Quashed

Kunal Kumar v. Ashok a Bhandari and Anr.

Bombay HC24 Jul 2012WP/1972/2010

Case brief

AI extract

What is this about?

Writ petition by Municipal Commissioner challenging Sessions Judge order directing criminal process for property damage. Court held official acts without personal instruction and for public cause cannot be subject to criminal prosecution under Section 427 IPC.

What did the court decide?

Writ petition allowed; order of Sessions Judge directing process under Section 427 IPC quashed and set aside.

Kunal Kumar Vs Ashok a Bhandari and Anr. — Constitutional and Fundamental Rights | Bombay HC (2012)

WP 1972.10.sxw

JPP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION

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CRIMINAL WRIT PETITION NO. 1972 OF 2010

Mr. Kunal Kumar.

... Petitioner.

V/s.

Ashok Anandrao Bhandari & Ors.

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... Respondents.

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Mr. S.S. Patwardhan for the Petitioner. Mr. Jayant Bardeskar for Respondent 1. Ms. P.P. Bhosale, APP for the State.

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CORAM : K.U. CHANDIWAL, J. DATED : 24^th JULY 2012.

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P.C. :-

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Heard finally.

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The Petitioner, then Municipal Commissioner of Kolhapur

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Municipal Corporation questions order of learned Sessions Judge, Kolhapur dated 8^th April 2010 directing issuance of process for an offence under Section 427 through the channels of learned Chief Judicial Magistrate, Kolhapur.

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The Respondent – Ashok owned certain immovable properties which the authorities of Corporation felt offending its road widening process. The Respondent, apprehending action of Corporation resorted to Civil Suit being R.C.S. No.785

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2 WP 1972.10.sxw

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of 2002, which the learned Joint Civil Judge, Junior Division, Kolhapur, decreed by its order dated 3^rd April 2003.

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The grievance of the Respondent – Complainant was, inspite of subsistence of the decree, the officials of Municipal Corporation, on 24^th February 2007 accompanied with 25 to 30 labours or engaged labours associated with implements, tanker, dumper created an atmosphere of commotion, break open lock of his premises and in utter disregard to the orders of Civil Court, they have demolished toilet, compound wall, pipeline, safety tank, etc. causing the damage in the tune of more than Rs.1,00,000/-. The complainant desires prosecution in terms of infraction of Sections 447, 448, 427, 454, 143, 144, 147, 148, 149 and 120-B of I.P.C. In order to substantiate his contention, evidence was also led before the learned Chief Judicial Magistrate, Kolhapur. The learned Chief Judicial Magistrate, on evaluation of material placed before him and even for want of sanction dismissed the complaint under Section 203 of Cr.P.C. However, the learned Sessions Judge, directed process only against Petitioner Mr. Kunal Kumar for an offence under Section 427 of I.P.C.

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3 WP 1972.10.sxw

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The learned Counsel for the Petitioner - the Municipal Commissioner, submits that whatever act of demolition is carried by the Municipal Corporation squad at the premises owned by the Respondent – Complainant was within the parameter of powers vested in the authorities and it was an official act carried in good faith. The discharge of duty being of public servant cannot be a matter as a course to be prosecuted.

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Since there was a decree of R.C.S. No. 785 of 2002 in favour of the Complainant/Respondent, any breach of the orders of decree or injunction would attract action for contempt thereof available in competent Civil Court. Additionally, the aggrieved complainant has his remedies by way of execution as contemplated under Order XXI of Code of Civil Procedure. He has even remedies under Contempt of Courts Act by following the requisite procedure.

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By-passing the legal position and available remedies, the short-cut of criminal prosecution was discovered. However, the learned Chief Judicial Magistrate did not succumb to the same and dismissed the prosecution.

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Section 425 of I.P.C. contemplate mischief which says whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof destroys or diminishes its value or utility, or affects it injuriously, commits mischief. Section 427 illustrate mischief causing damage to the amount of fifty rupees, providing punishment to the extent of two years or with fine, or with both. It is a non-cognizable offence, bailable, compoundable, triable by the Magistrate.

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Reverting to the complaint and the orders of the learned Sessions Judge, it is explicit the Petitioner as Commissioner of Municipal Corporation did not personally organize the squad or was controlling the demolition process. He could, at the best branded to be in his office. The learned Magistrate as also learned Sessions Judge, has exonerated the officials who were at the site. Same is not questioned by the aggrieved complainant. Now, it need not be reckon again. By no stretch the Petitioner can be attributed to have caused damage to the property of Complainant.

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The act purportedly done by the officials of the Municipal Corporation without there being any document or written instructions placed on record was informed in the complaint, there could not have been issuance of process under Section 427 of I.P.C. That apart, the official act carried by the Petitioner had stint of road widening process, involving public cause.

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The excess in the official act by the Petitioner under the protection umbrella under Section 197 of Cr.P.C. may amount to a case of misuse or abuse of powers vested on the public servant. However, such eventuality in fact situation has not generated to be further accelerated. On the threshold, the complaint against the Petitioner and direction of process under Section 427 of I.P.C. would not be maintainable. No case is engraft to this effect. Writ Petition succeeds. The order of learned Sessions Judge is quashed and set aside.

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(K.U. CHANDIWAL,J.)

Kunal Kumar v. Ashok a Bhandari and Anr.

Case brief

What is this about?

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Kunal Kumar v. Ashok a Bhandari and Anr.

Case brief

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