H.B. BHONGALE Vs. ZARINA SHOUKATALI JAFAR

JUDGEMENT

(1.) HEARD Shri Mundargi for the petitioners and Shri Kankaria for the respondent No. 1 in both the petitions. Both these petitions arise out of the order of issuance of process and rejection of the application of all the Accused for discharge by the Trial Court Magistrate i.e. Judicial Magistrate, F.C., Uran (Shri D.D. Kamble).

(2.) THE petitioner in Criminal Writ Petition No. 135 of 1997 is the Chief Officer of Uran Municipal Council and the petitioners in the Writ Petition No. 136 of 1997 are the employees of the Uran Municipal Council. They were prosecuted by respondent No. 1 by filing a complaint under Sections 380, 427 and 451 read with Section 34 of the Indian Penal Code, on the ground that the accused demolished the structure of the complainant illegally and committed theft of the articles of the complainant.

(3.) IT was contended by Shri Kankaria, appearing for the respondent/complainant, firstly, that the Magistrate has considered all the relevant aspects of the case and legal submissions made by both the parties and has given a well reasoned order. Secondly, according to Shri Kankaria in the report under Section 156 of the Cr.P.C. the Police did not produce any material before the Magistrate to show that the accused acted in their official duties while demolishing the structure of the complainant. Thirdly, according to him before starting the demolition work, neither the Chief Officer nor any of the employees of the Uran Municipal Council gave any notice to the complainant regarding illegal encroachment/construction of the illegal structure. Lastly, according to him the complainant had with him sufficient material to show that the structure was legal and/or legally constructed by obtaining necessary sanction and permission of the Municipal Council. However, he contended that the petitioners in both the petitions came in their private capacity and demolished the structure and committed theft of the articles of the complainant and therefore, since the Magistrate has considered all these aspects including the objection raised by the petitioners regarding sanction, these petitions are liable to be dismissed. He also contended that the Magistrate merely ordered an issuance of process and it is open for the petitioners to apply for discharge. I am not at all satisfied by any of the submissions made on behalf of the complainant. The order of the Magistrate being contrary to the facts on the records, is perverse and so also it is devoid of any merit. For example, the Magistrate has in its order at internal page 9 observed 'Nothing on record to show that whether the accused No. 1 i.e. the Chief Officer has acted within preview of his official duties or not'. This observation is totally contradictory to the Police report. Because in the Police report it has been stated that since the construction was illegal and there were complaints, the Chief Officer decided to demolish it and had applied for Police help and thereafter the demolition work was carried out and the Panchanama of the properties seized from the spot was prepared and that all the petitioners who were accused before the Magistrate, acted in discharge of their duties. It appears from the observation of the Magistrate that he has not cared to go through the entire police report and has deliberately avoided to consider this aspect of the matter.