Rajkumar Mahadev Mane vs Nagnath Bapurao Mali & Anr
2016 Latest Caselaw 5039 Bom

                                            1           CRI APPLN 1700.2015.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                                 
                 CRIMINAL APPLICATION NO. 1700 OF 2005




                                                         
                 Rajkumar Mahadev Mane,
                 age 35 years, Occ. Service as Naib Tahsildar,




                                                        
                 Tahasil Office, Kalamb,
                 R/o Kallamb, Tq. Kallamb,
                 Dist. Osmanabad.                   ...Applicant...
                                                 (orig accused no.2)




                                           
                 VERSUS 

         1.
                             
                 Nagnath s/o Bapurao Mali,
                 age 45 years, Occ. Agril,
                 R/o Kallamb, Tq. Kallamb,
                            
                 Dist Osmababad.

         2.      The State of Maharashtra,
                 Through Police Station Officer,
      


                 Kallamb.
                 (Copy to be served on Public
   



                 Prosecutor of High Court of Judicature
                 Of Bombay Bench at Aurangabad.)  ..Respondents.
                                       ...
                Advocate for Applicant : Mr S G Chapalgaonkar 





                     APP for Respondents: Miss R P Gour  
                                       ...
                          CORAM : V.K. JADHAV, J.

Dated: August 29, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the order of issuance of process

passed by the Jt. Judicial Magistrate First Class, Kallamb in

RCC No.288/2004 original accused no.2 has preferred this

criminal application.

2 CRI APPLN 1700.2015.odt

2. Brief facts, giving rise to the present application are as

under :-

The applicant is working as Naib Tahsildar at Tahsil

Office, Kallamb. Respondent No.1 has filed complaint

against in all nine persons including present applicant

alleging therein that the accused persons have rejected his

application for entering his name into 7/12 extract with an

intention to help the other side. It has alleged in the

complaint that the present applicant had issued a notice to

the owner of the land without any reason. It has thus stated

in the complaint that accused persons including present

applicant have committed an offence punishable under

sections 193, 196, 197, 199, 465, 466, 471 read with section

34 of the Indian Penal Code. The learned Judge of the trial

Court has issued the process against all the accused persons

including present applicant for the aforesaid offences. Hence,

this application.

3. The learned counsel for the applicant submits that, on

18.8.2003 as per the order passed by this Court, respondent

no.1 had filed an application for recording his name as

tenant in respect of the landed property. Said application

came to be filed before the Tahsildar for compliance of the

order passed by this Court. Learned counsel submits that a

3 CRI APPLN 1700.2015.odt

detail note is prepared on 18.8.2003 by the Senior clerk of

the Tahsil Office and the present applicant passed his

remarks on it to the effect that concerned Talathi had not

taken entry in compliance with the orders passed by the

Court and for that purpose explanation from the concerned

Talathi is required to be called. It has also submitted by way

of remarks on it that, information be solicited from the non

applicant as to whether the appeal is preferred against the

Court orders. Furthermore, on the official note dated

20.9.2003, the present applicant has submitted his remarks

before the Tahsildar that notices are required to be given to

the parties and matter is required to be kept for hearing.

Learned counsel submits that on the basis of these notes,

the respondent-original complainant has lodged complaint

against the present applicant.

4. Learned counsel submits that the act complained

against the present applicant is about discharging of his

official duties and therefore, prior sanction as provided

under section 197 is required. In absence of that, the

Magistrate cannot take cognizance and issue the process

against the applicant.

4 CRI APPLN 1700.2015.odt

5. I have also heard the learned APP for the State.

6. Learned counsel for respondent no.1-original

complainant is absent.

7. On perusal of the impugned order, it appears that the

learned Magistrate has given reference to the judgment and

order passed by this Court with further observations that

said orders are binding on the accused including the present

applicant. It has also observed in the impugned order that

accused no.1 Tahsildar has not obeyed the orders passed by

the Civil Court as well as this Court and delivered the

judgment as against findings recorded by the Civil Court as

well as by this court. On perusal of said office note and

remarks submitted by the present applicant on it, it appears

that the applicant has expressed his opinion on the official

note that explanation of the concerned Talathi is required to

be called for the reason that even though said decision was

given long back, concerned Talathi has not taken entry in the

7/12 extract. He has further expressed his opinion that,

explanation of the applicant is also required to be sought for

the reason that he has filed application belatedly.

Furthermore, he has also submitted his remarks before his

superiors that the information is required to be taken from

5 CRI APPLN 1700.2015.odt

the other side whether any appeal is preferred against said

orders. On the second official note dated 20.9.2003 since

other side has referred certain decision rendered by the

S.D.O., Bhoom after the year 2000, the Senior Clerk has

recorded details of the said contention including contentions

raised by the complainant and in that office note, in the light

of the details given, present applicant submitted his remarks

to the effect that the matter is required to be kept for hearing

after giving notices to both the parties.

8. It is well settled that test to determine whether alleged

action which constitute an offence had a reasonable and

rational nexus with the official duties required to be

discharged by the public servant. In the case in hand,

alleged action so far as present applicant is concerned,

which according to the respondent-complainant constitutes

an offence had certainly a reasonable nexus with his official

duties. Thus, the allegations made against the present

applicant even though accepted as it is, no offence is made

out as such and even assuming that said allegations have in

fact attracts penal provisions as mentioned in the complaint,

in the light of the above observations, previous sanction as

provided under section 197 of the Code of Criminal

Procedure is required in this case so far as applicant is

6 CRI APPLN 1700.2015.odt

concerned. The learned Judge of the Trial Court has not

considered the same and mechanically issued the process

against the present applicant. Hence, following order.

O R D E R

1. Criminal Application is hereby allowed in

terms of prayer clause 'B' as against the present applicant.

2. Criminal Application is accordingly ig disposed of. Rule is accordingly made absolute in above terms.

sd/-

( V.K. JADHAV, J. )

....

aaa/-