Bombay High Court
Dhanraj Navlraj Rizwani vs The State Of Maharashtra And Anr on 11 April, 2016
Bench: N.W. Sambre
199.02crrevn
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 199 OF 2002
Dhanraj Navalrai Rizwani,
Age: 40 years, Occ: Business,
R/o. Behind Telephone Bhavan,
Vazirabad, Nanded. ...Applicant
versus
1. The State of Maharashtra.
2. Pradeep s/o Vasant Mishra,
Age: 51 years, Occ: Service
as Deputy Commissioner of State
Excise (presently Joint Commissioner
of State Excise, Mumbai) Old
Custom House, Fort, Mumbai.
3. Shivappa s/o Adiveappa Kullur,
adult, Occ: Pensioner,
R/o. 232, Pariwar Apartment,
Near Telephone Bhawan,
Tarabai Park, Kolhapur.
4. R.H. Chavan,
adult, Occ: Service,
R/o. C/o. State Excise Office,
Flying Squad, Nanded. ...Respondents
....
Mr. A.G. Godhamgaonkar, Advocate for applicant
Ms. R.P. Gour, A.P.P. for respondent No. 1
Mr. Kshirsagar, Advocate h/f Mr. A.S. Deshpande, Advocate for
respondent Nos. 2,3 and 4
.....
CORAM : N.W. SAMBRE, J.
Reserved on : 02/04/2016
Pronounced on: 11/04/2016
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ORAL JUDGMENT :
Heard Mr. A.G. Godhamgaonkar, learned Counsel for the
applicant and learned A.P.P. for respondent-State and learned
Counsel Mr. Kshirsagar, holding for Mr. A.S. Deshpande, learned
Counsel for respondent Nos. 2,3 and 4.
2. The applicant claims that he filed Regular Criminal
Case No. 625 of 1998 in the Court of Chief Judicial Magistrate,
Nanded against the respondents for the offence punishable under
Section 167,200, 427 read with Section 34 of the Indian Penal Code.
It is alleged that, accused No.1, who was carrying grudge against
him, so as to cause harm and mischief, inspected godown of 'New
Sagar Wines' on 15/07/1996 and seized stock of country liquor and
submitted report to the superior officer on 06/08/1997. On earlier
point of time i.e. on 17/07/1996, the godown was found to be legal
and authorized. After the report was submitted and certain shortfalls
in the godown were noticed, CL-II licence of the applicant was
cancelled. It is claimed that the act on the part of present
respondents was in high handed and with criminal intention and
hence sought issuance of process against the accused persons.
3. After the complaint came to be filed on 16/03/1999,
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verification was recorded and learned Magistrate was pleased to
issue process against the accused persons for the offence
punishable under Sections 167, 200, 427 read with Section 34 of the
Indian Penal Code. Since respondent-accused No.2 did not appear,
on 05/02/2001 an application for issuance of non bailable warrant
came to be moved and the Magistrate has issued bailable warrant on
05/02/2001, and thereafter, issued non bailable warrant on
27/06/2001.
4. The respondent-accused preferred Criminal Revision
Application No. 06 of 2001 under Section 397 before learned
Revisional Court and prayed that the order dated 10/01/2000
directing issuance of process be set aside.
5. An objection was raised by the applicant to the said
revision on the ground that the revision was time barred, as was filed
beyond limitation. Learned Revisional Court ruled in favour of the
respondent vide its order dated 13/06/2001 observing that the
revision was well within time. The said order passed by Sessions
Judge was subject matter of challenge in Criminal Writ Petition No.
531 of 2001, which came to be partly allowed by judgment dated
09/04/2001 by remanding the matter back to the Sessions Judge
quashing the order referred supra, directing the Sessions Judge to
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decide the issue of limitation afresh.
6. Learned Sessions Judge, thereafter passed an order
allowing the revision by order dated 31/07/2002 holding that the
complaint itself is liable to be dismissed and held that the revision
was filed well within time, which order is the subject matter of
challenge in the present revision application.
7.
Mr. Godhamgaonkar, learned Counsel for the applicant,
while trying to make out the case for showing indulgence, would urge
that learned Chief Judicial Magistrate ordered issuance of process
on 10/01/2000 and on 29/05/2000 revision was filed questioning the
order of issuance of process. According to him, since the revision
was time barred, an objection was rightly raised. While inviting
attention of this Court to the date of filing of the revision, he would
submit that the revision was liable to be dismissed as time barred.
8. The next limb of submission of Mr. Godhamgaonkar is,
while dealing with the issue of limitation, learned revisional Court has
exceeded its jurisdiction by dismissing the complaint itself and as
such, the order of dismissal of the complaint is not sustainable. He
would then submit that the act on the part of respondent-accused
was in excess of the official duty or can be termed as not within the
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official limit and as such, the provisions of Section 197 of the Code of
Criminal Procedure or Section 147-A of the Bombay Prohibition Act
are not applicable. He would submit that the order impugned is
contrary to the provisions of Section 197(1) of Code of Criminal
Procedure.
9. Per contra, learned Counsel for the respondents-
accused would urge that the order of issuance of process was
passed on 10/01/2000. The revision was filed on 29/05/2000. While
pointing out appropriate dates, particularly as reflected on Page Nos.
43 and 44 of the record, he would urge that the revision was well
within limitation, as the same was filed immediately after getting
knowledge by the respondent-accused as regards impugned order.
He would then submit that learned Sessions Judge has rightly
appreciated the contents of the complaint and there is no substance
in the revision, particularly having regard to the scope in revisional
jurisdiction and as such, prayed for dismissal of the revision
application.
10. Having considered the rival submissions of the parties, it
is required to be noted that the Chief Judicial Magistrate has issued
process against the accused at the behest of present petitioner for
the offence punishable under Section 167 read with Section 34 of the
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Indian Penal Code by an order dated 10/01/2000.
11. It is brought on record by the respondent No.2-accused
through an affidavit that for about more than six years, he was
serving at Bombay as a Deputy Commissioner of State Excise and
prior to five to six months, he was transferred to Nagpur as Additional
Commissioner of State Excise. He has in specific terms stated that
he had no knowledge of criminal case presented by present
applicant and other accused Shivappa, who stood retired from
service, has informed him on 23/05/2000 about passing of the order
of issuance of process. He thereafter immediately applied for
certified copy on 26/05/2000 and filed revision on 29/05/2000.
12. In this background, learned Court below has assessed
the issue of limitation pursuant to remand order passed by this Court
in Criminal Writ Petition No.531 of 2001 on 09/04/2001. Learned
Sessions Judge, while considering the issue of limitation in the above
referred background, has noted that the present applicant though
has raised objection to the claim of the respondent that he has filed
revision within limitation, there is specific averments that he came to
know about passing of the order of issuance of process on
23/05/2000 from another accused Kullur. Learned Session Judge
then noted that once Advocate Mr. Hake, who is Senior Member of
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Nanded Bar, has filed an affidavit on record on 28/06/2002 stating
that he has received instructions and authorization from respondent
Mr. Mishra and prepared revision and before filing of the same, has
inserted certain portion in the revision and presented revision on
29/05/2000. The Court below in its discretion accepted the said
affidavit of lawyer, for which there was no issue of doubt. Learned
Revisional Court then having regard to the law laid down by this
Court in the matter of Sonalkar Chemicals, Pune vs. M/s. Eagle
Flask Industries Ltd., Pune reported in 2000(4) Mh.L.J. 832 and
other catena of judgments, has ruled out in favour of respondent that
revision was filed within time and not suffered from any delay and
latches.
13. The said findings, if tested in the light of dates narrated
herein above, particularly as regards the date of knowledge of the
respondent as regards the order of issuance of process, in my
opinion, no fault could be noticed in the said findings.
14. While dealing with the next limb of submission of learned
Counsel for the applicant that the Revisional Court has committed
error by dismissing the complaint itself, if appreciated, the Revisional
Court has considered the fact that all the accused persons, who are
named and against whom the process is ordered, were admittedly
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posted in the Excise Department on their respective posts and as
such, are public servants. In this background, though learned
Counsel for the applicant has invited attention of this Court to the
provisions of Section 197(1) of Code of Criminal Procedure so as to
canvass that the respondent-accused was not acting or purporting to
act in discharge of his official duty and as such, protection as
provided thereunder is not available. Learned Counsel then would
submit that the nature of allegations in the F.I.R. justifies his stand,
as the act as has been alleged against the respondent, cannot be
termed as one in discharge of official duty.
15. If the above referred submissions of learned Counsel for
the applicant are considered in the backdrop of contents of the
complaint, it is required to be noted that the complainant claims to be
a wholesale dealer in country liquor holding CL-II licence and having
other family concerns, such as, 'M/s. New Sagar Wines', 'M/s. New
Dhanraj Liquor'. All these licences are governed by the provisions of
Bombay Prohibition Act and relevant rules framed thereunder. It is
then required to be noted that the accused Shivappa being
Superintendent of State Excise, Nanded on 15/07/1996, alleged to
have grudge against the applicant has inspected godown of M/s.
New Sagar Wines and seized country liquor by unauthorized and
illegal means. It is claimed that the said godown was visited and
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inspected by accused on earlier occasion and nothing illegal was
found. It is claimed that accused Shivappa demanded bribe of
Rs.15,000/-.
16. If the above referred contentions of the applicant are
analysed, the visit of the officials including that of original accused
No.1 to the godown of the applicant was in official capacity. So far as
role attributed to the present respondent-accused No. 2 is
concerned, it is to be noted that the role attributed to him is issuance
of notice on the basis of report submitted by original accused No.1 in
the matter of cancellation of licence of the complainant on
12/06/1997 and then issuance of notice as regards other firms of the
complainant by respondent No.2. It is claimed against present
respondents that respondent No. 2 with the assistance of the other
accused has caused loss to the complainant by cancelling his licence
of other firms, which has no concern with the issue in question.
Overall reading of the allegations, particularly as against this
accused, it is to be noted that the entire allegations are in the matter
of discharging official duty by accused No. 2, because of which
present applicant appears to be aggrieved of. In the above referred
background, there is no option left but to infer that permission as is
required under Section 197 of the Code of Criminal Procedure before
initiation of the prosecution against respondent No.1 by present
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applicant was rightly held to be mandatory. Learned Court below,
while discharging accused and dismissing the complaint, has rightly
relied upon the provisions of Section 146(A) of the Bombay
Prohibition Act. The said provision in clear terms provides for
protection to a Officer like that of respondent No. 2 in the matter of
initiation of prosecution. The said Section reads thus :
146A. (1) All prosecutions of any Prohibition, Police or
other Officers, or of any persons empowered to exercise
powers or to perform functions under this Act, and all
actions which may be lawfully brought against the
Government or any of the aforesaid officers or persons, in
respect of anything done or alleged to have been done in
pursuance of this act, shall be instituted within four months
from the date of the act complained of, and not afterwards;
and any such action shall be dismissed--
(a) if the plaintiff does not prove that, previously to
bringing such action, he has presented all such
appeals allowed by this Act, or any other law for the
time being in force, as within the aforesaid period of
four months it was possible to present; or
(b) in the case of an action for damages, if tender of
sufficient amends shall have been made before the
action was brought, or if after the institution of the
action a sufficient sum of money is paid into Court
with costs, by or on behalf of the defendant.
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(2) Subject to the provisions of Section 197 of the Code of
Criminal Procedure. 1898, no Court shall take cognizance
of an offence committed or alleged to have been
committed by any prohibition, police or other officer or any
persons empowered to exercise powers or to perform
functions under this Act, in regard to anything done under
this Act, until the sanction of the Collector having
jurisdiction has been obtained.
17.
Having held that the act on the part of respondent No.2,
who was Prohibition Officer and attributions against him are in
relation to performance and discharge of his official function, the
provisions of Section 146A are very much applicable and available to
the respondent and are rightly taken recourse to by learned
Revisional Court.
18. In this background, the findings recorded by the
Revisional Court that the revision was within limitation and the fact
that the complaint preferred against present respondent No. 2 is
liable to be dismissed and was accordingly dismissed, are rightly
recorded.
19. In view of above, no case for interference in
extraordinary jurisdiction is made out. Hence, the revision application
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fails and stands dismissed. Rule is discharged.
sd/-
[ N.W. SAMBRE, J. ]
Tupe/11.04.16
