Point of Law : An application under Section 482 Cr.P.C. is maintainable to quash the proceedings, which are ex facie bad for want of sanction.

JUDGMENT :

Chandra Kumar Rai, J.

1. The instant application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 14.03.for demarcation.2007 passed by Judicial Magistrate IIIrd, Room No.12 Farrukhabad in complaint case No.28 of 2006 (Siya Ram Vs. Mahendra Pal and others).

2. The brief facts of the case are that applicant No.1 is a Lekhpal in the Consolidation department and applicant No.2 is a Kanoongo in the Consolidation department and both are the public servants. During consolidation proceedings, a joint plot was allotted to opposite party No.2 and one Ram Singh. Opposite party No.2 filed an application on 28.08.2006 before Settlement Officer of Consolidation for making measurement of plot No. 372. The Settlement of Consolidation Officer by order dated 29.08.2006 directed the Consolidation Officer to make measurement in accordance with law.

3. In pursuance of the order of Settlement Officer of Consolidation dated 29.08.2006, necessary reports were submitted by Consolidation authorities and applicant Nos. 1 and 2 on 15.11.2006 conducted measurement of disputed plots with the help of local police and submitted their report before the Assistant Consolidation Officer. The report dated 15.11.2006 has been annexed as Annexure No.2 to the affidavit accompanying with the present application, in which it is mentioned that measurement has been taken place taking due care of the crop standing in the disputed plot. Opposite party No.2 filed a complaint on 27.11.2006 before the Judicial Magistrate, Farrukhabad with the allegation that applicant Nos.1 and 2 have illegally made measurements of the plot, in which crops were standing and there was an order dated 15.11.2006 to stop the measurement,2 the 2 copy of the complaint has been annexed as Annexure No.3 and order dated 15.11.2006 has been annexed as Annexure No.4 to the affidavit. The Judicial Magistrate IIIrd, Room No.12, Farrukhabad by order dated 14.03.2007 summoned the applicant under Section 427 IPC, without considering the facts that applicants are public servant and they were discharging their official duties.

4. This case was listed on 10th July, 2007 and following order was passed on that date:

“Heard the learned counsel for the applicants and the learned A.G.A.

It is contended by the learned counsel for the applicants are the lekhpal and Kanoono respectively. They have made measurement of the land on the basis of the order passed by the C.O. concerned. They have discharged their duties and the allegations against them are false and frivolous.

Issue notice to O.P. No.2 returnable within four weeks.

In view of the facts and circumstances, further proceedingsofcomplaintcaseNo.28of2006pendingin the Court of Judicial Magistrate, III Room No.12 Farrukhabad, shall remain stayed till the next date of listing.

List after four weeks”

5. In pursuance of the order dated 10.07.2007, opposite party No.2 appeared through counsel before this court and filed his counter affidavit.

6. Heard Mr. Sushant Mishra, learned counsel for the applicants and Dr. Hridayawati Mishra, learned A.G.A. for State.

7. Nobody appeared on behalf of the opposite party No.2

8. The learned counsel for the applicants argued that applicant Nos.1 and 2 are public servants and they were discharging their duties to measure the plots, as such the private complaint against the applicants are not maintainable unless necessary sanction as provided under Section 197 of Code of Criminal Procedure is obtained. It is further argued that applicants were not aware about the further order passed by the Settlement Officer Consolidation to stop the measurement. It is further argued that applicants have retired during pendency of the case before this Hon’ble Court, so their case may be considered sympathetically.

9. On the other hand, learned A.G.A. has submitted that the applicants should appear before the Magistrate in pursuance of summoning order dated 14.03.2007 and take whatever defence they want, therefore, no interfe