1. The petitioners being accused 2 to 5 in C.C.454 /2019 arising from PCR 83/2019 on the file of Principal Civil Judge and JMFC, Mandya, have sought quashing of the proceedings against them.

2. The respondent initiated action against the petitioners and other accused alleging an incident said to have taken place on 27 .8.2015. In para 9 of the complaint he has stated that in the early hours of 27.8. 2015, accused 1, 2, 3, 4 , 5 illegally removed the supporting walls built by him on the two sides of the drainage and removed the cement slabs covering the open drainage with the help of JCB and other machineries. He alleged excesses on the part of the petitioners and thus requested the Magistrate to initiate action for the offences under sections 24, 26 , 43, 44 , 119 , 120B, 143, 447, 166, 432 read with 34 IPC.

3. The above alleged incident has a background that along side the building belonging to the respondent, there is an open drainage running East to West 11 ’, North to South 355’. The drainage was emitting foul smell and a breeding place for mosquitoes. The respondent sought permission of the City Municipal Council, Mandya, for covering the drainage with stone and cement slabs and accordingly on 19.4.1980, he was granted permission. In the first stretch he covered a part of the drainage with RCC slabs by building supporting walls on the two sides of the drainage. In the year 1999 he started covering the remaining portion, but at that time the City Municipal Council stopped his work. Therefore he made a representation to the Deputy Commissioner, Mandya, on 5 .5 .1999. Thereafter, the Deputy Commissioner by obtaining a report from the Assistant Commissioner directed the City Municipality to permit or allow the respondent to cover the remaining portion of the drainage and the same was communicated to him on 15.5.1999. But, the City Municipal Council by that time had passed a resolution withdrawing the permission accorded by it on 30.5.1980 and this resolution was challenged by the respondent by preferring an appeal before the Divisional Commissioner. On 12.10.1999 the Divisional Commissioner set aside the resolution of the City Municipality which thereafter filed Writ Petition No. 41060/1999 challenging the order of the Divisional Commissioner and it was dismissed. The City Municipality also filed a suit against the respondent, O.S.167 /1999 for permanent injunction and it also came to be dismissed for non- prosecution in the year 2005. Therefore the respondent stated that the high handed acts of the petitioners and other accused resulted in his suffering loss to extent of Rs. 24,00,000/-. In this regard he filed a suit claiming damages in O.S.84/2016. The same being decreed, the Municipality preferred an appeal to the High Court and it is still pending.

4. The learned Magistrate passed an order on 5.4 .2019 taking cognizance in relation to offences punishable under sections 119, 120B, 143, 447, 166, 432 read with section 34 IPC against accused 1 to 6 .

5. I have heard the arguments of Sri G.M.Ananda, learned counsel for the petitioners and Sri R.S. Ravi, learned counsel for the respondent.

6. Sri G.M.Ananda raises two points, firstly that the learned Magistrate ought not to have taken cognizance in relation to offences which according to the respondent were committed in the year 2015. Having regard to the scheme of sentence prescribed for the offences, limitation period had expired. The second point is that except petitioner No.4 the other petitioners are all officials attached to the City Municipal Council. The very averments made in the complaint indicate that the petitioners 1 to 4 acted while discharging their official duty. No offence is made out and even if it is presumed that an offence has been committed, without obtaining sanction as required under section 197 Cr.P.C., the petitioners 1 to 3 cannot be prosecuted at all. The action initiated by the respondent is clear abuse of process of court.

7. Sri. R.S.Ravi submits that the petitioners 1 to 4 exceeded their limits in the guise of cleaning the drainage. They demolished the supporting walls constructed by the respondent and also removed the RCC slabs. This has resulted in huge loss being suffered by the respondent. The respondent, at his expense had covered the drainage on the permission granted by the Municipality. If at all the drainage had to be cleaned, it was not necessary to remove the RCC slabs. Since offence has been committed by the petitioners in excess of their official duty, sanction is not necessary.

8. I have considered the arguments of learned counsel. Given a plain reading to the averments made in the complaint, it is seen that actually the respondent has complained of removing the RCC slabs covered on the drainage. It may be a fact that respondent was permitted to cover the drainage, but he was permitted with certain conditions and this is not disputed by the second respondent also. The petitioners 1 to 4 are all the officials of City Municipal Council, Mandya. He has alleged conspiracy in removing the RCC slabs. There are no materials to hold that the petitioners conspired to do so; more over there are no materials to hold that the petitioners exceeded their limits while cleaning the drainage. If on account of removal of the slabs, the respondent has suffered any loss, the remedy available to him is to file a suit for damages. In fact he filed a suit and obtained decree as can be made out from the complaint itself. Now an appeal is pending in this court. If this aspect is considered, it is possible to infer that probably the respondent has taken recourse to criminal action without any justifiable cause.

9. In the complaint itself the date of incident is shown as 27.8 .2015. The private complaint is filed in the year 2019. The learned Magistrate has taken cognizance in respect of offences punishable under sections 119, 120B, 143 , 447 , 166 , 432 of IPC. There are no materials constituting offences under sections 119, 120B and 447 IPC. Admittedly it is the municipality which has control over the drainage and the respondent does not become the owner of the drainage merely because he was permitted to cover it. Therefore offence under section 447 is not attracted at all. As already observed excess on the part of the petitioners is not forthcoming and therefore section 166 IPC cannot be invoked. Section 432 IPC relates to committing mischief of causing inundation or obstruction to the public drainage. It is not understandable as to why the municipality having the responsibility of keeping the drainage clean would cause obstruction to the flow of sewerage water. Therefore this offence is also not attracted.

10. Since petitioners 1 to 3 are the officials of municipality, sanction was necessary before subjecting them to prosecution. It has been held by the Supreme Court in D.T.Virupakshappa Vs. C. Subash [(2015) 12 SCC 231] [LQ/SC/2015/643] that if there is nexus between the act alleged and the official duty, sanction is necessary. In this case, sanction has not been obtained.

11. The Magistrate ought not to have taken cognizance in the year 2019 in regard to incident said to have taken place in the year 2015. Question of limitation arises in view of section 468 Cr. P. C. Therefore subjecting the petitioners to prosecution is clear abuse of process of court. In this view, petition is allowed. The proceeding against the petitioners in C.C.454/2019 on the file of Principal Civil Judge and JMFC, Mandya are quashed.

Consequently, I.A.1 /2020 filed for vacating the stay is also disposed of.