Full Judgment Text
2024 INSC 168
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1076 OF 2024
Murari Lal Chhari & Ors. … Appellants
versus
Munishwar Singh Tomar & Anr. ... Respondents
J U D G M E N T
ABHAY S. OKA, J.
FACTS
The first respondent filed a complaint under Section 200
1.
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 1
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.
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2024.03.04
18:11:19 IST
Reason:
Criminal Appeal no.1076 of 2024 Page 1 of 9
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
th
the first appellant, who was the Commandant of the 14
Battalion of SAF at Gwalior. The allegation was of a breach of
th
the decree passed on 20 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
th
Contempt Petition by Order dated 11 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
Criminal Appeal no.1076 of 2024 Page 2 of 9
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
th
complaint is that on 8 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.
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.
rd
4. By Order dated 23 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
Criminal Appeal no.1076 of 2024 Page 3 of 9
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 nonperformance 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
th
11 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.
SUBMISSIONS
5. The learned senior counsel appearing for the appellants
urged that even taking the averments made in the complaint
as correct, the acts attributed to the appellants were done by
them in the performance of the statutory duties as officers of
Criminal Appeal no.1076 of 2024 Page 4 of 9
the SAF, and the learned Magistrate has completely
overlooked this aspect. In fact, he has not decided on the
issue of the requirement of sanction at all. He submitted that
even otherwise, in view of the earlier dismissal of the
Contempt Petition, the order of summoning ought not to have
been issued by the learned Magistrate.
The learned counsel appearing for the first respondent
6.
submitted that with due application of mind, the learned
Magistrate issued process. The learned Magistrate had
recorded the statements of three witnesses, including the first
respondent. That was done based on materials on record. He
submitted that committing acts of trespass cannot be a part
of the appellants' official duty. Therefore, sanction to
prosecute under Section 197 of CrPC was not required. He
submitted that a fullfledged trial is necessary. All issues can
be decided at the time of the final hearing of the complaint.
He would submit that no interference is called for. We have
also heard the learned Deputy Advocate General for the State
of Madhya Pradesh.
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
th
20 March 2013. Only the first appellant was made a party
as the contemnor to the Contempt Petition. The Contempt
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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. The specific allegations in the
Contempt Petition are as follows:
“3. That, the land of Survey No. 211 and
212 situated at Gudi Lashkar is adjacent to
the land of the petitioner and disobeying the
judgement of this Hon'ble Court the
demarcation as put i.e. Muddiya stone sign
has been made on the spot. In that regard
an application was made to the
Commandant, but the Commandant having
not given any heed to the application
contrarily day to day creating nuisance and
disobey the judgement passed by this
Hon'ble Court.
th
4. That, when the land of 14 Battalion is
different not within the area of the
petitioner's land despite of that putting
aside the judgement of this Hon'ble Court
are trying to trespass over the land of the
petitioner. Therefore, it is matter of
contempt of Court. The respondents are
deliberately disobeying the judgement
Annexure A/1 by this Hon'ble Court,
therefore the action of the respondents
comes under the definition of the Contempt
of Court Act and noncompliance of the
judgement of the Hon'ble Court also
amounts to flagrant violation of the
judgement of this Hon'ble Court……”
(emphasis added)
It is pertinent to note that the Contempt Petition was
th
dismissed on 11 October 2017. The Contempt Petition was
Criminal Appeal no.1076 of 2024 Page 6 of 9
dismissed by holding that there was a boundary dispute
between the appellant and SAF.
In the complaint filed by the first respondent, averments
8.
were made regarding the survey of the suit property. It is
alleged that the survey was made after due notice to SAF, and
the property was fenced. Further allegations in the complaint
read thus:
“…………………
11. After the abovesaid proceedings
done, the Respondent/Accused No.1,
advised and conspired with other
Respondents to illegitimately capture the
complainant's land and sent them for
encroachment. On the date, 08.01.2017,
Respondent nos. 2 to 6 being present there
on the complainant's land, broke the
fencing which caused a loss of Rs. 50000/
to the complainant.
12. When the complainant started
defending his land and asked not to break
the fencing, he was abused verbally and was
pushed several times. Death threat was also
given to him and was told that he could be
sent to jail.
xxx xxx xxx
15. Even after the officers from S.A.F. came
and caused damage to the land belonging to
the complainant on 08.01.2017, he again
fenced the land. Respondent no.1 sent
Respondent no. 2 to 6 and again damaged
the fence. They abused him verbally and
gave the complainant a death threat again.
The complainant is scared that he might
face anything in the future.”
Criminal Appeal no.1076 of 2024 Page 7 of 9
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.
10. There is another factual aspect of the matter. In the
examination of the first respondent on oath in the complaint,
he has not given even the date on which alleged acts of
encroachment and administering threats were made at the
instance of the appellants. In the complaint, the allegation is
th
that on 8 January 2017, the appellant nos.2 to 6 broke the
fencing and gave abuses/threats. Surprisingly, this issue
was not raised in the Contempt Petition, which was pending
th
till 11 October 2017. Witness nos. 2 and 3 of the deposition
do not name the appellant no.1 at all. The two witnesses
have not given even the approximate dates of the alleged
incidents.
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11. Therefore, in our view, the further prosecution of the
complaint was itself an abuse of the process of law, and
therefore, the High Court ought to have quashed the
complaint.
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.
13. The Appeal is, accordingly, allowed.
.…………………J.
(Abhay S. Oka)
..…………………J.
(Ujjal Bhuyan)
New Delhi;
March 4, 2024.
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