Order

07/03/2025

1. The instant misc. petition has been preferred on behalf of the petitioners for quashing of the order dated 08.05.2008 passed by learned Additional Chief Judicial Magistrate, Bali, District Pali in case arose out of FIR No.95/2004 registered at P.S. Bali, whereby he took cognizance of the offence and issued process against the petitioner. A challenge is also made to the order dated 02.07.2014 where by the revision petition filed on their behalf was dismissed by the learned Additional Sessions Judge, Bali, District Pali.

2. Briefly stated the facts of the case are that a proceeding was undertaken at the office of Sub Divisional Magistrate, Bali and the Executive Officer of Municipality Bali for removal of encroachment upon the public land. Due process was followed which is reflecting from the proceedings initiated and copies of which are made available to this Court. The Sub Divisional Magistrate, Bali received an information regarding encroachment made by the private respondent at pasture land. It was also reported that the respondent No.2 used to fight with the people whoever go there for grazing their cattle. Due memos were prepared and site inspections were conducted and revenue record was inspected and then the conclusion arrived regarding illegal occupation of the respondent No.2 over pasture land. On 09.07.2004, the SDM, Bali sent a letter to Executive Officer, Nagarpalika, Bali so also Tehsildar, DSP and the SHO, Bali were directed to provide assistance to the team who were assigned the work of removal of the encroachment from the pasture land. All the things were undertaken in accordance with the procedure established by law. When the team was removing the encroachment from the pasture land, some protest was made but it was ignored for peaceful culmination of the proceedings.

3. Miffed by the action taken by the public authorities in accordance with law, the respondent No.2 submitted a criminal complaint which was sent to the police. The matter was thoroughly investigated and the documents were collected from the Municipal Office and the Office of SDM as well pertaining to the Revenue Record. The statements of independent witnesses were taken. The representation moved on behalf of the villagers for removal of the encroachment were also taken on record and whereafter a negative final report submitted with the finding that a false case was lodged.

4. The learned Magistrate heard the complainant on the closure report and then passed the order dated 06.05.2008 whereby cognizance was taken and process was issued.

5. Though the learned Sessions Judge was supposed to examine the legality, correctness and propriety in its correct spirit but the same was not done. The fact has not been taken note of by both the Courts below that the respondent No.2 was having no lawful authority or proprietary right to have his position over the government pasture land. There is nothing to controvert that he was an encroacher and had unlawful occupation on a government land by use of unlawful force. The petitioners were directed by their officers through a written order for removal of the encroachment and they were discharging their official duty and thus protected under Section 197 of the Cr.P.C., however, neither the Court of first instance nor the Court of Revision bothered to deal with this aspect that before taking cognizance of the offence, a prosecution sanction was required.

6. In my view, the order under assail are perfunctory rather bad in law and cannot be allowed to be continued since doing so would be an abuse of process of law.

7. Accordingly, the instant petition is allowed and both the orders under challenge are quashed and set aside. Petitioners are exonerated from the charges and their bail bonds are discharged.

8. Stay petition stands disposed of.

(FARJAND ALI),J

1-Samvedana/-