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Case Number

Crl.P No. 3242 of 2006

Attorney(S)

For the Appellant: N. Ranga Reddy, Advocate.
For the Respondent: R1, Public Prosecutor & R2, Venkata Ranga Das Kanuri, Advocate.

Judges

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU

Acts

Sections 448, 427, 506 (part-II)/34 I. P. C. 2
Sections 448, 427, 506 (part-Il)/34 I. P. C.
Hyderabad Municipal corporation Act
Municipal Corporation Act
Indian Companies Act.
section 197 Cr. P. C
section 203 Cr. P. C.

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

This petition under Section 482 Cr.P.C. was filed by the first accused (A1) seeking quashing of criminal proceedings registered as CC No.389/2006 before the II Additional Metropolitan Magistrate, Visakhapatnam. The second respondent filed a private criminal complaint against A1–A6 alleging offences punishable under Sections 448, 427 and 506 (Part-II) read with Section 34 of the Indian Penal Code.

The complaint arises from events concerning Siripuram Towers, Visakhapatnam. The second respondent (complainant) is a contractor and partner in Siripuram Towers and alleges that Municipal Corporation authorities (described as A1 and represented by its Commissioner N. Srikanth) and other municipal officials (A2–A4) together with private parties (A5 and A6) forcibly demolished parts of the complainant's construction on 7.2.2005 despite an interim injunction obtained by the complainant in a civil suit (OS No.1165/2003 and IA No.449/2003). The complaint alleges forcible demolition, confinement and obstruction, threats, and seizure of a camera used to videograph the demolition.

The lower court took cognizance against A1–A4 under Sections 448, 427 and 506 (Part-II)/34 IPC. The present petition challenges taking of cognizance against A1 (Municipal Corporation represented by the Commissioner) on the ground that prior sanction under Section 197 Cr.P.C. was required if the acts were in purported discharge of official duties.

Legal Issues Presented

Whether the criminal proceedings taken against A1 (the Municipal Corporation represented by its Commissioner) could be lawfully maintained without prior sanction under Section 197 Cr.P.C., where the alleged demolition was undertaken by municipal authorities.
Whether the acts alleged (demolition of structures) were acts done or purported to be done in the execution of official duty such that Section 197 Cr.P.C. would apply.
Whether the lower court's taking of cognizance of the offence against A1 without prior sanction was legally valid.

Arguments of the Parties

Petitioner's (A1) Arguments

The actions attributed to A1 were performed in the exercise of powers under the Hyderabad Municipal Corporation Act, i.e., were official acts.
Because those acts were official, prosecution required prior sanction under Section 197 Cr.P.C., and taking of cognizance without such sanction was illegal.
The petitioner was entitled to move the High Court under Section 482 Cr.P.C. to quash proceedings even if the point had not been raised and decided in the lower court.

Second Respondent's (Complainant) Arguments

Counsel for the second respondent initially contended that the Municipal Corporation is a body corporate with legal entity (and was thus correctly shown as A1 represented by its Commissioner), but could not point to a provision in the Hyderabad Municipal Corporation Act treating the corporation as a juristic person like a company under the Companies Act.
The demolition in violation of a civil court injunction could not be regarded as part of A1's official duty; therefore, prior sanction under Section 197 Cr.P.C. was not necessary.
The petitioner should have raised the sanction point in the lower court before approaching the High Court, and a petition to quash should follow the lower court decision; nonetheless, the Court noted that Section 482 Cr.P.C. relief is available even if the lower court was not previously addressed on the point.
Reliance was placed on older High Court decisions (Desaibhai Khushalbhai Patel, Manzur Ali, Arjan Singh) to contend that a sanction could be obtained at a later stage and that failure to obtain prior sanction is irregular but not necessarily fatal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pukhraj v. State of Rajasthan, AIR 1973 SC 2591	The proper test for applicability of Section 197 Cr.P.C.: an offence must be in respect of an act done or purported to be done in the discharge of official duty; section intended to protect public servants from unnecessary harassment, but applies where acts are done or purport to be in execution of duty.	The Court relied on this authority to explain that the critical inquiry is whether the alleged acts (demolition) were in purported exercise of official duty; the Court applied the test and concluded the demolition was in purported exercise of official powers.
Raghunath Anant Govilkar v. State of Maharashtra, 2008 (2) ALD (Cri.) 134 (SC)	Held that entering into criminal conspiracy for breach of trust is not part of official duty and thus no sanction under Section 197 Cr.P.C. was required for that offence.	Cited as an illustration of cases distinguishing official acts from private criminality; used in discussing the contours of Section 197 applicability and necessity of factual analysis.
Anjani Kumar v. State of Bihar, 2008 (2) ALD (Crl.) 547 (SC)	Where on facts it is prima facie found that the act/omission has a reasonable connection with discharge of duty, it must be held to be official and Section 197 will apply.	Quoted for the proposition that if a prima facie connection with official duty exists, applicability of Section 197 cannot be disputed; used to support the conclusion that demolition was connected with official duties.
Desaibhai Khushalbhai Patel v. Emperor, AIR 1938 Bom. 50	Authority relied upon by the second respondent to argue that sanction for prosecution may be obtained at any time before trial/conviction and failure to obtain prior sanction is an irregularity.	The Court considered this line of authority but found it contrary to the plain wording of Section 197 Cr.P.C. and therefore not persuasive on the point that prior sanction is mandatory before taking cognizance.
Manzur Ali v. Emperor, AIR 1939 Lah. 1	Relied upon by the second respondent for the proposition that subsequent sanction may cure an initial irregularity.	The Court rejected reliance on this older authority for curing lack of prior sanction, holding that the statutory wording requires previous sanction before cognizance is taken.
Arjan Singh v. Emperor, AIR 1939 Lah. 479	Another older decision cited to support the view that lack of prior sanction is irregular but not fatal if sanction is obtained later.	The Court held these authorities were contrary to the statutory prescription and not persuasive; previous sanction is mandatory prior to taking cognizance.

Court's Reasoning and Analysis

The Court first examined the nature of the complainant's allegations and the identity of the accused. It observed that the complaint describes A1 as "Municipal Corporation rep. by its Commissioner N. Srikanth" and noted that the Municipal Corporation is an inanimate body; the complainant had sued the Corporation by showing the Commissioner as its representative. The Court recorded that the second respondent's counsel contended that the Municipal Corporation is a body corporate but could not cite any provision in the Hyderabad Municipal Corporation Act treating it as a juristic person akin to a company under the Companies Act.

The Court then turned to the statutory scheme and the nature of offences charged: all offences noted in the complaint and taken cognizance of by the lower court were offences under the Indian Penal Code (Sections 448, 427 and 506 (Part-II) read with Section 34). The Court emphasized that none of the allegations disclosed cognizance of offences under any special enactment that provides for prosecution of a body corporate.

Addressing the central contention on sanction under Section 197 Cr.P.C., the Court reviewed precedents from the Supreme Court. It cited Pukhraj to set out the established legal test: Section 197 applies where the offence is in respect of an act done or purported to be done in the discharge of official duty; it is not confined to acts bona fide done in good faith, nor to acts that are official duties in an absolute sense, but to acts that are done or purport to be done under the cloak of official authority.

The Court also cited Raghunath Anant Govilkar and Anjani Kumar for the principle that if facts prima facie show a reasonable connection between the act and the discharge of duty, Section 197 will apply. Applying these authorities to the facts before it, the Court reasoned that the demolition complained of was done by municipal officials (A1–A4) purporting to exercise powers under the Municipal Corporation Act. The Court observed that municipal authorities are entrusted with the duty and power to demolish unauthorised structures and that, on the complaint's own allegations, the actions were within the scope of such powers and were not shown to be grossly or clearly beyond official limits.

The Court considered the respondent's reliance on older High Court decisions to argue that sanction could be obtained later, but held those authorities to be inconsistent with the clear wording of Section 197 Cr.P.C., which provides that "no Court shall take cognizance of such offence except with the previous sanction." The Court interpreted this to mean that sanction must be prior in point of time to the taking of cognizance (i.e., before the Magistrate issues process under Section 204 Cr.P.C.). The Court further clarified that while a complaint may be presented and sworn statements recorded, the Magistrate must consider applicability of Section 197 at the threshold and cannot proceed to take cognizance without prior sanction where it is required.

On this legal foundation, the Court concluded that the lower court's taking of cognizance against A1 without prior sanction under Section 197 Cr.P.C. was not in accordance with law because, on the prima facie facts alleged in the complaint, the demolition constituted an act done or purported to be done in the exercise of official duty by municipal authorities.

Holding and Implications

Holding: The petition is allowed and the criminal proceedings against the petitioner/A1 in CC No.389/2006 on the file of the II Additional Metropolitan Magistrate, Visakhapatnam are QUASHED.

Implications:

Direct effect: The proceedings against A1 (the Municipal Corporation represented by its Commissioner) in CC No.389/2006 have been quashed for want of prior sanction under Section 197 Cr.P.C., because on the complaint's allegations the demolition was in purported exercise of official powers.
Procedural consequence emphasized by the Court: When Section 197 Cr.P.C. is applicable, prior sanction is a condition precedent to the Magistrate taking cognizance; subsequent sanction cannot cure the defect of taking cognizance without prior sanction.
The opinion applies established tests from Supreme Court authorities to the facts and concludes that cognizance without prior sanction was illegal; the Court did not record that it was creating any broader new precedent beyond applying and reconciling existing authorities to the facts of this case.

This summary is strictly confined to information appearing in the provided opinion and does not add facts or inferences not contained in the text.

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Municipal Corporation Of Visakhapatnam, Visakhapatnam v. The State Of A.P And Anr.

JUDGEMENT :-

1 This petition is filed by the 1st accused under Sec.482 Cr. PC for quashing proceedings in CC No.389/2006 on the file of II Additional Metropolitan magistrate, Visakhapatnam relating to offences punishable under Sections 448, 427, 506 (part-II)/34 I. P. C.

2 The 2nd respondent filed private complaint in the lower Court against A1 to a6 for certain offences. A1 is described as "the Municipal Corporation rep. by its commissioner N, Srikanth, -Visakhapatnam". A2 to A4 are K. Ananda babu (City planner), Assistant City planner g. Babu, Building Inspector Ch. Raghunatha Rao. A5 and A6 are private parties, A5 being a house wife and A6 is stated to be Professor in Economics, Andhra university, both of them being residents of siripuram towers, which is subject-matter in dispute. The 2nd respondent/complainant is a contractor in construction field. He is partner in Siripuram towers located in Siripuram junction of Visakhapatnam and its builder. When the Municipal Corporation issued notice to State Bank of Hyderabad located in part of the disputed premises for vacating the premises and for demolition of that portion and when A6 also issued another notice and when the Municipal Corporation threatened the complainant with demolition of constructions, the complainant is stated to have filed OS 1165/2003 in Principal Junior civil Judge Court, Visakhapatnam and filed i. A, No.449/2003 therein for restraining the municipal Corporation, VUDA and 22 flat owners in Siripuram towers from interfering with his peaceful possession and enjoyment of the property. It is claimed that the Civil court granted interim injunction on 22.4.2003 against the Municipal Corporation in IA no.449/2003. It is alleged that in spite of service of notice to Corporation authorities by the Civil Court, the authorities high handedly behaved and went to Siripuram towers on 7.2.2005 and forcibly demolished structures of the complainant in unruly manner and that the city planner and other accused persons were present at the time of demolition work with the assistance of A5 and A6. It is further alleged that when injunction orders are shown to the municipal Corporation authorities, they have thrown the complainant on ground and that A2 and A6 confined and obstructed the complainant from moving from that place and that A2 to A4 confined the complainant and restricted movements on that day and that A2 to A6 threatened the complainant with dire consequences of doing away his life and that when the complainant tried to videograph the demolition work, A1 to A6 snatched camera and video and handed over the same in the police station.

3 On a perusal of the entire complaint, there is no specific allegation made by the complainant against the Commissioner by name N. Srikanth. Complaint of the complainant is against the Municipal Corporation and A2 to A6. Since the Municipal Corporation is an inanimate body, the complainant had shown the Corporation as A1 represented by its Commissioner. When it is questioned as to how a criminal complaint is maintainable against the Municipal corporation, which is an inanimate body, the 2nd respondent's Counsel contended that the Municipal Corporation is a body corporate and has got legal entity. But, the 2nd respondent's Counsel could not point out any provision in the Hyderabad Municipal Corporation Act describing the Municipal corporation as a juristic person like a company under the Indian Companies Act. This is not a civil matter where the municipal Corporation may sue or may be sued when it is represented by the commissioner; and when an order is passed by the Civil Court, it would be binding on not only the Commissioner but also on his subordinates working in the same Municipal corporation. In this complaint, the complainant did not allege and the tower Court did not take cognizance of any offence under any special enactment having special provision to prosecute a body corporate, against A1-Muncipal Corporation of Visakhapatnam. All the offences alleged and for which the lower court took cognizance against Al are offences punishable under the Indian Penal code only.

4 The lower Court took cognizance of the case against A1 to A4 for offences punishable under Sections 448, 427, 506 (part-Il)/34 I. P. C. Though it is alleged that the demolition was in violation of injunction order passed by the civil Court, the lower Court did not take cognizance of the said allegation in this criminal case because it is a subject-matter which has to be enquired and decided by the civil Court for violation of the injunction order, in case the complainant approaches the civil Court by way of another complaint in this regard. As pointed out earlier, as per allegations in the complaint, it was A2 to A6 who are alleged to have threatened the complainant with dire consequences of doing away his life. Al-Municipal Corporation has no participation in offence punishable under Sec.506 (Part-II) I. P. C.

5 It is contended by the petitioner's counsel that what all A1 is alleged to have done in this case was in exercise of powers under the Hyderabad Municipal Corporation Act and that therefore taking cognizance of the complaint against A1 is illegal as the complainant did not obtain prior sanction for prosecution of A1as required under Sec.197 Cr. PC. On the other hand, it is contended by the 2nd respondent's Counsel that demolition of construction in violation of civil Court injunction order cannot be part of official duty of A1 and that therefore, no prior sanction for prosecution of A1 under section 197 Cr. P. C. is contemplated by law and that in any event, the petitioner should have approached the lower Court on this aspect and should have questioned decision of the lower Court before this Court in case it was against its contention. The petitioner is not debarred from maintaining a petition under Sec.482 Cr. P. C praying for quashing of criminal proceedings pending in the. lower Court, in case the petitioner had not approached the lower Court on these aspects. It is not a condition precedent for the petitioner to raise the points before the lower Court and to obtain decision of the lower Court on those points and then only to approach this Court questioning decision of the lower Court, under Sec.482 Cr. P. C, the aggrieved party is always at liberty to approach this court at any stage of the criminal proceedings seeking redressal from this Court in the interest of justice.

6 The question to be decided in the pending case before the lower Court is not whether there is violation of civil court injunction order; but the question is whether the accused and more particularly a1 had criminally trespassed and committed mischief by way of demolition of the construction made by the 2nd respondent, which acts are punishable under Sections 448 and 427 IPC. The petitioner contends that the alleged activity was done during the course of exercise of official powers under the Municipal Corporation Act and that the activity was in purported exercise of his duty.

7 The Supreme Court in Pukhraj V/s. State of Rajasthan, AIR 1973 SC 2591 (1), observed that while the law regarding circumstances under which sanction under section 197 Cr. P. C is necessary is well settled, the difficulty really arises in applying the law to facts of any particular case. The Supreme Court laid down:

"the intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duly still purports so to act, although be may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction iti terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. "

On facts, the Supreme Court came to the conclusion that kicking of the complainant and abusing him when he submitted his representation for cancellation of his transfer, by the Post Master General at the time of his inspection, could not be said to have been done in purported exercise of his duty.

8 In Raghunath Anant Govilkar V/s. State of Maharashtra, 2008 (2) ALD (Cri.)134 (SC), it was held that entering into criminal conspiracy for committing breach of trust is not part of duty of public servant and that therefore no sanction for prosecution under Sec.197 Cr. P. C. is required for taking cognizance of offence punishable under Sec.409/120-B I. P. C. alleged against the offender who is a public servant. In Anjani Kumar V/s. State of Bihar, 2008 (2) ALD (Crl.) 547 (SC), it was held by the supreme Court:

"if on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Sec.197 of the Code cannot be disputed"

9 Having regard to the above case law rendered by the apex Court, if facts of the present case are analysed, it is evident that demolition of construction made by the petitioner was done in purported exercise of official powers by Al to A4 who are all officials of Municipal Corporation of visakhapatnam and it was not outside scope of their duties under the Municipal Corporation Act. In case the construction is unauthorised and without prior approval of the Municipal Corporation, the Municipal corporation authorities are entrusted with duty as well as power to demolish such unauthorised structure. When the said power was exercised, it cannot be said that Al-Corporation exceeded or grossly exceeded its official limits. I have no hesitation to come to the conclusion that the alleged demolition of construction of the 2nd respondent made by Al and other officials was done in exercise of their official duties and purported to have been done in exercise of official functions and that therefore sanction for prosecution of Al under Sec.197 Cr. P. C is a pre- requisite for taking cognizance of the complaint against Al,

10 Placing reliance on Desaibhai khushalbhai Patel V/s. Emperor, AIR 1938 bom.50, of the Bombay High Court, manzur Ali V/s. Emperor, AIR 1939 Lah.1 and Arjan Singh V/s. Emperor, AIR 1939 lah.479 of the Lahore High Court, it is contended by the 2nd respondent's Counsel that it is open to the complainant to obtain sanction for prosecution under Sec.197 cr. P. C at any time before commencement of trial and conviction of the accused and that failure to obtain such sanction prior to filing of the complaint is only an irregularity which does not vitiate the criminal proceedings particularly when there is no prejudice caused to the petitioner. The above reported decisions and reasoning contained therein are contrary to wording employed in section 197 Cr. P. C and therefore are not able to pursuade this Court to accept those decisions. Relevant words contained in section 197 Cr. P. C are to the effect; "no Court shall take cognizance of such offence except with the previous sanction ". Therefore, sanction for prosecution is a condition precedent for taking cognizance of such a case against the public servant. Sanction has to be previous in point of time and it should be previous to taking cognizance of the offence by the Court or the Magistrate. Subsequent sanction if any obtained cannot cure initial or inceptual defect attached to the case. It is not a curable defect which can be rectified at subsequent stage of the proceedings or before final decision is taken by the criminal Court. The prohibition is in respect of taking cognizance of the offence against the public servant; and the prohibition is not for either commencement of trial or for final decision by way of recording conviction or acquittal. When there is legal prohibition for taking cognizance of the offence, question of the criminal Court proceeding with trial of the case does not arise at all. The criminal court takes cognizance of offence by issuing of summons or warrant to the accused under Sec.204 Cr. PC after following the procedure contained in Sections 200, 201 and 202 Cr. PC and if not resorted to section 203 Cr. P. C. Therefore, sanction for prosecution under Sec.197 Cr. PC shall be obtained and presented before the magistrate prior to stage of issuing of process to the accused under Sec.204 Cr. P. C. At the same time, no sanction under Sec.197 cr. PC is required for presentation of a complaint before the Magistrate or for recording of sworn statement of the complainant by the Magistrate. Question of applicability of Sec.197 Cr. PC has to be considered after examination of the complainant and his witnesses if any, by way of recording of their sworn statements by the Magistrate. There is no option for the criminal Court except to dismiss the complaint in case sanction required under section 197 Cr. PC is not obtained prior to issuing of process to the accused. The prohibition for taking cognizance of offence contained under Sec.197 (1) Cr. PC is a mandatory prohibition and has to be considered at the threshold of the case and not at a subsequent stage. Therefore, taking cognizance of the case against the petitioner/a1 in this case by the lower Court is not in accordance with law and is liable to be quashed.

11 In the result, the petition is allowed quashing proceedings against the petitioner/ al in CC No.389/2006 on the file of ii Additional Metropolitan Magistrate, visakhapatnam.

Municipal Corporation Of Visakhapatnam, Visakhapatnam v. The State Of A.P And Anr.

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (A1) Arguments

Second Respondent's (Complainant) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Municipal Corporation Of Visakhapatnam, Visakhapatnam v. The State Of A.P And Anr.

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