Ulhas Diwakar Joshi, ... vs State Of Maharashtra And Nafiz ...
2003 Latest Caselaw 336 Bom

JUDGMENT

J.G. Chitre, J.

1. This criminal writ petition pertains to the year 1998 and it has been listed on the Board for final hearing. Therefore, this writ petition is being heard and decided today inspite of the absence of respondent No. 2 or his lawyer. Shri Saste, Additional Public Prosecutor is present to safeguard the interest of respondent No. 2 as he appears for the prosecution.

2. The petitioner is assailing the correctness, propriety and legality of the order passed by the Chief Judicial Magistrate, Thane dated 29.3.1995 in context with Criminal Case No. 234/95. The order which is under challenge can be mentioned as mentioned hereinunder:

"Heard complainant and Devnani Advocate. Perused verification and Issue show cause notice why accused should not be to answer to the allegation as accused."

3. The respondent No. 2 presented a complaint before the Chief Judicial Magistrate, Thane alleging that the present petitioner and two others, namely, Shri D.K. Kotkar (now deceased). Shri C. Prabhakar had committed offences punishable under Section 166 and 167 read with 34 of IPC. He alleged that he was arrested by Kashimira Police Station in context with C.R. No. I-43 of 1991 revolving around offences punishable under the provisions of Sections 307, 241, 147, 148, 149, 324 read with 336, Section 437 of IPC on the basis of complaint filed by one Raju Yeshwant Patil on 3.4.1991 which was numbered as C.R. No. I-43 of 1991 and was registered in Kashimira Police Station, Thane. Respondent No. 2 alleged that the petitioner and his associates mentioned above falsely implicated him under the Terrorist and Disruptive Activities Act, 1987 (hereinafter referred to as TADA for convenience). He alleged that in the matter of Writ Petition No. 598 of 1991 and Criminal Writ Petition No. 731 of 1991 A Division Bench of this Court had passed a judgment and order on 24.7.1991 and had directed D.K. Kotkar (the co-accused in the present case) not to proceed with the investigation against the respondent No. 2 in context with provisions of Section 3, 5 and 6 of TADA but inspite of such directions, he proceeded with the investigation and prepared a charge sheet which was to be filed against respondent No. 2 and his associates in Special Court, Pune and for filing such a charge sheet and prosecution, the petitioner granted sanction. On account of this part played by the present petitioner, the respondent No. 2 alleged that he committed offences punishable under Sections 166 and 167 read with 34 of IPC. When the said complaint was presented in the Court of Chief Judicial Magistrate, Thane, the learned Magistrate recorded the verification of respondent No. 2 and thereafter passed the order which is the subject matter of the present challenge put forth by the petitioner through this petition.

4. Shri Dhakephalkar submitted that the role of the present petitioner was to consider whether sanction should be granted to prosecute respondent No. 2 and his associates and to permit such prosecution. He submitted that the papers were submitted through co-accused No. 2 (Shri Prabhakar) to the petitioner and he was requested to grant the sanction. Shri Dhakephalkar further submitted that when the said matter was presented before the petitioner through proper channel, it was not necessary for the present petitioner to go in detail and to acquaint himself with number of writ petitions filed by respondent No. 2 and his other associates. Shri Dhakephalkar submitted that his other associates who were the accused in the said prosecution filed writ petitions challenging the said investigation in view of provisions of TADA. Those petitions were dismissed by two Division Benches and it was after judgment and order was passed in writ petition bearing No. 598 of 1991. He pointed out towards the judgment passed by Division Bench consisting of S.P. Kurdukar and A.a. Cazi, JJ bearing No. 237 of 1992 wherein by passing a judgment and order the said Division Bench dismissed the writ petition filed by Ashraf Gulam Rasul Patel on 26.2.1992. He pointed out that the Division Bench consisting of H.H. Kantharia and M.G. Chaudhari, JJ dismissed the writ petition filed by Billal G. Patel, Hemant M. Gomes, Ambiya G. Patel, Anjum G. Patel, Chandrakant M. Patel, Leelanath Balbhadra Paundel, Gulam Hasan Qureshi and Mohamed Ali Rayasat Ali by passing the judgment and order dated 26.8.1991 dismissing the said writ petition bearing No. A.D.Cri. No. 7309 of 1991. Shri Dhakephalkar submitted that the challenge was put to said investigation by those petitioners and prayer was made to quash the said prosecution. But both the writ petitions were dismissed and two Division Benches of this Court confirmed the said prosecution for which the sanction was granted by the present petitioner. Shri Dhakephalkar submitted that in view of such approval endorsement by two Division Benches of this Court how it can lie in the mouth of respondent No. 2 to say that the present petitioner had committed the offences punishable under Sections 166 and 167 read with 34 of IPC and how it is legitimate and legal for the Chief Judicial Magistrate, Thane to take the cognizance of the said complaint presented before him by respondent No. 2 and to issue a show cause notice to present petitioner to appear before him as an accused.

5. Shri Dhakephalkar further submitted that the said sanction has been granted by the present petitioner in the course of his official duty and when the said record and the proposal was forwarded and put before him through a proper channel, how he could doubt the authenticity of the said proposal in the absence of any information submitted to him in respect of the said writ petition of accused D.K. Kotkar. He submitted that the act of the petitioner happens to be one covered by the discharge of his duty and happens to be done in performance of his duty. he submitted that the said act happens to be done in good faith and, therefore, the order which has been passed by Chief Judicial Magistrate, Thane needs to be quashed.

6. In addition to that, Shri Dhakephalkar submitted that respondent No. 2 does not have any interest to pursue the said complaint except to humiliate the present petitioner who happens to be a top ranking police officer. He submitted that at present he is performing his duty as Inspector General of Police at Pune in Crime Department, State Branch. He submitted that if he is required to appear before the Magistrate, he would be humiliated and would suffer agony and humiliation till the said complaint gets dismissed finally by the Chief Judicial Magistrate, Thane.

7. Shri Saste, Additional Public Prosecutor, submitted that an appropriate order be passed keeping in view the facts and circumstances of this case.

8. After perusing the record carefully and in view of the submissions advanced before this Court, this Court allows this writ petition and sets aside the order put to challenge which has been passed by Chief Judicial Magistrate, Thane for the reasons stated hereunder:

9. Two Division Benches of this Court directed Inspector of Police, Kashimira Police Station (Shri D.K. Kotkar co-accused) not to investigate the said crime in context with provisions of Sections 3, 5 and 6 of TADA in respect of Rafiq Abid Patel, Shakeel Yasmin Patel, Nafa Hajimia Patel and Munir Ahmad Khan. But, when the charge sheet was filed, challenges were put to said prosecutions by number of other accused, namely, Billal G. Patel, Hemant M. Gomes, Ambiya G. Patel, Anjum G. Patel, Chandrakant M. Patel, Leelanath Balbhadra Paundel, Gulam Hasan Qureshi and Mohamed Ali Rayasat Ali. Two Division Benches approved the said prosecution and dismissed their writ petitions by passing final orders on 26.8.1991 and 26.2.1992. The order which was passed in Criminal Writ Petition No. 598 of 1991 and Criminal Writ Petition No. 731 of 1991 were dated 24-7-1991 - 23-7-1991. Thereafter again one police officer of the rank of Special Inspector General of Police, Aurangabad Range, filed one affidavit in Special Court, Pune, declaring that no case was made out in respect of provisions of TADA. The present petitioner brought it to the notice of Special Court, Pune, that the said officer did not bring to the notice of Special Court, Pune the judgment and orders passed by two Division Bench of this Court in Writ Petition No. 886 of 1991 and AD Criminal No. 2459 of 1992. Thereafter a complaint was filed against the present petitioner and the matter went to the High Court in which Single Bench of this Court passed a detailed judgment on 12.1.2002 and exonerated the present petitioner from the allegation of his brother police officer in respect of offences punishable under provisions of Section 3 of the SC & ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act for convenience). In the judgment, the learned Single Judge expressed that there was immense feeling of enmity between the two police officers which resulted in multiplicity of litigation. In the said judgment the learned Single Judge had pointed out:

"Now, it is evident position that, in Writ Petition Nos. 4 of 1998 and 731 of 1991, the Division Bench of this Court had allowed the petitions and held that the prosecution under TADA against those petitioners were quashed, however, subsequently, in Writ Petition Nos. 886 of 1991 of 237 of 1992 which were decided on 26.8.1991 and 26.2.1992, the Division Bench of this Court dismissed the writ petitions holding that the provisions of TADA were very much applicable. The documents in that regard further show that in earlier two writ petitions, of which the reference was made by Mr. Suradkar in his affidavit, the decision was made on the basis of concession given by the learned prosecutor before the Division Bench of this Court, which fact is also mentioned in the order of later writ petitions and it was not mentioned by Mr. Suradkar in his affidavit."

10. In the matter of A.D. Cri No. 7309 of 1991, the Division Bench consisting of H.H. Kantharia and M.G. Choudhari, JJ. passed the following order:-

Heard both sides.

In support of this Writ petition great reliance is placed on judgment of the Division Bench of this Court in Writ Petition No. 598 of 1991 with Writ Petition No. 731 of 1991. However, the said judgment was 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. The judgment cited by Mr. Chitnis will not help him."

11. In the matter of A.D. Criminal No. 2459 of 1992 - Writ Petition No. 237 of 1992 - the Division bench consisting of S.P. Kurdulkar & A.A. Cazi, JJ, passed the following order:-

"Heard Advocate for parties, Perused the impugned order and complaint. Discussing in Paras 9 onwards of the impugned judgment in our opinion attracts the provision of Section 3 to 5 of the TADA. The Court have perused the original complaint and it is prima facie refers to terrorist activities.

No interference is called for Rejected."

12. At this juncture, it would be necessary to quote the exact language of Section 166 of IPC which reads :-

"Whoever, being a public servant knowingly disobeys any direction of law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."

13. It would be expedient to quote the language of Section 167 of IPC which reads :-

Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

14. Therefore, when the complaint was presented before the Chief Judicial Magistrate, Thane, it was his duty to advert his attention to provisions of Sections 166 and 167 read with 34 of IPC and to the allegations made in the complaint vis-a-vis the material which has been annexed to the complaint. He was to see whether the present petitioner disobeyed the direction of law as to the way in which he was to conduct himself as a public servant. The answer would be "No" because the petitioner was not directed to refrain from the investigation. The investigation was done by Mr. D.K. Kotkar. If at all anybody disobeyed the order, he was Mr. D.K. Kotkar and not the present petitioner. The learned Magistrate was also obliged to advert his attention to the language of Section 167 which indicates the punishment for a public servant who happens to be charged with the preparation or translation of any document or electronic record or frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby, etc. etc. The Petitioner was not the person preparing the charge sheet leave aside translating any document or electronic record. Investigating officer prepares the report in view of provisions of Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) and that is commonly called and indicated in common parlance as charge sheet. Obviously, the petitioner did not prepare that charge sheet. The learned Chief Judicial Magistrate failed to notice these salient features of the sections which he applied, of which he took cognizance while passing the said order by which the present petitioner was directed to appear before him to show cause as an accused. It was necessary for him to adjudicate prima facie whether the complainant has made out a case for taking the cognizance against the present petitioner and for that purpose the learned Chief Judicial Magistrate was to satisfy himself on legal grounds whether there was a case for issuing such show cause notice to the present petitioner to appear before him for showing cause in respect of the allegations made in the said complaint. The learned Magistrate has failed to apply the provisions of law in context with the allegation made in the said complaint.

15. In addition to that, a proposal was sent through Superintendent of Police Mr. Prabhakar to present petitioner who was at that time D.I.G., Thane. One has to acquaint himself with the procedure in the offices where proposals are sorted out by some officers and put up before the top officers for necessary approvals, sanctions or appropriate orders. when there is a processing channel of officer it impliedly indicates a presumption that such an officer had forwarded such proposal after himself getting well was satisfied about the correctness of it. If the actions are taken without acquainting oneself with such procedure, high officers of every department would be exposed to all sorts of risks in their day to day performance of duties. On every point they would be held responsible for fault of their subordinates. They are not supposed to look into minutest details of such proposal when such proposals are forwarded to them by responsible high ranking officers. If such safeguards are not used and proper importance is not given to such channels, it would be very difficult for high officers to perform their duties in busy schedule of their official work and in haste and bustle of their official duties, because on account of their official capacity they are expected to have control over large number of activities coming under their range of duties. Therefore, the learned Chief Judicial Magistrate should have drawn presumption in favour of the present petitioner of not holding him responsible for lapse on part of Shri Kotkar, and dismissing the allegation of malicious intention on his part. A case has to be created for indicating a malice which requires more material than the material which is necessary for drawing the inference of good faith. The inference of malice is to be drawn only if there is no material to draw the inference of good faith. The learned Chief Judicial Magistrate has also failed on this aspect and landed of issuing such an order.

16. Had there been any disobedience on the part of the present petitioner, the two Division benches of this court would have taken the cognizance of that when a challenge was put to said prosecution for which the sanction was granted by the present petitioner. The orders passed by both the Division Benches show that the previous judgment in Writ Petition No. 598 of 1991 was shown to both the Benches and the argument was advanced for deletion of the provisions of TADA in respect of other co-accused who had challenged the said prosecution taking the advantage of the observations of the Division Bench of this Court passing the judgment and order in context with Writ Petition No. 598 of 1998 and Criminal Writ Petition No. 731 of 1991. Therefore, the act which has been performed by the present petitioner gets a justification.

17. Had there been a disobedience on the part of the present petitioner of that Division Bench, the Division Benches who heard the latter petitions, would have taken the cognizance of the allegations on the part of the co-accused of respondent No. 2 indicating the disobedience on the part of the present petitioner. Those two Division Benches did not find it proper to issue show cause notice to the present petitioner for asking him to show cause as to why he should not be pulled for disobeying the order of the Division bench of this Court which passed the judgment and order in Writ Petition No. 598 of 1991 and Criminal Writ Petition No. 731 of 1991. That also indicates a pointer towards a good faith on the part of the present petitioner.

18. This Court finds force in the submissions advanced by Shri Dhakephalkar that high ranking police officer should not be exposed to humiliation of attending the Court for showing cause in respect of the allegation made in the complaint of Respondent No. 2. Every investigation, every trial indicates agony, expenditure for getting the lawyer and getting the expenditure of litigation and deprivation of such a person from his occupation for duty and lastly humanly humiliation. Every person who is required to attend to such offices for investigation and trials is put to such hardship of the life. If he happens to be a man of status, dignity or a high ranking officer of government department, he gets himself humiliated by such attendance. It is all right for one to say that such persons would be getting the opportunity of putting the say before the investigating officer or the court. But at the first appearance they get themselves humiliated in the estimation of public at large. They get themselves to be a target of lower look, look of disdain from the on-lookers. Once their prestige is so lost, it cannot be restored later on, because public memory is mindful of such blames and calamities and forgetful of its restoration. Once the prestige is gone, it is gone for ever and that does not get restored by later on restorations.

19. In this context two judgments of the Supreme Court will have to be kept in view (1) the judgment in the matter of State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., and (2) the judgment in the matter of Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre and Ors. .

20. In the matter of Swapan Kumar Guha (supra), the Supreme Court held that while exercising the jurisdiction under Article 226 of the Constitution High Court will not normally interfere with the investigation into the case and will permit the investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished of the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. But it cannot be said that investigation must necessarily be permitted to continue and will not be permitted by the High Court at the stage of investigation where no offence is disclosed and by considering the relevant material the court is satisfied that no offence is disclosed. In Madhavrao Jiwaji Rao Scindia's case (supra), the Supreme court held that legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. If the answer is no, the Court should quash the prosecution. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak such prosecution should be quashed. In the present case, discussion above clearly indicates that the complainant has made out no case for court's taking cognizance and issuing the process or notice to the petitioner. It seems to be motivated by oblique motive of humiliating the petitioner because even today after notice the respondent No. 2 has remained absent. The tendency of filing the cases against big persons, high ranking officers and making them to attend the Court by leaving their occupation or duty is on increasing trend. An alarming warning has to be given to such persons.

21. The learned Chief Judicial Magistrate should have also in fact dismissed the case without taking the cognizance of it by applying judicial mind to the allegations made in the complaint qua the offences defined by the provisions of sections mentioned above. As it has not been done by the learned Chief Judicial magistrate, this Court quashes the said order and dismisses the complaint and exonerates the present petitioner. He need not attend the Court in response to that notice.