Cri.Appln.No.879/2012
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO.879 OF 2012
Shivraj s/o Bhaurao Patil (Hotalkar),
Age 38 years, Occ. Business &
Social Worker, R/o Hotala,
Post Narsi, Taluka Naygaon (Kh.),
District Nanded. ... APPLICANT
VERSUS
1.
The State of Maharashtra
through Police Inspector,
Police Station, Vazirabad,
Taluka and District Nanded.
2. Shri Ram Kisan Pawar,
Age 48 years, Occ. Service,
working as a Education
Officer (Secondary),
Zilla Parishad, Nanded,
C/o Zilla Parishad, Nanded ... RESPONDENTS
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Shri V.D. Salunke, Advocate for applicant
Mrs. V.A. Shinde, A.P.P. for respondent No.1/State
None for respondent No.2 though served
-----
CORAM : A.H. JOSHI
AND
U.D. SALVI, JJ.
DATED : 9th October, 2012.
ORAL JUDGMENT (Per A.H. Joshi, J.)
1. Rule. Rule made returnable forthwith. Heard finally by consent.
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2. The applicant is a former Councillor/ Member of Zilla Parishad, Nanded. He was also the Chairman of the Education Committee of the Zilla Parishad.
3. The First Information Report is lodged by one Shri Ram Pawar, who was Education Officer of Zilla Parishad for long duration before date of his lodging the F.I.R.
4. In the First Information Report, it is alleged by the complainant that :-
(a) The applicant is instrumental in tampering of the minutes pertaining to Resolution No.97 of the proceeding of the meeting of the Education Committee held on 19.11.2008.
(b) By said tampering, the name of educational institution namely Mahatma Phule Gramin Vikas Sevabhavi Sanstha, Sonawala, Taluka Jalkot, District Latur is inserted at Sr.No.8 in the list of the institutions in whose favour the sanction for opening further classes i.e. 5th to 7th was recorded in the minute book.::: Downloaded on - 09/06/2013 19:15:57 :::
Cri.Appln.No.879/2012 3
(c) In order to cover said tampering, the serial of item number appearing before the name of each school appearing later in sequence, have been overwritten.
(d) The overwriting in serial number is apparent and visible to naked eyes, due to the different ink used while doing said insertion and overwriting.
(e) Based on the said tampered resolution, the beneficiary Society was successful in opening additional classes for 5th to 7th Standards in its school.
(f) The tampering is done at the direction of the applicant.
In all 10 accused have been named therein which include the applicant and his Private Secretary, an employee of Zilla Parishad.
5. This First Information Report is challenged by the applicant herein in this criminal application, on following grounds :
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(a) The allegations are false and highly improbable.
(b) The falsehood of imputations is apparent in the background that applicant himself was instrumental in cancellation of the permission of 5th to 7th classes by the said school which was done in recent past.
(c) The sanction of staff pattern of those unauthorised classes of said school was in fact done by the same Education Officer - the complainant.
(d) Name of applicant's Personal Assistant who is an employee of Zilla Parishad has been added at the end of F.I.R. This addition is not in the sequence in the array/list of accused described in the body of F.I.R. Addition of said accused at Sr.No.10 may not be the complainant's plan at the time or moment when he reported/ scribed the original text of F.I.R. This shows hastiness or lack of due application of mind by the informant in the process of lodging the F.I.R.
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(e) The documents indicate that the complainant is the same Education Officer who had granted sanction to the strength of staff of the school in relation to which it is alleged that this applicant had favoured by tampering. The complainant accorded said staff strength sanction in spite of the fact that the Deputy Director of Education, Latur had revoked permission to said school about one month before said staff strength sanction.
(f) The complainant has chosen opportune time to lodge the complaint when the election to the Councillors of Zilla Parishad was due, and applicant was nominated to contest against a political heavy weight.
(g) Statement of witness Pampatwar, the Clerk, was recorded by the complainant a month before the date of lodgement of F.I.R., and this delay is not explained.
(h) The style in which addition of accused No.10 is done at last moment also suggests that an attempt is made by the complainant to deliberately ::: Downloaded on - 09/06/2013 19:15:57 ::: Cri.Appln.No.879/2012 6 involve the applicant and all those connected to him.
6. Learned Advocate for the applicant has relied upon following judgments :-
(1) 1992 AIR (SC) 604 (State of Haryana Vs. Bhajan Lal) (2) AIR 2003 SC 1069 (Ajay Mitra Vs. State of M.P. & ors.) (3) 2011 ALL MR (Cri.) 326 (S.C.) Manoj Mahavir Prasad Khaitan Vs. (Ram Gopal Poddar & anr.)
7. According to learned Advocate Mr. Salunke for the applicant, the F.I.R., subject matter, cannot be sustained by applying the yardstick of the tests laid down in the reported judgments and in particular case of State of Haryana Vs. Bhajan Lal (AIR 1992 SC 604), since namely:-
(a) Even on accepting the version or text contained in F.I.R. to be true, offence whatsoever is not even barely described.
(b) The contents of F.I.R., though considered without being controverted and the evidence relied in support is relied on upon its face value, ::: Downloaded on - 09/06/2013 19:15:57 ::: Cri.Appln.No.879/2012 7 commission of offence is not disclosed.
Therefore, investigation whatsoever is not necessary.
(c) F.I.R. is actuated with malafides as it is lodged at the opportune time of election to seat of Councillor and lodged knowing fully well that it is false.
8. Specific reliance is not placed on test No.7 contained in para No.108 of the judgment in Bhajan Lal's case (supra), during oral submissions by learned Advocate Mr. Salunke, and emphasis is given on test Nos.1 to 6. It is argued with utmost clarity that the act of lodgement of F.I.R. is actuated with political malafides since it is lodged at the opportune time when applicant had furnished the nomination for election to the seat of Councillor against a political heavy weight, though the statement of witness Mr. Pampatwar whose statement is used as chief source, was recorded a month before. Thus, by using the F.I.R. lodged by present respondent No.2, the applicant was arrested and he was kept outside the contest.
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9. The questions which arise for consideration while deciding this application are :-
(a) What is the compass of scrutiny and power of this Court while considering the challenges raised for seeking quashment of F.I.R. ?
(b) What is the gauging measure to test the applicant's version that the F.I.R. is actuated with vengeance and/or political malafides ?
(c) Would it be possible to accept the version of the applicant that though the tampering may have occurred, it has not occurred at the behest of the applicant ?
(c) Is it possible and permissible at this stage to hold that the applicant is in no way concerned with the tampering and that the allegations against him are totally false or wholly improbable.
About the stage of investigation
10. This Court had directed the investigating ::: Downloaded on - 09/06/2013 19:15:57 ::: Cri.Appln.No.879/2012 9 officer to keep all investigation papers available and ready for perusal of this Court. Those are kept ready and its photo copy is produced.
11. Learned A.P.P. has informed the Court that the investigation is completed; case against the applicant is made out for filing of charge sheet, and its filing has remained pending awaiting the sanction.
Revelations from investigation papers
12. We have perused the record annexed to the criminal application and the investigation papers tendered by investigating officer through learned A.P.P. A photo copy of the resolution allegedly tampered is on record. Statements of witnesses showing who has done the interpolation at the instance of accused-appellant are on record. Various other witnesses have stated before the investigating officer that the resolution approving proposal of the educational institution Mahatma Phule Gramin Vikas Sevabhavi Sanstha was not passed and its name is added in resolution No.97 by way of tampering.
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13. Insofar as the description contained in the F.I.R. is concerned, it is seen that the narration explicitly and duly describes :-
(a) That there is interpolation in Resolution No. 97,
(b) Witness has stated that it is done at the behest of the present applicant.
(c) The said inclusion or tampering, as done later on, is apparent to naked eyes.
(d) Witnesses have stated that in fact name appearing at Sr.No.97 in allegedly tampered resolution was not a part of resolution actually passed.
Crux of challenge
14. At this stage, in the background of the statements of witnesses recorded by the police, the applicant is persuading us to accept his version that the allegations against him are :-
(a) false,
(b) highly and/or grossly improbable; and;
(c) the complaint is actuated with malafides etc. ::: Downloaded on - 09/06/2013 19:15:57 ::: Cri.Appln.No.879/2012 11 Testing the submissions
15. The political malafides is a matter and question of fact. Applicant has narrated certain facts to suggest that the complainant Mr. Ram Pawar has acted as a pawn motored by applicant's political opponents -
heavy weight political figures in the Zilla Parishad politics.
16. At this stage, applicant wants this Court to trust and act upon supposition of his plea being gospel truth and to be relied upon without waiting to have it proved as a defence in a trial and in accordance with law.
17. Petitioner also expects that this Court should accept his plea that the version of the complainant is false or highly improbable, based on the story and the evidence relied upon by the applicant and the conduct of the complainant which is described in the application and annexures.
18. Today the stage of testing as to whether investigation should be permitted has already crossed.
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19. Now what is to be seen is whether in the background that certain evidence has come to the hands of investigating officer, should further legal course be stalled.
20. Decision on the point referred to in foregoing para shall depend on the finding as to whether untruthfulness of the imputations can be accepted at this stage barely by accepting applicant's plea and oath in this Court.
21. Though three cases are relied, it shall suffice to advert to the Bhajan Lal's case alone.
22. Bhajan Lal's case (supra) has been consistently followed and has a binding force as precedence.
23. This Court is bound to follow the judgment of the Hon'ble Supreme Court in Bhajan Lal's case (supra), in letter and spirit. It is vivid as to what Hon'ble ::: Downloaded on - 09/06/2013 19:15:57 ::: Cri.Appln.No.879/2012 13 Supreme Court has laid down in para 108 in Bhajan Lal's case (supra) as the tests or norms to be observed as yardsticks for testing whether and when F.I.R. needs to be quashed.
24. These tests laid down in Bhajan Lal's case are by now at the tip of tongue of lawyers, Judges and litigants too. However, for ready reference it is considered necessary to quote those as below :-
"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable ::: Downloaded on - 09/06/2013 19:15:57 ::: Cri.Appln.No.879/2012 14 offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
25. The norms laid down in Item Nos.1 to 6 are capable of objective application. The scrutiny of any case for quashing on test No.1 to 6 is to be done by matching the facts to the tests/ norms.
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26. The test or norm at Item No.7 requires this Court to apply its discretion and exercise its jurisdiction with the optimal care and caution, since it relates to perception and cognizance by this Court as regards the state of the mind of the informant.
State of mind is a fact. It has to be proved from the previous and contemporary conduct. In the process of challenge unless the facts proving state of mind are undeniable or admitted and indisputable, still it will be a difficult amongst most difficult tasks to accept such grounds as foundation to rely or proceed on supposition of those as if proved and quash a F.I.R./ Charge/ complaint.
27. Therefore, the person who challenges the F.I.R./ Charge/ complaint make out facts which are undisputedle to demonstrate the malice, and the ulterior motive and attempt to wreak vengeance due to personal grudge, manifestly attended with malafide.
The word "manifestly" appearing in norm/ test No.7 is eloquent. It means no external need for explanation or truth should be required. If such external aid is necessary, the property or characteristic of the ground being "manifest", extinguishes.
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28. Any error or slightest slip in the judgment on the point as to whether the F.I.R./ Charge/ Complaint is manifestly attended due to these vitiating factor shall lead to closing the doors of access to the complainant to the criminal law and justice. Any such error of judgment would then become liable to suffer from the blame of being guided by subjectivity.
29. In order to make the application of test No.7 objectively dominated, the petitioner has to make out a case which is gross and ex facie undeniable as if an admitted fact to be shown and to be acted upon as an admitted fact. If a case of this prescription is not made out, blind observance of test No.7 does not seem to be possible as a comfortable walk on a beaten path.
30. By applying the said yardstick/ test No.7 laid down by the Hon'ble Apex Court in Bhajan Lal's case, the case has to be made out or has to surface as gross case and the description of that the ground vitiating F.I.R./ Charge/ Complaint has to be on its face based on indisputable factual grounds.
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31. Malafides as urged in present case, are too vague to be regarded as indisputable, and need to be proved in the trial.
32. In the present case, it is also urged that the text of description of offence contained in F.I.R.
does not describe the offence. This challenge is a bare bald contention as can be seen and is analysed and recorded in foregoing para No.13.
33. Crux of offence is tampering. Tampering at the behest of the applicant is eloquently described in the F.I.R. The denial thereof is exaggerated, excessively magnified and is unreal.
34. Next point of objection is that the imputations are false and are highly improbable.
35. Calling the version contained in F.I.R. to be highly improbable is a cosmetised challenge founded on allegation about lack of truthfulness of imputations differently garbed.
36. What the applicant is doing is setting up ::: Downloaded on - 09/06/2013 19:15:57 ::: Cri.Appln.No.879/2012 18 defences in finely articulated manner and in a very sophisticated language. What has to be considered is the spirit and substance and not the ingenuity and cosmetic part thereof.
37. It is seen that, the investigating officer has collected evidence during investigation which consists of statements of witnesses. Said evidence is adequate enough to substantiate trial of accusations against present applicant and has filed the final report/ Challan. The applicant denies truthfulness of the evidence gathered by the investigating officer.
38. Considering the pleadings and submissions, applicant's case as it emerges before us is, the F.I.R.
and charge sheet/ Challan filed by policedescribes commission of offence by the accused persons.
39. The forum and venue for scrutiny of worthiness of F.I.R. and material collected during investigation as untrue and improbable is the trial Court. Its process is by weighing the defence and not in this Court by barely raising a dispute thereof by the accused.
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40. Questions framed by us in para 9 are, therefore, liable to be answered against applicant.
Applicant's plea in support of challenge are meritless.
A clamour against the accusation does not constitute a ground to have investigation and trial dispensed.
41. The precedent in Bhajan Lal's case (supra) is cited more in abuse in order to take the time of Court, than use it as a precedent on points actually emerging and bound to be duly followed. Rights of citizens are precious. Time of Court too is equally precious. One has to exert to strike the balance while doing justice.
Hence these expressions.
42. Therefore, we hold that though the case is argued extensively and with urge, the submissions do not have strong foundation to entitle a writ of certiorari.
43. Hence, we discharge the Rule.
[ U.D. SALVI, J.] [ A.H. JOSHI, J.] ::: Downloaded on - 09/06/2013 19:15:57 :::