Yashwant Backward Class Housing ... vs Devidas Onkar Baviskar And Ors.
2005 Latest Caselaw 341 Bom

JUDGMENT

M.G. Gaikwad, J.

1. These three petitions are being decided by this common judgment as the point involved in all the three petitions is the same.

2. In all the three petitions, the petitioner has challenged the order dated 23-11-1995, whereby, the learned Magistrate recalled the process and discharged the accused in Criminal Case Nos. 19/1985, 2/1985 and 182/1984, respectively. According to the petitioners, the order of discharge, passed by the learned Magistrate in all the three matters, are not sustainable and needs to be quashed.

3. All the criminal cases have been filed by a Co-operative society known by name, Yashwant Backward Class Housing Society, at Bhusawal, through their Secretary, Namdeo Kautik Ghule. One Devidas Baviskar, accused No. 1 in Criminal case No. 19/1985, was working as a Secretary of the said society in between 1978 to 1983. He was entrusted with the work of supervision of construction of the houses to be constructed for the members of the society. The accused No. 2 in Criminal Case No. 19/1985 was a contractor appointed by the society for supervision of the said work. The contract of actual construction was granted to accused No. 3 by accepting his tender. In all complaints, there are allegations that all the accused have committed an offence of cheating in the said work. The work to be carried out, was not as per the norms and by preparing false record, the accused persons had drawn excess amount than the expenditure incurred. On these allegations, three different complaints have been filed in the Court of JMFC at Bhusawal. The learned Magistrate took cognizance and had issued process against the accused for the offence punishable under Sections 420 and 427 read with Section 34 of Indian Penal Code in Criminal Case No. 19/1985. In other two cases, the Magistrate had issued process under Sections 408 and 477-A of the Indian Penal Code.

4. On service of summons, the accused/respondents in all the cases, appeared before the Court and filed applications claiming discharge. According to them, the cognizance in all the 3 matters, is barred under Section 11C of the Societies Registration Act, as before lodging the complaints, sanction from the Registrar of the Co-operative Societies or from the State Government is not obtained. After hearing both the parties, the learned Magistrate allowed the applications and recalled the process and accused in all 3 cases have been discharged by order dated 23-11-1995. The said order is challenged by preferring these three petitions.

5. On behalf of the petitioner, learned Adv. Shri Swapnil Patil, holding for Shri R. P. Patil, Adv. submitted that the bar under Section 11C is not attracted in the present case. The sanction contemplated under Section 11C is in relation to an offence under Sections 11A and 11B of the said Act, and the same is not applicable to other offences. He has also pointed out that the learned Magistrate has placed reliance on the decision of the Apex Court in the case of K.M. Mathew v. State of Kerala and Ors. reported in AIR 1992 SC 2206. However, the said decision has been overruled by the Apex Court in the case of Adalat Prasad v. Rooplal Jindal reported in 2004(4) Mh.L.J. 274.

6. On the other hand, the learned Adv. Shri Nikam, holding for Adv. Shri V.T. Chaudhari, supports the order of discharge. The learned APP appearing on behalf of the State, also supports the order of the trial Court.

7. The point in all these three petitions is, the validity of order of discharge passed by the learned Magistrate in all the three matters. Perusal of the order reveals that the learned Magistrate has placed reliance on the provisions of Section 11C as well as the decision of the Apex Court in Mathew''s case (supra) and recalled the order of issuing process and passed the impugned order. In the recent judgment in the case of Adalat Prasad (supra) Their Lordships have held that the ratio laid down in "Mathew's case" does not lay down the correct law. It has been held that once the Magistrate, acting under Section 204, Criminal Procedure Code had issued process, the Magistrate cannot review its own order on the application of the accused, by exercising powers under Section 203 of the Criminal Procedure Code. In the present case, the accused had appeared before the learned Magistrate and submitted applications for discharge and dismissal of the complaint. But in view of the recent judgment of the Apex Court, the Magistrate cannot review its own order and cannot recall the process by exercising powers under Section 203 of Criminal Procedure Code. So, on this count, the impugned order passed by the learned Magistrate is not sustainable.

8. The learned Magistrate has relied upon the provision of Section 11C of the Societies Registration Act and passed the order in question. The provisions of Section 11C reads thus :

"No prosecution for an offence under Section 11A shall be instituted except by or with the sanction of the Registrar, and no prosecution for an offence under Section 11B shall be instituted except by or with the consent of the State Government."

The provisions are clear that the bar contemplated under Section 11C, relates for the cognizance of the offences under Sections 11A and 11B of the Act. The prosecution under Sections 11A and 11B cannot be initiated except by or with the consent of the Registrar of Co-operative Societies or the State Government. The provisions of Section 11C are not attracted in the present case. The offence alleged in the present case, is not an offence under Section 11A or 11B. The Magistrate had issued process for the offences under Sections 408 and 477-A in two cases and for the offences under Sections 420 and 427 in the third case. For initiation of the proceedings for the said offences, sanction from the Registrar or the State Government is not required, as contemplated under Section 11C. The learned Advocate appearing on behalf of the accused/respondents also could not point out any provision, under which such a sanction is required. As such, the impugned order passed by the learned Magistrate in all the three cases, dismissing the complaints by recalling the process, and to discharge the accused in all the three cases, is not sustainable in law. Hence, the same needs to be quashed and set aside by allowing these petitions.

9. In the result, all the three petitions are allowed. The order dated 27-11-1995, passed in Criminal Case Nos. 19/1985, 2/1985 and 182/1984, is quashed and set aside. The complaints are restored to its original file. The parties are directed to appear before the Judicial Magistrate, First Class at Bhusawal, on 30th March, 2005. The cases are pending since 1985, so the learned Magistrate is directed to hear and decide these old cases, as expeditiously as possible.

10. Rule is made absolute in above terms. There shall be no orders as to costs.