Bombay High Court
Mahadeo Namdeo Pathare vs Gorakshanath Tukaram Badal And ... on 19 December, 2016
Bench: V.K. Jadhav
1 CRI APPLN NO.3988.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3988 OF 2007
Mahadeo s/o Namdeo Pathare,
age 55 yrs, Occ. Service,
R/o Kotwali Police Station,
Ahmednagar. Applicant/
orig accused no.3
VERSUS
1. Gorakshanath s/o Tukaram Badal,
age 26 yrs, Occ. Reporter,
R/o Khatgaon (Takli), Tq. & Dist.
Ahmednagar.
2. Prakash s/o Dadasaheb Nimbhore,
age 28 yrs, Occ. Business,
R/o Ghotwi, Tq. Shrigonda,
Dist. Ahmednagar.
3. Rajesh s/o Ramakant Dhawan,
age 35 yrs, Occ. Reporter,
R/o Old Civil Hospital Colony,
Ahmednagar.
4. Police Station Officer,
Kotwali Police Station,
Ahmednagar. ..Respondents..
(R no.1 is complainant.
& 2,3 are accused 1,2)
...
Advocate for Applicant : Mr S L Bhapkar
APP for Respondent State : Mr. S W Munde
Advocate for Respondents : Mr N B Narwade for R No.1,
Mr P B Shirsath For R-2
...
CORAM : V.K. JADHAV, J.
Dated: December 19, 2016
...
2 CRI APPLN NO.3988.2007.odt
ORAL JUDGMENT :-
1. Being aggrieved by the order of issuance of process
dated 27.8.2007 passed by the 8th Judicial Magistrate
First Class, Ahmednagar, in R.T.C. No. 359/2007, the
original accused no.3 has approached to this Court by
filing present criminal application.
2. Brief facts, giving rise to the present criminal
application are as follows :-
On 28.2.2006 respondent no.1 had submitted an
application to Kotwali Police Station, Ahmednagar
alleging therein that, present respondent no.2 had taken
his motor cycle Hero Honda bearing registration no.MH-
17/B-1070 for his personal use on return basis and
thereafter he had not returned the motor cycle to him.
On the basis of said application, the in-charge of the
police Station has directed the applicant-original
accused no.3 to carry out investigation into the
allegations made in the said application. Thus, the
applicant/original accused no.3 has recorded the
statements of respondents no. 1 to 3 and submitted his
report in the police station. Respondent no.1 has,
3 CRI APPLN NO.3988.2007.odt
however, approached to the C.J.M. Ahmednagar by filing
a private complaint vide RTC No.359/2007 alleging
therein that though his statement was recorded by the
present applicant, while carrying out investigation into
the allegations made by him in his application,
subsequently, behind his back tampered with the said
statements and inserted one sentence in his statement
in order to help other accused persons to the effect that
"respondent no.1 had no complaint against anybody."
3. The learned 8th J.M.F.C., by impugned order dated
27.8.2007 on perusal of the complaint and after
recording verification statement and documents filed on
record and after hearing counsel for the respondent no.1
complainant, found prima facie case is made out and
accordingly issued process against the present
applicant-accused no.3 for the offence punishable under
sections 203, 217, 218, 464 read with section 34 of I.P.C.
and also issued process against the original accused
nos. 1 and 2 under different sections. Hence, this
criminal application.
4 CRI APPLN NO.3988.2007.odt
4. The learned counsel for the applicant submits
that, the applicant was serving as Assistant Police Sub
Inspector in Kotwali Police Station at the relevant time
and inquiry into the allegations made in the complaint
dated 28.2.2006 filed by respondent no.1 in the police
station was assigned to him by the P.S.I. of Kotwali
Police Station. Thus, during the course of the said
inquiry, the applicant-original accused no.3 has
recorded statement of respondents no.1 to 3. The
applicant has recorded statement of respondent no.3
Rajesh Dhawan on 19.8.2006 and thereafter recorded
statement of respondents no.1 and 2 on 20.8.2006.
Learned counsel submits that, on 20.8.2006 itself, the
applicant has submitted his report in the police station
in respect of the said inquiry assigned to him. It has
submitted in the said report that since, the original
complainant has no complaint, his complaint may be
filed. On perusal of the said report, PSI of P.S. Kotwali,
Ahmednagar has filed said report and made
endorsement to that effect on the report itself under his
signature and date i.e. 20.8.2006. Learned counsel
submits that, there is a reasonable nexus between the
5 CRI APPLN NO.3988.2007.odt
act complained of and official duties performed by the
applicant. The learned counsel for the applicant
submits that, even on perusal of the statement of
respondent no.1-original complainant, no where it
transpires that, addition has been made in the original
statement in the manner as alleged in the complaint.
On the other hand, above the signatures of respondent
no.1 on his statement, it has stated that the contents of
his statement were read over to him and further he also
read the contents of the same and the same are correct.
Learned counsel submits that respondent no.3 original
accused no.2 whose statement came to be recorded
during the course of inquiry has produced said vehicle
in the police station from the possession of one Shri
Khaire and since the police station insisted for
production of the documents showing his ownership in
respect of the said vehicle, respondent no.1-original
complainant filed after thought complaint with some
ulterior motive. Learned counsel submits that, the
learned Magistrate has issued the process mechanically
without applying its mind. Previous sanction is
precondition for taking cognizance of the offence and the
6 CRI APPLN NO.3988.2007.odt
order of the Magistrate issuing process against the
applicant is liable to be quashed and set aside.
5. Learned counsel for the applicant, in order to
substantiate his contentions placed his reliance on
following cases :-
1. R. Balakrishna Pillai Vs. State of
Kerala and another reported in AIR
ig 1996 Supreme Court 901.
2. Manoj Prabhakar Lohar Vs. Rahemat
Bee Mohammad Hasan and another
reported in 2016 (1) Bom.C.R. (Cri)
3. Cri WP 344/2007 Vishnupanth s/o
Appasaheb Bedre and ors. Vs. The
State of Maharashtra and another)
dated 28.11.2016 of this Court.
6. Learned counsel for respondent no.1-original
complainant submits that, respondent no.1 has filed his
complaint in the police station on 28.2.2006 alleging
therein that respondent no.2 herein had taken the said
vehicle for his personal use and thereafter did not
return it. It has also stated in the said complaint that it
was revealed that some third person out of some
financial transaction with said Prakash Nimbhore
7 CRI APPLN NO.3988.2007.odt
forcibly taken possession of the said motor cycle. The
applicant in making inquiry into the allegations of the
said application, recorded statement of the respondents
no. 1 to 3. Learned counsel submits that respondent
no.1 has given his statement as per the allegations made
in his application and, there was no reason for him to
state at the end of his statement that he had no
complaint. Learned counsel submits that, present
applicant in collusion with the other accused persons
had inserted that part in his statement and accordingly,
closed that inquiry illegally. Learned counsel submits
that, there is no nexus between the act complained of
and the official duties to be performed by the applicant.
Learned counsel submits that respondent no.1-original
complainant approached to the Superintendent of Police
Ahmednagar by filing the complaints in writing against
the applicant, however, no cognizance was taken and
therefore, the applicant approached to the Court by
filing private complaint. Learned counsel submits that,
the learned Magistrate has recorded the verification
statement of respondent no.1-original complainant and
on perusal of the contents of the complaint and the
8 CRI APPLN NO.3988.2007.odt
documents submitted alongwith the complaint rightly
issued the process against the applicant-original
accused no.3 for the offence punishable under sections
203, 217, 218, 464 read with section 34 of IPC. No
interference is required. There is no substance in the
criminal application and criminal application is thus
liable to be dismissed.
7.
I have also heard the learned counsel for
respondent no.2 and the learned APP for respondent
no.4-State.
8. Undisputedly, the applicant who is serving as A.S.I
was assigned with the inquiry into the allegations made
in the complaint filed by the respondent no.1 on
28.2.2006. During the course of the inquiry, the
applicant-original accused no.3 has recorded statement
of the respondents 1 to 3 herein. It is a matter of record
that, after recording of the statement of present
respondent no.1-original complainant, the applicant has
submitted his report on the same date i.e. 20.8.2006 in
the police station alongwith those statements. The
9 CRI APPLN NO.3988.2007.odt
Court can look into the said report to the extent of
considering the point of sanction as provided under
Section 197 of the Cr.P.C. raised in this application. On
perusal of the report, it appears that, the applicant has
brought the facts to the notice of the PSI of Kotwali
Police Station, Ahmednagar in the light of the statement
recorded during the course of inquiry and further
concluded in the report that the complaint is thus liable
to be filed. It appears that there is a reasonable nexus
in the act complained and the official duties performed
by the applicant.
9. It has alleged in the complaint filed before the
Court by respondent no.1 that, after respondent no.1
put his signature on the said statement recorded during
the course of inquiry, present applicant has changed
said statement by inserting one sentence in collusion
with the respondents no. 2 and 3 herein. On careful
perusal of the copy of the statement of respondent no.1-
original complainant dated 20.8.2006, there appears no
tampering in the statement and even no insertion of
sentence as alleged in the complaint. On the other
10 CRI APPLN NO.3988.2007.odt
hand, the disputed sentence appears to have written in
continuation with the other contents and thereafter the
statement is concluded with the statements that the
contents of statement read by the deponent and those
are correct and accordingly respondent no.1-
complainant put his signature below his statement.
Furthermore, the applicant has not submitted his
report to the P.S.I of Kotwali Police Station with remark
to file the complaint only on the ground that respondent
no.1 complainant has stated in his statement that he
had now no complaints. It appears that the applicant
has given reference to the statement of respondent nos.2
and 3 recorded during the course of the inquiry. The
same is also not disputed by respondent no.1-
complainant as there is reference in paragraph no.2 of
the complaint about recording of the statement of
respondents no.2 and 3 during the course of the inquiry
and it has further accepted in the complaint that those
persons were called in the police station for recording
their statements.
11 CRI APPLN NO.3988.2007.odt
10. On perusal of the statement of respondent no.3
Rajesh Dhawan it appears that, he has stated that
respondent no.1-complainant has sold said vehicle to
him, however, it was not transferred in his name on the
record of the registration authority and since said
vehicle was not in good condition he was repeatedly
insisting respondent no.1-complainant to take back his
vehicle and refund the purchase amount. He has
further stated in his statement that respondent no.1-
complainant told him to sell that vehicle to any person
as he desire and thereafter respondent no.3 Rajesh
Dhawan sold the said vehicle to some other person
through agent. He has further stated in his statement
that, no theft is committed in respect of the said vehicle
and that he is ready to produce that vehicle in the police
station within three days. Further, respondent no.2
against whom certain allegations have been made in the
application submitted to the police station stated that,
there was some another transaction between him and
respondent no.1 and on account of the said transaction,
respondent no.1-complainant has falsely involved him
by filing an application against him in the police station
12 CRI APPLN NO.3988.2007.odt
in respect of his vehicle.
11. During the course of the arguments, this court
has made a query with the learned counsel appearing
for the parties as to where at present that vehicle is
lying and both the counsel on instructions submit that
said vehicle is lying in the police station. I have made a
specific query with the learned counsel appearing for
respondent no.1-original complainant as to who has
produced that vehicle before the police and thereupon
learned counsel for respondent no.1-original
complainant on specific instructions from the
respondent no.1-original complainant who is present
before the Court submitted that said vehicle was sold by
respondent no.3 Rajesh Dhawan to one Khaire and
thereafter said vehicle was produced before the police by
respondent no.3 Rajesh Dhawan.
12. In the light of these statements, it appears that the
applicant has correctly recorded statement of
respondent no.3 Rajesh Dhawan and as assured by
respondent No.3 Rajesh said vehicle was also produced
13 CRI APPLN NO.3988.2007.odt
before the police. It further appears that, the vehicle is
still lying in the police station since respondent no.1
complainant has failed to show the original papers
showing his ownership of the said vehicle.
13. Respondent no.1-complainant sought time before
this Court for producing the papers and accordingly
alongwith additional affidavit submitted one 'N.O.C'
issued by the Deputy Regional Transport Officer,
Shrirampur in favour of the respondent no.1
complainant in respect of the said vehicle. It further
appears from the registration particulars of the said
vehicle that vehicle is owned by one Sanjay Karbhari.
This NOC was given in the year 2001, however, till this
date, vehicle is not transferred in the name of
respondent no.1-complainant and therefore, no papers
such as registration certificate etc., are produced before
this Court. Obviously, those papers were also not
produced before the police.
14. In the backdrop of this, I find much substance in
the report submitted by the applicant after recording
14 CRI APPLN NO.3988.2007.odt
statement of respondents 1 to 3. On careful perusal of
the said report and in the backdrop of the above facts, it
appears that there is nexus between the act complained
and the official duties performed by the applicant.
15. 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. 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
15 CRI APPLN NO.3988.2007.odt
(Ganesh Chandra Jew). If the 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."
16. In the above cited case, the question of sanction
whether is necessary or not arise at the inception and
there were 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.
17. In the instant case, though report submitted by
the applicant in the police station can be considered as
16 CRI APPLN NO.3988.2007.odt
his defence during the course of the trial, for the
purpose of deciding question of sanction, the same can
be looked into and it establishes that the applicant was
acting in performance of his official duty.
18. In a case Manoj Lohar (supra) relied upon by the
learned counsel for the applicant by relying upon the
observations made by the Apex Court in the aforesaid
case, learned Single Judge of this court has taken a
similar view.
19. In view of the above, without obtaining sanction
which is precondition for taking cognizance, the learned
Magistrate has issued process against the applicant-
accused. There is no requirement that the applicant
accused should wait till the charges are framed to raise
this plea. In Pepsi Foods Ltd. Vs. Special Judicial
Magistrate reported (1998) 5 SCC 749, in paragraph
no.28 of the judgment, the Supreme Court has made
the following observations:-
"28. Summoning of an accused in a criminal case
is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not that
the complainant has to bring only two witnesses
to support his allegations in the complaint to
17 CRI APPLN NO.3988.2007.odt
have the criminal law set into motion. The order
of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts
of the case and the law applicable thereto. He
has to examine the nature of allegations made in
the complaint and the evidence both oral and
documentary in support thereof and would that
be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the
time of recording of preliminary evidence before
summoning of the accused. The magistrate has to
carefully scrutinize the evidence brought on
record and may even himself put questions to the
complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or
otherwise and then examine if any offence is
prima facie committed by all or any of the
ig accused."
20. Thus, order of issuance of process passed by the
8th Judicial Magistrate First Class, Ahmednagar, dated
27.8.2007 in R.T.C. No.359 of 2007 does not stand.
Hence, following order.
O R D E R
I. Criminal Application is hereby allowed in
terms of prayer clause "C" and the complaint
R.T.C. No.359/2007 as against this applicant
stands dismissed.
II. Rule is made absolute in above terms.
III. Criminal Application accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
