Sudhakar vs State Of Maharashtra, R.B. Korde, ...
2002 Latest Caselaw 44 Bom

JUDGMENT

1. The petitioner, Mr. Sudhakar Shankarrao Suradkar, Special Inspector General of Police, Aurangabad Range, Aurangabad, has moved this writ petition against the four respondents, including respondent No. 3, Mr. U. D. Joshi, Special Inspector General of Police, S.C.R.B., C.I.D. (Crime), M.S., Pune, which is styled as under Articles 14, 21, 215 and 227 of the Constitution of India and Section 397 read with 401 and 482 of the Criminal Procedure Code, but necessarily aimed against the impugned order dated 10th April 2001 passed by the Judicial Magistrate, First Class, (A.C.) Court, Pune, wherein he accepted the report filed by Investigating Officer Mr. R. B. Korde, Additional Superintendent of Police, C.I.D. (Crime), M.S., Pune under Section 3(1)(viii) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the said Special Act), and granted the request for sanction of C Summary in respect of the complaint filed by the petitioner under the said Special Act against respondent No. 3. It may also be noted that initially the petitioner had made the Additional Public Prosecutor and Legal Advisor, C.I.D. (Crime), M.S., Pune as well as the Judicial Magistrate, First Class, (A.C) Court, Pune, who has passed the impugned order as parties to the proceeding, however, subsequently pending this petition, the petitioner did not press the petition against the said respondents and their names came to be deleted by the order of this Court dated 23rd July

It may also be pointed out that the petitioner has made as many as 10 different prayers in this petition, including request for proceeding against certain authorities for contempt of Court and issuance of directions to the Additional Director General of Police, etc., however, I must note at this juncture itself that the tenor of the petition clearly shows that the real grievance of the petitioner is in respect of the order passed by the Judicial Magistrate, First Class, (A.C.) Court, Pune, dated 10th April 2001 granting C Summary in his complaint, and request for expunging certain observations made by the learned Judicial Magistrate, First Class (A.C.) Court, Pune, in the impugned order.

2. The facts giving rise to the petition, in brief, are thus :-

One Asif Patel of Kashimira in April 1991 filed cross a complaint against one Hitendra Thakur and both the cross complaints were registered as C.R.Nos. 43 and 44 of 1991. When these offences were registered the provisions of TADA were applied to the said Asif Patel and other co-accused in C.R.No. 43 of 1991, respondent No. 3 was not the D.G.I., Konkan Range. Members of the gang of the said Asif Patel in the said crime had filed various different writ petitions before the High Court for quashing aside the prosecution under the provisions of TADA. In one of the earliest writ petition (No. 598 of 1991 and 731 of 1991) decided by the Division Bench of this Court, and which were filed by some of the co-accused other than the said Asif Patel, the petition was allowed and the prosecution under TADA against the petitioner in that petition was quashed. However, subsequently two other writ petitions (886 of 1991 and 237 of 1992) came to be decided on 26th August 1991 and 26th February 1992, in which other gang members of the said Asif Patel had challenged the invocation of the provisions of TADA came to be dismissed on merits even after referring to the earlier orders passed by the Division Bench of this Court. These judgments dismissing the petitions were not further challenged and they became the final and conclusive.

Respondent No. 3 took over charge of the D.I.G., Konkan Range on 19th December 1991 and in his official capacity accorded sanction under Section 20-A of TADA for filing a charge-sheet in C.R.No. 43 of 1991 against the said Asif Patel and other co-accused in the crime. On this background the present petitioner, who by the month of June 1993, had taken over as the Deputy Inspector General of Police filed an affidavit before the Designated Court on 25th November 1993 in Special Case No. 5 of 1991 filed by Asif Patel stating that the provisions of TADA could not be invoked against the said Asif Patel and other accused and the trial be transferred to the Regular Court of Sessions under Section 18 of TADA. On the background of these facts, respondent No. 3 on 24th February 1994 filed an application for the detailed reasons stated therein drawing the attention of the Designated Court that in the affidavit of the present petitioner Suradkar, he had suppressed a very material and significant fact of the two writ petitions being dismissed by the High Court raising a challenge to the applicability of the provisions of TADA in respect of the case registered against Asif Patel and other co-accused in that case.

The said application (Criminal Misc. Application No. 20 of 1994) in Special Case No. 5 of 1992 was filed much before the order of the High Court dated 16th February 1995 by which the High Court had dismissed the application of one Dashrath Kotkar, a police officer against whom steps were being taken relying on the said order, the Designated Court by order dated 30th August 1996 rejected the application filed by respondent No. 3 with order to the effect that the applicant was absent since long. However the matter was pertaining to Contempt of Court and, therefore, it was being decided on merits of the case itself. It may also be noted that the application of respondent No. 3 (Criminal Misc. Application No. 20 of 1994) was lodged much before Writ Petition No. 1270 of 1994 was filed. It is seen from the record that subsequent to the order of the High Court dated 16th February 1995 in the said writ petition, respondent No. 3 did not prosecute the said application and was absent on the day the order was passed by the Designated Court.

On the background of these facts the present petitioner filed his F.I.R. dated 14th September 1996 against respondent No. 3 alleging that that he had instituted false, vexatious and malicious legal proceeding before TADA Court, Pune, which was Criminal Misc. Application No. 20 of 1994. It was further alleged that it was decided on 30th August 1996 by TADA Court and it was rejected and, therefore, respondent No. 3 had committed the offence punishable under Section 3(1)(viii) of the said Special Act. On the basis of this complaint C.R.No. 322 of 1996 was registered and investigation was conducted under the relevant law and after due investigation A Summary was recommended. However, it was challenged in the Court of law and by order dated 16th October 1998 recommendation regarding grant of A Summary report submitted by Deccan Gymkhana Police Station, Pune in C.R.No. 322 of 1996 was rejected and report was returned for further investigation and taking proper recourse and steps according to law in view of the observations made in the order passed by the learned Additional Sessions Judge, Pune.

Thereupon respondent No. 4 conducted the investigation and came to the conclusion that it was a fit case to recommend C Summary and accordingly made request dated 22nd November 1999 to the Court of law. In the said proceeding, the learned Judicial Magistrate, First Class (A.C.) Court, Pune heard the State as well as the complainant (present petitioner) exhaustively and came to the conclusion that recommendation for C Summary was justified in law and accordingly the report was accepted and C Summary was sanctioned by order dated 10th April 2001. Hence, the present petition.

3. I have heard the petitioner in person as well as the learned Counsel for respondent No. 3 and other respondents, including the State.

At the outset, I must note that the petitioner has tried to make out a mountain out of the issue involved, however, he has utterly failed in supporting his allegations on legal aspects as well as facts involved. He has also failed to make out even a prima-facie case under the provisions of the said Special Act and thereby justifying his challenge to the impugned order passed by the Judicial Magistrate, First Class (A.C.) Court, Pune.

Admittedly, the petitioner Suradkar is a member of the Scheduled Caste. Admittedly, again respondent No. 3 Joshi is not a member of the Scheduled Caste or Tribe. Section 3(1)(viii) of the said Special Act contemplates that "Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe - shall be punishable under the said law." Therefore, the small but subtle question which arises for my consideration in this case is whether the filing of an application (Criminal Misc. Application No. 20 of 1994) in Special Case No. 5 of 1992, on 24th February 1994, by respondent No. 3 for taking action against the petitioner, Mr. Suradkar amounted to institution of a false, malicious or vexatious legal proceeding. In order to appreciate this aspect in proper perspective, we need to refer to certain factual aspects.

Two writ petitions namely No. 598 of 1998 and 731 of 1991 filed by gangsters involved in C.R.No. 431 of 1991 were considered and allowed and consequently their prosecution under TADA in that petition was quashed. However, subsequent two writ petitions before this Court namely 886 of 1991 and 237 of 1992 which were decided on 26th August 1991 and on 26rtrh February 1992 were dismissed on merits even after reference was made to the earlier order passed by the Division Bench of this Court. In the order on Writ Petition No. 886 of 1991 the Division Bench of this Court has observed thus :-

"In support of this writ petition great reliance is place on judgment of the Division

of 1991 with Writ Petition No. 731 of 1991. However, the said judgments are based on concession by the learned Additional Public Prosecutor. It has been pointed out in this case that TADA Act will be very much attracted so far as the present petitioners are concerned......"

Therefore, it is apparent that earlier two writ petitions were allowed merely on concession given by the then Public Prosecutor and on that basis the application of TADA was set aside. However, in subsequent two writ petitions, it was held that provisions of TADA were very much attracted the cases and, therefore, those provisions sere applicable to the impugned cases.

4. In spite of this aspect, it is a fact that the petitioner Mr. Suradkar, after he took over the charge of his office, in his affidavit did not refer to those two decisions of the High Court, but referred only to the one which was not with regard to the alleged gangster Asif Patel. Therefore, it is obvious, what respondent No. 3 has done by his application dated 24th February 1994 to the TADA Court is to bring this basic fact to the notice of the Designated Court. Moreover, it is also pertinent to note that after the order of the High Court dated 16th February 1995, he did not pursue the proceeding sought to be initiated by him. Mr. Mundargi, the learned Counsel for respondent No. 3 urged that respondent No. 3 bonafide and honestly felt that all material facts should be disclosed to the Court before the decision on the issue was taken. In my considered view, this argument has considerable force, especially if the facts and documents are taken into account.

5. It was further urged on behalf of respondent No. 3 that when the petitioner, Mr. Suradkar made affidavit before the Designated Court, he did not mention the order of subsequent two writ petitions deliberately and thereby suppressed the material facts from the Court and hence it amounted to misleading the Court. This argument was sought to be countered by Mr. Suradkar with submission that failure to mention the said act cannot amount to suppression. It was also urged by him that the affidavit in question was drafted by a prosecutor and hence it was not his fault at all. I prefer to disagree with this submission. The petitioner is a top ranking police officer of the State and just cannot hide behind the lame excuse that the affidavit in question was drafted by a prosecutor, who might have skipped the vital fact. It cannot be overlooked that Mr. Suradkar was fully aware of the fact that he was making affidavit before the Court of law making submission which would affect the course of justice in relation to an alleged gangster, and in fact it so happened that on the basis of his affidavit the provision of TADA was not made applicable to the case. As pointed out on behalf of respondent No. 3, one cannot speculate what would have happened to that particular case if all the material facts, including the order of the Division Bench of this Court in earlier two writ petitions, was brought to the notice of TADA Court at the right time by Mr. Suradkar. It was further pointed out on behalf of respondent No. 3 that the real test in order to invoke the provisions of Section 3(1)(viii) of the said Special Act, would be akin to the test required to be satisfied for founding a proceeding for malicious prosecution. It is needless to state that four cumulative tests have to be satisfied for basing a cause of action for malicious prosecution namely (i) the proceeding must have been instituted and continued by the defendant, (ii) the said proceeding should have been terminated in favour of the plaintiff, (iv) the accused must have acted without reasonable and probable cause, and (iv) the proceedings were instituted by him maliciously. Therefore, considering the admitted basic facts on the touch stone of the said four criteria and even one is absent, the proceeding under Section 3(1)(viii) of the said Special Act cannot lie. It was further urged that even if the proceedings are malicious, but have been instituted for reasonable and probable cause still no offence is made out. I find considerable substance in this submission. The respondent in this case was not supposed or required to believe that Mr. Suradkar was guilty of contempt, it being enough for him that there was reasonable and probable cause for making the application to the TADA Court bringing to its notice the material facts. As noted earlier, Mr. Suradkar admittedly did not refer to the two judgments of the Division Bench of the High Court which were vital to the issue involved which in the honest opinion of respondent No.3 had a direct impact on the issue. The question being in the province of serious debate it could never be said that the application moved by respondent No. 3 could not have been moved by any reasonable person.

Mr. Mundargi, the learned Counsel for respondent No. 3 further urged as to whether on the admitted facts it could be said that the application was moved by respondent No. 3 for wrongful motive namely maliciously. The clear position in law is malice and absence of reasonable and probable cause must unite in order to produce a liability either criminal or civil. I agree with this proposition. It is well settled law that so long as legal process is bonafide and honestly used for its proper purpose mere negligence or error of judgment or want of sound judgment in the use of it creates no liability whatsoever. Conversely, if admittedly there are reasonable grounds for instituting a proceeding, no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability. Therefore, it is necessary to bear in mind a clear legal distinction between honesty of belief and honesty of motive, the former is relevant to the question of reasonable or probable cause, the latter to the question of malice. If the matter was so oversimplified as contemplated by the present petitioner every acquitted accused for whatever reason can sue the police officer and the State for prosecuting him. It is pertinent to note that the ` Court order dated 30th August 1996 does not show that the application of respondent No. 3 was either false, vexatious of malicious nor does it state that respondent No.3 had no ground or basis to file it. In view of this position, I am of the view that in the instant case no prima-facie grounds exist to proceed under the provision of Section 3(1)(viii) of the said Special Act.

The perusal of the impugned order shows that it is exhaustively based upon admitted as well as evident facts. It is also found to be just, legal and proper and, therefore, the view taken by the learned Judicial Magistrate, First Class (A.C.) Court, Pune while accepting C Summary report in the present case cannot be interfered with and thus it has to be confirmed.

6. This aspect takes us to another prayer made by the petitioner in order to expunge the observation made by the learned Judicial Magistrate in the course of his impugned order. It reads thus :

"Therefore in my opinion submission of complainant is not trustworthy".

Mr. Suradkar took exception to the term "trustworthy" with submission that it reflected on his integrity.

On perusal of the contents of para 30 of the impugned order, wherein this observation is made, it is seen that it is made while making comments on the arguments advanced by the petitioner that he had filed his affidavit which was drafted by Government Pleader. In other words, the petitioner wanted to submit that he was not aware of the submission made in his affidavit which was drafted by the Government Pleader, which aspect is not accepted by the learned Judicial Magistrate. In this regard I would like to note that instead of term "trustworthy", the proper term could have been used as "acceptable". In other words, the submission of the complainant therein was not acceptable to the Judicial Magistrate. Hence, I hold that the said observation made by the Judicial Magistrate with special reference to the term "trustworthy" is expunged from the impugned order.

Remaining prayers made by the petitioner are mainly pertaining to the request for action under the Contempt of Court Act. Admittedly, he has not moved the Court specifically for that purpose at the relevant time, but has thought it fit to make this petition multifarious in that regard. Moreover, I do not find any element of contempt committed either by respondent No. 3 or any other authorities as alleged on the basis of material which is put forth in this petition and, therefore, I hold that the said other prayers also deserve to be rejected.

7. Before parting, I must observe that facts and circumstances which have surfaced on record in this petition have shown that both the contesting parties herein, who are top ranking police officers of the State, namely, Special Inspectors General of Police, are at loggerheads for years together which is not at all a happy state of affairs, nor litigation of such type between them is very happy example to their subordinates as it definitely sends wrong signal in the rank and file of the police machinery of the State.

8. Hence, the writ petition stands dismissed. The order of the Judicial Magistrate, First Class (A.C.) Court, Pune, dated 10th April 2001 approving the recommendation of C Summary and the complaint filed by the petitioner is hereby confirmed.

The observations/strictures in para 30 of the impugned order to the effect "the submission of the complainant is not trustworthy" is hereby expunged.