway Road Jammu. It was alleged by the
private respondents that they raised construction over their respective
portions of the land in question, but Jammu Development Authority
(„JDA‟ for short) raised a dispute with respect to the land in question.
A civil litigation was filed by the private respondents which
culminated in passing of a final decree in their favour. It was also
pleaded by the private respondents that when one of them approached
the Jammu Municipal Corporation for grant of building permission, it
was revealed that except for a strip of land measuring 4‟x 6‟, the
whole land belonged to the private respondents, whereas only the
aforesaid strip of land belonged to Jammu Development Authority. It
was alleged by the private respondents that on 30.09.018, the
petitioners herein along with men and machinery came to their land
and they forcibly demolished the buildings raised over there. It was
also alleged that by this act of the petitioners, the private respondents
were not only deprived of their immovable property, but even their
movable belongings were destroyed. The private respondents are
stated to have approached the SHO Police Station, Trikuta Nagar,
Jammu for registration of an FIR, but he refused to do so which
prompted them to approach the learned CJM Jammu with three
3
separate complaints alleging commission of offences under Sections
391/427/452/506/511 RPC read with Section 149 RPC.
3 It seems that the learned CJM, Jammu directed SHO
Police Station, Bahu Fort, Jammu to verify the facts and report
compliance. Upon receipt of report of the concerned SHO, impugned
order dated 15.3.2019 came to be passed by the learned CJM whereby
directions were issued to the SHO Police Station, Bahu Fort, Jammu
to lodge an FIR against the petitioners under the relevant provisions of
law and to conduct the investigation.
4 The aforesaid order was challenged by the petitioners by
way of a revision petition before the learned Principal Sessions Judge,
Jammu who, vide order dated 01.05.2019, set aside the order dated
15.03.2019 passed by learned CJM. It seems that the order passed by
the learned CJM was challenged by one of the the private respondents,
namely Sat Pal Sharma by way of a petition under Section 561-A
Cr.PC bearing CRM(M) No. 259/2019. The said petition was allowed
by this Court in terms of judgment dated 17.12.2020. While allowing
the said petition, this Court held that an order passed by a Magistrate
under Section 156(3) CrPC is not revisable in nature and, as such, it
was not open to the Principal Sessions Judge, Jammu to exercise his
revisional jurisdiction against the order of learned CJM. It is, in these
circumstances, that the petitioners have now challenged the order of
learned CJM by filing these two petitions by invoking the jurisdiction
of this Court under Section 482 of CrPC.
4
5 It has been contended by the petitioners that they are
holding high offices in the Government of Jammu and Kashmir and
are members of J&K Administrative Service in the Gazetted cadre. It
has been submitted that, pursuant to the directions passed by the
Division Bench of this Court in PIL No. 19/2011 titled
„Prof. S.K.Bhalla vs. State of Jammu and Kashmir and others‟, PIL
No. 19/2012 titled „Ashish Sharma vs. State of Jammu and Kashmir
and others‟, as also PIL No. 38/2018 titled „Court on its own motion
vs. Divisional Commissioner, Jammu and others‟, JDA undertook
various anti-encroachment drives at different locations in the areas,
falling under its jurisdiction. One such anti-encroachment drive was
undertaken by the JDA on 30.09.2018 at village Channi Rama,
Jammu, adjoining to the road near Jammu Tawi Railway Station.
According to the petitioners, they cleared a land strip measuring 4.5
feet (wide) and 83 feet (length) from the encroachers-the private
respondents who had constructed temporary structures with CGI
sheets on the aforesaid strip of land. It has been contended that the
private respondents had filed a writ petition bearing OWP
No. 2015/2018 against the JDA seeking quashment of the decision of
JDA whereby these structures were sought to be demolished on the
land measuring 01 kanal, 16 marlas in khasra No. 20 at village Channi
Rama, Jammu. It has been submitted that the said writ petition has
been dismissed by this Court in terms of judgment dated 20.09.2024.
6 The main contention of the petitioners is that while
undertaking demolition drive, they were discharging their official
duties and, as such, their actions are not only protected under Section
5
197 of the CrPC, but even Section 46 of the J&K Development Act
acts as a bar to their prosecution in respect of an act which has been
done by them in good faith. It has been contended that the impugned
order passed by the learned CJM suffers from non-application of mind
because while passing the said order, the learned CJM has made
reference to a report of the JDA which, in fact, was never received by
the SHO concerned from the JDA.
7 The private respondents have not filed any reply to these
writ petition.
8 I have heard learned counsel for the parties and perused
record of the case including the record of learned CJM, Jammu.
9 So far as the earlier round of litigation between the
parties before this Court relating to the impugned order passed by
CJM is concerned, in this regard, it needs to be noted that this Court
while allowing the petition filed by respondent Satpal Sharma and
setting aside the order of learned Principal Sessions Judge Jammu
whereby the revision petition against the impugned order passed by
the CJM had been allowed, had framed two questions of law. The first
question was, whether the revisional Court was within its jurisdiction
to entertain the revision petition against the order passed by the CJM
and the second question was, whether the provisions of Section 197 of
CrPC are applicable at the stage of directing registration of an FIR on
the basis of a complaint. The aforesaid petition was allowed by this
Court by answering the first question and holding that the revision
petition against an order directing registration of an FIR is not
6
maintainable as the said order is interlocutory in nature. The second
question was, however, kept open and it was specifically stated that
the Court is not making any observation with regard to the merits of
the order passed by the CJM. So, in this round of litigation, it is open
to this Court to test the legality of order passed by the CJM.
10 The primary ground, that has been urged by the learned
counsels appearing for the petitioners for assailing the impugned order
passed by the CJM is that the petitioners are officers who can be
removed from their office only with the sanction of the Government
and, therefore, they are protected under Section 197 of the CrPC,
which provides that cognizance of any offence against a public
servant who is removable only with the sanction of the State
Government, cannot be taken without sanction of the Government, if
such person is accused of any offence alleged to have been committed
by him while acting or purporting to act in the discharge of his official
duty. According to the petitioners, even if they have exceded their
powers by demolishing the structures belonging to the petitioners in
the process of undertaking demolition drive pursuant to the orders of
passed by the Division Bench of this Court, the provisions of Section
197 of CrPC and Section 46 of the J&K Development Act would
come to their rescue. In this regard, the petitioners have placed heavy
reliance upon judgment of the Supreme Court in the case of Anil
Kumar vs. M.K.Aiyappa, (2013) 10 SCC 705
11 Learned Senior Counsel appearing for the private
respondents has contended that the demolition of house belonging to a
7
private person without the authority of law, can, by no stretch of
imagination, be an official business of a public servant and, therefore,
the petitioners cannot take shelter under Section 197 of CrPC It has
been contended that the bar contained in Section 197 of CrPC is to
taking of cognizance of offence and not to registration of FIR. The
learned Senior Counsel has contended that the Supreme Court in the
later case of Manju Surana vs. Sunil Arora, (2018) 5 SCC 557 has
expressed doubts about correctness of the ratio laid down in Anil
Kumar’s case (supra) and has referred the matter, to be settled by a
Larger Bench. Therefore, the ratio laid down by the Supreme Court in
Anil Kumar’s case (supra) cannot be made applicable to the instant
case. The learned Senior Counsel has also argued that, in view of the
ratio laid down by the Supreme Court in the case of HDFC Securities
Ltd vs. State of Maharashtra, (2017) 1 SCC 640, a petition under
Section 482 CrPC challenging a direction for registration of an FIR is
not maintainable.
12 Before testing the merits of the rival submissions made
by the learned counsels appearing for the parties, it would be apt to
notice the ratio laid down by the Supreme Court in the case of Anil
Kumar (supra). In the said case, a private complaint under Section
200 CrPC came to be filed before the Special Judge under Prevention
of Corruption Act alleging mala fide activities on the part of certain
public servants and the allegations constituted the ingredients of
offences under Sections 406, 409, 420, 426, 463, 465, 468, 471, 474
read with Section 120-B IPC and Section 149 IPC as also Sections
8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the
8
Prevention of Corruption Act. The learned Special Judge referred the
complaint to the Deputy Superintendent of Police, Lokayukta,
Bangalore under Section 153(3) of CrPC for investigation.
13 While testing the legality of the said order passed by the
learned Special Judge in exercise of magisterial powers under Section
156 (3) of CrPC, the Supreme Court held that once, it is noticed that
there is no previous sanction, the Magistrate cannot order
investigation against a public servant while invoking powers
under Section 156(3) Cr.P.C.While holding so, the Supreme Court
relied upon the following observations made by the said Court in the
case of State of Uttar Pradesh vs. Paras Nath Singh, (2009) 6 SCC
372.
“6. ………….And the jurisdiction of a Magistrate to take
cognizance of any offence is provided by Section 190 of
the Code, either on receipt of a complaint, or upon a
police report or upon information received from any
person other than a police officer, or upon his knowledge
that such offence has been committed. So far as public
servants are concerned, the cognizance of any offence, by
any court, is barred by Section 197 of the Code unless
sanction is obtained from the appropriate authority, if the
offence, alleged to have been committed, was in
discharge of the official duty. The section not only
specifies the persons to whom the protection is afforded
but it also specifies the conditions and circumstances in
which it shall be available and the effect in law if the
conditions are satisfied. The mandatory character of the
protection afforded to a public servant is brought out by
the expression, „no court shall take cognizance of such
offence except with the previous sanction‟. Use of the
words „no‟ and „shall‟ makes it abundantly clear that the
bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The
very cognizance is barred. That is, the complaint cannot
9be taken notice of. According to Black‟s Law Dictionary
the word „cognizance‟ means „jurisdiction‟ or „the
exercise of jurisdiction‟ or „power to try and determine
causes‟. In common parlance, it means taking notice of. A
court, therefore, is precluded from entertaining a
complaint or taking notice of it or exercising jurisdiction
if it is in respect of a public servant who is accused of an
offence alleged to have been committed during discharge
of his official duty.
Xxxxxxxxxxxxxxxxxxx”
14 Thus, from the above, it is clear that in Anil Kumar’s
case (supra), the Supreme Court has interpreted the word „cognizance‟
appearing in Section 19(1) of Prevention of Corruption Act which is
in pari materia with Section 197 of CrPC as entertaining a complaint
or taking notice of a compliant or exercising jurisdiction in respect of
a complaint. Thus, as per the law laid down by the Supreme Court in
the said case, even entertaining a complaint or exercising jurisdiction
on a compliant against a public servant without previous sanction of
the Government is barred.
15 In the later judgment in Manju Sarana’s case (supra) on
which heavy reliance has been placed by learned Senior Counsel
appearing for the private respondents, a two Judge Bench of the
Supreme Court has expressed doubts about the correctness of the view
taken by a two Judge Bench of the same Court in Anil Kumar’s case
(supra) and has referred the matter to a Larger Bench. Admittedly,
the view of the Larger Bench is still awaited.
16 The question arises as to which of the two judgments is
required to be followed. In Anil Kumar’s case (supra), a two Judge
Bench of the Supreme Court has taken a final decision laying down
10
the law that a direction under Section 156(3) of CrPC cannot be
passed by a Magistrate in a case to which Section 197 of CrPC or
Section 19(1) of the P.C. Act is attracted without the previous
sanction of the Government. In Manju Surana’s case (supra), the
two Judge Bench of the Supreme Court has not rendered any final
opinion on the issue, but has only expressed doubts about the
correctness of earlier view taken in Anil Kumar‟s case (supra).
Therefore, as of now, the law laid down by the Supreme Court in Anil
Kumar’s case (supra) would hold the field till such time the same is
reversed or modified by the Larger Bench to which the matter has
been referred. Thus, there is no doubt in the mind of this Court that
the ratio laid down by the Supreme Court in Anil Kumar’s case
(supra) has to be followed as on date.
17 The next question that is required to be determined is , as
to whether the alleged acts of the petitioners would fall within the
scope of their official duties so as to attract the provisions contained in
Section 197 of CrPC. As to what is meant by acts or purported acts in
discharge of official duties, has been a subject matter of discussion
and debate before the Supreme Court in a number of cases. Reference
to some of these decisions would be necessary to understand the issue.
18 In Urmila Devi vs. Yudhvir Singh, (2013) 15 SCC 624,
the Supreme Court, in the context of the provisions contained in
Section 197 of the CrPC, interpreted the expression “official duty” in
the following manner:
11
“56. The term “official” has been defined in Black‟s
Law Dictionary as under:
“official.–(1) Of or relating to an office or position of
trust or authority.”
The term “office” is defined in the same dictionary as
under:
“office.–(1) A position of duty, trust, or authority, esp.
one conferred by a governmental authority for a public
purpose.”
57.Law Lexicon also gives a similar meaning to the
expressions “official” and “office” as under:
“Official. … As adjective, belonging to an officer: of a
public officer; in relation to the duties of office.”
“office.– … The word ‘office’ refers to the place where
business is transacted….”
58. The term “duty” is defined by Black’s Law
Dictionary in the following words:
“duty.–(1) A legal obligation that is owed or due to
another and that needs to be satisfied; an obligation for
which somebody else has a corresponding right.”
59. The expression “official duty” would in the absence
of any statutory definition, therefore, denote a duty that
arises by reason of an office or position of trust or
authority held by a person. It follows that in every case
where the question whether the accused was acting in
discharge of his official duty or purporting to act in the
discharge of such a duty arises for consideration, the
court will first examine whether the accused was
holding an office and, if so, what was the nature of
duties cast upon him as holder of any such office. It is
only when there is a direct and reasonable nexus
between the nature of the duties cast upon the public
servant and the act constituting an offence that the
protection under Section 197 CrPC may be available
and not otherwise. Just because the accused is a public
servant is not enough. A reasonable connection between
his duties as a public servant and the acts complained of
is what will determine whether he was acting in
12
discharge of his official duties or purporting to do so,
even if the acts were in excess of what was enjoined
upon him as a public servant within the meaning of that
expression under Section 197 of the Code.”
19 In Devinder Singh and others vs. State of Punjab,
(2016) 12 SCC 87, the Supreme Court, after taking note of all its
previous decisions on the issue, summarised the principles emerging
therefrom in paragraph (39) as under:
“39.The principles emerging from the aforesaid decisions
are summarized hereunder :
39.1. Protection of sanction is an assurance to an honest
and sincere officer to perform his duty honestly and to the
best of his ability to further public duty. However,
authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been
committed by public servant in discharging his duty it
must be given liberal and wide construction so far its
official nature is concerned. Public servant is not entitled
to indulge in criminal activities. To that extent Section
197 CrPC has to be construed narrowly and in a
restricted manner.
39.3. Even in facts of a case when public servant has
exceeded in his duty, if there is reasonable connection it
will not deprive him of protection under section
197 Cr.P.C. There cannot be a universal rule to
determine whether there is reasonable nexus between the
act done and official duty nor it is possible to lay down
such rule.
39.4. In case the assault made is intrinsically connected
with or related to performance of official duties sanction
would be necessary under Section 197 CrPC, but such
relation to duty should not be pretended or fanciful claim.
The offence must be directly and reasonably connected
with official duty to require sanction. It is no part of
official duty to commit offence. In case offence was
incomplete without proving, the official act, ordinarily
the provisions of Section 197 CrPC would apply.
39.5. In case sanction is necessary it has to be decided by
competent authority and sanction has to be issued on the
13
basis of sound objective assessment. The court is not to
be a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt
with at the stage of taking cognizance, but if the
cognizance is taken erroneously and the same comes to
the notice of Court at a later stage, finding to that effect
is permissible and such a plea can be taken first time
before appellate Court. It may arise at inception itself.
There is no requirement that accused must wait till
charges are framed.
39.7. Question of sanction can be raised at the time of
framing of charge and it can be decided prima facie on
the basis of accusation. It is open to decide it afresh in
light of evidence adduced after conclusion of trial or at
other appropriate stage.
39.8. Question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in course
of evidence during trial. Whether sanction is necessary or
not may have to be determined from stage to stage and
material brought on record depending upon facts of each
case. Question of sanction can be considered at any stage
of the proceedings. Necessity for sanction may reveal
itself in the course of the progress of the case and it
would be open to accused to place material during the
course of trial for showing what his duty was. Accused
has the right to lead evidence in support of his case on
merits.
39.9. In some case it may not be possible to decide the
question effectively and finally without giving opportunity
to the defence to adduce evidence. Question of good faith
or bad faith may be decided on conclusion of trial”.
20 From the foregoing analysis of law on the subject, it is
clear that not only the acts which have been done by a public servant
in exercise of his official duty, but even the acts which a public
servant has done in purported exercise of official duty, would be
covered under the protective umbrella of Section 197 of CrPC. The
test is whether there is a reasonable nexus between the act done by a
public servant and his official duties. Even if, a public servant has
exceeded his powers while discharging his official duties, Section 197
14
of CrPC would come into play. Thus, in a case where Deputy
Superintendent of Police while escorting a prisoner to the Court, beats
him up, while the prisoner tries to escape from the custody and in the
process, uses excessive force, the Deputy Superintendent of Police
would be entitled to protective umbrella of Section 197 of CrPC
because preventing a prisoner from escaping the custody is connected
with his official duties and in the process, if such police officer has
exceeded his powers, he would be acting in purported exercise of his
official duty. However, if we take an another instance of a police
orfficer thrashing a passerby without any rhyme or reason, in such a
case, his act would neither be in the discharge of official duties, nor in
the purported discharge of official duties. Thus, the police officer
would not be entitled to the protective umbrella of Section 197 of
CrPC in such a case.
21 Coming to the facts of the present case, it is not in
dispute that the petitioners are officers of the Government who can be
removed from their office only with the previous sanction of the
Government. It is clear from the facts narrated in the complaint before
the CJM and those narrated in the instant petitions, to which no reply
has been filed by the respondents, that the petitioners were assigned
the task of removing illegal encroachments of land belonging to JDA
pursuant to the directions passed by this Court in the PILs, reference
whereof, is given in the petitions. So, they were tasked with the job of
removing illegal encroachments on JDA land. It is not in dispute that
near the land which is claimed by the private respondents to be their
proprietary land, there is a strip of land belonging to the JDA.
15
According to the petitioners, they have undertaken anti-encroachment
drive and demolitions on the said strip of land belonging to JDA,
whereas the private respondents vehemently disputes this and claim
that the demolished structures were existing on their proprietary land.
The private respondents may or may not be correct in their
submissions but even if it is assumed that some of the structures,
which were demolished by the officials of the JDA, were standing on
the land belonging to the private respondents, still then, it would be a
case of excessive use of official powers by the petitioners. The same
qualify to be the acts in purported exercise of their official duties.
Therefore, the protective umbrella contained in Section 197 of CrPC
is available to the petitioners in the facts and circumstances of the
instant case.
22 Vide the impugned order, the learned CJM has directed
registration of FIR against the petitioners, while exercising his
powers under Section 156(3) of CrPC without previous sanction for
prosecution of the petitioners, therefore, the said order in view of the
ratio laid by the Supreme Court in Anil Kumar‟s case (supra), is
rendered unsustainable in law. In fact, the learned CJM has noted on
the first page of the complaints filed by the private respondents that
the petitioners are public servants and have acted in discharge of their
official duties and that sanction is required for their prosecution, but in
spite of noticing this, the learned CJM has, after receiving the report
of the police, directed registration of FIR against the petitioners
without insisting upon production of previous sanction of the
Government. So, it is not a case where the learned CJM was oblivious
16
of the fact that the petitioners are public servants who cannot be
prosecuted without previous sanction of the Government, but it is a
case where despite knowing this fact, the learned CJM has ignored the
same and passed the impugned order. The same is, therefore, not
sustainable in law.
23 The contention of learned Senior Counsel appearing for
the private respondents that in view of the law laid down by the
Supreme Court in HDFC Securities’s case (supra), the instant
petition is not maintainable, is also without any merit, for the reason
that, in the present case, there is an express bar on entertaining a
complaint against the petitioners in view of the law laid down by the
Supreme Court in Anil Kumar’s case (supra). Thus, the very act of
entertaining the complaints against the petitioners by the learned CJM
without previous sanction of the Government, is illegal and contrary
to law of the land. When there is a specific bar to entertaining a
complaint against a proposed accused, this Court, in view of the law
laid down by the Supreme Court in State of Haryana vs. Bhajan Lal,
1999 Supp (1) SCC 335, would be well within its jurisdiction to
exercise its powers under Section 482 of CrPC to quash an order
whereby directions for registration of FIR are issued.
24 In view of what has been discussed hereinbefore, the
petitions are allowed and the impugned order passed by the learned
CJM is quashed. The private respondents are, however, at liberty to
seek previous sanction for prosecution of the petitioners from the
17
competent authority and thereafter approach CJM Jammu for revival
of their complaint against the petitioners.
24 The record of the learned CJM along with a copy of this
judgment be sent down.
(Sanjay Dhar)
Judge
Jammu
21.11.2024
Sanjeev
Whether order is reprotable:Yes
Sanjeev Kumar
2024.11.21 19:43
I attest to the accuracy and
integrity of this document