O.P. Sharma, J.
1. The petitioner seeks quashing of the criminal proceedings initiated against him and four others by the Chief Judicial Magistrate, Jammu on a complaint filed by the Deputy Registrar of the High Court. By order dated 16.10.98 the Chief Judicial Magistrate issued process Under Section 120-B, 447-A, 448, 454, 380 RPC against the petitioner whereas process Under Section 406 and 409 RPC in addition to the above sections was issued against four others who are non-petitioners Nos. 2 to 5.
2. It is a peculiar case where the High Court had to file a criminal complaint against the officers including the Minister incharge of the Estate. Facts disclosed in the petitioner are that House No. 6 Wazarat Road, Jamu was placed at the disposal of the Chief Justice for being allotted to Judges from time to time. The house remained in possession of Mr. Justice B.A. Khan since 1990 till his lordship was transferred to Madhya Pradesh in the year 1997. After the house was vacated, it was occupied by his lordship Mr. Justice T.S. Doabia who shifted to House No. 2, Ved Mandir, New Plots in the months of June-July 1998. After this, the house remained in possession of the court officer of the High Court.
3. When on 13.10.1998 Shri Tariq Ahmed Buch, court officer visited the house, he found the lock broken. On enquiry he was informed by the persons occupying the same that the house is in possession of the petitioner whose family was staying there. It was further found by the court officer that the occupant damaged and misappropriated the costly items belonging to the High Court with criminal intention to cause harm and loss to the High Court after hatching a criminal conspiracy. It is further alleged that accused Nos. 2, 3 and 4 had put accused No. 1 in possessions of the house thereby dispossessing the High Court forcibly. According to the complainant certain items like Sofa sets, air conditioners, law books including telephone apparatus were lying in the house at the time Doabia J shifted to Ved Mandir. It was on the basis of these allegations that the process was issued under various sections.
4. The petitioner had earlier sought quashing of the proceedings Under Section 561-A Cr. P.C. but the petition was dismissed by this Court judgment dated 27.5.99. This second petition has been filed for quashing the proceedings on the ground that the evidence produced by the complainant does not disclose commission of any offence and, therefore, proceedings are liable to be quashed. In the earlier petition, argument put forward was one that the court could not take cognizance in the absence of sanction Under Section 197 Cr. P.C. and two that the complaint does not disclose commission of any offence. The first argument was rejected holding that it is no part of the official duty of a public servant to commit a trespass. Regarding the second, the court observed that "prima facie a perusal of the complaint and preliminary evidence on bare reading negative this plea, may be that after summoning of the petitioner and other alleged co-accused was in position to bring adequate material or dislodge the prosecution case during cross-examination, but at this stage, it cannot be said that no case is made out."
5. The contention of Mr. Sethi is that statements of D.K. Kapoor and Mohd Tariq Buch do not disclose commission of any offence and, therefore, the proceedings are liable to be quashed, Mr. Sethi appearing for the petitioner argued that foundation of the complaint was that house No. 6 had been placed at the disposal of the Chief Justice of the High Court, but no such order has been placed on the record. On the contrary, record of the High Court reveals that every house was allotted by the Estate Department to the individual Judges of the High Court. At no stage any of these houses much-less House No. 6 came to be placed at the disposal of the Chief Justice. In support of this, he has referred to the D.O. No. JKH/J/CJ/831/98 dated 28.1.1998 written by the then Chief Justice to the Minister. Admittedly, there was no response to this communication and no house was placed at the disposal of the Chief Justice for allotment to the Judges. His further argument is that every time a Judge is appointed. It is Estate Department which allotted the house. Mr. Sharma has however, argued that complaint as well as evidence does disclose commission of offence and, therefore, no case is made out for quashing the proceedings. The first question is whether the House No. 6, Wazarat Road was placed at the disposal of the Chief Justice for allotment to Judges or it stood allotted to Justice B.A. Khan. In para-2 of the complaint, it is stated that this house was placed at the disposal of the Chief justice for allotment to the Judges and remained in possession of Mr. Justice B.A. Khan since 1990 until his lordship was transferred to High Court of Madhya Pradesh. No order placing the house at the disposal of the chief Justice has been produced. Shri D.K. Kapoor, the then Deputy Registrar who filed the complaint has admitted that House No. 6, Wazarat Road was from the very beginning allotted in the name of Mr. Justice B.A. Khan and remained in his occupation until his transfer. It was only after his transfer in the year 1997 that its possession was taken over by Tariq Buch, court officer. Subsequently, it was allotted to Hon'ble Mr. Justice Doabia. He has further stated that all houses are being allotted to the Judges by the Chief Justice. Baring this, there is not even a whisper in his statement as to what articles belonging to the High Court were not accounted by the accused. He was however, emphatic that the houses are allotted to the Judges only by the Chief Justice which fact is not supported by the record as shall be presently noticed. Statement of Mohd Tariq, Court officer does not advance the case of the complainant because he has not referred to any order by virtue of which House No. 6 was placed at the disposal of the Chief Justice.
6. The stand of the complainant is that this house was placed at the disposal of Chief Justice is contradicted by the letter dated 28.1.1998 which the chief Justice wrote to the Chief Minister. It reads as under:-
"Hon'ble Shri Justice T.S. Doabia is residing at 6-Wazarat Road, V.I.P. Bunglow, which is situated opposite to your residence. In view of the tight security restrictions in the area, Hon'ble Shri Justice T.S. Doabia, his family and staff are experiencing lot of embarrassment and inconvenience by being asked to stop and questioned every now and then by the security staff deployed in the area. His lordships wants that some other suitable V.I.P. Bunglow in some other locality, preferably, Bunglow No. 1, Ved Mandir, Enclave, Jammu which was previously occupied by Shri Justice Moti Lal Bhat, may be allotted to him immediately. The State Government had also been requested through letter No. 22081/RG, dated 23.12.1997 addressed to the Commissioner/Secretary to Government, General Administration Department, to place six Bunglows (three at Jammu and three at Srinagar) at the disposal of Chief Justice for the allotment to Judges, but no action has been taken till now, with the result that certain Judges could not be allotted Banglows at Jammu and Srinagar despite pressing demand. Kindly do the needful so that I am in a position to allot the new Bunglow to Hon'ble Shri Justice T.S. Doabia and relieve him of the embarrassment and inconvenience being faced by him, and also allot other Bungalows to other Judges of this Court."
7. The only conclusion which can be drawn from this letter is that the Government had not placed any house at the disposal of the Chief Justice. Another conclusion to be drawn from the letter is that house No. 6 was not suitable for accommodation of a Judge of the High Court and, therefore, in the event of it being vacated, its possession in the absence of any order to the contrary would revert to the Estate Department who had allotted it to Justice B.A. Khan. This is exactly what happened because after Mr. Justice Doabia vacated it and shifted to House No. 2, Ved Mandir, the Estate Department which administered these house took over possession in discharge of its ordinary duty. It is admitted by Shri Kapoor that these houses belong to Estate Department whose duty is to furnish and maintain them also. Ordinarily the possession will revert to the Estate Department after the house is vacated by an allottee and since Mr. Justice B.A. Khan was the allottee, the possession would revert to the Estate Department. Merely because Mr. Justice Doabia occupied it for some time the legal position would not change specially when it was lying vacant at the time the petitioner occupied it under orders of the Chief Minister. This happened much after the receipt of letter dated 28.1.1998 (supra). This is evident from letter dated 20.9.1998 addressed by the petitioner to respondent No. 3. Moreover, if the house was not suitable for a Judge of the court, the State cannot be faulted to have allotted it to the petitioner.
But assuming that High Court was in possession though it is not so, action of petitioner in occupying the house is bona fide and does not amount to criminal trespass. The Government in the Estate Department continues to make allotment of houses in routine. This is evident from Government Order No. 259-Est of 1995, dated 13.10.1995 vide which House No. 2 and house No. 6 Residency Road were allotted to Mr. Justice B.A. Khan respectively. Similarly vide Govt. Order No. 175-Est of 1996, dated 30.10.1996 house No. 5 Ved Mandir was allotted to the then Chief Justice, M. Ramakrishna while allotment of house No. 6 was repeated in favour of Justice B.A. Khan. Again vide Government order No. 386-Estate of 1997, dated 21.10.1997 the allotment of houses in favour of Judges of the High Court has been repeated. By this order allotment of House No. 6 Residency Road (Wazarat Road) was repeated. There is thus nothing in the Master file of the High Court produced by the complainant to indicate that any objection was raised against the procedure followed in making the allotment. Allotment order dated 2.2.1995 further indicates that house No. 1 Canal Road, Jammu was allotted to Mr. Justice R.K. Nehru after cancelling the allotment of Mr. Justice M.L. Koub. So that is no iota of evidence to indicate that any house of Estate Department was ever placed at the disposal of the Chief Justice of the High Court in the absence of which filing of the complaint was wholly undesirable.
8. It was next argued that if no case is made out the petitioner is free to approach the Magistrate for dropping the proceedings. Record indicates that the petitioners had approached the trial court. Since the complainant in this case is the High Court, therefore, merely because the Magistrate has also the power to discharge the accused at any stage of the trial, it does not mean that the accused cannot approach this court if the charge is groundless. In Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 their lordships observed as under:-
"29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial."
Since there is clinching evidence that the house was allotted to Mr. Justice B.A. Khan who vacated it and its allotment was repeated in the name of a particular Judge vide order dated 21.10.1997, no commission of offence is disclosed. Moreover, both Sh, Kapoor and Mr. Tariq having admitted that the house stood in the name of Mr. Justice B.A. Khan, a fact confirmed by various Government order, the allegation that it was placed at the disposal of the Chief Justice is preposterous and the charge against the accused is groundless and sufficient to quash the proceedings. In Pepsi Foods Ltd. v. Special Judicial Magistrate (supra) their lordships observed that the summoning of the accused is a serious matter and the order of Magistrate summoning the accused reflects that he had applied his mind to the facts of the case and the law applicable by holding that;-
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot bet set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answer to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
This scrutiny of evidence after statements of Shri D.K. Kapoor and Tariq Buch is lacking and therefore, the interference at this stage,
9. No doubt petition Under Section 561-A Cr. P.C. challenging the order summoning the accused was dismissed by this court, but at the same time, it was made clear to the court that continuation of the proceedings will depend upon the nature of evidence furnished by the complainant and the accused. Since the statement of the witnesses have been recorded and the Master file dealing with the allotment of houses to the Judge produced, the Magistrate should have had no difficulty in discharging the accused holding that the charge is groundless because there is no order placing the house at the disposal of the Chief Justice and also that the complainant having admitted that the houses are allotted by the Estate Department and maintained by it, question of criminal tronpann would not arise. Since the houses are allotted by the Government, therefore, its occupation after the occupant had -- vacated it does not constitute criminal trespass. This view is fortified by the judgment of High Court of Bombay in Marotrao Ganpatrao Jadhav v. The State, AIR 1960 Bombay 481 which reads:-
"The learned Magistrate has passed an order under Section 249 and if the order is justified it should not have been set-aside. The reason given by the learned Magistrate is that no case under Section 447, I.P.C. has been made out even prima facie. If no cases has been made out under Section 447 even prima facie the learned Magistrate would be perfectly justified in stopping the proceedings. As observed by the learned Magistrate, the case relates to a dispute about possession between the owner of a field and a person who claims to be his tenant. The owner appears to have taken possession of his own land in the absence of the person who claims to be in possession as a tenant. As held by their lordships of the Privy Council in Sinnasamy v. The King, 52 Cr. LJ 173.
"Entry upon land, made under a bona fide claim of right, however, ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary incent."
As this is a dispute between the owner and another person, who claims to be his tenant, it is obvious that the intent of the landlord can at the most be selfish nut it cannot be said to be criminal. The trespass may be civil but not criminal. The dominant intention of the landlord must have been to take possession of the field for his own pecuniary advantage and not to insult, intimidate or annoy the complainant."
This proposition squarely applies to the facts of this case.
10. Moreover, the letter dated 20.9.1998 written by the Petitioner to the Deputy Director, Estates which shows that the possession was taken over under the order of the Chief Minister does not even prima facie establish any culpability of the petitioner or other subordinate officers because the Chief Minister appears to have acted on the basis of letter dated 28.1.1998 written by the Chief Justice after the house was vacated. This was thus a bona fide action on the part of the Chief Minister and the petitioner and respondents Nos. 2 to 5 cannot be held guilty of trespass or theft. Further the averment made in the statements of witnesses and facts stated, no case of theft or misappropriation was made out. It is admitted that the houses are furnished by the Estate Department. In case any item belonging to the High Court was stolen from then the house, the best course was to put the department on notice for returning the goods. Respondents Nos. 2 to 5 have simply acted in discharge of their official duty, as there is no allegation that any of them have committed theft or misappropriated the property. In view of this no charge Under Section 406, 409/34 and 120-B RPC of criminal conspiracy is disclosed.
11. Although the learned Single Judge of this court had rejected the plea that the complaint was not maintainable in the absence of sanction Under Section 197, Cr. P.C. and I am bound by that but at the same time his lordship had observed that subsequent fact can be noticed by the trial court. One subsequent development was production of copy of letter dated 20.9.1998 written by the petitioner No. 1 to respondent-3 which reads as under:-
"On the verbal instructions of Hon'ble Chief Minister and the orders passed by the Chief Secretary, J&K, I have occupied the vacant Bunglow No. 6 at Residency Road, Jammu today the 20th of September, 1998.
You are, therefore, directed to execute necessary repairs and renovations, as directed and furnish the Bunglow within 7 days positively."
12. Since the department of Estates is under the control of the Chief Minister, therefore, any action taken by the subordinate officer is in the discharge of their official duty. When such is the case, the following proposition of law laid down in Abdul Wahab Ansari v. State of Bihar, AIR 2000 SCW 3725 is attracted. It reads:-
"7. Coming to the second question, it is now well settled by the Constitution Bench decision of this Court in Matajog Dobey v. H.C. Bhari, (1955) 2 SCR 925; (AIR 1956 SC 44, 1956 Cri. LJ 140) that in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure the offence alleged to have been committed by the accused must have something to do, or must be related in some manner. With the discharge of official duty. In other words, there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. In the said case, it had been further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. This decision was followed by this Court in Suresh Kumar Bhikamchand Jain's case (1998) 1 SCC 205; 1998 AIR SCW 544); (AIR 1998 SC 1524; 1998 Cri LJ 1242) and in a recent case judgment of this court in the case of Gauri Shankar Prasad v. State of Bihar (2000) 5 SCC 15 (2000 AIR SCW 3135). The aforesaid case has full force even to the facts of the present case inasmuch as in the said case, the Court had observed (para 14 of AIR SCW).
"It is manifest that the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from Government land and in exercise of such duty, he is alleged to have committed the acts which from the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances it cannot but he held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided Under Section 197 Cr.P.C."
It is not necessary for us to multiply authorities on this point and hearing in mind the ratio of the aforesaid cases and applying the same to the facts of the present case as indicated in the complaint itself, we have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case. Admittedly, there being no sanction, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of court. Accordingly, we allow this appeal and quash the criminal proceeding, so far as the appellant is concerned."
After the production of this letter, the proceedings cannot continue in the absence of sanction Under Section 197 Cr. P.C. Besides the statements of PWs Sh D.K. Kapoor and Tariq Ahmed Buch when considered with the official record about the allotment of the House 6 Wazarat Road from time to time in the name of Mr. Justice B.A. Khan, the foundation of the charge that the house was placed at the disposal of the Chief Justice has collapsed as even the allotment in the name of successive Chief Justices has been being made repeatedly by the State Government. This apart the petitioner has taken possession under order of the Chief Minister while other accused have acted under his instructions. So the charge against the petitioner and respondents Nos. 2 to 5 is groundless as the facts brought out by Mr. Kapoor and Mr. Tariq Buch do not disclose commission of any offence.
This apart the Estate Department being the Custodian of House No. 6, Wazarat Road, its occupation after the premises were vacated does not constitute criminal trespass though it may be a civil wrong because the Estate Department is always in de jure possession of the Estate property. The petition is, therefore, allowed and the proceedings quashed.