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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J.
Himachal Pradesh Cricket Association & Anr. - Petitioners
Versus
State of Himachal Pradesh and Ors. - Respondents
Cr.MMO No. 285 of 2015 a/w Cr.MMO Nos. 338 and 355 of 2015
Decided On : 06-04-2017
The Himachal Pradesh Cricket Association (HPCA) and its office bearers sought quashing of FIR and charge-sheet filed against them for illegally encroaching upon government land and demolishing a residential hostel/accommodation comprising four sets, which was found to have been demolished by HPCA officials in connivance with government officials.
Fact of the Case:
HPCA had sought quashing of FIR and charge-sheet filed against them for illegally encroaching upon government land and demolishing a residential hostel/accommodation comprising four sets, which was found to have been demolished by HPCA officials in connivance with government officials. The prosecution alleged that a meeting was held on 14-03-2008 by the Deputy Commissioner, Kangra at Dharamshala with the government officials and one representative of the HPCA i.e. Sanjay Sharma (petitioner in Cr.MMO No. 355 of 2015). The meeting is alleged to have been held without any written request or reference from any quarter. The proceedings of the meeting read thus:- “Proceedings of the meeting held on 4.4.2008 at 4 pm under the chairmanship of Sh. K.K. Pant, I.A.S., Deputy Commissioner, Kangra at Dharamshala regarding reallocation of government accommodation opposite cricket stadium at Dharamshala. The following were present: 1. Sub. Divisional Magistrate, Dharamshala; 2. Executive Engineer (PWD), Dharamshala; 3. Assistant Engineer (PWD), Dharamshala; 4. Principal Government College, Dharamshala; 5. Sanjay Sharma for HPCA. The meting was called in connection with the re-allocation of the Type-IV accommodation of Government College, Dharamshala, situated opposite the Cricket Stadium, Dharamshala. It was discussed that the accommodation situated there are in very dilapidated condition besides these accommodation also pose security threat to the cricketers playing inside the cricket stadium. After detail discussion the following decisions were taken:- 1. The Principal, Government College, Dharamshala will move an application to the Executive Engineer, PWD, Dharamshala for assessing durability of the building. 2. The Principal, Government College, Dharamshala with the help of Tehsildar, Dharamshala will identify a suitable land where quarters for government college can be constructed. 3. It was further decided that he will also move a case to the Secretary, Education for allocating of funds for construction of new residential accommodation. The Chairman assured the Principal, Government College that he will extend cooperation to the college to get the funds allocated for the new residential accommodation. 4. It was decided that existing occupants of the houses should apply for allotment of accommodation to the Deputy Commissioner, Kangra at Dharamshala and it was assured that they would be allotted accommodation in general pool on priority basis. 5. It was also decided that HPCA should also extend financial assistance to the college authorities for the construction of accommodation elsewhere. The meeting ended with the vote of thanks to the chair.”
Finding of the Court:
The court found that the petitioners are not government servants and no prosecution sanction in their cases is otherwise required to be obtained. The court also found that the allegations against the petitioners are separate and distant from those leveled against the government servants and therefore even the principle of parity cannot be applied to their cases at this stage. The court further found that the refusal of prosecution sanction to some of the government officials will not by itself be an indicator of the petitioners innocence at this stage.
Issues: 1. Whether the FIR and charge-sheet filed against the petitioners for illegally encroaching upon government land and demolishing a residential hostel/accommodation should be quashed? 2. Whether the petitioners are government servants and require prosecution sanction to be obtained in their cases?
Ratio Decidendi: 1. The court held that the inherent powers of the court cannot be exercised rather should not be exercised to stifle the legitimate prosecution and as observed earlier, quashing the charge-sheet even before the cognizance is taken by the Court below, would in given facts and circumstances of the case amount to killing a still-born child. 2. The court held that the petitioners are not government servants and no prosecution sanction in their cases is otherwise required to be obtained.
Final Decision: The court dismissed the petitions filed by the petitioners seeking quashing of FIR and charge-sheet filed against them for illegally encroaching upon government land and demolishing a residential hostel/accommodation.
Tarlok Singh Chauhan, J.
Since common questions of law and fact arise for consideration in these petitions, therefore, they were taken up together for hearing and are being disposed of by a common judgment.
2. All the petitioners are office bearers of the Himachal Pradesh Cricket Association (for short ‘HPCA’ i.e. Petitioner No. 1 in Cr.MMO No. 285 of 2015) and have sought quashing of FIR No. 14 of 2013, dated 3.10.2013, registered under Sections 447, 201, 120-B IPC and Section 3 of Prevention of Damage to Public Property Act (for short ‘PDPP Act’) and Section 13 (2) of Prevention of Corruption Act (for short ‘PC Act’), wherein, HPCA alongwith other co-accused including the petitioners herein have been accused of illegally encroaching upon the land comprising Khasra No. 3673/3547/3335, measuring 720 sq. mtrs. situated in Mohal Civil Station, Dharamshala (hereinafter referred to as ‘land in question’).
3. In addition thereto, they have also sought quashing of charge-sheet filed in the aforesaid case, which has now been registered as Case No. 14 of 2014 and is pending in the Court of learned Special Judge, Kangra at Dharamshala.
4. The aforesaid FIR emanates from a complaint made by District Youth Services and Sports Officer, Dharamshala that HPCA has illegally encroached upon the land in question. During inquiry, documents i.e. fard Jamabandi, tatima and demarcation etc. were taken in the earlier FIR No. 12/13, dated 1.8.2013, under Sections 420/406/120B/201 IPC and 13(2) of the PC Act, which revealed that a residential hostel/ accommodation comprising four sets existing on the above Khasra numbers was found to have been demolished by HPCA officials (the Petitioners herein) in connivance with the government officials. The demolished material was also alleged to have been disposed of without it even being accounted for. The Inquiry Officer recommended registration of the case under the aforesaid sections.
5(a). It is the allegation of the prosecution that a meeting was held on 14-03-2008 by the Deputy Commissioner, Kangra at Dharamshala with the government officials and one representative of the HPCA i.e. Sanjay Sharma (petitioner in Cr.MMO No. 355 of 2015). The meeting is alleged to have been held without any written request or reference from any quarter. The proceedings of the meeting read thus:-
“Proceedings of the meeting held on 4.4.2008 at 4 pm under the chairmanship of Sh. K.K. Pant, I.A.S., Deputy Commissioner, Kangra at Dharamshala regarding reallocation of government accommodation opposite cricket stadium at Dharamshala. The following were present: 1. Sub. Divisional Magistrate, Dharamshala; 2. Executive Engineer (PWD), Dharamshala; 3. Assistant Engineer (PWD), Dharamshala; 4. Principal Government College, Dharamshala; 5. Sanjay Sharma for HPCA. The meting was called in connection with the re-allocation of the Type-IV accommodation of Government College, Dharamshala, situated opposite the Cricket Stadium, Dharamshala. It was discussed that the accommodation situated there are in very dilapidated condition besides these accommodation also pose security threat to the cricketers playing inside the cricket stadium. After detail discussion the following decisions were taken:-
1. The Principal, Government College, Dharamshala will move an application to the Executive Engineer, PWD, Dharamshala for assessing durability of the building.
2. The Principal, Government College, Dharamshala with the help of Tehsildar, Dharamshala will identify a suitable land where quarters for government college can be constructed.
3. It was further decided that he will also move a case to the Secretary, Education for allocating of funds for construction of new residential accommodation. The Chairman assured the Principal, Government College that he will extend cooperation to the college to get the funds allocated for the new residential accommodation.
4. It was decided that existing occupants of the houses should apply for allotment of accommodat
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