Satish Jagannath Sadamate vs Yousuf Ibrahim Balseria & Ors
2016 Latest Caselaw 6875 Bom

                                                                            cran2497.05
                                         -1-




                                                                             
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                     
                        CRIMINAL APPLICATION NO. 2497 OF 2005



     Satish s/o Jagannath Sadamate




                                                    
     Age 43 years, Occ. Government servant
     Dy. Regional Transport Officer
     At present Jalna, District Jalna                         ...Applicant

              versus




                                       
     1.       Yousuf Ibrahim Balseria
                             
              Age 35 years, Occ. Poultry Farm
              R/o. Bhagwatwadi, Navapur,
              Tq. Navapur, District Nandurbar                 ...(Ori. complainant)
                            
     2.       The State Government
              (copy to be served on the
              Government Pleader, High Court
              of Judicature of Bombay,
              Bench at Aurangabad)                            ...Respondents
      


                                           ...
   



       Advocate for Applicant : Miss. S.V. Nyayadhish h/f Mrs. C.S. Deshmukh
               Advocate for respondent No.1: Mr. Joydeep Chatterji
                 APP for Respondent No.2: Mr. M.B. Bharaswadkar
                                          .....





                                                CORAM : V. K. JADHAV, J.

DATED : 2nd DECEMBER, 2016

ORAL JUDGMENT:-

1. Being aggrieved by the order dated 1.8.2005, passed by the

learned J.M.F.C. Nandurbar below Exh.1 in criminal case No. 266 of

2004, issuing thereby the process against the applicant and one

more accused, for the offences punishable under Sections 420, 467,

468, 469, 470 r.w. 34 of I.P.C. the original accused No.3 has

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preferred this criminal application.

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

as follows:-

a) The applicant accused is working as Deputy Regional

Transport Officer and he was transferred the Transport Office

Nandurbar. The respondent original complainant has filed a private

complaint before the J.M.F.C. Nandurbar, alleging therein that his

uncle, by name Mohd. Yousuf Balesariya, had purchased a truck

bearing registration No. MH-18-7296, long back from one Ismail Miya

Mohd. Malak. After purchasing the said truck, it was transferred in

the name of his uncle by following due procedure, as laid down under

the provisions of Motor Vehicles Act. It has further alleged in the

complaint that the uncle of the complainant never sold the said truck

to anybody nor given no objection certificate to that effect. However,

original accused No.1, in collusion with the present applicant and

another accused, who is R.T.O. agent, fraudulently got transferred

the said vehicle in his name. It has alleged in the complaint that all

accused in furtherance of their common unlawful object, have

committed the offences punishable under Sections 420, 467, 468,

469, 470 r.w. 34 of I.P.C.

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b) By order dated 16.8.2004, the learned Magistrate has directed

the concerned police to carry out the investigation, as provided under

Section 156(3) of Cr.P.C. Accordingly, the concerned police has

submitted report on 22.12.2004 before the learned J.M.F.C.

Nandurbar disclosing that after due investigation, no offence is made

out against the present applicant and the R.T.O. agent. However, by

order dated 24.2.2005, learned Magistrate further directed the

concerned police for re-investigation into the matter. Learned

Magistrate has also directed to conduct investigation through another

investigating Officer. The concerned police, thereafter submitted a

report. It has submitted that the charge sheet is filed against the

original accused No.1, however, no case is made out against the

present applicant accused and another accused, who happened to

be the R.T.O. agent. The learned Magistrate, after giving an

opportunity of being heard to the counsel for the complainant and on

perusal of police report and after going through the allegations made

in the complaint and the documents placed on record in support

thereof, by impugned order dated 1.8.2005 issued process against

the present applicant and the accused No.2 (R.T.O. agent) for the

offences punishable under Sections 420, 467, 468, 469, 470 r.w. 34

of I.P.C. Hence, this criminal application.

3. Learned counsel for the applicant submits that the applicant

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accused is working as Deputy Regional Transport Officer, at

Nandurbar, at the relevant time. The said vehicle was registered at

R.T.O. office at Dhule and since the uncle of the complainant sold

the said vehicle to original accused No.1, on submission of relevant

papers, the R.T.O. Office, Dhule has issued no objection certificate

for transfer of the said vehicle in the name of original accused No.1.

After considering the papers forwarded to the applicant accused

alongwith no objection certificate, the applicant accused has passed

an appropriate orders in terms of provisions of the Motor Vehicles

Act. The act complained of is having reasonable nexus with the

official duties performed by the applicant accused. The learned

Magistrate has taken cognizance of the complaint against applicant

accused without there being any sanction as provided under Section

197 of Cr.P.C. In view of this, the impugned order of issuance of

process against the applicant accused is liable to be quashed and

set aside on this ground alone. The uncle of the complainant had

submitted all relevant documents before the R.T.O. Dhule and after

verifying those documents, the R.T.O. Dhule has issued no objection

certificate for transfer of the said vehicle in favour of original accused

No.1. The uncle of the complainant has not approached the court

and the complainant, who has no concern with the vehicle, has

lodged the complaint.

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4. Learned counsel for the respondent original complainant

submits that the uncle of the complainant never sold the vehicle to

any person, including original accused No.1 nor issued any no

objection certificate in favour of original accused No.1, even though

the original accused No.1 in collusion with the present applicant and

accused No.2, who is R.T.O. agent, got transferred the said vehicle

in his name by preparing false documents. Strong prima facie case

is made out against the applicant. The applicant accused alongwith

other accused persons committed offence for which sanction is not

required. Learned Magistrate has therefore, correctly issued process

against the applicant and other accused. No interference is required.

Criminal application is liable to be dismissed.

5. I have also heard learned A.P.P. for the respondent-State.

6. I have carefully perused the allegations made in the complaint

and report submitted by the police twice before the learned

Magistrate. I have also perused the documents submitted alongwith

the criminal application. It is true that the probable defence of the

accused cannot be considered at the time of issuance of process nor

the documents produced before the court for the first time when the

order of issuance of process is challenged before the superior court.

However, in the instant case, the applicant accused is public servant

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and at the inception of the case, he may produce certain documents

and those documents can be looked into by the court, to the extent of

requirement of sanction, as provided under section 197 of Cr.P.C.

7. In view of the above discussion, a necessary reference can be

given to the observations made by the Supreme Court in the case of

D.T. Virupakshappa Vs. C. Subash, reported in (2015) 12 SCC 231,

relied upon by learned counsel for the applicant. The Supreme Court in

para 8 and para 5 of the said judgment, has referred the case of

Omprakash and others vs. State of Jharkhand, through the

Secretary, Department of Home, Ranchi 1 and another and quoted

paragraphs 32 and 41, respectively, of the said judgment, which read as

under:-

"32. The true test as to whether a public servant was acting or

purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be

inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew). If he

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above tests are applied to the facts of the present case, the police

must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or

attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in

this case as a cloak for killing the deceased in cold blood. (Emphasis supplied)"

41. The upshot of this discussion is that whether sanction is

necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and

unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given

under Section 197 of the Code. It is not possible for us to hold

that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in

mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea."

8. In the case in hand, there is official record, which unmistakenly

points out that the R.T.O. office Dhule, on verifying the record

submitted by the owner of the said truck, issued no objection

certificate in favour of original accused No.1 for transfer of the vehicle

and on the basis of documents forwarded to the R.T.O. office

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Nandurbar, alongwith the said no objection certificate, the applicant

accused has passed necessary order effecting said transfer in favour

of original accused No.1. Thus, there is reasonable nexus between

the act complained and the official duty discharged by the applicant

accused for which sanction, as provided under Section 197 of

Cr.P.C. is required. Further, as rightly pointed out by the learned

counsel for the applicant that owner of the truck has not filed any

complaint and the respondent complainant, who has no concern with

the truck, approached the court and made wild allegations against

the present applicant, who is public servant. It is true that anybody

can set the criminal law in motion by filing complaint, however, in the

peculiar facts and circumstances of the present case, a note is

required to be taken that the original owner of the truck has not

approached the court to lodge the complaint. Apart from this, in view

of above discussion, the ratio laid down by Supreme Court in the

case of D.T. Virupakshappa Vs. C. Subash (supra), the order of

issuance of process passed by learned Magistrate against the

present applicant accused is liable to be quashed and set aside for

want of sanction, as provided under Section 197 of Cr.P.C. Criminal

application therefore, succeeds. Hence, I proceed to pass the

following order:-

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ORDER

I. Criminal application is hereby allowed in terms of prayer clause "C".

             II.      Rule is made absolute in the above terms.




                                         
             III.     Criminal application is disposed of.
                             
                                                        ( V. K. JADHAV, J.)
                            
     rlj/