C I D C O Thr Chief Administrator, ... vs Bhausaheb Abasaheb Hiwale & Anr
2016 Latest Caselaw 6495 Bom

                                                 1
                                                                 908 CRI.APPLICATION.90 OF 2005.odt


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




                                                                                    
                          APPELLATE SIDE JURISDICTION




                                                            
                         CRIMINAL APPLICATION NO. 90 OF 2005

    The City & Industrial Development




                                                           
    Corporation, Aurangabad, through
    its Chief Administrator, Udyog Bhavan,
    Cidco, Aurangabad.                                           ... APPLICANT




                                               
                       V E R S U S


    1.
                                  
               Bhausaheb s/o Abasaheb Hiwale,
               age: 55 years, Occ: Agril. & Service,
               R/o Golegaonkar Colony,
                                 
               Station Road, Aurangabad.                         ... Ori. Complainant

    2.         State of Maharashtra.
               [ Copy to be served on the 
      

                 Public Prosecutor, High Court,
                 Bench at Aurangabad ]                           ... RESPONDENTS
   



                                         ...
    Mr. A. S. Bajaj, Advocate for the Applicant.





    Mr. S. P. Tiwari, APP for Respondent No.2 / State.
                                         ...


                                                   CORAM  : V. K. JADHAV, J.

                                                   DATE     : 17th November, 2016.


    ORAL JUDGMENT: 
     
    .                  By   way   of   this   criminal   application,   the   Applicant   is

challenging order dated 29th November, 2004, passed below

908 CRI.APPLICATION.90 OF 2005.odt

Exhibit - 4, by the Judicial Magistrate First Class, Aurangabad,

directing thereby to issue witness summons to the Applicant for

production of the documents mentioned therein. By this criminal

application, the Applicant though not the accused in a criminal case,

seeking quashment of the complaint filed by Respondent No.1, which

is numbered as Regular Criminal Case No.1476 of 2004, pending

before the IV Judicial Magistrate First Class, Aurangabad.

Brief facts giving rise to the present criminal application

are as under:

Respondent No.1 - original Complainant has filed a

private complaint before the Chief Judicial Magistrate, Aurangabad

against eight accused persons. Accused Nos.1 to 4 are the officers of

CIDCO, Aurangabad and Accused Nos.5 to 8 are attached to T.I.L.R.

Office, at Aurangabad. Respondent No.1 - original Complainant has

made certain allegations in respect of certain property and requested

the Court to take action against those accused persons for having

committed offence punishable under Sections 420, 409, 464, 465,

468 and 471 read with 34 of the Indian Penal Code. The learned

Magistrate has also recorded the statement of Respondent No.1 -

Complainant. However, on 5th November, 2004, Respondent No.1 -

908 CRI.APPLICATION.90 OF 2005.odt

Complainant has filed an application before the Chief Judicial

Magistrate, Aurangabad in the aforesaid case requesting therein that

the present Applicant be summoned to produce the documents as

detailed in the application. The learned Chief Judicial Magistrate by

order dated 29th November, 2004, directed to issue witness summons

to Mr. Vijay Saurabh, the then Chief Administrator, Cidco,

Aurangabad for production of the documents mentioned in the said

application Exhibit - 4. Being aggrieved by the same, the Applicant

has filed the present criminal application.

3 The learned counsel for Applicant submits that the

Magistrate was not at all empowered to take cognizance of the

complaint in absence of sanction from the Government as

contemplated under Section 197 of the Code of Criminal Procedure

and even the Magistrate does not have jurisdiction to make any

enquiry as contemplated under Section 202 of the Code of Criminal

Procedure. The learned counsel submits that Respondent No.1 -

original Complainant has filed the said application Exhibit - 4 with

malafide intention. Respondent No.1 - original Complainant has filed

said Application Exhibit - 4 with some oblique motive calling said

witness Mr. Vijay Saurabh, the then Chief Administrator, for the

908 CRI.APPLICATION.90 OF 2005.odt

purpose of examining him as a witness and to produce the

unconcerned record, which itself amounts to abuse of the process of

law. The learned counsel submits that the complaint itself is liable to

be quashed and the order dated 29th November, 2004, passed below

Exhibit - 4 is also liable to be quashed and set aside.

4 None present for Respondent No.1 though duly served.

I have also heard the learned APP for Respondent / State.

6 On perusal of the application Exhibit - 4 and the order

passed thereon, it appears that Respondent No.1 - original

Complainant has filed the said application under Section 91 of the

Code of Criminal Procedure for production of certain documents. It

further appears that the learned Magistrate has decided to inquire into

the allegations made in the complaint by himself and accordingly,

examined Respondent No.1 - Complainant. The learned Magistrate

has not issued any process against the Accused. It further appears

that in response to the order passed by the Magistrate dated 29 th

November, 2004, the application came to be submitted before the

Court with the prayers that appearance of Applicant be exempted and

the time of one month may be granted for production of the

908 CRI.APPLICATION.90 OF 2005.odt

documents through concerned officer. The learned Magistrate has

simply granted time to the witness as prayed.

7 Section 91 of the Code of Criminal Procedure reads as

under:

"91. Summons to produce document or other thing. (1) Whenever any Court or any officer in

charge of a police station considers that the production of any document or other thing is necessary or

desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before

such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing

is believed to be, requiring him to attend and produce it,

or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead

of attending personally to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or

908 CRI.APPLICATION.90 OF 2005.odt

(b) to apply to a letter, postcard, telegram or

other document or any parcel or thing in the custody of the postal or telegraph authority."

8 Applicant - Mr. Vijay Saurabh, who happened to be a

Chief Administrative Officer, is from IAS cadre and the learned

Magistrate has directed him to produce certain documents before the

Court. In view of Sub-Section (2) of Section 91 of the Code of

Criminal Procedure, if any person required under this section merely

to produce a document or other thing shall be deemed to have

complied with the requisition if he causes such document or thing to

be produced instead of attending personally to produce the same.

9 In view of the above, the Magistrate ought to have

exempted attendance of said Applicant - Mr. Vijay Saurabh, the then

Chief Administrator, Cidco, Aurangabad in terms of the provisions of

Sub-Section (2) of Section 91 of the Code of Criminal Procedure.

10 The Applicant is not an accused in Regular Criminal Case

No.1476 of 2004. The original Accused persons may challenge the

order of issuance of process, if passed by the Magistrate by raising

various grounds including the ground of sanction as provided under

908 CRI.APPLICATION.90 OF 2005.odt

Section 197 of the Code of Criminal Procedure. In view of this, prayer

clause [c] of the application cannot be entertained. The Applicant has

no locus standi to seek quashment of the complaint filed by

Respondent No.1 - original Complainant, which is numbered as

Regular Criminal Case No.1476 of 2004, pending before the IV

Judicial Magistrate First Class, Aurangabad.

11 The Applicant has never raised any objection to the order

passed by the learned Magistrate dated 29th November, 2004,

directing to produce certain documents before the Court and on the

other hand the Applicant sought one month time for production of the

documents through concerned officer by seeking exemption of

appearance of said officer Mr. Vijay Saurabh, the then Chief

Administrator, Cidco, Aurangabad before the Court. However, the

learned Magistrate has not granted exemption to the Applicant in

terms of the provisions of Sub-Section (2) of Section 91 of the Code

of Criminal Procedure. Thus, the order passed by the Magistrate calls

for interference to that extent and this application can be disposed of

by such modification in the order passed by the Magistrate. Hence,

the following order :

908 CRI.APPLICATION.90 OF 2005.odt

O R D E R

I. The criminal application is hereby partly allowed.

II. Order passed by Judicial Magistrate First Class,

Aurangabad dated 29th November, 2004 below Exhibit - 4

is hereby modified to the following effect.

III. The Applicant shall produce the documents before the

Court and in terms of the provisions of Sub-Section (2) of

Section 91 of the Code of Criminal Procedure, if the said

documents are produced before the Court through

concerned Officer of the Applicant, the Applicant shall be

deemed to have complied with the requisition and

attendance of Applicant personally before the Court to

produce the same stands exempted.

IV. Rest of the order stands confirmed.

           V.       Rule is made absolute in above terms.




                                                              [ V. K. JADHAV, J. ] 
    ndm