Bombay High Court
Imran Inus Shaikh vs Rukmini Dada Dhanwade on 21 December, 2016
Bench: V.K. Jadhav
cran2387.07
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2387 OF 2007
Imran s/o Inus Shaikh,
Age. 52 years, Occ. Service,
R/o. Karjat, Tq. Karjat,
District: Ahmednagar. ....Petitioner
versus
Rukmini w/o Dada Dhanwade,
Age. 42 years, Occ. Agril. & Household,
R/o. Kaparewadi, Tq. Karjat,
Dist. Ahmednagar. ....Respondent
.....
Advocate for Petitioner: Mr. N V Gaware
Advocate for Respondent : Mrs. M D Thube-Mhase
.....
CORAM : V. K. JADHAV, J.
DATED : 21st DECEMBER, 2016
ORAL JUDGMENT:-
1. The applicant original accused No.1, by this criminal
application, seeks to quash and set aside the R.T.C. No. 41 of 2005
qua the applicant, pending on the file of learned Judicial Magistrate,
First Class, Karjat.
2. Brief facts, giving rise to the present criminal application, are
as follows:-
a) The respondent original complainant has filed a complaint
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bearing R.T.C. No. 41 of 2005, before the J.M.F.C. Karjat, against
the present applicant and one more accused, for having committed
offences punishable under Sections 166, 167, 193, 406, 420, 468 of
I.P.C. It has alleged in the complaint that the applicant is village
Talathi and another accused is Circle Officer. On 8.6.2000, the
respondent complainant had purchased one agriculture land bearing
Gat No. 56/2 and Gat No.54/1, situated at village Kaparewadi, from
Shahabai Tukaram Wangade, Rahibai Pandharinath Sudrik and
Lalabai Dasu Khondve, under registered sale deed for valuable
consideration.
b) It has further alleged in the complaint that vide mutation entry
No. 414 dated 26.2.2000, name of legal heirs of deceased Laxman
Sahadu Dhanwade, who died on 3.4.1992, were mutated and the
said mutation entry has been sanctioned on 18.3.2000. It has further
alleged that as per the village revenue record, the mutation entry
Nos. 401 to 403 were sanctioned on 06.01.2000, mutation entry Nos.
406 to 413, mutation entries No. 415 to 420 were sanctioned on
4.4.2000 and mutation entry No. 421 to 423 were sanctioned on
18.10.2000. In the month of March, 2000, no mutation entry was
carried out but as per the revenue record, the mutation entry No. 414
was sanctioned on 18.3.2000. It has further alleged in the complaint
that the said vendors Shahabai, Rahibai and Lalabai had never
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executed the relinquishment deed in respect of the aforesaid lands,
purchased by the respondent complainant and thus it appears that
the mutation entry No.425 came to be effected in collusion with the
present applicants and another accused. It has further alleged in the
complaint that the applicant and the original accused No.2 in
collusion with each other and with an intention to cause loss to the
said Shahabai, Rahibai and Lalabai, tampered the Government
record and carried out false and bogus mutation entry Nos. 425, 426
and 428, respectively.
c) On the basis of these allegations in the complaint, learned
Magistrate, Karjat by order dated 26.4.2005, after hearing the
counsel for the respondent complainant, on considering verification
statement and the documents produced alongwith the complaint,
issued process against the present applicant and another accused
for the offence punishable under Sections 166, 167, 406 and 471 of
I.P.C.
3. Learned counsel for the applicant-original accused submits
that as per the allegations made in the complaint, the alleged offence
shown to have occurred in the year 2000, however, the complaint in
question came to be lodged in the year 2005. The respondent
complainant has not bothered to explain the said delay to satisfy the
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Magistrate. Even the learned Magistrate, suo moto, has not
considered the aspect of inordinate delay caused in filing the
complaint, while entertaining the said complaint. Learned counsel
submits that learned Magistrate has taken cognizance of a time
barred complaint and issued process against the applicant.
Learned counsel for the applicant submits that the applicant is
a public servant and prior sanction, as provided under Section 197 of
Cr.P.C. is precondition for prosecution of the applicant, who is
working as a Talathi. Though, there are allegations about recording
of false mutation entries, it is the job of the Circle Inspector to certify
each and every mutation entries and the applicant, being a Talathi,
has no concern with it. It has alleged in the complaint that vendors of
the complainant viz. Shahabai, Rahibai and Lalabai had never
executed the relinquishment deed in respect of their share in the
ancestral property and even after the respondent complainant had
searched about the said deed; it could not be traced out. The brother
of said vendors Shahabai, Rahibai and Lalabai had preferred appeal
before the Sub Divisional Officer, Karjat Division, Karjat against
cancellation of certain mutation entries in respect of aforesaid land,
wherein the said brother Ramdas has pointed out to the Court the
relinquishment deed was executed by his sisters and the copy of said
deed also produced before the Court. The learned Sub Divisional
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Officer by its judgment and order dated 27.2.2004 allowed the appeal
and restored the mutation entry No.425 with direction that if the
sisters of the appellant Ramdas is having any grievance about
execution of said relinquishment deed they can approach the civil as
well as criminal court for Redressal of their grievance. It thus
appears that the mutation entry No.425 came to be recorded as per
the relinquishment deed produced by the parties. Thus, there is
close nexus between the act complained and the official duties
performed by the applicant.
Learned counsel for the applicant in order to substantiate his
contentions, placed his reliance on the following cases:-
i) D.T. Virupakshappa vs. C. Subash, reported in (2015) 12
SCC 231;
ii) General Officer Commanding vs. C.B.I. and another
reported in 2012 (2) B.C.R. (Cri.) 623.
iii) State of Himachal Pradesh vs. M.P. Gupta reported in
2003 AIR SCW 6887
iv) Anil Kumar and others vs. M.K. Aiyappa and another,
reported in 2013 (10) SCC 705.
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v) Zandu Pharmaceutical Works Limited and others vs. Mohd.
Sharaful Haque and another, reported in 2005(1) Bom.C.R.
(Cri.)620
(vi) Sarah Mathew vs. Institute of Cardio Vascular Diseases
and others, reported in (2014) 2 SCC 62.
4. Learned counsel for the respondent complainant submits that
in response to the process issued by the trial court, the applicant and
accused No.1, appeared before the trial court and even the learned
Magistrate has passed order of framing of charge against all of them.
Even though mutation entry No.414 was certified in the month of
October, 2000, the same has been scored and changed to the month
of March, 2000. The said vendors, Shahabai, Rahibai and Lalabai
never relinquished their rights in the aforesaid lands, however, only
to help accused Nos. 3 and 4 and to facilitate the further mutation
entry Nos. 426 and 428, the said mutation entry No.425 was effected
without there being any relinquishment deed produced on record.
Learned counsel submits that even the Tahsildar has directed
enquiry into the allegations made in the complaint and prima facie
found that there are deliberate changes in the original record with
regard to mutation entry Nos. 414 and 425. The Tahsildar has
recommended the action against the applicant. Learned counsel
submits that even though the respondent complainant had submitted
an application to the Collector, seeking sanction to prosecute the
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applicant and other accused persons, the said application was
submitted as a matter of abundant precaution and the acts alleged
against the applicant cannot be said to be an acts done in the course
of discharge of his official duty and therefore, sanction as
contemplated under Section 197 of Cr.P.C. is not required. There is
no reasonable connection between the act complained and
discharge of the official duty.
5.
It appears from the order passed by learned Magistrate,
dated 26.4.2005, thereby learned Magistrate has issued process
against the applicant and other accused persons for the offences
punishable under Sections 166, 167, 406 and 471 of I.P.C. It is thus
clear that the maximum punishment for the offences as aforesaid is
three years imprisonment. In view of the provisions of Section 468
(2) clause (c), the period of limitation is of three years, if the offence
is punishable with imprisonment for a term exceeding one year but
not exceeding three years. In terms of provisions of Section 473 of
Cr.P.C. the extension of period of limitation in certain cases is
permissible. The court may take cognizance of an offence after
expiry of the period of limitation, if it is satisfied on the facts and in
the circumstances of the case that the delay has been properly
explained or that it is necessary to do so in the interests of justice. In
the instant case, the respondent complainant had not filed any
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application alongwith the complaint to explain the inordinate delay
occurred in filing the complaint. Even though the alleged offence
shown to have been committed in the year 2000, the respondent
complainant has approached the Court by filing private complaint on
20.4.2005 and the learned Magistrate, at the time of taking
cognizance and even at the time of issuance of process, has not
considered the point of limitation.
6.
In the case of Sarah Mathew vs. Institute of Cardio
Vascular Diseases (supra), relied upon by learned counsel for the
applicant, in para 51 of the judgment, the Supreme court has made
the following observations:-
"51. In view of the above, we hold that for the purpose of
computing the period of limitation under Section 468 CrPC the
relevant date is the date of filing of the complaint or the date of
institution of prosecution and not the date on which the
Magistrate takes cognizance. We further hold that Bharat Kale
which is followed in Japani Sahoo lays down the correct law.
Krishna Pillai will have to be restricted to its own facts and it is
not the authority for deciding the question as to what is the
relevant date for the purpose of computing the period of
limitation under Section 468 CrPC."
7. It is thus clear that for the purpose of computing the period of
limitation under Section 468 of Cr.P.C. the relevant date is the date
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of filing of complaint. In the instant case, the complaint came to be
filed before the Court beyond period of limitation.
8. In the case of Zandu Pharmaceutical Works Ltd and
others vs. Mohd. Sharaful Haque and others (supra), relied upon
by learned counsel for the applicant, in para 15 of the judgment, the
Supreme Court has made following observations:-
"15. The learned Magistrate has issued process in respect of
offence under section 418 I.P.C. The punishment provided for the
said offence is imprisonment for three years. The period of
limitation in terms of section 468(2)(c) is 3 years. That being so,
the Court could not have taken cognizance of the offence. Section
473 of the Code provides for extension of period in certain cases.
This power can be exercised only when the Court is satisfied on
the facts and in the circumstances of the case that the delay has
been properly explained or that it is necessary to do so in the
interest of justice. Order of learned Magistrate does not even refer
to either section 468 or section 473 of the Code. The High Court
clearly erred in holding that the complaint was not hit by limitation.
As noted above, there was not even a reference that the letter
dated 5-12-2001 was in response to the letter of the complainant
dated 24-11-2001. The factual position clearly shows that the
complaint was nothing but a sheer abuse of the process of law and
this is a case where the power under section 482 should have
been exercised. The High Court unfortunately did not take note of
the guiding principles as laid down in Bhajan Lal case thereby
rendering the judgment indefensible. The judgment of the High
Court is set aside, the proceedings initiated by the complaint
lodged are quashed. The appeal is allowed."
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9. In the instant case, the learned Magistrate has issued process
in respect of the offences under sections 166, 167, 406 and 471 of
I.P.C. and the maximum punishment provided for the said offences is
imprisonment of three years. The period of limitation in terms of
Section 468 (2) (c) is three years. Thus, learned Magistrate should
not have taken cognizance of the offences. The said power can be
exercised only when the Court is satisfied on the facts and in the
circumstances of the case and the delay has been properly
explained. However, in the instant case, the order of the Magistrate
does not even refer either under Section 468 or 473 of the Code. It
thus appears that the complaint against the present applicant is hit by
limitation.
10. On careful perusal of the allegations made in the complaint, it
appears that the real dispute amongst the legal heirs of Laxman
Sahadu Dhanwade is of a civil nature. The said Laxman Dhanwade
died on 3.4.1992 leaving behind him three married daughters viz.
Shahabai, Rahibai and Lalabai and two sons viz. Ramdas and Dada.
The respondent complainant on 8.6.2000, under a registered sale
deed had purchased the share of those three daughters. However, in
the meanwhile, on the basis of relinquishment deed produced before
the revenue authorities, certain mutation entries came to be
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sanctioned deleting thereby the names of those daughters in respect
of the aforesaid land on the basis of the alleged relinquishment deed
executed by them. The said daughters of deceased Laxman
Dhanwade had obviously disputed the execution of said
relinquishment deed.
11. As directed by this Court, the respondent complainant had
produced before this court a copy of judgment and order dated
27.2.2004, passed by the Sub Divisional Officer, Karjat. One of the
legal heirs of deceased Laxman i.e. his son Ramdas, had preferred
an appeal before the Sub Divisional Officer against cancellation of
mutation entry 425. The said mutation entry 425 came to be
recorded and sanctioned on the basis of alleged relinquishment deed
executed by married daughters of deceased Laxman. The Sub
Divisional Officer, by its judgment and order, as aforesaid, allowed
the appeal by considering a copy of relinquishment deed and further
directed the married daughters of deceased Laxman to approach the
civil or criminal court for redressal of their grievance, if at all, they
dispute the authenticity of said relinquishment deed. The Sub
Divisional Officer, by the said order has set aside the order passed
by the Tahsildar about cancellation of mutation entry 425 and
accordingly restored the said mutation entry 425. The respondent
complainant has mainly alleged in the complaint that the mutation
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entry 425 was recorded ante dated to facilitate the subsequent
mutations in respect of the aforesaid land sold by said Ramdas to
other persons, who are subsequently arrayed as accused Nos. 3 and
4 to the original complaint. However, it appears that the applicant
being Talathi, is required to accept the application and documents
submitted with a request to take an appropriate mutation entry.
However, as per the provisions of Maharashtra Land Revenue Code,
he is not appropriate authority to certify the said mutation entry
however, he is bound to accept the application and the documents
submitted alongwith the application and refer it to the Circle Officer
for appropriate action. Even the Sub Divisional Officer, by his
judgment and order dated 27.2.2004 has confirmed the certification
of mutation entry 425.
12. In view of the aforesaid facts, it appears that there is
reasonable nexus between the act complained and the performance
of official duties by the applicant. In the case of D.T. Virupakshappa
Vs. C. Subhash, (supra), the Supreme Court in para 6 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 of the said
judgment, which read as under:-
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"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
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
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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. ..."
13. It is thus well settled that the question of sanction is a
paramount importance for protecting the public servant who has
acted in good faith while performing his duty. He may not be
unnecessarily harassed on a complaint by unscrupulous person.
There is reasonable connection between the act complained and the
official duty performed by the applicant and the applicant is entitled to
protection given under Section 197 of Cr.P.C. The respondent
complainant also filed an application before the Collector seeking
sanction to prosecute the present applicant, however, no such
sanction was accorded and the complaint was filed without obtaining
sanction before the court.
14. In view of the above discussion, the complaint as against the
present applicant fails on both the counts. The learned Magistrate
could not have taken cognizance of time barred complaint and also
without sanction as required under Section 197 of Cr.P.C. Hence, I
proceed to pass the following order:-
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ORDER
I. Criminal application is hereby allowed in terms of prayer
clause "B".
II. Rule made absolute in the above terms.
III. Criminal application is accordingly disposed of.
ig ( V. K. JADHAV, J.)
rlj/
