Bombay High Court
Gangadhar Vithobaji Kayande ... vs The State Of Maharashtra on 22 November, 2012
Bench: A. H. Joshi, S.P. Deshmukh
1 Criwp. No.1047/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1047 OF 2012
Gangadhar Vithobaji Kayande Patil,
Age 50 years, Occ.Service,
R/o 3/4, Pancham, Savarkar Nagar,
Gangapur Road, Nashik ..PETITIONER
VERSUS
The State of Maharashtra,
Through Principal Secretary,
Law and Judiciary Dept.,
Maharashtra State,
Mantralaya, Mumbai ..RESPONDENTS
Mr P.R. Katneshwarkar, Advocate for the petitioner;
Mr P.N. Mule, A.P.P. for the respondent
CORAM : A.H. JOSHI AND
SUNIL P. DESHMUKH, JJ.
DATE : November 22, 2012
ORAL JUDGMENT (PER A.H. JOSHI, J.)
1. Heard.
2. Rule is made returnable forthwith. Heard by
consent.
3. The petitioner had filed a case in the Court of
Judicial Magistrate First Class for direction to
register the offence. The direction under section 156
(3) of the Code of Criminal Procedure was issued.
Based thereon Crime No.4 of 2007 for offence
punishable under sections 120, 405, 406, 468, 469,
201, 474 read with sec. 34 of the Indian Penal Code at
Kadim Jalna Police Station was registered.
4.
The text of first information report runs at
considerable length. Substance of the first
information report is narrated in the body of present
writ petition in para no.2 which reads as follows :-
"2. The accused no.1 is husband of sister of
complainant. Petitioner no.1 was resident of
Nashik and therefore, he entered into sale
transaction. The transaction was entered in
order to assist sister and her husband. The
complainant has given money for the said
transaction, however, in connivance with each
other, accused deceived complainant and sale deed
was executed in the name of accused no.1, instead
of complainant......"
(quoted from paper-book page No.3)
Thus according to the petitioner the accused persons
have committed acts of cheating and breach of trust,
etc. apart from other offences.
5. The investigation was completed and charge-sheet
has been filed, which is registered as R.C.C. No.677
of 2007.
6. Thereafter, on 12.4.2012 petitioner filed
application to the Principal Secretary, Law and
Judiciary Department, Maharashtra State, Mumbai. By
this application he has prayed for appointment of a
Special Prosecutor. Copy of the said application is
at Exh.B of the petition which is at page 21 and 22 of
the paper-book.
7. It is seen that thereafter the Government has
requisitioned from the petitioner a letter of consent
of the Lawyer, the information about justification for
appointment of a Special Public Prosecutor and other
details.
8. In answer to the requisition from the Government
the petitioner sent another letter dated 18.6.2012
pursuing the appointment of a Special Public
Prosecutor. By impugned order petitioner's request
for appointment of Special Public Prosecutor is
rejected.
9. By this writ petition petitioner has challenged
the order passed by the Government refusing to accede
to petitioner's request for appointment of a Special
Prosecutor to conduct the case originated from the
complaint submitted by the petitioner.
10. Application annexure Exhibit "B" (page 21) is the
foundation on which the said request was to be
considered by the Government.
11.
Application Exh.B (page 21) contains averments
which are the foundation for prayer for appointment of
a Special Public Prosecutor. The relevant text reads
as follows :-
";k [kVY;krhy vkjksih vkfFkZdn`"V;k l{ke o lkekftd n`"V;k
lk{khnkjkaoj o laca/khrkaoj izHkko Vkd.kkjs vkgsr- R;kauh vtZnkjk'kh
rMtksM dj.;kps iz;Ru d:u U;k;ky;kpk vkrki;Zr osG ?ksryk vkgs-
vtZnkj gs ukfld ;sFks jkgrkr vkf.k loZ vkjksih gs tkyuk ;sFks
jkgrkr- ukfld rs tkyuk gs varj HkkSxksfydn`"V;k 250 is{kk tkLr
fd-eh- vkgs- gk [kVyk fu%i{ki.ks pkyfoyk tkbZy fdaok ukgh ;kcnny
vtZnkjkl lk'kadrk vkgs- vkjksih fo:/n uksanfoysyk xqUgk gk eqGkr
rkaf=d Lo:ikpk vlyk rjhgh vkjksihaP;k izHkkokeqGs 'kklukrQsZ fu;qDr
vlysY;k fu;fer ljdkjh odhykaoj ns[khy vkjksihapk izHkko
iMY;kokpwu jkg.kkj ukgh o v'kk ifjfLFkrhr vtZnkjkph cktw ;ksX;
fjrhus o fcupwdi.ks ekaMyh u xsY;kl vtZnkjkoj rks ,d vk?kkr
Bj.kkj vkgs-"
(quoted from paper-book page nos.21 & 22)
12. In the follow up letter dated 18.6.2012 submitted
by the petitioner he has made submission in paragraph
5 thereof, which reads as follows :-
";k izdj.kkrhy izfroknhus izdj.kkrhy ,d lk{khnkj Jh- gkMs ;kaps
esgsdj] ft-cqy<k.kk ;kaps ?kjki;Zr fn-30 es 2012 vkf.k 31 es 2012 jksth
iksgpqu R;kapsoj ncko Vkd.;kpk iz;Ru dsyk vlY;kps dGrs- R;keqGs ;k
izdj.kkr vtZnkjkl uSlfxZd U;k; feG.ks vfHkizsr vkgs- ;k izdj.kkph
rkjh[k [email protected]@2012 gh gksrh-"
(quoted from paper-book page No.27)
13. We have heard oral submissions of the learned
Advocate for the petitioner and for the State.
14. Learned Advocate Mr Katneshwarkar has vehemently
argued the case. Learned Advocate for the petitioner
has exerted to pursue us. It is urged that the
offence subject-matter is of the category of "economic
offence", and it is a complicated case as it involves
high technicalities and, therefore, appointment of a
Special Prosecutor is necessary.
15. It is argued that though the order annexure
"G" (page 32) is the Government decision, it does not
disclose application of mind by officer having
experience in legal and judicial matters.
16. Petitioner's argument is that as the letter is
signed by the Desk Officer, it is meant that it is his
decision.
17. Learned Advocate for the petitioner has placed
reliance on the judgment of the Honourable Supreme
Court delivered in the case of Mukul Dalal vs. Union
of India & ors., reported in 1988 (3) SCC 144. The
judgment is relied on to urge that the order for
permission to appoint a Special Prosecutor has to be
passed after due application of mind. The appointment
of Special Public Prosecutor on facts of the case was
set aside by the Honourable Supreme Court as the
satisfaction and application of mind was not shown.
18. We had called upon learned Advocate Mr
Katneshwakar to identify and isolate the statement of
facts contained in the complaint which could
demonstrate that case is complicated and intricate,
and technical matters are involved.
19. Learned Advocate Mr Katneshwarkar has responded
answering that the bundle of facts as contained in the
complaint taken together shall show that it is a case
of complicated nature involving technicalities.
20. Considering the arguments we have once again
adverted to the complaint, letter of request for
appointment of Special Public Prosecutor and letter
pursuing the request.
21.
We have underlined the relevant portion which
was high-lighted by learned Advocate Mr Katneshwarkar
as key words, in annexure 'B', on the basis of which
prayer for appointment of Special Public Prosecutor is
made, in the quotation incorporated in the foregoing
para Nos.9 and 10.
22. We have given keen and peaceful consideration to
all aspects involved in the case.
23. The matters expressed in the complaint are usual
and routine transactions such as agreement of sale,
reposition of trust and breach thereof.
24. As we see, it is a case of agreement of sale of
property and breach of trust, which according to the
complainant constitutes offence and that too involving
grave complications and intricacies.
25. The petitioner himself is a Lawyer and as he
represents to possess versatile, very good and
merited standing. In this peculiar background, who-so-
ever be the Prosecutor, when the petitioner who is a
Lawyer of considerable standing has himself to be one
amongst the important witnesses. Petitioner has to
depose the truth and withstand the cross-examination.
The role of a Special Prosecutor in the facts of
peculiar nature will, therefore, have comparatively
very limited rather negligible impact in comparison
with a case in which the complainant may be a lay
person.
26. It is seen that petitioner did not make any
effort to secure record whatsoever from the
Government to show that preceding the said
communication dated 25th September, 2012 (page 32),
there is no Government decision and that any such
decision is not based on application of mind by an
officer specialized in the legal affairs.
27. Perusal of impugned communication discloses that
it is signed by the Desk Officer does not mean that it
is a decision by the Desk Officer. The submission that
it is a decision by Desk Officer would suit a lay
person but not a legally trained person who argues the
matter, nor would fit in the mouth of a writ
petitioner who himself is a Lawyer of considerable
standing. It is a fact that the communication is
brief. However, it does not imply that it lacks
application of mind.
28. The presumption that the actions taken by public
servants in due course of business are to be
presumed to be performed/done in good faith unless
otherwise proved. Therefore, it was open for the
petitioner to have exerted to prove to the contrary in
which he has utterly failed.
29. In absence of any material being brought before
us, it would not be possible for us to be persuaded
that the decision was not reached by any judicial
officer having knowledge and expertise in judicial
matters.
30. On the other hand, communications exchanged
between the petitioner and the Government show that
all efforts were made by the Government to secure the
documents relied upon by the petitioner, understand
the case and thereafter apply the mind.
31. Petitioner has failed to plead and demonstrate
that the ratio of the precedent Mukul Dalal vs. Union
of India has not been followed, by taking steps to
secure the papers and on their production. A bald
allegation that the authorities did not apply mind is
easier said without exerting to prove it. In the era
of Right to Information, none can be heard to plead
that documents are not available. It was the duty of
the petitioner who is a Lawyer to have exerted to
secure copies of record to find support to urge the
plea of non application of mind. The steps taken by
the Government to call for documents and justification
reasonably demonstrates inclination to understand the
petitioner's plea. These facts rule out the ground of
possibility of non application of mind by competent
officer having expertise in legal and judicial
matters.
32. We are, therefore, satisfied that the petitioner
has a fancy for Special Public Prosecutor than warrant
of facts.
33. We, therefore, dismiss the petition and discharge
the Rule.
(SUNIL P. DESHMUKH, J.)
ig (A.H. JOSHI, J.)
amj/criwp1047.12
