Shivraj vs The State Of Maharashtra
2012 Latest Caselaw 151 Bom

                                                   Cri.Appln.No.879/2012
                                  1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                 
                      BENCH AT AURANGABAD.




                                         
               CRIMINAL APPLICATION NO.879 OF 2012



     Shivraj s/o Bhaurao Patil (Hotalkar),




                                        
     Age 38 years, Occ. Business &
     Social Worker, R/o Hotala, 
     Post Narsi, Taluka Naygaon (Kh.),
     District Nanded.                             ...      APPLICANT




                               
          VERSUS

     1.
                   
          The State of Maharashtra
          through Police Inspector,
          Police Station, Vazirabad,
                  
          Taluka and District Nanded.

     2.   Shri Ram Kisan Pawar,
          Age 48 years, Occ. Service, 
          working as a Education 
      

          Officer (Secondary),
          Zilla Parishad, Nanded,
   



          C/o Zilla Parishad, Nanded              ...      RESPONDENTS

                              -----
     Shri V.D. Salunke, Advocate for applicant
     Mrs. V.A. Shinde, A.P.P. for respondent No.1/State





     None for respondent No.2 though served
                              -----

                            
                           CORAM : A.H. JOSHI
                                              
                                                AND
                                                  
                                   U.D. SALVI, JJ.

DATED : 9th October, 2012.

ORAL JUDGMENT (Per A.H. Joshi, J.)

1. Rule. Rule made returnable forthwith. Heard

finally by consent.

Cri.Appln.No.879/2012

2. The applicant is a former Councillor/ Member

of Zilla Parishad, Nanded. He was also the Chairman of

the Education Committee of the Zilla Parishad.

3. The First Information Report is lodged by one

Shri Ram Pawar, who was Education Officer of Zilla

Parishad for long duration before date of his lodging

the F.I.R.

4. In the First Information Report, it is

alleged by the complainant that :-

(a) The applicant is instrumental in tampering of

the minutes pertaining to Resolution No.97 of the

proceeding of the meeting of the Education

Committee held on 19.11.2008.

(b) By said tampering, the name of educational

institution namely Mahatma Phule Gramin Vikas

Sevabhavi Sanstha, Sonawala, Taluka Jalkot,

District Latur is inserted at Sr.No.8 in the list

of the institutions in whose favour the sanction

for opening further classes i.e. 5th to 7th was

recorded in the minute book.

Cri.Appln.No.879/2012

(c) In order to cover said tampering, the serial

of item number appearing before the name of each

school appearing later in sequence, have been

overwritten.

(d) The overwriting in serial number is apparent

and visible to naked eyes, due to the different

ink used while doing said insertion and

overwriting.

(e) Based on the said tampered resolution, the

beneficiary Society was successful in opening

additional classes for 5th to 7th Standards in its

school.

(f) The tampering is done at the direction of the

applicant.

In all 10 accused have been named therein which

include the applicant and his Private Secretary, an

employee of Zilla Parishad.

5. This First Information Report is challenged

by the applicant herein in this criminal application,

on following grounds :

Cri.Appln.No.879/2012

(a) The allegations are false and highly

improbable.

(b) The falsehood of imputations is apparent in

the background that applicant himself was

instrumental in cancellation of the permission of

5th to 7th classes by the said school which was

done in recent past.

(c)

The sanction of staff pattern of those

unauthorised classes of said school was in fact

done by the same Education Officer - the

complainant.

(d) Name of applicant's Personal Assistant who is

an employee of Zilla Parishad has been added at

the end of F.I.R. This addition is not in the

sequence in the array/list of accused described in

the body of F.I.R. Addition of said accused at

Sr.No.10 may not be the complainant's plan at the

time or moment when he reported/ scribed the

original text of F.I.R. This shows hastiness or

lack of due application of mind by the informant

in the process of lodging the F.I.R.

Cri.Appln.No.879/2012

(e) The documents indicate that the complainant

is the same Education Officer who had granted

sanction to the strength of staff of the school in

relation to which it is alleged that this

applicant had favoured by tampering. The

complainant accorded said staff strength sanction

in spite of the fact that the Deputy Director of

Education, Latur had revoked permission to said

school about one month before said staff strength

sanction.

(f) The complainant has chosen opportune time to

lodge the complaint when the election to the

Councillors of Zilla Parishad was due, and

applicant was nominated to contest against a

political heavy weight.

(g) Statement of witness Pampatwar, the Clerk,

was recorded by the complainant a month before the

date of lodgement of F.I.R., and this delay is not

explained.

(h) The style in which addition of accused No.10

is done at last moment also suggests that an

attempt is made by the complainant to deliberately

Cri.Appln.No.879/2012

involve the applicant and all those connected to

him.

6. Learned Advocate for the applicant has relied

upon following judgments :-

(1) 1992 AIR (SC) 604 (State of Haryana Vs. Bhajan Lal)

(2) AIR 2003 SC 1069

(Ajay Mitra Vs. State of M.P. & ors.)

2011 ALL MR (Cri.) 326 (S.C.) Manoj Mahavir Prasad Khaitan Vs. (Ram Gopal Poddar & anr.)

7. According to learned Advocate Mr. Salunke for

the applicant, the F.I.R., subject matter, cannot be

sustained by applying the yardstick of the tests laid

down in the reported judgments and in particular case

of State of Haryana Vs. Bhajan Lal (AIR 1992 SC 604),

since namely:-

(a) Even on accepting the version or text

contained in F.I.R. to be true, offence whatsoever

is not even barely described.

(b) The contents of F.I.R., though considered

without being controverted and the evidence relied

in support is relied on upon its face value,

Cri.Appln.No.879/2012

commission of offence is not disclosed.

Therefore, investigation whatsoever is not

necessary.

(c) F.I.R. is actuated with malafides as it is

lodged at the opportune time of election to seat

of Councillor and lodged knowing fully well that

it is false.

8.

Specific reliance is not placed on test No.7

contained in para No.108 of the judgment in Bhajan

Lal's case (supra), during oral submissions by learned

Advocate Mr. Salunke, and emphasis is given on test

Nos.1 to 6. It is argued with utmost clarity that the

act of lodgement of F.I.R. is actuated with political

malafides since it is lodged at the opportune time when

applicant had furnished the nomination for election to

the seat of Councillor against a political heavy

weight, though the statement of witness Mr. Pampatwar

whose statement is used as chief source, was recorded a

month before. Thus, by using the F.I.R. lodged by

present respondent No.2, the applicant was arrested and

he was kept outside the contest.

Cri.Appln.No.879/2012

Points arising for consideration

9. The questions which arise for consideration

while deciding this application are :-

(a) What is the compass of scrutiny and power of

this Court while considering the challenges raised

for seeking quashment of F.I.R. ?

(b) What is the gauging measure to test the

applicant's version that the F.I.R. is actuated

with vengeance and/or political malafides ?

(c) Would it be possible to accept the version of

the applicant that though the tampering may have

occurred, it has not occurred at the behest of the

applicant ?

(c) Is it possible and permissible at this stage

to hold that the applicant is in no way concerned

with the tampering and that the allegations

against him are totally false or wholly

improbable.

About the stage of investigation

10. This Court had directed the investigating

Cri.Appln.No.879/2012

officer to keep all investigation papers available and

ready for perusal of this Court. Those are kept ready

and its photo copy is produced.

11. Learned A.P.P. has informed the Court that

the investigation is completed; case against the

applicant is made out for filing of charge sheet, and

its filing has remained pending awaiting the sanction.

Revelations from investigation papers

12. We have perused the record annexed to the

criminal application and the investigation papers

tendered by investigating officer through learned

A.P.P. A photo copy of the resolution allegedly

tampered is on record. Statements of witnesses showing

who has done the interpolation at the instance of

accused-appellant are on record. Various other

witnesses have stated before the investigating officer

that the resolution approving proposal of the

educational institution Mahatma Phule Gramin Vikas

Sevabhavi Sanstha was not passed and its name is added

in resolution No.97 by way of tampering.

Cri.Appln.No.879/2012

13. Insofar as the description contained in the

F.I.R. is concerned, it is seen that the narration

explicitly and duly describes :-

(a) That there is interpolation in Resolution No.

97,

(b) Witness has stated that it is done at the

behest of the present applicant.

(c) The said inclusion or tampering, as done

later on, is apparent to naked eyes.

(d) Witnesses have stated that in fact name

appearing at Sr.No.97 in allegedly tampered

resolution was not a part of resolution

actually passed.

Crux of challenge

14. At this stage, in the background of the

statements of witnesses recorded by the police, the

applicant is persuading us to accept his version that

the allegations against him are :-

(a) false,

(b) highly and/or grossly improbable; and;

(c) the complaint is actuated with malafides etc.

Cri.Appln.No.879/2012

Testing the submissions

15. The political malafides is a matter and

question of fact. Applicant has narrated certain facts

to suggest that the complainant Mr. Ram Pawar has acted

as a pawn motored by applicant's political opponents -

heavy weight political figures in the Zilla Parishad

politics.

16.

At this stage, applicant wants this Court to

trust and act upon supposition of his plea being gospel

truth and to be relied upon without waiting to have it

proved as a defence in a trial and in accordance with

law.

17. Petitioner also expects that this Court

should accept his plea that the version of the

complainant is false or highly improbable, based on the

story and the evidence relied upon by the applicant and

the conduct of the complainant which is described in

the application and annexures.

18. Today the stage of testing as to whether

investigation should be permitted has already crossed.

Cri.Appln.No.879/2012

During pendency of this application, the investigation

is already completed.

19. Now what is to be seen is whether in the

background that certain evidence has come to the hands

of investigating officer, should further legal course

be stalled.

20.

Decision on the point referred to in

foregoing para shall depend on the finding as to

whether untruthfulness of the imputations can be

accepted at this stage barely by accepting applicant's

plea and oath in this Court.

21. Though three cases are relied, it shall

suffice to advert to the Bhajan Lal's case alone.

22. Bhajan Lal's case (supra) has been

consistently followed and has a binding force as

precedence.

23. This Court is bound to follow the judgment of

the Hon'ble Supreme Court in Bhajan Lal's case (supra),

in letter and spirit. It is vivid as to what Hon'ble

Cri.Appln.No.879/2012

Supreme Court has laid down in para 108 in Bhajan Lal's

case (supra) as the tests or norms to be observed as

yardsticks for testing whether and when F.I.R. needs to

be quashed.

24. These tests laid down in Bhajan Lal's case

are by now at the tip of tongue of lawyers, Judges and

litigants too. However, for ready reference it is

considered necessary to quote those as below :-

"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case against

the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the

F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the

purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable

Cri.Appln.No.879/2012

offence but constitute only a non-

cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as

contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R. or complaint are so absurd and

inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal

bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the

grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance

on the accused and with a view to spite him due to private and personal grudge."

25. The norms laid down in Item Nos.1 to 6 are

capable of objective application. The scrutiny of any

case for quashing on test No.1 to 6 is to be done by

matching the facts to the tests/ norms.

Cri.Appln.No.879/2012

26. The test or norm at Item No.7 requires this

Court to apply its discretion and exercise its

jurisdiction with the optimal care and caution, since

it relates to perception and cognizance by this Court

as regards the state of the mind of the informant.

State of mind is a fact. It has to be proved from the

previous and contemporary conduct. In the process of

challenge unless the facts proving state of mind are

undeniable or admitted and indisputable, still it will

be a difficult amongst most difficult tasks to accept

such grounds as foundation to rely or proceed on

supposition of those as if proved and quash a F.I.R./

Charge/ complaint.

27. Therefore, the person who challenges the

F.I.R./ Charge/ complaint make out facts which are

undisputedle to demonstrate the malice, and the

ulterior motive and attempt to wreak vengeance due to

personal grudge, manifestly attended with malafide.

The word "manifestly" appearing in norm/ test No.7 is

eloquent. It means no external need for explanation or

truth should be required. If such external aid is

necessary, the property or characteristic of the ground

being "manifest", extinguishes.

Cri.Appln.No.879/2012

28. Any error or slightest slip in the judgment

on the point as to whether the F.I.R./ Charge/

Complaint is manifestly attended due to these vitiating

factor shall lead to closing the doors of access to the

complainant to the criminal law and justice. Any such

error of judgment would then become liable to suffer

from the blame of being guided by subjectivity.

29. In order to make the application of test No.7

objectively dominated, the petitioner has to make out a

case which is gross and ex facie undeniable as if an

admitted fact to be shown and to be acted upon as an

admitted fact. If a case of this prescription is not

made out, blind observance of test No.7 does not seem

to be possible as a comfortable walk on a beaten path.

30. By applying the said yardstick/ test No.7

laid down by the Hon'ble Apex Court in Bhajan Lal's

case, the case has to be made out or has to surface as

gross case and the description of that the ground

vitiating F.I.R./ Charge/ Complaint has to be on its

face based on indisputable factual grounds.

Cri.Appln.No.879/2012

31. Malafides as urged in present case, are too

vague to be regarded as indisputable, and need to be

proved in the trial.

32. In the present case, it is also urged that

the text of description of offence contained in F.I.R.

does not describe the offence. This challenge is a

bare bald contention as can be seen and is analysed and

recorded in foregoing para No.13.

33. Crux of offence is tampering. Tampering at

the behest of the applicant is eloquently described in

the F.I.R. The denial thereof is exaggerated,

excessively magnified and is unreal.

34. Next point of objection is that the

imputations are false and are highly improbable.

35. Calling the version contained in F.I.R. to be

highly improbable is a cosmetised challenge founded on

allegation about lack of truthfulness of imputations

differently garbed.

36. What the applicant is doing is setting up

Cri.Appln.No.879/2012

defences in finely articulated manner and in a very

sophisticated language. What has to be considered is

the spirit and substance and not the ingenuity and

cosmetic part thereof.

37. It is seen that, the investigating officer

has collected evidence during investigation which

consists of statements of witnesses. Said evidence is

adequate enough to substantiate trial of accusations

against present applicant and has filed the final

report/ Challan. The applicant denies truthfulness of

the evidence gathered by the investigating officer.

38. Considering the pleadings and submissions,

applicant's case as it emerges before us is, the F.I.R.

and charge sheet/ Challan filed by policedescribes

commission of offence by the accused persons.

39. The forum and venue for scrutiny of worthiness

of F.I.R. and material collected during investigation

as untrue and improbable is the trial Court. Its

process is by weighing the defence and not in this

Court by barely raising a dispute thereof by the

accused.

Cri.Appln.No.879/2012

40. Questions framed by us in para 9 are,

therefore, liable to be answered against applicant.

Applicant's plea in support of challenge are meritless.

A clamour against the accusation does not constitute a

ground to have investigation and trial dispensed.

41. The precedent in Bhajan Lal's case (supra) is

cited more in abuse in order to take the time of Court,

than use it as a precedent on points actually emerging

and bound to be duly followed. Rights of citizens are

precious. Time of Court too is equally precious. One

has to exert to strike the balance while doing justice.

Hence these expressions.

42. Therefore, we hold that though the case is

argued extensively and with urge, the submissions do

not have strong foundation to entitle a writ of

certiorari.

43. Hence, we discharge the Rule.

[ U.D. SALVI, J.] [ A.H. JOSHI, J.]