Janimiya Hussain Sahab vs S S Dahiphale And Ors
2016 Latest Caselaw 7060 Bom

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                                                             13 CRI.APPLICATION NO.4028 OF 2009.odt


                   THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            BENCH AT AURANGABAD.




                                                                                    
                       CRIMINAL APPLICATION NO. 4028 OF 2009




                                                            
    Janimiya Hussain Saheb,
    Age 69 yrs, Occ. Agri.,




                                                           
    R/o Dharmapuri now at Parli,
    Dist. Beed.                                                 ... APPLICANT
                                                               (Ori. Complainant)




                                               
                       V E R S U S


    1.         S. S. Dahiphale,
                                  
               Age 54 yrs, Occ. Talathi,
               R/o Dharmapuri, Tq. Parli,
                                 
               Dist. Beed.

    2.         Revenue Circle Inspector (Girdhawar)
               Circle Dharmapuri, Tq. Parli,
      

               Dist. Beed.
   



    3.         The State of Maharashtra.
               (Copy served on P.P.H.C.)                         ... RESPONDENTS
                                                                     (Ori. Accused)      





                                       ...
    Mr. Vivek Bhavthankar, Advocate for Applicant.
    Mr. S. P. Tiwari, APP for Respondent No.3 / State.
                                       ...





                                                  CORAM  : V. K. JADHAV, J.

                                                  DATE     : 08th December, 2016.


    ORAL JUDGMENT: 
     
    .                  Being   aggrieved   by   the   judgment   and   order   dated   29th






                                                              13 CRI.APPLICATION NO.4028 OF 2009.odt

May, 2009 passed by the Ad-hoc Additional Sessions Judge-I,

Ambajogai in Criminal Revision Application No.68 of 2008, the original

Complainant has approached to this Court by filing the present

criminal application.

2 Brief facts giving rise to the present criminal application

are as follows:

a.

The Applicant / original Complainant had filed a

complaint against present Respondent Nos.1 and 2 and

54 others for having committed the offence punishable

under Sections 167, 168, 420, 218, 447 and 427 read

with 34 of the Indian Penal Code before the Judicial

Magistrate First Class, Parli. It has alleged in the

complaint that present Respondents / original Accused

Nos.1 and 2 are public servants and the remaining

Accused are in possession of land bearing Survey

Nos.5-A and 5-AA to the extent of certain portion on the

basis sale-deed executed in their favour illegally. It has

alleged that name of the father and grand-father of

Applicant / Complainant recorded in the revenue record

13 CRI.APPLICATION NO.4028 OF 2009.odt

in respect of Survey No.5-A. His father sold some

property to one Vithal Laxman in the year 1962 and also

sold certain property to one another person in the year

1968. Furthermore, some portion of the property came

to be acquired by the Government and finally the land

admeasuring 1 Acre 37 Gunthas remained in possession

of the Applicant / Complainant. Furthermore, the grand-

father of Applicant / Complainant also sold certain

property and ultimately 2 Acres and 13 Gunthas of land

remained in his possession. Even though the name of

the purchasers came to be recorded on the basis of sale-

deed executed in their favour by the father and grand-

father of the Complainant, those purchasers took illegally

possession of the remaining land also. It has further

alleged in the complaint that the Applicant / Complainant

has instituted a suit, which came to be dismissed. It has

further alleged in the complaint that the said purchasers

prepared plots in the said agricultural land and sold it. It

has thus alleged that all the Accused including present

Respondents committed the offence as aforesaid in

13 CRI.APPLICATION NO.4028 OF 2009.odt

furtherance of their common intention.

b. The learned Judicial Magistrate First Class, Parli-

Vaijnath by order dated 9th November, 2005, on perusal

of complaint, verification statement and also report under

Section 202 of the Code of Criminal Procedure, issued

the process against the Respondents / original Accused

Nos.1 and 2 for the offence punishable under Section

167 and 218 read with 34 of the Indian Penal Code. In

response to the said process, the Respondent / original

Accused Nos.1 and 2 appeared before the Court and the

learned Magistrate by order dated 1st July, 2008, directed

to frame the charge against the Respondents / original

Accused. Being aggrieved by the same, the present

Respondents / original Accused Nos.1 and 2 preferred

Criminal Revision Application No.68 of 2008 and the

learned Ad-hoc Additional Sessions Judge-I, Ambajogai

by judgment and order dated 29th May, 2009 in Criminal

Revision Application No.68 of 2008, allowed the said

revision and quashed and set aside the order passed by

the learned Magistrate in aforesaid R.C.C. No.312 of

13 CRI.APPLICATION NO.4028 OF 2009.odt

2005. Hence, this criminal application preferred by the

original Complainant.

3 The learned counsel for the Applicant / original

Complainant submits that the Respondents / original Accused Nos.1

and 2 in collusion with each other recorded false mutation entry and

created false and bogus record. The learned counsel submits that it

is the part of record that Accused Nos.1 to 7 made plots in the

agricultural land and sold it to Accused Nos.8 to 56 and accordingly,

the names of those purchasers are recorded in the revenue record.

The learned counsel submits that police report is in favour of the

Applicant / Complainant, however, the same is not considered by the

Revisional Court. The Respondents / Accused Nos.1 and 2 have

committed the offence for which the sanction as contemplated under

Section 197 is not required. There is prima facie evidence against the

Respondents / Accused Nos.1 and 2 and therefore, the learned

Magistrate has rightly issued the process against them. The

Revisional Court without applying the mind, quash and set aside the

said order by considering the probable defence of Respondents /

Accused Nos.1 and 2.

13 CRI.APPLICATION NO.4028 OF 2009.odt

4 The learned counsel for Respondent / original Accused

Nos.1 and 2 submits that there are no allegations at all in the

complaint and no documentary evidence produced to substantiate the

allegations made in the complaint that the Respondents / Accused

Nos.1 and 2 have made any change in the record of right during the

period when the stay granted by the Civil Court was in force. It has no

where alleged in the complaint by referring the documents that

Respondents / original Accused Nos.1 and 2 framed the incorrect

document with an intention to cause injury. On the other hand,

Respondents / original Accused Nos.1 and 2 bound to take the

mutation entry if copy of the registered sale-deed is produced before

them. The learned counsel submits that there is a reasonable nexus

between the act complained against the Respondents / original

Accused Nos.1 and 2 and the official duties performed by them. The

learned Ad-hoc Additional Sessions Judge, Ambajogai has therefore,

rightly observed that Respondents / Accused Nos.1 and 2 are

required to be protected in view of the provisions of Section 197 of the

Code of Criminal Procedure. The learned counsel submits that the

impugned judgment and order passed by the Revisional Court calls

no interference. There is no substance in the criminal application and

13 CRI.APPLICATION NO.4028 OF 2009.odt

the same is liable to be dismissed.

5 On careful perusal of the allegations made in the

complaint, it appears that the Applicant / Complainant had instituted a

civil suit against other Accused named in the complaint and the said

suit came to be dismissed. Further the appeal preferred against the

said decree is also came to be dismissed. The learned Additional

Sessions Judge has observed in the impugned order that the entries

in respect of the names of purchasers in 7/12 extract have been taken

by the concerned Talathi on the basis of registered documents and on

receiving the applications from the concerned purchasers to that

effect. It is a matter of record that various transactions took place in

respect of the land owned and possessed by the father, grand-father

of the Applicant / Complainant. The learned Additional Sessions

Judge on perusal of record observed that no document is produced

before the Court to show that Respondents / original Accused Nos.1

and 2 have taken those entries or certified those entries. There are

vague allegations in the complaint and there is nothing on record to

show that Respondents / original Accused Nos.1 and 2 have prepared

any false document or any Government record so as to attract the

ingredients of Section 167 of the Indian Penal Code. The

13 CRI.APPLICATION NO.4028 OF 2009.odt

Respondents / Accused Nos.1 and 2 are the public servants and so

far as the allegations made against them are concerned, there is a

reasonable nexus with their official duties. The learned Additional

Sessions Judge has therefore, rightly observed that the

Respondents / original Accused Nos.1 and 2 are entitled for the

protection as contemplated under Section 197 of the Code of Criminal

Procedure. I do not find any fault with the judgment and order passed

by the learned Additional Sessions Judge, Ambajogai. There is no

merit in the criminal application. Hence, the following order:

O R D E R

I. Criminal application is hereby dismissed.

II. Rule discharged.

III. Criminal application is accordingly disposed of.

[ V. K. JADHAV, J. ] ndm