Demolition Not ‘Excess’- Supreme Court Quashes Complaint Against District Town Planner In Extortion Case
The Supreme Court quashed a Complaint filed under Sections 323, 452, 506, 427, 384, 440, 166, 148, 149 read with Section 34 of the Indian Penal Code, 1860 (IPC).
The Court was dealing with Criminal Appeals filed against the Order of the Punjab and Haryana High Court by which it dismissed a Petition and an Order passed in an Application declining to recall the Order.
The two-Judge Bench of Justice B.V. Nagarathna and Justice N. Kotiswar Singh said, “The fact that an application was filed seeking regularisation of the construction put up by the first respondent would indicate that even according to the first respondent, there was a digression and other irregularities in the construction put up which required regularisation. However, the contention of learned counsel for the first respondent is that when such an application was pending, the appellant had no authority to demolish the construction. We do not think that such an argument would impress us for the reason that the mere pendency of the application seeking regularisation before another department would have been an impediment for carrying out the demolition inasmuch as there was sufficient basis for doing so and was done under the orders of the superior authority and not independently as such. The fact that an application for regularization of the construction put up was filed implied that there was a deficiency/irregularity in the construction put up by the respondent No.1 herein. The impugned demolition cannot also be termed as an “excess.”
The Bench noted that the Appellant who is accused of carrying out the demolition was doing so within the scope and ambit of her authority and that, this is not a case where the accused carried out the demolition dehors any legal backing or basis; neither was the said act of carrying out of the demolition outside the scope of her authority as the District Town Planner in the Enforcement Division.
Senior Advocate Mukul Rohatgi and Advocate Sameer Rohatgi appeared for the Appellant while Advocate Aseem Mehrotra appeared for the Respondents.
Brief Facts -
The Appellant filed a Petition seeking quashing of a Complaint under the relevant provisions under IPC along with all consequential proceedings and the Order of the Judicial Magistrate, summoning the Appellant and two others. The original Complaint filed by the Respondent against the Appellant being the District Town Planner (Enforcement) was that she and twelve others in 2006 alleged to have forcibly entered Anupama College of Engineering and Anupama Institute of Management, both situated at Gurgaon District of which the Respondent was the Chairman in an official jeep. It was further alleged that they crated chaos and took away the college telephone forcibly. No action was taken on filing a Complaint after such incident and thereafter, the Complainant met the Appellant along with his Advocate but the Appellant asked for the building map/plan and other documents. It was also alleged that one of the accused demanded Rs. 20 lakhs as an illegal gratification but the Respondent refused to oblige the same.
Consequently, the Appellant forcibly entered the college premises along with police personnel with heavy machinery and equipment for the purpose of demolition and after vacating the campus of the staff and students, the demolition took place. The said action was claimed to be done with a mala fide intention owing to non-payment of the bribe made previously and resultantly, an FIR was registered but the same was found to be false. Further, a Writ Petition was filed in which the High Court had appointed a Local Commissioner to inspect the college campus and he had submitted his report stating that there was an existing building which was constructed prior to the year 2004 which was much before the notification being issued under the provisions of The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. On a private Complaint, the Trial Court issued a Summoning Order against the Appellant and two others and being aggrieved, she approached the High Court. As her Petition was dismissed, she was before the Apex Court.
The Supreme Court in view of the facts and circumstances of the case, observed, “… it is only after lapse of three years from the date of demolition, first respondent herein filed a Criminal Complaint No.1383 of 2010 under Sections 34, 148, 149, 166, 323, 384, 427, 440, 452 and 506 IPC in the Court of Additional CJM, Gurgaon against 13 accused. The JMFC discharged all other accused except the appellant and accused nos.2 and 4 in Complaint No.1383 of 2010 and the summoning order was passed against the appellant and accused nos.2 and 4, namely, Senior Town Planner and Junior Engineer, Town & Country Planning (E).”
The Court further took note of the fact that the Appellant was carrying out the orders of the superior officers and there is a correlation between the act of demolition and the discharge of official duty. It added that the demolition was carried out during the course of performance of Appellant’s official duties.
“In the circumstances, we observe that the first respondent herein ought to have sought sanction for prosecution under Section 197 of the CrPC in the instant case. The same, not having been done vitiated the initiation of the criminal proceeding against the appellant herein. Consequently, the summoning order and the consequent steps taken by the Trial Court pursuant to the said summoning order are liable to be quashed and are thus quashed”, it said.
The Court concluded that, insofar as the very initiation of the Complaint is concerned, since there was no prior order of sanction passed under Section 197 of the CrPC, the initiation of the Complaint itself, is non est.
Accordingly, the Apex Court allowed the Appeals and quashed the Complaint against the Appellant.
Cause Title- Gurmeet Kaur v. Devender Gupta & Another (Neutral Citation: 2024 INSC 967)
Appearance:
Appellant: Senior Advocate Mukul Rohtagi, Senior AAG Alok Sangwan, AOR Samar Vijay Singh, Advocates Sameer Rohtagi, Sumit Kumar Sharma, Rajat Sangwan, Sabarni Som, and Fateh Singh.
Respondents: AORs Rajeev Singh, Akshay Amritanshu, Advocates Aseem Mehrotra, Deeksha Mehrotra, Drishti Saraf, Pragya Upadhyay, and Swati Mishra.
