K.K.Velayudham v. Dr.A.Ganesan,Retired Dean,Kilpauk Medical College,Chennai – 10.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.07.2009CORAMTHE HON'BLE MR.JUSTICE R. REGUPATHICrl.R.C.Nos.242 and 250 of 2007State, rep. ByThe Inspector of Police,G-3 Kilpauk Police Station,Kilpauk, Chennai.[Crime No.1734/1997. .. Petitioner inCrl.R.C.242/07K.K.Velayudham.. Petitioner inCrl.R.C.250/07Vs.Dr.A.Ganesan,Retired Dean,Kilpauk Medical College,Chennai – 10. .. RespondentinCrl.R.C.242/07& Crl.R.C.250/07Prayer in both C.R.Ps. :Petitions filed under Sections 397 and 401 ofCriminal Procedure Code against the order dated 30.11.2006 made inCrl.M.P.No.6059/2003 in C.C. No.4196/2000 on the file of IIMetropolitan Magistrate, Egmore, Chennai and to set aside the order.In Crl.R.C.242 of 2007For petitioner : Mr. J.C.Durairaj Govt. Advocate (Crl.side)For Respondent : Mr. M.Devaraj- - - - -In Crl.R.C.250 of 2007For petitioner : Mr. R.Shunmugasundaram, Senior Counsel for Mr.K.Venkatesan https://hcservices.ecourts.gov.in/hcservices/ For R-1 : Mr. J.C.Durairaj Govt. Advocate (Crl.side) For R-2 : Mr.M.Devaraj- - - - -COMMON ORDER The defacto complainant/petitioner in Crl.R.C.No.250 of 2007was running a tea stall within the premises of the GovernmentHospital at Kilpauk and the said shop was allegedly damaged and thematerials and other properties therein were stealthily removed on01.07.1997 by the accused, whereupon a complaint against therespondent in his capacity as Dean, Kilpauk Medical College, Chennaiand A.2/Assistant Engineer, Public Works Department, Chennai came tobe lodged resulted in registration of the case for offencespunishable under Sections 166, 448, 427, 380, 392 and 506(ii) I.P.C.and ultimately, final report has been filed by the petitioner inCrl.R.C.242 of 2007, resulting in the proceedings before the TrialCourt. Several writ petitions and criminal original petitions werefiled pending proceedings in the criminal case. The second accusedwas discharged for want of sanction under Section 197 Cr.P.C. by thelearned Magistrate and such discharge was set aside by this Court inCrl.R.C.No.1465 of 2003 vide order dated 19.11.2003. Aggrievedthereby, the second accused moved the Supreme Court contending thatsanction is absolutely necessary to launch the prosecution againsthim and the Supreme Court upheld the order passed by the learnedMagistrate, discharging the second accused. Based on that, theRespondent/A-1 in the case has also preferred a discharge petitionand the learned Magistrate relying on the observations of the Hon'bleSupreme Court, discharged the petitioner by order dated 30.11.2006passed in Crl.M.P.No.6059 of 2003. Aggrieved against the orderimpugned, the prosecution as well as the defacto complainant havepreferred the above two revision petitions before this Court.2.The learned Senior Counsel appearing for the defactocomplainant points out that the defacto complainant was allotted 225sq. ft. of land inside the precincts of Kilpauk Medical College byGovernment Order during 1977 and subsequently, the allotment wastransferred in favour of the defacto complainant's wife and suchtransfer was approved by the Public Works Department. "No objectioncertificate" was also issued by the hospital authorities and thedefacto complainant was continuously running the canteen upto 1992.Though the lease was not extended thereafter, the defacto complainantwas continuously paying the rent. While so, on the basis of thedirectives issued by the Hon'ble Supreme Court and the order of the https://hcservices.ecourts.gov.in/hcservices/ Government of Tamil Nadu, a notice for eviction was issued and suchnotice was questioned before this Court and an order was passed notto dispossess the defacto complainant except by due process of law.Under such circumstances, the accused, without resorting to theprocedure prescribed, illegally demolished the structure and removedthe materials, resulting in registration of the case. According tothe learned Senior Counsel, the accused, by committing such an act,caused damage to the properties of the defacto complainant and theresultant loss has not been compensated. A reasonable opportunitywas not given to the defacto complainant to vacate the premises. Itis submitted that though the Respondent/A-1 is a public servant inhis capacity as a Dean, Kilpauk Medical College, Chennai, the actcommitted by him is not an official act and therefore, the impugnedorder passed by the learned Magistrate without looking into suchaspect is erroneous and therefore, the same may be set aside.3.Per contra, the learned counsel appearing for the Respondent/A-1 submits that, as per the direction issued by the Government and inthe absence of valid lease agreement to run the canteen, the premisesof the defacto complainant was demolished and only to wreakvengeance, the prosecution has been launched. It is stated thatbefore vacating the defacto complainant from the premises, policeprotection was sought for and demolition was carried out only on theinstructions given by the Executive Engineer, Pubic Works Department,to the Assistant Engineer, P.W.D and the Respondent/A-1, in hiscapacity as a Medical Officer, was not directly involved in the actand even so, whatever act committed was in his capacity as a publicservant and therefore, sanction is absolutely necessary to launchprosecution against him.4.I have meticulously perused the materials available on recordhaving regard to the rival submissions made on either side.5.The only aspect taken into consideration by the learnedMagistrate was regarding sanction under Section 197 Cr.P.C. and, byholding that sanction is absolutely necessary and it was absent inthe case of the accused to prosecute him, the learned Magistratepassed orders, discharging the accused. On the same ground, theHon'ble Supreme Court passed orders in the case in favour of thesecond accused holding that sanction is absolutely necessary toprosecute the accused by observing as follows:-"Government of Tamil Nadu issued a Government Ordercontaining a policy decision to remove all such kiosks,tea stalls and bunks from the hospital premises in publicinterest, inter alia, on the ground that food prepared in https://hcservices.ecourts.gov.in/hcservices/ such tea stalls in unhygienic conditions and the same hadotherwise been causing nuisance to others. No Court hasdeclared such a policy decision to be ultra vires, Wehave noticed hereinbefore that, in fact, the validity ofsuch a policy decision has been upheld by this Court inJagadeesan (supra).If in the aforementioned situation, the Appellantherein only complied with the order of the ExecutiveEngineer asking him to remove the said tea stall; we areof the opinion that thereby he cannot be said to havecommitted any offence whatsoever. The name of theappellant was taken by the Executive Engineer himself,under whose direction he acted. He, in his statement madebefore the police, merely stated that the Appellant by hisletter dated 2.8.1997 intimated to him that the tea stallhad been removed. On the basis of the said statement noinference could be drawn that the Appellant committed anoffence purported to be under Section 427 of the IndianPenal Code. From a perusal of the charge sheet, as alsothe materials which are available on record, it does notappear that there is anything to show as to how and inwhat manner the Appellant could be said to have committeda mischief or how the ingredients of the said provisionstood satisfied."After detailed discussion about the law on the point of sanction,ultimately the Supreme Court held thus:-"Even if the statement of the Executive Engineer onthe basis whereof the charge sheet has been filed againstthe Appellant is accepted to be correct sanction for hisprosecution, as envisaged under Section 197 of the Codeof Criminal procedure, in the facts and circumstances ofthis case was necessary."6.On a careful perusal of the order impugned, I find that thelearned Magistrate has surveyed the history of the pending litigationand distinguished the earlier orders passed by this Court inCrl.O.P.No.6435 of 2001 and, by relying on the Hon'ble SupremeCourt's judgment, ultimately came to the following conclusion:-"In the light of the above orders of, I consider thecase of the petitioner/accused A1 who is a Dean at thattime of the Kilpauk Medical Hospital, I am of opinion thatthe sanction of the Government for the prosecution under https://hcservices.ecourts.gov.in/hcservices/ Section 197 of Criminal Procedure Code, with the facts andcircumstances of the case is necessary. Hence, thecontention of the petitioner is accepted. The contentionof the prosecution is not accepted. Hence the petitionfiled by the petitioner u/s. 239 Cr.P.C. is allowed and thepetitioner/accused is discharged u/s.239 Cr.P.C."7.Admittedly, the Respondent/A-1 in his capacity as Dean, KilpaukMedical College, Chennai and A-2 as Assistant Engineer, Public WorksDepartment, Chennai, are public servants. The eviction anddemolition carried out on 01.07.1997 was done only in pursuance ofthe orders issued by the Government of Tamil Nadu. Not only the shopof the defacto complainant but also all such tea stalls, which wereconsidered to be posing health hazard within the precincts ofGovernment hospitals, were directed to be removed by the orderspassed by the Government. To implement such orders, theRespondent/first accused and the second accused/Assistant Engineer,Public Works Department, directed their subordinates to remove thetea stall. Since, the accused acted in pursuance of the orders passedby the Government of Tamil Nadu and in the capacity as "publicservant", I am of the considered opinion that sanction under Section197 Cr.P.C is absolutely necessary. The orders passed by the Hon'bleSupreme Court in the case of A.2 holding that sanction is requiredfor launching prosecution are equally applicable to theRespondent/first accused. Therefore, I do not find any merit todisturb the conclusion reached by the learned Magistrate andaccordingly, both the criminal revision petitions are dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar jrl https://hcservices.ecourts.gov.in/hcservices/ To1. The II Metropolitan Magistrate, Egmore, Chennai.2.-do- Thro the Chief Metropolitan Magistrate,Egmore,Chennai.3. The Inspector of Police, G-3, Kilpauk Police Station, Kilpauk, Chenni- 10.4. The Public Prosecutor, High Court, Madras.MG(CO)km/30.9.Crl.R.C.Nos.242 and 250 of 2007