1 jg.apl.256.17.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 256 OF 2017
Wasudeo Pundlik Bhagat,
aged about 52 years, Occ. Service,
R/o. Shivaji nagar, Kata Road,
Washim, Tq. And Distt. Washim. ... Applicant
VERSUS
(1) State of Maharashtra, through
its Police Station Officer,
Police Station Washim (Rural),
Tq., and Distt. Washim.
(2) Pandurang Dnyanba Bhalerao,
aged about 64 years,
Occ. Agriculturist,
R/o. Tandali Shewai, Washim,
Tq. And Distt. Washim. ... non-applicants
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Shri R. S. Kurekar, Advocate for the applicant
Shri A. M. Deshpande, APP for the State/non-applicant no. 1
Shri S. D. Tatke, Advocate for the non-applicant no. 2
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CORAM : SMT VASANTI A NAIK AND
M. G. GIRATKAR, JJ.
DATE : 23/08/2017.
Judgment (Per : M.G. Giratkar, J) Heard finally with the consent of the learned counsel appearing for the parties.
Rule. Rule made returnable forthwith.
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2 jg.apl.256.17.odt The applicant prayed to quash and set aside FIR No. 71/2017 registered for the offences punishable under Sections 420, 166, 467, 471 read with Section 34 of the Indian Penal Code by Police Station, Washim(Rural), District Washim.
It is submitted that the applicant is a Gram Sewak. He is a public servant. His whole service record is clean and unblemished. The non- applicant no. 2 filed Miscellaneous Criminal Case No. 242/2016 before the 3 rd Joint Civil Judge Junior Division and Judicial Magistrate First Class, Washim. On 27-2-2017, the Judicial Magistrate First Class, Washim directed the non- applicant no. 1, Police Station Officer, Washim(Rural) to investigate the matter regarding the alleged illegalities/offence.
The non-applicant no. 1, Police Station Officer, Washim(Rural) straightway registered Crime No. 71/2017 for the offences punishable under Sections 420, 166, 467, 471 read with Section 34 of the Indian Penal Code.
It is submitted that the non-applicant no. 2 lodged the report alleging that the applicant taken illegal entries in the record of rights of Gram Panchayat, Tandali Shewai, Tahsil and District Washim in respect of house property. It is submitted that Gram Panchayat, Tandali Shewai passed resolution in the meeting for taking entries in the record of rights to which the present applicant raised an objection. But without considering the objection of the applicant, resolution was passed by the Gram Panchayat. ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:56:15 :::
3 jg.apl.256.17.odt It is submitted that the applicant is in no way concerned with the alleged illegalities and the FIR is lodged only to harass the applicant. At last, it is prayed to quash and set aside the impugned order.
The application is opposed by the non-applicant no. 1. Shri Kurekar, learned counsel for the applicant has submitted that order passed by the learned Judicial Magistrate First Class, Washim dated 27-2-2017 is perfectly illegal. He pointed out us proceeding books of Gram Panchayat, Tandali Shewai and submitted that the applicant specifically raised objection in respect of the resolution, but the Gram Panchayat passed the resolution to take entry in the record of rights of Gram Panchayat by deleting name of the non-applicant no. 2.
Shri Kurekar, learned counsel has submitted that the applicant has not committed any offence. As per his duty, he had pointed out to the Gram Panchayat stating that such type of resolution cannot be passed to take entry in record of rights of Gram Panchayat. He has submitted that as per Section 156 of Code of Criminal Procedure, Magistrate can direct investigation. The non-applicant no. 1 ought to have investigated and reported the matter to the Court instead of registering of crime against the applicant.
Learned counsel for the applicant submitted that Judicial Magistrate First Class has not applied his mind before passing the order for ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:56:15 ::: 4 jg.apl.256.17.odt investigation as per Section 156(3) of Code of Criminal Procedure. Shri Kurekar, learned counsel has pointed out us judgment in the case of State of Maharashtra Vs. Shashikant S/o Eknath Shinde reported in 2013 (5) ABR 86. Learned counsel at last submitted that the order of Judicial Magistrate First Class, Washim is illegal and liable to be quashed and set aside.
Shri Deshpande, learned Additional Public Prosecutor for the non-applicant no. 1 submitted that Police Station Officer, Washim(Rural) had not committed any wrong. Police Station Officer, Washim(Rural) registered the crime as per the directions of the Court. Hence, criminal application is liable to be dismissed.
Shri Tatke, learned counsel for the non-applicant no. 2 has supported the action taken by the non-applicant no. 1.
This Court has held in the case of State of Maharashtra Vs. Shashikant S/o Eknath Shinde (cited supra) that before passing any order under Section 156(3) of the Code of Criminal Procedure, it is the duty of the Magistrate to apply his mind. After satisfaction that there is a prima facie case, then only Judicial Magistrate First Class can pass order under Section 156(3) of the Code of Criminal Procedure.
After the judgment of Shashikant Shinde, now there is amendment to Section 156(3) of Code of Criminal Procedure. Government of ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:56:15 ::: 5 jg.apl.256.17.odt Maharashtra vide Act no. 33 of 2016 added proviso to Section 156(3) which reads as under :
"Provided that, no Magistrate shall order an investigation under this section against a person who is or was a public servant as defined under any other law for the time being in force, in respect of the act done by such public servant while acting or purporting to act in the discharge of his official duties, except with the previous sanction under section 197 of the Code of Criminal Procedure, 1973 (2 of 1974) or under any law for the time being in force.
Provided further that,......"
The amendment to Section 156(3) of Code of Criminal Procedure by adding proviso came into force on 30-8-2016.
Learned Judicial Magistrate First Class, Washim is not aware about the recent law, therefore, by ignoring the amended provisions to Section 156(3), passed illegal order on 27-2-2017.
There is no dispute that the applicant is a Government servant working as a Secretary of the Gram Panchayat. From the perusal of the documents i.e. proceedings of Gram Panchayat itself show that the applicant had raised objection about the resolution passed by the Gram Panchayat, but his objection was not taken into consideration by the Members of the Gram Panchayat. Therefore, it cannot be said that the applicant has committed any offence by taking entry in the name Sitaram Govinda Bhalerao. It is the contention of the non-applicant no. 2 that names of all the legal heirs are not entered in the record of rights of Gram Panchayat. It is pertinent to note that ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:56:15 ::: 6 jg.apl.256.17.odt from perusal of the affidavit executed by Govinda Bhagwan Bhalerao, it is clear that he was owner of ancestral property and he has stated in his affidavit that his house property be recorded in the name of his son, Sitaram Govinda Bhalerao.
It appears that the dispute in respect of property appears to be a civil dispute. Moreover, the applicant not taken any interest to record the name of Sitaram Bhalerao only. On the other hand, it appears that the applicant raised objection in respect of the resolution passed by the Gram Panchayat. Therefore, there was no any intention on the part of the applicant to commit any offence. Learned Judicial Magistrate First Class, Washim without taking into consideration all these aspects passed the illegal order.
Learned Judicial Magistrate First Class, Washim ought not to have passed such type of order in view of the amended provisions of Section 156(3) of the Code of Criminal Procedure. The said amendment came into force from 30-8-2016. The impugned order passed by the learned Judicial Magistrate First Class is dated 27-2-2017.
Prima facie, it is clear that the non-applicant no. 1 registered the crime on the basis of order passed by Judicial Magistrate First Class, Washim dated 27-2-2017. The order of Judicial Magistrate First Class, Washim itself is without any application of mind and in contravention of Section 156(3) of the Code of Criminal Procedure. Hence, the impugned order of Judicial ::: Uploaded on - 29/08/2017 ::: Downloaded on - 30/08/2017 00:56:15 ::: 7 jg.apl.256.17.odt Magistrate First Class, Washim itself if liable to be quashed and set aside in view of judgment of State of Maharashtra Vs. Shashikant S/o Eknath Shinde and in view of proviso to Section 156(3) of the Code of Criminal Procedure.
Prima facie, it appears that the applicant has not committed any crime. Therefore, FIR No. 71/2017 registered by Police Station, Washim(Rural), District Washim for the offences punishable under Sections 420, 166, 467, 471 read with Section 34 of the Indian Penal Code is liable to be quashed and set aside.
Hence, we allow the criminal application in terms of prayer clause (i) and quash and set aside FIR No. 71/2017 registered against the applicant by Police Station, Washim(Rural), District Washim for the offences punishable under Sections 420, 166, 467, 471 read with Section 34 of the Indian Penal Code.
JUDGE JUDGE
wasnik
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