Bombay High Court
Narendra Kishanrao Ashtikar & Ors vs State Of Mah & Anr on 17 November, 2016
Bench: V.K. Jadhav
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910 CRI.APPLICATION.762 OF 2005.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPLICATION NO. 762 OF 2005
1. Narendra Kishanrao Ashtikar,
Age. 51 years, Occu. Service,
2. Gautam Kachru Gangawane,
Age. 40 years, Occu. Service,
3. Kaduba Godhaji Dudhe,
Age. 40 years, Occu. Service,
4. Sahebrao Rajaram Suradkar,
Age. 35 years, Occu. Service,
5. Chootiram Roopaji Dudhe,
Age. 35 years, Occu. Service,
6. Shaikh Asif Shaikh Azagar,
Age. 39 years, Occu. Service,
7. Ambadas Kaduba Dhormare,
Age. 36 years, Occu. Service,
8. Prabhakar Kishanrao Shinde,
Age. 35 years, Occu. Service,
9. Attaullah Khan Munir Khan Pathan,
alisa Moin Kha,
Age. 38 years, Occu. Service,
10. Vithal Rangnath Dorkhe,
Age. 39 years, Occu. Service,
11. Dilip Sitaram Salve,
Age. 34 years, Occu. Service,
12. Devidas Ganpat Kudal,
Age. 30 years, Occu. Service,
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910 CRI.APPLICATION.762 OF 2005.odt
13. Sambhaji Bhimrao Wagh,
Age. 35 years, Occu. Service,
all R/o Nagar Parishad Sillod,
R/o Sillod, Tq. Sillod,
District Aurangabad. ... APPLICANTS
(Orig. Accused)
V E R S U S
1. The State of Maharashtra.
(Copy to be served on Public Prosecutor
High Court of Bombay Bench at
Aurangabad).
2.
Harishkumar S/o Arjundas Shamnani,
Age. 42 years, Occu. Business,
R/o House No.258, Sindhi Colony,
Jalgaon, Dist. Jalgaon. ... RESPONDENTS
(Orig. Complainant)
...
Mr. V. S. Bedre, Advocate for the Applicants.
Mr. S. P. Tiwari, APP for Respondent No.1.
Mr. H. H. Palodkar, Advocate for Respondent No.2.
...
CORAM : V. K. JADHAV, J.
DATE : 17th November, 2016.
JUDGMENT:
. By this criminal application, the Applicants seek to quash
and set aside the order of issuance of process below Exhibit-1 dated
5th March, 2005 passed by the learned Judicial Magistrate First Class,
Sillod, in Miscellaneous Application No.292 of 2004.
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2 Brief facts giving rise to the present criminal application
are as under:
Respondent No.2 has filed a complaint against the
Applicants for having committed an offence punishable under Section
379 read with 34 of the Indian Penal Code. It is alleged in the
complaint that Respondent No.2 / original Complainant is the owner of
Maruti Omni Car bearing registration No. MH-20-U-49. On 12 th
December, 2004, he had parked his vehicle before Nanak Cloth
Store, Sarafa Market, Sillod and left the town for business purpose.
He returned on 29th December, 2004, and found that the vehicle was
not there. He had enquired with his brother Sacchanand Shamnani
and nephew Mahesh. They informed to him that all the Accused in
furtherance to their common intention had seized the said vehicle and
taken away it alongwith them. It is, therefore, alleged in the complaint
that all the Accused persons have committed the offence of theft.
3 On presentation of complaint, the learned Magistrate
when observed that Applicant No.1 is the Chief Officer of Municipal
Council, Sillod and other Applicants are staff members of the
Municipal Council, passed the order below Exhibit - 1 dated 1 st
910 CRI.APPLICATION.762 OF 2005.odt
January, 2005, in M.A. No.292 of 2004, with the observations that
Accused No.1 (Applicant No.1 herein) is the public servant not
removable from office except with the sanction of Government and
thus thought it fit to call his explanation in view of the law laid down by
the Supreme Court in the case P. K. Pradhan Vs. State of Sikkim,
reported in, AIR 2003 S.C. 2547 and accordingly called upon
Accused No.1 (Applicant No.1 herein) to submit explanation as to
whether he acted in discharge of official duty or otherwise.
Accordingly, Applicant No.1 / original Accused No.1 has submitted his
explanation on 5th February, 2005 before the learned Judicial
Magistrate First Class, Sillod.
4 The learned Judicial Magistrate First Class, Sillod vide its
impugned order dated 5th March, 2005 below Exhibit - 1 in M.A.
No.292 of 2004, issued process against all the Applicants / original
Accused under Section 379 read with 34 of the Indian Penal Code.
Hence this criminal application.
5 The learned counsel for Applicants submitted that
Applicant No.1 is the Chief Officer of the Municipal Council, Sillod and
all other Applicants are employees of the Municipal Council and are
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public servants. Respondent No.2 / original Complainant,
Sacchanand Arjundas Shamnani and Mohanlal Arjundas Shamnani
are all real brothers and are joint in all respects and also running
jointly the business named and styled as "Nanak Cloth Center, Sillod".
The said cloth center property No.584 is in the name of brother
Sacchanand and the property tax of said property is due towards
holders of the property. Applicant No.1 being the Chief Officer of the
Municipal Council, Sillod, caused to demand the said arrears of tax
through Council's employee and accordingly, bill of demand No.96597
dated 3rd July, 2004 (due tax of Rs.74,260/-) was given to
Sacchanand Arjundas Shamnani. However, he had failed to pay the
dues. After following due procedure, warrant of attachment was
served on him. On 13th December, 2004, the Applicants visited the
said property. The brothers alongwith said Sacchanand were present.
The said warrant of attachment was to be executed on the said
property No.584, but it is found that entrance of the shop and
residence of the said Shamnani family is from the shop only and if it is
closed, the property holders in his family members would not have
access to their residential house. Thus, said Sacchanand and his
brother Mohanlal and son Mukesh Sacchanand requested the
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Applicants that instead of attaching property No.584 / cloth center,
distrain their motor vehicle car bearing registration No.MH-20-U-49,
which is in the name of their joint family member Harishkumar
(Respondent No.2 / original Complainant herein). Even they have
handed over the key and papers of the said vehicle to the Applicants.
Accordingly, the vehicle was distrained / attached as provided under
Section 155 of the Maharashtra Municipal Councils Nagar Panchayats
and Industrial Townships Act, 1965 (hereinafter called as "the Act of
1965"). The Panchas including brother Mohanlal and nephew
Mukesh signed on the said panchanama and for safety the vehicle
was then placed in Sillod Police Station premises which is adjacent to
Municipal Council Office, Sillod.
6 The learned counsel submits that the said Maruti car is
distrained in discharging public duties by the Applicants / public
servants for the recovery of due taxes and it is not at all theft as
alleged in the complaint. There is no any dishonest intention in
attaching the property. The learned counsel submits that by
suppressing all these facts, Respondent No.2 has filed a false
complaint in collusion with his family members. The learned counsel
submits that in view of the provisions of Section 302 of the Act of 1965
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the Applicants are the public servants and in absence of any sanction
as provided under Section 197 of the Code of Criminal Procedure the
Magistrate cannot take cognizance of the complaint. The learned
counsel submits that the order of issuance of process is therefore,
liable to be quashed and set aside and the complaint is also liable to
be dismissed.
7 The learned counsel for the Applicants in order to
substantiate his contention placed reliance on the following cases:
i) Vithal Yedu Khalse Vs. The State of Maharashtra,
reported in, 1982 CRI. L. J. 1873.
ii) Criminal Appeal No.722 of 2015, delivered by the
Supreme Court on 27th April, 2015, (D. T. Virupakshappa
Vs. C. Subash).
8 The learned counsel for Respondent No.2 / original
Complainant submits that Respondent No.2 has purchased said
Maruti Omni Motor Vehicle bearing registration No.MH-20-U-49 in the
year 1998 and since then, he is the owner and possessor of the
same. His name is also recorded in the R.T.O. Office at Aurangabad.
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He is permanent residence of Jalgaon and occasionally visit Sillod.
The learned counsel submits that the said vehicle was removed by
the Applicants with common and dishonest intention. The learned
counsel submits that on 13th December, 2004, when all the Applicants
came to Nanak Cloth Store to attach the property of Sacchanand
Shamnani, it was informed to them that said motor vehicle does not
belong to Sacchanand Shamnani. However, under the garb of
attachment and with dishonest intention, the Applicants had stolen the
said vehicle. They have committed the offence of theft within the
meaning of Section 378 of the Indian Penal Code for which they are
liable to be prosecuted as per Section 379 of the Indian Penal Code.
The learned counsel submits that after giving an opportunity of explain
about the allegations made in the complaint to Applicant No.1 /
Accused No.1 the learned Magistrate has passed the impugned order.
The learned counsel submits that dishonest intention is apparent and
evident as even after realizing the mistake in terms of the provisions
of Section 155 (B) of the Act of 1965, the Applicants had not returned
the said vehicle to Respondent No.2. The learned counsel submits
that the said act is not an act, which can be termed as official duty and
therefore, sanction as provided under Section 197 of the Code of
910 CRI.APPLICATION.762 OF 2005.odt
Criminal Procedure is not required. The learned counsel submits that
the Applicants / original Accused were having intention to cause
wrongful loss to Respondent No.2 though they may not have any
wrongful gain as such. The word "dishonestly" as defined under
Section 24 of the Indian Penal Code means who ever does anything
with the intention of causing wrongful gain to one person or wrongful
loss to another person. The learned counsel submits that the
intention to cause wrongful loss alone is sufficient to constitute an
offence of theft. The learned Magistrate has therefore, rightly issued
the process under Section 379 read with 34 of the Indian Penal Code.
9 The learned counsel for Respondent No.2 / original
Complainant in order to substantiate his contention placed reliance on
the following cases:
i) K. N. Mehra Vs. State of Rajasthan,
reported in, AIR 1957 Supreme Court 369.
ii) Pyare Lal Bhargava Vs. The State of Rajasthan,
reported in, AIR 1963 Supreme Court 1094.
iii) Criminal Appeal No.129 of 2013, (Inspector of Police and
another Vs. Battenapatla Venkata Ratnam and another)
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decided by the Supreme Court on 13th April, 2015.
10 I have also heard the learned APP for the State.
11 Admittedly, property tax was due and distrain warrant
came to be issued against Sacchanand Shamnani, who happen to be
a real brother of Respondent No.2 / original Complainant. It is also
not disputed that all the Applicants are public servants and on 13 th
December, 2004, i.e. the date of incident, all the Applicants visited the
said property in respect of which warrant has been issued for recover
of property tax. In response to the notice issued by the Magistrate
before issuance of process, the Applicant / original Accused who
happen to be a Chief Officer of Municipal Council, Sillod, had
submitted his explanation and pointed out that Respondent No.2,
Sacchanand and Mohanlal are real brothers and joint in all respect
including the business named and styled as "Nanak Cloth Center,
Sillod" and the said cloth center property No.584 is in the name of
Sacchanand Shamnani. On 13th December, 2004, when the
Applicants visited the said property, the property holder Sacchanand,
his brother Mohanlal and Mukesh were also present. The property
holder has pointed out that if the said cloth center is attached and
910 CRI.APPLICATION.762 OF 2005.odt
sealed for recovery of the property tax as aforesaid, then the property
holder and his family members would not have an access to the
residence. Thus, the said brothers including the property holder
requested the Applicants to attach the said Maruti Omni vehicle and
accordingly, handed over the key and papers of the vehicle to the
Applicants. It is to be mentioned here that Respondent No.2 has no
where alleged that said vehicle was forcibly taken by the Applicants in
execution of warrant with the help of toeing vehicle. Even the
aforesaid facts were not denied by the Respondent / Complainant
before the Court below. The Applicants had drawn the panchanama
wherein it is specifically mentioned that the motor vehicle under
attachment is standing in the name of present Respondent No.2 /
original Complainant. Even the brother Mohanlal and nephew
Mukesh also signed on the said panchanama. It is a part of record
that Respondent No.2 thereafter, filed a complaint on 30 th December,
2004 belatedly without any explanation for such inordinate delay in
filing the complaint.
12 Section 378 defines the offence of theft and Section 379
prescribes punishment for that. Theft as defined under Section 378 is
the dishonest removal of moveable property out of the possession of
910 CRI.APPLICATION.762 OF 2005.odt
any person without his consent. The offence of theft consist in the
dishonest taking of any moveable property out of the possession of
another without his consent. Section 24 of the Indian Penal Code
defines the term "dishonestly", which reads as under:
"24. "Dishonestly".- Whoever does anything with the
intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that thing
"dishonestly". "
13 In the instant case, Respondent No.2 / Complainant was
not present when the Applicants visited the property for recovery of
property tax. It is no where denied that the property holder, who
happen to be the real brother of Complainant and other brothers, who
were present, handed over the key of the said car for executing the
distrain warrant instead of attaching the said property i.e. Nanak Cloth
Center. The Applicants being the public servants had no wrongful
gain while attaching the said car. The learned counsel for
Respondent No.2 has repeatedly submitted that since the vehicle was
not returned after realizing the mistake, it would sufficient to infer that
the Applicants caused wrongful loss to Respondent No.2 by attaching
his property without his consent. In the light of the above facts, I do
910 CRI.APPLICATION.762 OF 2005.odt
not think that the offence of theft stands attracted in the facts and
circumstances of the present case. By any stretch of imagination, it
cannot be inferred that the Applicants, who are the public servants
attached the car of Respondent No.2 in execution of a distrain warrant
for recovery of property tax, had committed the offence of theft. The
dishonest intention is lacking. Even though accepting the allegations
as it is made in the complaint, I do not think that the offence of theft
stands attracted in this case.
14 In a case of Vithal Yedu Khalse Vs. The State of
Maharashtra (supra) relied upon by the learned counsel for the
Applicants, in the facts of the said case, as per the prosecution case,
the accused committed theft of handcuff from Barshi police station
when the officer and constables were present in the police station.
The accused claimed that he went to Barshi police station to lodge a
complaint in respect of some incident. However, the constables in the
police station were sleeping and when he tried to awake them, they
threatened him to leave the police station. Thus, the accused feeling
aggrieved, took up a handcuff, which was hanging over the table of
the police officer and proceeded towards Solapur to produce it before
the Superintendent of Police and point out how the constables at the
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Barshi police station are behaving. Thus this Court has held that the
Accused had no intention to cause wrongful loss to the police and
thus, the offence of theft is not made out.
15 In the cases of K. N. Mehra Vs. State of Rajasthan
(supra) and Pyare Lal Bhargava Vs. The State of Rajasthan (supra)
relied upon by the learned counsel for Respondent No.2, the
Supreme Court alongwith other ingredients of the offence of theft
observed that presence of dishonest intention in so taking and at the
time, is the essential ingredient of the offence of theft. It is observed
that very moving out must be with dishonest intention.
16 On careful perusal of the complaint and the allegations
made therein, I find a reasonable connection between the act of the
Applicants and the official duties performed by the Applicants. It is not
possible to draw inference that the act complained, is of the seizure of
the vehicle belongs to Respondent No.2, who is no where concerned
with the said recovery of property tax.
17 In a case of D. T. Virupakshappa Vs. C. Subash referred
(supra) relied upon by the learned counsel for Applicants, the
Supreme Court in para No.6 of the order has referred the case of
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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. Paras 32 and 41 read as
under:
"32. The trust 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 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
910 CRI.APPLICATION.762 OF 2005.odt
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. ..."
18 In a case of Inspector of Police and another Vs.
Battenapatla Venkata Ratnam and another (supra) relied upon by the
learned counsel for Respondent No.2, the Supreme Court has
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observed the indulgence of the officers / public servants in cheating,
fabrication of record or misappropriation and held that it cannot be
said to be discharge of their official duty. It is also observed that the
official duty is not to fabricate record or permit evasion of payment of
duty and cause loss to the revenue. The Supreme Court has made
the aforesaid observation in different context by considering the facts
and circumstances of the said case and the ratio laid down by the
Supreme Court cannot be made applicable to the facts and
circumstances of the present case.
19 The protection given under Section 197 of the Code of
Criminal Procedure is available to the public servant when the alleged
act done by him is reasonably connected with the discharge of his
official duty and in doing his official duty, if he acted in excess of his
duty, but there is a reasonable connection between the act and
performance of the official duty, the excess will not be sufficient
ground to deprive the public servant of the protection. In this case,
there are unassailable and unimpeachable circumstances on record,
which unmistakenly pointed out that the Applicants were acting in
performance of their official duty. Furthermore, it also appears that
the Applicants have not acted in excess of their duty as the property
910 CRI.APPLICATION.762 OF 2005.odt
holder is the real brother of Respondent No.2 and the brothers
including the property holder of Respondent No.2, who were present
at the time of incident, voluntarily handed over the keys and papers of
the vehicle to the Applicants for attachment in execution of the distrain
warrant. Thus, the Applicants must get protection as contemplated
under Section 197 of the Code of Criminal Procedure as the act
complained of is integrally connected with or attached to their office.
Thus, the sanction is a precondition for taking cognizance of the
offence. The complaint filed by Respondent No.2 thus bound to fail
on all counts; firstly, the offence of theft is not attracted against the
Applicants even though the allegations made in the complaint are
accepted as it is, and secondly, in absence of previous sanction, as
required by the provisions of Section 197 of the Code of Criminal
Procedure, the Magistrate cannot take cognizance.
20 In view of the above, I proceed to pass the following
order:
O R D E R
I. Criminal Application No.762 of 2005, is hereby allowed
in terms of prayer clause (B).
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II. Rule is made absolute in above terms.
III. Criminal application is accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
