4121.16appln
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4121 OF 2016
1. Chandrashekar S/o Tukaram Salunke
Age : 44 years, Occ : Service as Jr. Clerk,
R/o Dy. Superintendent of Land Record,
Dharangaon, Tq. Dharangaon, Dist. Jalgaon.
2. Smt. Pratibha W/o Arvind Kshirsagar,
Age : 60 years, Occ : Retired,
(Dy. Superintendent of Land Record)
R/o Ramandand Nagar, Jalgaon,
Dist. Jalgaon.
..APPLICANTS
VERSUS
1. The State of Maharashtra
Through The Police Inspector,
Dharangaon Police Station,
Dharangaon, Dist. Jalgaon.
2. Shailesh S/o Ramesh Jaju
Age : 48 years, Occ : Agri.,
R/o Near Railway Station,
At Post. Dharangaon,
Tq. Dharangaon, Dist. Jalgaon.
..RESPONDENTS
...
Advocate for applicants : Mr.Amol S. Sawant
APP for Respondent/State : Mr. S.P. Deshmukh
Advocate for respondent no.2 : Mr. N.E. Deshmukh
....
CORAM : S.S. SHINDE &
K.K. SONAWANE, JJ.
DATE : 24th April, 2017
JUDGMENT (PER S.S. SHINDE, J)
Heard.
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2. The learned counsel appearing for the applicants submits that, applicant no.1 is presently working on the post of junior clerk with the office of Deputy Superintendent of Land Records, Dharangaon. Applicant no.2, who is now retired due to superannuation, was working on the post of Deputy Superintendent of Land Record, Dharangaon. He submits that the complaint is filed and entertained at the instance of respondent no.2, without getting necessary sanction to prosecute the applicants, who are the public servants. He submits that, in view of the exposition of law by the Supreme Court in the cases of Anil Kumar and others V/s M.K. Aiyappa and another1 and Amal Kumar Jha V/s State of Chhattisgarh and another2 before the complaint is entertained against the public servants previous sanction to prosecute them is necessary. He invites our 1 (2013) 10 SCC 705 2 (2016) 6 SCC 734 ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 ::: 4121.16appln 3 attention to Section 21 of the Indian Penal Code and also section 197 of the Code of Criminal Procedure. He further submits that, even if the allegations in the first information report are taken at its face value and read in its entirety, an alleged offences are not disclosed. Therefore, he submits that, the first information report deserves to be quashed.
3. On the other hand, the learned counsel appearing for respondent no.2 invites our attention to the allegations in the first information report and submits that, those allegations would clearly disclose an alleged offences. He submits that, when there are allegations of cheating and also forging and fabrication of the documents, in that case, the sanction is not necessary. The said acts cannot be said to be in discharge of official duty. In support of the aforesaid contentions, he invites our attention to the ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 ::: 4121.16appln 4 exposition of law by the Supreme Court in the case of P.K. Pradhan V/s State of Sikkim represented by the Central Bureau of Investigation3. He submits that, in the present case, an allegations made against the applicants of preparation of forged and fabricated record/documents could not fall in discharge of their official duties, and therefore, the sanction is not necessary. He submits that, the judgment of the Supreme Court in the case of Anil Kumar (Supra) is in relation to the provisions of Prevention of Corruption Act, 1988, wherein there is a specific provision to take sanction before prosecution is launched against the public servent. He submits that, the Supreme Court in the case of P.K. Pradhan (supra) has taken a view that, even during the trial, the question of requirement of sanction for prosecution can be raised at any time after 3 (2001) 6 SCC 704 ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 ::: 4121.16appln 5 cognizance of the offence is taken, may be even at the time of conclusion of trial or after conviction.
4. The learned A.P.P. appearing for the respondent/State invites our attention to the investigation papers and also an allegations in the first information report and submits that, an ingredients of the alleged offences have been attracted and the alleged offences under sections 167, 192, 193, 205, 420, 464, 465, 466, 468, 471, 474 read with section 34 of the Indian Penal Code are constituted, and therefore, further investigation is necessary. Therefore, he prays that, the application may be rejected.
5. We have given anxious consideration to the submissions of the learned counsel appearing for the applicants, learned A.P.P. appearing for respondent/State and the learned counsel appearing for respondent ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 ::: 4121.16appln 6 no.2. With their able assistance, we have perused the pleadings in the application, annextures thereto and the investigation papers made available for perusal.
6. At the outset, it would be apt to reproduce hereinbelow the relevant part of the first information report, which would clearly disclose an alleged offences :-
"v'kk fjrhus vkjksih ua- 1 o 2 ;kauh laxuerkus dk;kZy;hu drZO;iwrhZ u djrk lu 1932 e/;s M i=dkrhy uksan dz-2661 fnukad [email protected]@32 losZ ua- [email protected] P;k >kysY;k cnykuarj ekst.kh rkjh[k Eg.kts [email protected]@13 Ik;Zar dks.krkgh cny >kysyk ulrkauk ekst.kh djrkauk ewG udk'kkP;k vkdkj o n'kZfoysY;k {ks=QGkizek.ks ekst.kh u djrk [email protected] mrk&;kojhy {ks=QGk'kh esG clfo.;kps gsrwus fQ;kZnhP;k lkek;hd xVkrwu xsysyk jLrk x-ua-547 e/;s n'kZowu vfedze.k d:u {ks=kpk o udk'kkpk <kpk o vkdkjp cnyowu Vkdyk T;k ckcr vkjksihauk dks.krkgh gDd o vf/kdkj ulrkauk [kksVs nLr,sot udk'kk o 'kklfd; vfHkys[k r;kj d:u fQ;kZnhph tkxk o {ks=QG vuf/kd`r o csdk;ns'khj fjR;k rkC;kr o dCtkr vlY;kpk csdk;ns'khj vfHkys[k r;kj dsyk o ekst.kh f'kV ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 ::: 4121.16appln 7 ¼udk'kk½ pwdhpk o csdk;ns'khj cuowu 'kklukph lq/nk Qlo.kwd dsyh T;k ckcr izLrwr 'ksr feGdrhps izdj.kkr Hkfo";kr fcu'ksrh ijokuk ns.;kr vkY;kl ftYgkf/kdkjh tGxkao ;kaph lq/nk Qlo.kwd dj.;kpk n[kyik= xqUgk o vijk/k dsY;keqGs fQ;kZnhl vkjksih fo:/n lnjhy [kktxh [kVyk nk[ky djkok ykxr vkgs-"
7. Upon careful reading of the allegations in the first information report, and more particularly, the aforesaid allegations, it cannot be said that, the acts which are alleged of preparation of false documents and forging government record is a part of official duty of the applicants. As held by the Supreme Court in the case of P.K. Pradhan (supra) even during the trial, the question of requirement of sanction for prosecution can be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or after conviction. The Hon'ble Supreme Court has consistently taken a view that, no doubt, ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 ::: 4121.16appln 8 under Section 482 of the Code of Criminal Procedure, the High Court has inherent power to quash the criminal proceedings in an appropriate cases, even in those cases which are not compoundable. However, this power is to be exercised sparingly and with caution. The Bombay High Court bench at Aurangabad in unreported judgment in the case Alka Udhav Khaire and others V/s State of Maharashtra and another in Criminal Application No.4878 of 2016 decided on 17th April, 2017, while considering the similar facts situation, did frame two questions. The question no.1 is in relation to take the prior sanction before the prosecution of public service, which is reproduced hereinbelow :-
"[1] Whether prior sanction in terms of Section 197 of Cr.P.C. is essential to prosecute the applicants, who are admittedly the public servants, as envisaged under Section 21 of the IPC ?"::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 :::
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8. While examining the said issue, after adhering to the judgments in the cases of Shambhunath Vs. State of Uttar Pradesh 4, Rajib Ranjan and others Vs. R. Vijay Kumar5, Punjab State Warehousing corporation Vs. Bhushan Chander and others6 and Prakash Singh Badal Vs. State of Punjab7 has taken a view that, the issue of prosecution sanction can also be dealt with and considered by the concerned trial court even after completion of investigation and filing of charge sheet by the Investigating Officer against the applicants into the matter and at the stage of prayer for quashing the first information report, it is not appropriate to quash the entire proceedings for want of prosecution sanction.
9. In that view of the matter, keeping 4 (1997) 5 SCC 326 5 (2015) 1 SCC 513 6 (2016) 13 SCC 44 7 (2007) 1 SCC 1 ::: Uploaded on - 03/05/2017 ::: Downloaded on - 28/08/2017 00:35:50 ::: 4121.16appln 10 in view the discussion in the judgment in the case of Alka Udhav Khaire (supra), in paragraphs nos. 9 to 16, we are not inclined to entertain this application. Hence the application stands rejected. An observations made hereinbefore are, prima facie, in nature and confined to the adjudication of present application only. This order will not preclude the applicants from availing of the appropriate remedy by filing application for discharge before the concerned Court in the event of filing the charge-sheet by the Investigating Officer.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.) ...
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