# Rakesh Kumar Gupta and others v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 254
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-03-03
- **Case number:** Criminal Misc. Application No. 3908 of 2004
- **Bench:** K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-gupta-and-others-v-state-of-u-p-and-others-40436
- **Pages:** 4

## Headnote

U.P. Municipal Corporation Act 1959Section-570-Code of Criminal ProcedureSection-482-quashing
of
Criminal
proceeding complaint case-applicant an
employee
of
Municipal
Corporationapplicants
made
compliance
of
the
direction
given
by
Mukhya
Nagar
Adhikari to remove the encroachments
made by the complainant on the path of
Nagar Parishad-during the course of
official
duty-they
are
protected
by
Section 570 of the Act-complaint case
against the applicants-can not proceedaccordingly Quashed.

Held: Para 12

When police force was made available
the applicants made compliance of the
order passed by the Mukhya Nagar
Adhikari. Thus it is a clear case in which
the applicants acted in discharge of their
official duties and therefore, they are
protected by Section 570 of the U.P.
Municipal Corporation Act, 1959 and
complaint case against the applicants
cannot proceed.
Case law discussed:
AIR 1979 SC- 1841
AIR 1999 SC-1437
2000 SCC (Crl.) 872

## Text

http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 254
of the Karnataka High Court has been
followed by our Court in 2004 (2) ARC
779 ( Nanku Vs. Kailash and others). The
decision relied upon by Sri Dhan Prakash
in Topline Shoes Vs. Corporation Bank
has been considered in Nanku's case and
it has been held that the court does not
have any discretion to extend the time
beyond that provided under the proviso to
Order 8 Rule 1 Civil Procedure Code. As
such the submission of the learned
counsel for the appellant that the court
had discretion to extend the time cannot
be accepted. On facts also it appears that
the appellant was granted sufficient time.
The relevant dates in this connection have
already been referred to above in this
order. It is clear that the case was
adjourned on 10.10.2002, 19.11.2002,
21.1.2003, 4.3.2003 and 8.5.2003 and on
4.3.2003 last opportunity was granted to
the appellant. In the circumstances the
order passed by the court below refusing
to grant any further time and forfeiting the
right to file the written statement and
applying the provisions of Order 8 Rule
10 was justified. The applicant has been
granted more time than was required.
There is no merit in this appeal.
Dismissed.
Appeal dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2005

BEFORE
THE HON'BLE K.N. OJHA, J.

Criminal Misc. Application No. 3908 of
2004

Rakesh Kumar Gupta and two others

...Applicants
Versus
State of U. P. and two others

 ...Opposite Parties
Counsel for the Applicants:
Sri Kumar Anish
Sri B.D. Mandhyan
Sri Satish Mandhyan

Counsel for the Opposite Parties:
Sri S.D. Kautilya
Sri K.M. Tripathi

U.P. Municipal Corporation Act 1959Section-570-Code of Criminal ProcedureSection-482-quashing
of
Criminal
proceeding complaint case-applicant an
employee
of
Municipal
Corporationapplicants
made
compliance
of
the
direction
given
by
Mukhya
Nagar
Adhikari to remove the encroachments
made by the complainant on the path of
Nagar Parishad-during the course of
official
duty-they
are
protected
by
Section 570 of the Act-complaint case
against the applicants-can not proceedaccordingly Quashed.

Held: Para 12

When police force was made available
the applicants made compliance of the
order passed by the Mukhya Nagar
Adhikari. Thus it is a clear case in which
the applicants acted in discharge of their
official duties and therefore, they are
protected by Section 570 of the U.P.
Municipal Corporation Act, 1959 and
complaint case against the applicants
cannot proceed.
Case law discussed:
AIR 1979 SC- 1841
AIR 1999 SC-1437
2000 SCC (Crl.) 872

(Delivered by Hon'ble K. N. Ojha, J.)

1. Instant application has been
moved by Rakesh Kumar Gupta and two
others, employees of Nagar Nigam,
Gorakhpur, under Section 482 Cr.P.C. to
quash proceeding of Complaint Case No.
1189 of 2002 pending against them in the
Court
of
Additional
Chief
Judicial
http://www.allahabadhighcourt.nic.in
1All]
Rakesh Kumar Gupta and others V. State of U.P. and others
255
 Magistrate
III,
Gorakhpur,
under
Sections 147, 427, 504, 506, 120B, 382,
148, 451 I.P.C. and Section 3 (1)(x) of
S.C. S.T. Prevention of Atrocities Act
and also to quash the order dated
18.3.2004 whereby the applicants have
been summoned to face trial.

2.

Heard
Sri
Kumar
Anish,
Advocate, holding brief of Sri Satish
Mandhyan, learned counsel for the
applicants, Sri S. D. Kautilya learned
AGA and Sri K. M. Tripathi, counsel for
the O.P. No. 2 and have gone through the
record.

3. Applicants are employees of
Nagar Nigam, Gorakhpur. The applicant
no. 1, Rakesh Kumar Gupta is Sahayak
Nagar
Adhikari,
applicant
no.
2,
Parasnath Shukla is Revenue Inspector
and applicant no. 3 Sheshnath Shukla is
an employee of Nagar Nigam, Gorakhpur.
Affidavit has been filed by Parasnath
Shukla, applicant no. 2 that the opposite
party no. 2, Vijay Kumar Kushwaha filed
a complaint that his Tin shed in Mohalla
Hasupur, police station Rajghat, district
Gorakhpur, was existing since last 50
years but the applicants, who are
employees of Nagar Nigam, Gorakhpur,
in collusion with O. P. No. 3, Harsh
Chandra Prajapati got it demolished. It is
stated that there was enmity of election
between O. P. No. 2 Vijay Kumar
Kushwaha and O. P. no. 3 Harsh Chandra
Prajapati. On the complaint filed by the
O. P. No. 2 Case No. 1189 of 2002 was
registered in the Court of Additional C. J.
M. III, Gorakhpur. Copy of the complaint
is Annexure no. 2 to the affidavit. The
case of the O.P. No. 2, complainant, was
that it was got done by O. P. No. 3, who
was elected as Corporator, Nagar Nigam,
Gorakhpur. While no encroach on Nali
and road was made by him.

4. When the complaint was filed the
applicants were summoned, hence this
application has been filed for quashing the
proceedings of the complaint case and it
is submitted that the applicants are
protected under Section 570 of the U. P.
Municipal Corporation Act, 1959, which
contemplates as below:

"570. Indemnity for acts done in good
faith.- No suit, prosecution or other legal
proceedings shall lie in respect of
anything in good faith done or purported
or intended to be done under this Act
against
the
State
Government,
any
Sabhasad, Nagar Pramukh or against the
Mukhya
Nagar
Adhikari
or
any
Corporation officer or servant or against
person acting under and in accordance
with the direction under this Act of the
State
Government,
Corporation,
any
Committee constituted under this Act, the
Mukhya nagar Adhikari, any Corporation
Officer or servant or of a Magistrate."

5. Section 571 of the Act has also
bee relied on which provides that no suit
shall be instituted against the Corporation
or against the Mukhya Nagar Adhikari or
against any Corporation officer or servant,
in respect of any act done or purported to
be done in pursuance of execution or
intended execution of this Act or in
respect any alleged neglect or default in
the execution of this Act.

6. Learned counsel for the applicant
has submitted that the protection under
Sections 570 and 571 has been provided
to the employees of Nagar Nigam by U.
P. Municipal Corporation Act, 1959 as
has been provided by Section 197 of
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INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 256
Cr.P.C. which provides that no Court
shall take cognizance of any offence when
a government servant specified in the
Section acts or purports to acts in
discharge of the official duty and any
offence is alleged to have been committed
in the discharge of the said duty.

7. Learned counsel for the applicant
has cited AIR 2000 SC 3187, Abdul
Wahab Ansari Vs. State of Bihar and
another in which it has been laid down by
Hon'ble the Apex Court that when there
is a dispute about encroachment of the
property belonging to mosque and the
appellant was a Circle inspector appointed
as Dy. Magistrate pursuant to orders of
Sub Divisional Magistrate who directed to
use
police
force
to
remove
the
encroachment, some miscreants armed
with weapons started hurling stones and
situation became out of control and when
the applicant directed opening of fire to
control mob, two persons were injured
and one person died, it was held that the
order for opening fire is in exercise of
official duty imposed under the order of
the Magistrate. Cognizance of the offence
against
the
applicant
without
prior
sanction of the competent authority under
section 197 was quashed.

8. In AIR 1979 SC 1841 S. B. Saha
and others Vs. M. S. Kochar it has been
laid down by Hon'ble Apex Court that
"the question of sanction under section
197 can be raised and considered at any
stage of the proceedings. In considering
whether prosecution was required, it is
not necessary for the Court to confine
itself to the allegations in the complaint. It
can take into account all the materials on
the record at the time when the question is
raised and falls for consideration."

9. In AIR 1999 SC 1437, N. K. Ogle
Vs. Sanwaldas it was held by Hon'ble the
Apex court that Tehsildar and the District
Collector had passed an order for
collecting
lease
money
from
the
respondent. On the basis of the aforesaid
order the appellants had registered the
matter in his Court and ordered for
issuance of demand letter. The letter was
served on the respondent and yet he did
not make payment, therefore, the order of
attachment warrant was issued. When the
respondent was available with scooter in
the Tehsil the scooter was seized and was
auctioned
by
the
Tehsildar.
The
respondent filed a complaint and initiated
criminal prosecution against the Tehsildar
for the offence under Section 379 I.P.C. it
was held by Hon'ble the Apex Court that
the act complained of against the
Tehsildar was an act committed in
discharge of the official duty of such
Tehsildar and therefore the cognizance
cannot be taken against the Tehsildar by
any Court without prior sanction of the
competent authority.

10. In 2000 SCC (Crl) 872,
Gaurishanker Prasad Vs. State of Bihar
and another it was laid down by Hon'ble
the Apex Court that under Section 197 of
Cr.P.C. what is to be determined is
whether
the
alleged
action,
which
constituted an offence has a reasonable
and rational nexus with the official duties
required to be discharged by the public
servant. If answer is in affirmative then
sanction for his prosecution is required to
be obtained. In the cited case the appellant
in his official capacity as Sub Divisional
Magistrate went to the place of the
complainant for the purpose of removal of
encroachment from Government land and
in exercise of such duty he allegedly
entered the chamber of the complainant,
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Chandra Bhan V. Director of Higher Education, U.P., Allahabad and others
257
 used filthy language and dragged him out
of his chamber. It was held that the act
had reasonable nexus with the official
duty of the appellant and no criminal
proceeding could be initiated against the
application
without
obtaining
prior
sanction because the appellant was
present there in his official capacity as
Sub
Divisional
Magistrate
for
the
purposes of removal of the encroachment
from the government land and in exercise
of such duty he committed the act.

11. In instant case it is admitted that
the applicants are officers or employee of
the Nagar Nigam, Gorakhpur, it is alleged
that and they are protected under Section
570 of the U. P. Municipal Corporation
Act as Government servant and officers
are protected under section 197 of Cr.P.C.

12. In instant case when Corporator
moved application and complaint was
received from another person also the
Mukhya Nagar Adhikari sent letter no.
203 dated 5.9.2002 to Superintendent of
Police,
Gorakhpur
that
complainant-
respondent and two others had made
encroachment on path of Nagar Palika
Parishad by installing water tank and
erecting Chabutara. On receipt of the
letter the Superintendent of Police passed
order on 9.9.2002, copy of which is
Annexure no. 2 to the affidavit, for
removal of encroachment on 11.9.2002
and for maintaining law and order on the
spot. Police force was appointed and
duties were allotted to the police officials.
The Superintendent of Police directed that
the police force be got made available to
the officers and officials of Nagar Nigam,
Gorakhpur, so that encroachment may be
removed. When police force was made
available the applicants made compliance
of the order passed by the Mukhya Nagar
Adhikari. Thus it is a clear case in which
the applicants acted in discharge of their
official duties and therefore, they are
protected by Section 570 of the U.P.
Municipal Corporation Act, 1959 and
complaint case against the applicants
cannot proceed.

13. The applicant no. 2 has filed
affidavit and has denied that any insulting
language was used or any threatening was
extended. No enmity was existing on the
date of the occurrence between the
complainant- O. P. No. 2 and the
applicants. Therefore, there is no reason
to disbelieve the affidavit of the applicant
no. 2.

14. Therefore, the application under
Section
482
Cr.P.C.
filed
by
the
applicants is allowed and the proceedings
of Complaint Case No. 1189 of 2002
pending against the applicants in the
Court
of
Additional
Chief
Judicial
Magistrate III, Gorakhpur, including the
summoning order dated 18.3.2004 is
quashed.
Application allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 44190 of 2004

Chandra Bhan alias Palu
 ...Petitioner
Versus
Director
of
Higher
Education,
U.P.,
Allahabad and others

 ...Respondents

Counsel for the Petitioner:
Sri R.D. Agrawal