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The Indian Penal Code, 1860
The Delhi Laws Act, 1912
Section 197 in The Indian Penal Code, 1860
Section 477 in The Indian Penal Code, 1860
The Code Of Criminal Procedure, 1973

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Delhi High Court
R.R. Gautam And Anr. vs State And Anr. on 20 February, 2008
Author: S K Kaul
Bench: S K Kaul

JUDGMENT

Sanjay Kishan Kaul, J.

1. The matter relates to an illegal construction being carried out at Arjun Nagar, Mubatakpur, New Delhi without the proper authorization required under the Delhi Municipal Corporation Act, 1957 ('DMC Act' for short) and the bye-laws made there under. Upon inspection of the said premises, the Delhi Municipal Corporation ('DMC' for short) issued a show cause notice to the owner of the said property under Section 332 of the DMC Act dated 22-01-2002 to which no response was received. Thereafter, the DMC issued a demolition notice dated 29-01-2002 to the owner giving him 6 days time to demolish the said illegal construction, upon the completion of which period, if the demolition was not carried out, the DMC would demolish the same under its power under Section 343(6) of the Act. It is stated that it is only upon the completion of this stipulated period that the higher officials of the DMC recommended the demolition of the said illegal construction on 06-02-2002. The petitioners being the officials deputed to execute such demolition order, carried out partial demolition of the property on 30-04-2002. In spite of the partial demolition being carried out, the said illegal construction was restored and continued. On 07-10-2002, the petitioners acting in accordance with the demolition order, demolished a room on the terrace of the third floor.

2. The complainant, a resident of the house adjacent to the house of the owner, in consequence thereto, lodged a complaint with the police upon which an FIR was registered under Section 288, 336 and 337 of the Indian Penal Code ('IPC' for short) on account of the complainant receiving injuries from the debris that fell after the said demolition. On 28-01-2003, a charge sheet against the petitioners was filed and an order on charge and the show cause notice on charge dated 12.11.2003 was passed by the Ld. MM. It is this order on charge and notice on charge of the Ld. MM which have been challenged by way of the present revision petition by the petitioners.

3. A perusal of the impugned order shows that the view taken by the Ld. MM was that both the petitioners had acted negligently in pulling down the said property without taking due care and precautions to guard against any probable danger to human life, the result of which was that the complainant had received injuries from the debris that fell from the property. Hence, prima facie case for offences under Section 288/337 IPC was made out against the petitioners and notices were served on the petitioners.

4. The submissions advanced by the learned senior counsel for the petitioners is that the petitioners, being qualified employees were discharging their official duty to execute the orders issued to them when such an accident took place. The petitioners were acting in good faith while carrying out the said duty and injuries sustained by the complainant was a result of an accident for which no criminality can be attributed to the petitioners who were performing a lawful act in a lawful manner by lawful means.

5. The petitioners state that the legislature in order to protect the Public servants acting in discharge of their duties from vexatious and undue harassment has provided for certain safeguards/statutory provisions in various enactments which in substance bar prosecution against the public servants without prior sanction. It is the case of the petitioners that under the deeming provision of section 500 of the DMC Act, the petitioners would be covered within the definition of 'public servants' for the purposes of Section 21 IPC and would thus have the benefit of protection under Section 197 of the Code of Criminal Procedure ('the said Code' for short) which provides that the court cannot take cognizance of an offence committed by a public servant, in the course of discharging his official duty without valid sanction from the concerned appointing or dismissing authority. The petitioner further submitted that on previous occasions such protection has been extended to officials who in discharging their official duty have been held as public servants by the Apex court in Jaya Singh v. K.K. Velayutham 2006 Cri.L.J. 3272 and Gauri Shanker Prasad v. State and by this Court in K. Suresh v. Lloyd Finance Crl. M.C. 3860/2005 decided on 07-02-2008 and Rajinder Saini v. State 2005 Cri.L.J. 3861.

6. The learned Counsel for the petitioner, apart from the aforesaid, pleads that the petitioners also enjoy the protection available to them under Section 477 of the DMC Act which provides that no prosecution shall be entertained in any court against the Corporation or against any municipal authority or against any municipal officer or any other municipal employee or any other person acting under the order or direction of any municipal authority or any municipal employee, for anything which is act done in good faith under this Act or any rule, regulation or bye law made there under. Therefore, no prosecution would lie against the petitioners since they acted in good faith while discharging their official duties imposed upon them under the Act and as per the directions of the superior officers. The test of determining acts done in good faith under Section 477 of the DMC Act is that whether the act has been done honestly having no relation to negligence or want of care. Reliance was placed on the case of Public Prosecutor v. Vattem Venkataramayya AIR 1963 AP 106 wherein it was held that the relevant meaning of 'good faith' is as defined in Section 3(22) of the General Clauses Act. 'Due care and attention' stipulated by Section 52 IPC is not a prerequisite.

7. Another aspect which has been brought to the notice of this Court is the letter dated 22-10-2002 of the Deputy Commissioner, Central Zone, MCD addressed to the Deputy Commissioner of Police, South District, Haus Khas, New Delhi informing him that the demolition was carried out in good faith and that there was no negligence on the part of the petitioners.

8. The case of the prosecution on the other hand is that on 07-10-2002, while the said construction was going on, the petitioners acted in a negligent manner in pursuance to the execution of the demolition order. To substantiate its plea, the attention of this Court was drawn to the statement given by the complainant wherein the complainant had stated that he saw the petitioner running towards the road side along with his staff when the walls were demolished as a result of which the roof fell down and the complainant received injuries. The learned Counsel for the state further states that the petitioners shall not be entitled to the protection under Section 197 of the said Code since the petitioners failed to take proper steps to prevent such an incident from taking place and referred to the case of Paul George v. State Crl. Rev. P. No. 555/2001 decided on 30-05-2006 where it was held that a police officer driving a vehicle and causing death would not be protected under Section 197 of the said Code since he was not covered under the definition of a public servant and three other decisions of Romesh Lal Jain v. N.S. Rana ; State of Kerela v. V. Padmanabhan and Narayan Diwakar v. C.B.I. which

relate to acts of corruption committed by public servants which stand on a different footing altogether and would not be of much relevance to the present case. The learned Counsel also cited the decision of Rakesh Kumar Mishra v. The State of Bihar and Ors. wherein the Apex Court while dealing with the issue of the applicability of Section 197 of the said Code referred to the decision of P. Arulswami v. State of Madras where the Apex Court observed as follows:

...It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.

9. On hearing the learned Counsel for the parties, I am of the considered view that the Ld. MM has gravely erred while framing charges against the petitioners under Section 288/337 IPC. The petitioners were acting in good faith while performing their official duty under the DMC Act and therefore would clearly be safeguarded under 477 of the DMC Act.

10. It cannot be lost sight of that the petitioners being deemed as public servants by virtue of Section 500 of the DMC Act were only discharging their official duty to execute the said demolition order under the directions of their higher officials in the DMC when such incident took place. In order to determine whether the protection under Section 197 would be extended to the petitioners in such case or not, a reading of the relevant portion of the said provision would be vital which is as under:

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence except with the previous sanction-

(a) In the case of it person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted....

11. The effect of the aforesaid provision is that such protection shall be made available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, but it would be important to consider that if the omission on the part of the public servant to commit the act complained of could have made him answerable for an accusation of dereliction of his official duty, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. Thus, the petitioners in the given facts and circumstances of the case shall be entitled to such protection and no cognizance of an offence could have taken place against them without prior sanction/approval even if assuming that the petitioners while exercising their power under the directions of the demolition order acted negligently.

12. In view of the aforesaid, the impugned order on charge and show cause notice on charge dated 12.11.2003 passed by the Ld. MM are set aside, the petitioners are discharged and the petition is allowed.