Important Point
Where scooter of complainant was seized and auctioned by Tehsildar, when the complainant visited the Tehsildar’s office, pursuant to earlier attachment order, it could not be said that Tehsildar’s action was pretended or fanciful exercise of his power so as to disentitle him protection u/s 197 of Cr.P.C.

Headnote:(i) Code of Criminal Procedure, 1973-Section 197-Prosecution of public servant - Condition precedent-Complaint under Section 379 IPC that appellant Tehsildar forcibly kept complainant’s Scooter when he went to his office to object legality of demand notice-In fact after demand notice attachment order was issued-When complainant went in scooter to Tehsildar’s office scooter was attached-Scooter subsequently auctioned-Scooter not kept by Tehsildar illegally for his personal purpose-Action bona fide exercise of his power under revenue laws-Action not pretended or fanciful exercise of power-Cognizance of offence could not have been taken without prior sanction of Competent Authority. (Paras 4, 7, 8 & 9)
       (ii) Indian Penal Code, 1860-Section 379 read with Section 197 of Code of Criminal Procedure, 1973-Theft-Appellant Tehsildar issued demand notice and subsequent attachment order-Complainant went in his scooter to Tehsildar’s office to object legality of order-Scooter seized and auctioned subsequently-Complaint that appellant forcibly kept his scooter-Action of Tehsildar bona fide exercise of power under revenue laws-Action not pretended or fanciful exercise of power-Offence could not be taken cognizance of without prior sanction of Competent Authority.
       Held : Undisputedly the appellant at the relevant time was the Tehsildar and the District Collector had passed an order for collecting the lease money of Rs. 4,653/- from the respondent Sanwaldas. On the basis of the aforesaid order of the District Collector the Tehsildar, the present appellant, appears to have registered the matter in his Court and ordered for issuance of the Demand Letter and infact such a Demand Letter had been issued and had been duly served on the respondent and yet the respondent had not made the payment. It further appears that as no steps had been taken by the respondent to pay the money an order of attachment warrant was issued on 4.12.89 and it is then on 21.12.89 when the respondent was available with the scooter in the Tehsil office the said scooter was seized and it is such seizure and retention of the scooter of the respondent which is the gravamen of the allegation of offence under Section 379 in the complaint case. Such action of the Tehsildar in our considered opinion cannot but be a bona fide act on the part of the Tehsildar in purported exercise of the power under the M.P. Land Revenue Act. It is nobody’s case that the Tehsildar forcibly retained the scooter and used it for his own purpose. On the other hand the scooter after being seized was put to public auction for recovery of the legal dues of the government as against the respondent. (Para 4)
       The conclusion is inescapable that the act of the Tehsildar in seizing the scooter of the respondent was in discharge of his official duty which he was required to do on the basis of the order issued by the Collector for getting the lease money from the respondent and the said act cannot be said to be a pretended or fanciful claim on the part of the Tehsildar. The acts complained of by the respondent against the Tehsildar had been committed in discharge of the official duty of the such Tehsildar and, therefore, no cognizance can be taken by any court without prior sanction of the Competent Authority. (Paras 7 & 9)

Judgment

Pattanaik, J.-The appellant was Tehsildar in Damoh. The District Collector had ordered by sending a Revenue Collection Certificate to collect lease money amounting to Rs. 4,653/- from Sanwaldas, respondent herein. The Tehsildar on receipt of the information from the office of the Collector registered the matter and passed an order for issuance of Demand Letter. Under the said Demand Letter the initial date had been fixed as 14.11.1989 which was, however, changed later on to 28.11.89. The Tehsildar in his order-sheet Exhibit D mentioned that the Demand Letter has been received back after being duly served on the respondent Sanwaldas. On 4.12.89 an order of attachment warrant was passed. On 21.12.89 respondent Sanwaldas came to the office of Tehsildar and objected to the legality of the order of issuing the Demand Letter. This fact was immediately intimated by the Tehsildar to the District Magistrate on the same day. Respondent Sanwaldas then filed a complaint alleging that while he had gone to the Tehsil Office on his scooter the Tehsildar forcibly kept the Scooter, and as such, has committed an offence under Section 379 of the Indian Penal Code. It may be stated that after the seizure of the scooter the Tehsildar directed for auctioning of the same and the scooter was ultimately auctioned on 22.1.90. On the basis of the complaint filed by respondent Sanwaldas the learned Judicial Magistrate First Class, Damoh, took cognizance of the offence and directed issuance of process against Tehsildar. Tehsildar appeared before the Magistrate on 2.3.90 and filed an application raising objection to the order taking cognizance of the offence on the ground that the acts complained of was in discharge of the official duty of the Tehsildar and, therefore, in the absence of sanction under Section 197 of the Code of Criminal Procedure the Court will have no jurisdiction to entertain the complaint. The learned Magistrate, however, rejected the said application filed by the Tehsildar by its order dated 7th March, 1990 on a finding that the acts complained of have no rational nexus with the discharge of official duty of the Tehsildar and, therefore, immunity under Section 197 Cr.P.C. will not be attracted. This order of the Magistrate was assailed in Revision by the Tehsildar in the Court of Sessions Judge, Damoh which was registered as Criminal Revision No. 17/90. By judgment dated 24.4.90 the learned Sessions Judge came to the conclusion that the alleged act of the Tehsildar is directly connected with the performance of his official duties and, therefore, the claim of the applicant regarding immunity under Section 197 Cr.P.C. can neither be said to be pretended nor fanciful. The Sessions Judge came to the conclusion that the Tehsildar cannot be prosecuted for the acts complained of without prior sanction of the Government as required under Section 197 of the Code of Criminal Procedure. Accordingly, the order of the Magistrate was set aside and the complaint was held to be not maintainable. Against the aforesaid order of the learned Sessions Judge the complainant moved the High Court invoking the jurisdiction of the Court under Section 482 of the Code of Criminal Procedure. The High Court by the impugned judgment dated 3.12.91 being of the opinion that the acts complained of in fact do not appear to relate with the responsibility of the post of Tehsildar and Tehsildar had mis-used his powers, interfered with the order of Sessions Judge and held that the provisions of Section 197 of the Criminal Procedure has no application to the case in hand. In coming to the aforesaid conclusion the High Court examined the provisions of the M.P. Land Revenue Act and came to hold that the order of attachment of the Collector was not in accordance with law, and therefore, any purported action taken by Tehsildar on the basis of such invalid order will not give him protection of Section 197 of the Code of Criminal Procedure. According to the High Co

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1999 Supreme(SC) 336

Cases Referred (4)