Challenge
1. The first respondent filed a complaint under Section 200 of the Code of Criminal Procedure, 1973 (for short, the ‘CrPC’) against the appellants. The dispute relates to land bearing Survey Nos.1822 and 1823 having an area of 2 bighas and biswa in Gwalior city (the Suit property). According to the first respondent – complainant, about 353 acres of land comprising several survey nos. situated in the adjacent villages has been allotted for the use of the Special Armed Forces (SAF) by the Home Department. The present appellants are officers of SAF.
Brief facts which give raise to the present complaint
2. The first respondent filed a civil suit in respect of the said property for a declaration of his title as Bhumiswami and a permanent injunction. The Trial Court dismissed the suit.
The first Appellate Court dismissed the appeal against the decree of the Trial Court. However, in the Second Appeal, the High Court interfered and passed a decree of declaration and permanent injunction. A Special Leave Petition filed against the decree of the High Court was dismissed with costs. In 2016, the first respondent filed a Contempt Petition against the first appellant, who was the Commandant of the 14th Battalion of SAF at Gwalior. The allegation was of a breach of the decree passed on 20th March 2013 by the High Court in the Second Appeal preferred by the first respondent. The allegation was that the first appellant attempted to violate the decree of the High Court in the Second Appeal and trespass upon the suit property. The High Court dismissed the Contempt Petition by Order dated 11th October 2017. The High Court held that the demarcation of the suit property bearing Survey nos. 1822 and 1823 was carried out exparte by the first respondent in the absence of a representative of SAF. It was observed that a boundary dispute has cropped up between the SAF and the first respondent. During the pendency of the Contempt Petition, in 2017, the complaint subject matter of this petition under Section 200 of CrPC was filed by the first respondent alleging the commission of offences under Sections 323, 294, 427, 341, 447, 506B read with Section 34 and Sections 107, 141 of the Indian Penal Code (IPC). The allegation in the complaint was that though the first respondent was declared as the owner of the suit property by the High Court and though the demarcation of the suit property was carried out after notice to the SAF, the first appellant conspired with the other appellants to illegally capture the suit property. The specific allegation in the complaint is that on 8th January 2017, the appellant nos. 2 to 6 were present on the suit property, and they broke the fencing, which caused a loss of Rs.50,000 to the first respondent. It is alleged that when the first respondent objected, the appellants verbally abused the first respondent, and he was pushed several times. Even a death threat was administered by the appellants to the first respondent. The appellants also threatened the first respondent to send him to jail.
Complaint and inquiry under section 202 Cr.P.C
3. The learned Judicial Magistrate, Gwalior, before whom the complaint was filed, recorded the statement of the first respondent under Section 200 of CrPC. It appears that the learned Magistrate took recourse to the inquiry under Section 202 of CrPC and recorded statements on oath of two witnesses of the first respondent, Hari Singh Yadav and Lakhan Singh Tomar.
Dismissal of complaint by Learned Magistrate for want of sanction but ADJ remanded back to inquire the same and pass order
4. By Order dated 23rd June 2018, the learned Magistrate dismissed the complaint in exercise of powers under Section 203 of the CrPC. The learned Magistrate held that the mandatory requirement of obtaining a sanction to prosecute the appellants in accordance with Section 197 of CrPC was not obtained. In a revision preferred by the first respondent against the order of dismissal of the complaint, the learned Additional Sessions Judge interfered. The learned Additional Sessions Judge held that there was no inquiry made by the learned Magistrate on the issue of whether the appellants committed the acts constituting alleged offences in the discharge of official duties, the non performance of which would have made the accused persons answerable for the dereliction of the official duties. Therefore, an order of remand was passed to enable the learned Magistrate to record a finding on the necessity of obtaining sanction for all the offences alleged. After the order of remand, by Order dated 11th October 2018, the learned Magistrate passed an order directing the cognizance to be taken under Sections 294,323, 427, 447, and 506II of IPC. The learned Magistrate did not record any finding on the issue of sanction. This Order of the learned Magistrate was subjected to a challenge before the High Court by invoking provisions of Section 482 of CrPC. By the impugned Judgment, the High Court dismissed the petition.
Consideration of submissions
7. There is no dispute that, at the relevant time, the appellants were the officers of SAF. We have perused the Contempt Petition filed by the first respondent alleging breach of the decree of injunction passed in the Second Appeal dated 20th March 2013. Only the first appellant was made a party as the contemnor to the Contempt Petition. The Contempt Petition was filed in the year 2016. In the Contempt Petition, a reference is made to the survey of the suit property carried out with the knowledge of SAF.
It is pertinent to note that the Contempt Petition was dismissed on 11th October 2017. The Contempt Petition was dismissed by holding that there was a boundary dispute between the appellant and SAF.
Cause of action for filing complaint is same as is in the filing contempt petition and the fact was not mentioned in the complaint and hence taking cognizance is abuse of process of law
9. In substance, the cause of action for filing the Contempt Petition and the alleged cause of action for filing the complaint was substantially the same. It is surprising that though the Contempt Petition was already filed in 2016, the said fact has not been mentioned in the complaint filed by the first respondent in the year 2017. The fact that the Contempt Petition was filed has not even been disclosed in the statement of the first petitioner recorded in the complaint. The first respondent did not challenge the dismissal of the Contempt Petition. In view of the finding recorded in the Contempt Petition by the High Court, taking the cognizance of the said complaint was surely an abuse of the process of law. The cognizance was taken after the dismissal of the Contempt Petition by a detailed order.
Impugned order of High Court and Learned Magistrate are quashed
12. Accordingly, the impugned order of the High Court and the impugned order of the learned Magistrate taking cognizance are quashed and set aside, and the complaint filed by the first respondent stands dismissed.
Party
Murari Lal Chhari & Ors … Appellants versus Munishwar Singh Tomar & Anr … Respondents – CRIMINAL APPEAL NO.1076 OF 2024 – 2024 INSC 168 – March 4, 2024.
https://main.sci.gov.in/supremecourt/2019/32537/32537_2019_8_1501_51040_Judgement_04-Mar-2024.pdf
Murari Lal Chhari vs. Munishwar Singh Tomar32537_2019_8_1501_51040_Judgement_04-Mar-2024
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