Bombay High Court
Shaikh Shakil Ibrahim & 2 Ors vs State Of Mah & Anr on 23 November, 2016
Bench: V.K. Jadhav
1 CRI APPLN NO.1366.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1366 OF 2005
1. Shaikh Shakil S/o Ibrahim,
Age. 45 years, Occ. Police
Constable, Bakkal No. 445,
City Police Station, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar.
2. Nandkishor S/o Girju Kate,
Age. 36 years, Occ. Police
Constable, Bakkal No. 799,
City Police Station, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar.
3. Nandkishor S/o Keshavrao Sangle,
Age. 45 years, Occ. Police Constable,
Bakkal No. 445, City Police Station,
Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar. ...APPLICANTS..
VERSUS
1. State of Maharashtra.
2. Raju S/o Laxman Shelar,
Age. 30 years, Occ. Driver,
R/o. Sidharth Nagar,
Ahmednagar. ...RESPONDENTS
...
None present for the applicants.
APP for Respondent 1: Mr A R Kale
Advocate for Respondent 2 : Mr Vijay Sharma
...
CORAM : V.K. JADHAV, J.
Dated: November 23, 2016
...
2 CRI APPLN NO.1366.2005.odt
ORAL JUDGMENT :-
1. The applicants seek to quash and set aside the
proceeding of RTC No.22/2005 pending before the
Judicial Magistrate First Class, Court No.3,
Ahmednagar.
2. Brief facts, giving rise to the present criminal
application, are as follows :-
The petitioners are the police constables attached
to Police Station, Shrirampur at the relevant time. One
Shri Dattatraya Mhetre and one another had filed a
Criminal case No.10/2005 before the Judicial Magistrate
First Class, Shrirampur against eight accused persons
for having committed an offence punishable under
sections 395, 392, 397, r/w 34 of Indian Penal Code. It
has also alleged in the said complaint that, the accused
named therein used motor vehicle Premier NE138
bearing registration No.MH-17/K-1111 for commission of
said offence. The learned Judicial Magistrate First
Class, Shrirampur on perusal of the said complaint,
directed the police investigation as provided under
section 156 (3) of the Criminal Procedure Code.
3 CRI APPLN NO.1366.2005.odt
3. On the basis of said directions, Crime
No.M.Cr.5/2005 came to be registered at Police Station,
Shrirampur and the concerned P.S.O. had directed
petitioner no.1 herein to carry out investigation in the
said crime No.M-5/2005. Accordingly, the petitioners
carried out investigation and also seized the vehicle
used in offence i.e. Premier NE 138 MH-17/K-1111 from
respondent No.2 Raju Laxman Shelar on 12.1.2005.
Said seizure of the vehicle was reported to the Police
Station, Shrirampur as well as to the concerned
Magistrate. On 15.1.2005 respondent no.2 herein filed a
Criminal Case No.22/2005 before the Judicial
Magistrate First Class, Ahmednagar against present
petitioners for having committed an offence punishable
u/s 394, 323 and 324 read with 34 of I.P.C. Initially,
learned Magistrate, by order dated 15.1.2005 directed
the investigation u/s 156(3) of Cr.P.C., however, on
9.2.2005, though, concerned Police Station had
submitted report in the negative, by the impugned order
dated 28.3.2005 issued process against the present
petitioners for the offence punishable u/s 394, 323 read
with section 34 of IPC. Hence, this Criminal Application.
4 CRI APPLN NO.1366.2005.odt
4. None present for the applicants.
5. Learned counsel for respondent no.2-original
complainant submits that, on 12.1.2005 respondent
No.2 was driving a car motor vehicle Premier NE-138
MH-17/K-1111 as directed to him by the owner towards
Rahuri. One Vitthal Prasad Khandelwal alongwith his
brother and the mother, who, was suffering from
paralysis was travelling in the car as directed by the
owner. Said Vitthal Khandelwal is the friend of his
owner. On way, their car was stopped by the applicants
and said car was seized without disclosing anything.
Even, respondent no.2-complainant was kicked out from
the car and petitioners took out said car alongwith the
accessories and, cash amount of Rs.14,000/- kept in the
dicky of the car. The applicants also threatened
respondent no.2-original complainant. Learned
Magistrate has not accepted the report submitted by the
police station and further by applying his mind to the
allegations made in the complaint, rightly issued
process against the present applicants. Learned counsel
submits that, act complained against the applicants is
5 CRI APPLN NO.1366.2005.odt
no where connected to their official duties and,
therefore, sanction under section 197 of the Cr.P.C. is
not required. Learned counsel submits that, no
interference is required. Criminal application is devoid
of any merits and, the same is liable to be dismissed.
6. I have also heard the learned APP for the State.
7.
On careful perusal of the documents submitted
alongwith this criminal application which are almost not
disputed, it appears that on the basis of Misc. Cri
application No.10/2005 filed by one Dattatraya Mhetre
and Sharad Taksal, learned Magistrate, Shrirampur has
directed the investigation into the matter as provided
under section 156 (3)of Criminal Procedure Code. Said
complaint was filed against eight accused persons with
the allegations that they had committed decoity and
taken away with them one new Tata Sumo vehicle which
was yet to be given registration number and, at the time
of commission of the offence accused named therein
used the vehicle Premier NE138 MH-17/K-1111. On
8.1.2005 police of Police Station of Shrirampur who has
6 CRI APPLN NO.1366.2005.odt
registered the crime No.M-5/2005 on the basis of the
directions given by the Court as aforesaid, further
directed the present petitioner no.1 to carry out
investigation in the said crime. During the course of
investigation of the said crime, petitioner no.1 had
carried out spot panchnama dated 8.1.2005 and also
recorded the statements of certain witnesses from
8.1.2005 to 11.1.2005. On 12.1.2005 petitioner no.1 had
seized the said vehicle Premier NE138 MH-17/K-1111
under the panchnama. In the said panchnama,
reference has been given to present respondent no.2-
original complainant. It has also mentioned in the
panchnama that, the purpose for the seizure of the said
vehicle was disclosed to respondent no.2-original
complainant Raju Shelar and, accordingly, the vehicle
was seized. Thereafter, on the same day, since vehicle
was seized within the jurisdiction of Police Station,
Rahuri, petitioner no.1 reported said seizure to P.I. of
the said Police Station, Rahuri. On 14.1.2005, petitioner
No.1 has submitted report before the Judicial Magistrate
First Class, Shrirampur, wherein, he has pointed out
seizure of the said car and, further sought time to
7 CRI APPLN NO.1366.2005.odt
submit the final report in the said case. However,
on14.1.2005 itself, the complainant in that case namely
Dattatraya Mhetre and others withdrawn the complaint
in view of the settlement with the accused persons.
Even, said complainant had filed an application before
the Court seeking custody of the vehicle Tata Sumo
seized during the course of the investigation of the said
crime and, the court has released the said vehicle since
the complainant withdrew his complaint. Present
petitioner no.1, in response to release of the said vehicle
Tata Sumo also informed to the Court on 19.1.2005 that
Investigating officer has no objection if the vehicle Tata
sumo is released in favour of said Dattatraya Mhetre,
however, in the said report petitioner no.1 also sought
orders of the court about disposal of the vehicle Premier
NE 138 MH-17/K-1111.
8. In a complaint filed by respondent no.2, the
learned Magistrate has directed the police investigation
as provided under section 156 (3) of Cr.P.C. and
assistant Police Inspector on 9.2.2005 submitted the
report alongwith all aforesaid documents including
8 CRI APPLN NO.1366.2005.odt
statements of the witnesses recorded by him. Said
Assistant Police Inspector has also recorded statement
of two persons of Khandelwal family namely Vitthal and
Rajkumar Khandelwal. They have specifically stated
before the Investigating officer that, when they were in
the said car Premier-NE 138 MH-17/K-1111, the
petitioners came there in another jeep and seized said
vehicle by disclosing that said vehicle was used in the
commission of offence of decoity and as directed by the
court they are carrying out investigation and, therefore,
vehicle Premier NE 138 MH-17/K-1111 is required to be
seized.
9. Even though all those documents including the
statements of witnesses were produced before the
Magistrate, the Magistrate instead of considering the
said documents, incorrectly recorded in paragraph no.2
of the order that, there is absolutely nothing on record
to show that concerned Shrirampur Police Station have
reported the Court at Shrirampur about seizure of the
Car from the possession of the complainant. Aforesaid
documents though produced before the Magistrate or
9 CRI APPLN NO.1366.2005.odt
even before this court are the unassailable and
unimpeachable documents which is the part of the
record of the Police Station as well as of the Court, the
same requires consideration. Thus, the act complained
has nexus with the official duties performed by the
petitioners herein. Thus, the sanction as required
under section 197 of the Cr.P.C. is essential and
Magistrate cannot take cognizance without there being
any sanction to prosecute the petitioners in light of the
allegations made in the complaint.
10. In the case of D.T. Virupakshappa Vs. C.
Subash Criminal appeal No. 722 of 2015, delivered
on 27.04.2015 by Supreme Court, the Supreme Court
in para 6 of the said order has referred the case of
Omprakash and others vs. State of Jharkhand,
through the Secretary, Department of Home, Ranchi
1 and another and quoted paragraph 41 of the said
judgment. Paragraph no.41 read as under:-
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.
10 CRI APPLN NO.1366.2005.odt
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. ..."
11. In Pepsi Foods Ltd. Vs. Special Judicial
Magistrate (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 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
11 CRI APPLN NO.1366.2005.odt
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
accused."
12. In view of the above discussion and ratio laid down
by the Supreme Court in the above judgments, the order
passed by the Judicial Magistrate First Class, Court
No.3, Ahmednagar dated 28.3.2005 does not stand.
Hence, I proceed to pass the following order.
O R D E R
I. Criminal Application is hereby allowed
in terms of prayer clauses "B and B(1)".
II. Rule is made absolute in above terms.
III. Criminal Application accordingly
disposed off.
( V.K. JADHAV, J. )
...
aaa/-
