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2003(1) JLJ 319
A.K. Srivastava, J.
Ashok Kumar
Versus
Balmukund
Cri. Revn. No. 73 of 1996; against the order of I Addl. Sessions Judge, Tikamgarh, passed in Cr. Revision No.6 of 1994;
Decided on : 9.1.2003.
(2) Criminal P.C., 1973 -- S. 197(1) -- Patwari -- being neither appointed by State Government nor removable by it, no sanction for his prosecution is necessary.
The applicant constructed a house on the land which was being possessed by him. In order to harass the applicant, the respondent No.1, who is a Patwari, submitted a false report to the Naib Tahsildar Mr. Ashok Vyas, upon which a notice was given to him, and proceedings were initiated by the respondent No.1 and Mr. Ashok Vyas. It has been alleged that both these persons forged certain documents. In this manner, the complainant-applicant filed complaint before the trial Court.
On the basis of the said complaint, statements under section 200 and 202, CrPC were recorded and the learned trial Court, vide its order dated 29.7.1993, registered the complaint of the applicant under section 420, IPC.
Feeling aggrieved by the order registering the cases against him, the respondent No. 1 preferred revision petition before the learned I Additional Sessions Judge, Tikamgarh who, vide the impugned order, allowed the revision petition and set aside the order of the learned trial Court, registering the case against• the respondent No. 1.Thus, the applicant-complainant has come up in revision before this Court. [Paras 3 to 5]
Held : In order to bring home the aforesaid provision, the person to be prosecuted must be a public servant and not removable from his office save by or sanction of the Government. [Para 8
The appointing authority of Patwari is the Collector and not the State Government. Though it has not been specifically mentioned that who can remove the services of the Patwari, but by virtue of section 16 of the M.P. General Clauses Act, the power to appoint includes the power to suspend or dismiss. Therefore, the power vests in Collector to remove and terminate the services of the Patwari. [Para 9
So as to attract the provision contained in sub-section (1) of section 197, CrPC, three conditions are pre-supposed. Firstly, the person should be a public servant; secondly, he should not be removable from his office save by or with the sanction of the Government, and thirdly, the offence should have been committed by him while acting or purporting to act in the discharge of his official duty. All these three conditions should co-exist. In the present case, the respondent No.1, who is a partwari, is neither appointed by the State Government nor can be removed by it and thus the exemption under sub-section (1) of section 197, CrPC is not attracted. AIR 1964 SC 269, AIR 1987 SC 722 and AIR 1967 SC 1331 followed. 1994(II) MPWN 70 relied on. [Paras 8 to 12]
¼1½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 140¼2½ && naM izfØ;k lafgrk] 1973 && /kkjk 197 && iVokjh dh fu;qfDr dyDVj }kjk dh tkrh gS && naM izfØ;k lafgrk dh /kkjk 197 ds v/khu mlds vfHk;kstu ds fy, eatwjh vko‘;d ughaA ¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 197¼1½ && iVokjh] jkT; ljdkj }kjk u rks fu;qDr gksus] u mlds }kjk gVk, tkus ;ksX; gh gksus ds dkj.k mlds vfHk;kstu ds fy, eatwjh vko‘;d ugha gSA vkosnd us vius dCts dh Hkwfe ij edku fufeZr fd;kA vkosnd dks rax djus ds fy, izR;FkhZ Ø- 1 us] tks iVokjh gS] uk;c rglhynkj Jh v‘kksd O;kl dks feF;k fjiksVZ is‘k dh ftl ij mls lwpuk nh xbZ rFkk izR;FkhZ Ø- 1 vkSj Jh v‘kksd O;kl }kjk dk;Zokgh vkjaHk dh xbZA vfHkdFku fd;k x;k gS fd bu nksuksa O;fDr;ksa us dfri; nLrkost dwVjfpr fd,A bl izdkj] ifjoknh&vkosnd us fopkj.k U;k;ky; ds le{k ifjokn Qkby fd;kA mDr ifjokn ds vk/kkj ij naM izfØ;k lafgrk dh /kkjk 200 rFkk 202 ds v/khu dFku vfHkfyf[kr fd, x, rFkk vkns‘k fnukad 29-7-1993 }kjk fo}ku fopkj.k U;k;ky; us naM lafgrk dh /kkjk 420 ds v/khu vkosnd dk ifjokn jftLVªhd`r fd;kA vius fo:) ekeys jftLVªhd`r gksus ds vkns‘k ls O;fFkr gks dj izR;FkhZ Ø-1 us izFke vij ls‘ku U;k;k/kh‘k] Vhdex<+ ds le{k iqujh{k.k vthZ izLrqr dh ftUgksaus vkf{kIr vkns‘k }kjk iqujh{k.k vthZ eatwj dh rFkk izR;FkhZ Ø- 1 ds fo:) ekeyk jftLVªhd`r djus dk fo}ku fopkj.k U;k;ky; dk vkns‘k vikLr dj fn;kA bl izdkj vkosnd&ifjoknh bl U;k;ky; ds le{k iqujh{k.k ds fy, vk;k gSA ¿ iSjk 3 ls 5 vfHkfu/kkZfjr % iwoksZDr mica/k vkd`"V gksus ds fy, vko‘;d gS fd vfHk;ksftr fd;k tkus okyk O;fdr yksd lsod gks rFkk og ljdkj }kjk vFkok ljdkj dh eatwjh ds flok; vius in ls gVk;k ugha tk ldrk gksA ¿ iSjk 8 iVokjh dh fu;qfDr izkf/kdkjh dyDVj gS] jkT; ljdkj ughaA ;|fi ;g fofufnZ"Vr% mfYyf[kr ugha gS fd iVokjh dks lsok ls dkSu gVk ldrk gS] rFkkfi e-iz- lkekU; [kaM vf/kfu;e dh /kkjk 16 ds vk/kkj ij] fu;qfDr dh ‘kfDr esa fuyacu vFkok inP;qfr dh ‘kfDr lekfo"V gksrh gSA naM izfØ;k lafgrk dh /kkjk 197 dh mi/kkjk ¼1½ esa varfoZ"V mica/k vkd`"V gksus ds fy, rhu ‘krksZa dh iwoZ&/kkj.kk dh xbZ gSA izFker%] O;fDr yksd lsod gksuk pkfg,( f}rh;r%] og ljdkj }kjk vFkok ljdkj dh eatwjh ds flok; vius in ls gVk;k ugha tk ldrk gks( rFkk r`rh;r%] mlds }kjk vijk/k vius inh; drZO; ds fuoZgu esa dk;Z djrs le; ;k mldk rkRi;Z j[kus okyk dk;Z djrs le; fd;k x;k gksuk pkfg,A ;g rhuksa ‘krsZa lg&vfLrRoeku gksuk pkfg,A izLrqr ekeys esa] izR;FkhZ Ø- 1] tks iVokjh gS] jkT; ljdkj }kjk u fu;qDr gS] u mlds }kjk gVk;k gh tk ldrk gS] vr%] naM izfØ;k lafgrk dh /kkjk 197 dh mi/kkjk ¼1½ ds v/khu NwV vkd`"V ugha gksrhA , vkb vkj 1964 ,l lh 269] , vkb vkj 1987 ,l lh 722 rFkk , vkb vkj 1967 ,l lh 1331 vuqlfjrA 1994¼2½ e-iz- ohDyh uksV~l 70 voyafcrA ¿ iSjk 8 ls 12
1. Feeling aggrieved by the order dated 23.11.1995 passed by the First Additional Sessions Judge, Tikamgarh in Criminal Revision No. 6/94 whereby the order dated 29.7.1993 passed by the learned Chief Judicial Magistrate, Tikamgarli in complaint Case No. 843/93 registering the case against the respondent No. 1 under section 420 of the Indian Penal Code (in short 'the IPC'), the applicant has preferred this revision petition.
2. No exhaustive statement of the facts is necessary for the disposal of this revision petition. In brief the case of the applicant, who filed private complaint before the Chief Judicial Magistrate, is that respondent Balmukund who is a Patwari, manipulated certain documents. According to the complaint, the applicant was given a Bhumiswami Patta on 15.9.1986 by the Gram Panchayat, Nayakhera of Khasra No. 959 measuring 50x50 sq. feet, total area 2,500 sq. feet, which is equivalent to .023 hectare, the total area of the said Khasra is .798 hectare. The contention of the applicant in his complaint is that despite the allotment in his favour, Naib Tehsildar Mr. Ashok Vyas allotted 0.5 hectare of land in favour of one Shanti Devi Sahu, which also includes the area of the applicant. According to him, no notice was served to him. The remaining area which is .298 hectare was encroached by one Urmila Singh and it is alleged that the said encroachment report was prepared by the respondent No.1 Balmukund. It has also been put forth by the complainant that an application was made by Urmila Singh for the allotment of .298 hectare of the land, as a result of which Naib Tehsildar Mr. Ashok Vyas issued a public notice regarding the said land and the allotment in favour of Urmila Singh was made for an area of .298 hectare.
3. According to the applicant, the total area of Khasra No. 959 is .798 hectare which was allotted to Shanti Devi and the applicant was possessing the said land with the consent of Smt. Shantidevi. The total area which was in favour of the applicant was .500 hectare, while .298 hectare was allotted to Smt. Urmila Singh. The applicant constructed a house on the land which was being possessed by him. In order to harass the applicant, the respondent No.1, who is a Patwari, submitted a false report to the Naib Tehsildar Mr. Ashok Vyas, upon which a notice was given to him, and proceedings were initiated by the respondent No. 1 and Mr. Ashok Vyas. It has been alleged that both these persons forged certain documents. In this manner, the complainant-applicant filed complaint before the trial Court.
4. On the basis of the said complaint, statements under section 200 and 202, CrPC were recorded and the learned trial Court, vide its order dated 29.7.1993, registered the complaint of the applicant under section 420, IPC.
5. Feeling aggrieved by the order registering the cases against him, the respondent No. 1 preferred revision petition before the learned 1st Additional Sessions Judge, Tikamgarh who, vide the impugned order, allowed the revision petition and set aside the order of the learned trial Court, registering the case against the respondent No. 1. Thus, the applicant-complainant has come up in revision before this Court.
6. Mr. Sudeep Deb, learned counsel for the applicant vehemently argued that the learned revisional Court allowed the revision on the ground that the Patwari being a public servant, the trial Court should not have taken any cognizance except with the previous sanction of the State Government. According to the learned counsel, the respondent No. 1 is serving on the post of Patwari and his appointment is being made by the Collector and not by the State Government, as such, he is not entitled to claim exemption under section 197(1), CrPC.
7. Combatting the aforesaid submission Mr. Sanjay Jain, learned counsel for respondent No. 1 submits that the respondent No.1, who is a Patwari, is a Government servant and therefore provision of section 197 (1), CrPC is applicable to him. According to him, the
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