Bombay High Court
Rajesh Rangnathrao Joshi And Ors vs Mazharkhan Jafarkhan Pathan on 30 November, 2016
Bench: V.K. Jadhav
1 CRI APPLN NO.1117.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1117 OF 2007
1. Rajesh S/o Rangnathrao Joshi,
Age. 39 years, Occ. Service,
Presently working as Tahasildar (Revenue),
Divisional Commissioner Office, Aurangabad.
2. Vishnu Gajba Patil,
Age. 60 years, Occ. Retired as Circle Officer,
R/o. Bhagyanagar, Old Jalna,
Tq. & Dist. Jalna.
3.
Rajendra Piraji Bagde,
Age. 41 years, Occ. Service,
Presently working as Talathi,
R/o. Priyadarshini Colony,
Jalna. ...PETITIONERS.
Versus
Majharkhan Jafarkhan Pathan,
Age. 45 years, Occ. Business,
R/o. Afgan Mohalla, Old Jalna. ...RESPONDENT.
...
Advocate for Applicants : Mr S V Kurundkar
Advocate for Respondent : Mr Joydeep Chatterjee
...
CORAM : V.K. JADHAV, J.
Dated: November 30, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the order of issuance of process
passed by the Judicial Magistrate First Class, Jalna
dated 28.06.2005 for the offence punishable under
sections 466, 474, 420, 506 (II) of Indian Penal Code and
2 CRI APPLN NO.1117.2007.odt
the order dated 2.9.2006 rejecting thereby the
application for discharge filed by applicant/orig
applicant no.1, the applicants/original accused
preferred this criminal application.
2. Brief facts, giving rise to the present criminal
application are as follows :-
Respondent-original complainant has filed a
private complaint bearing RCC No.97/2005 before the
Judicial magistrate First Class, Jalna against the
present applicants and his own brother accused no.4,
who is presently no more for having committed an
offence punishable under section 466, 472, 474, 420,
425, 504, 506 of Indian Penal Code. It has alleged in
the complaint that, respondent-complainant and his
relatives purchased the land survey no.529 to the extent
of 81R and survey no.532 to the extent of 16.80R jointly
on 15.12.2000 and accordingly, Mutation No.3019 was
sanctioned. Further, the complainant had purchased
the land survey no.532 to the extent of 19R
independently and separate mutation entry no.3796
was sanctioned. Thus, the respondent-complainant is
3 CRI APPLN NO.1117.2007.odt
owner jointly and independently of land survey no.532
and 529 as aforesaid. It has further alleged in the
complaint that, after purchasing the land, the
complainant kept aforesaid land without cultivation.
Said land is surrounded by the residential houses and
plots and thus it was not possible for the respondent-
complainant to cultivate the said lands. It has further
alleged in the complaint that, on certain dates the spot
inspection was done at the instance of original accused
no.4, who is brother of respondent-complainant. Even
though, said lands were kept without cultivation, on the
basis of certain false documents, present applicants-
accused in collusion with the original accused no.4
showed him in possession of said land and accordingly
committed the offence as alleged in the complaint. On
the basis of these allegations, learned Magistrate has
directed the police report as provided under section 202
of Cr.P.C. On perusal of the verification statement and
report of the police station, the learned Magistrate by
impugned order dated 16.03.2005 issued process
against the applicants-accused for the offence
punishable under section 466, 474, 420, 506 (II) of
4 CRI APPLN NO.1117.2007.odt
Indian Penal Code. Furthermore, in response, to the
said process, the petitioner-original accused no.1
appeared and filed his application for discharge.
Learned Magistrate by impugned order dated 2.9.2006
rejected the said application. Hence, this criminal
application.
3. The learned counsel for the applicants/original
accused submits that, the applicant-accused no.1 is
working as Tahsildar and applicant no.2 is working as
circle officer and applicant no.3 was working as Talathi
at the relevant time. On the basis of the application
submitted by the original accused no.4, who happened
to be a real brother of the respondent-complainant, the
applicant-original accused no.1 being Tahsildar has
directed the inquiry into the matter and accordingly
applicants-accused nos.2 and 3 visited the disputed
land, and after conducting the panchnama submitted
report to applicant no.1-Tahsildar to the effect that
aforesaid lands are under cultivation and original
accused no.4 had cultivated the said land in the year
2003-2004. Learned counsel submits that, being
5 CRI APPLN NO.1117.2007.odt
aggrieved by the same, respondent-complainant has
preferred appeal before Sub-Divisional Officer (Revenue),
Jalna, who by judgment and order dated 21.4.2006
dismissed the said appeal by confirming the order
passed by the present applicant no.1. Being aggrieved by
the same, respondent-complainant has preferred an
appeal before the Additional Collector, Jalna, who has
partly allowed the appeal and further remanded the
matter to the applicant no.1-Tahsildar by setting aside
the order dated 7.9.2004 passed by applicant no.1
Tahsildar. Learned counsel submits that, thus
respondent-complainant had instituted a R.C.S.
No.552/2004 in respect of the said lands for the decree
of perpetual injunction, however, said suit also came to
be dismissed by the Civil Court.
4. Learned counsel submits that, there is a
reasonable nexus between the act complained off and
official duties performed by the applicants. Learned
counsel submits that, in absence of any sanction as
contemplated under section 197 of the Cr.P.C.,
cognizance taken by the Magistrate is liable to be
6 CRI APPLN NO.1117.2007.odt
quashed and set aside, so also the order of issuance of
process passed against the applicants-accused.
5. Learned counsel in order to substantiate his
contentions places his reliance on the following
judgments :-
1. Union of India Vs. Prafulla Kumar Samal
reported in 1978 DGLS (SC) 318 : 1979 AIR (SC)
State of Orissa Through Kumar Raghvendra
Singh Vs. Ganesh Chandra Jew reported in 2004
DGLS (SC) 314.
3. D.T. Virupakshappa Vs. C. Subash reported
in 2015 DGLS (SC) 532 : 2015 AIR (SC) 2022.
4. Om Prakash and Others Vs. State of
Jharkhand Through the Secretary, Department of
Home, Ranchi 1 and Another reported in (2012) 12
SCC 72.
6. The learned counsel for respondent-original
complainant submits that the learned Magistrate while
rejecting the application for discharge has observed that
whether act complained off is done in official capacity or
not is a mixed question of fact and law and it can be
decided only after adducing evidence by the parties and
thus sanction under section 197 of Cr.P.C. is required to
7 CRI APPLN NO.1117.2007.odt
be taken or not also can be decided during the course of
the trial of the case. The learned counsel submits that,
in a case instituted otherwise than a police report, the
Magistrate if find that no case has been made out
which, if unrebutted, would warrant his conviction, then
the Magistrate can discharge the accused. In the
instant case, the allegations made in the complaint if
unrebutted, would certainly warrant conviction of the
applicants-accused. Learned Magistrate has, therefore,
rightly rejected the application for discharge.
7. Learned counsel submits that, the applicants-
accused have prepared false record in collusion with the
original accused no.4 and therefore sanction as required
197 of the Cr.P.C. is not required.
8. On careful perusal of the contents of the
complaint, it appears that, the applicant-original
accused no.1, who is Tahsildar, had initiated proceeding
on the basis of the application submitted by the original
accused no.4, who happened to be real brother of
respondent-complainant. It further appears from the
8 CRI APPLN NO.1117.2007.odt
contents of the complaint that, the applicant-original
accused nos. 2 and 3 visited the disputed lands and
drawn Panchnama in presence of the Panchas about
cultivation of the said land in the year 2003-2004. On
the basis of the report and the Panchnama as aforesaid,
the applicant-original accused no.1, who is Tahsildar
has passed the order in accordance with law. It is thus
clear that there is reasonable nexus between the act
complained off and the official duties performed by the
applicants.
9. In a case of Om Prakash and Others Vs. State of
Jharkhand Through the Secretary, Department of
Home, Ranchi 1 and Another (supra) relied upon by the
learned counsel for the applicants, in paragraph no.32
of the judgment the Supreme Court has made following
observations :-
"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
9 CRI APPLN NO.1117.2007.odt
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)
If the test as laid down are applied to the facts of
the instant case, it is clear that the act complained off
was integrally connected with or attached to office of the
applicants as to be inseparable from it.
10. In a case of State of Orissa Through Kumar
Raghvendra Singh Vs. Ganesh Chandra Jew (supra)
relied upon by the learned counsel for the applicants,
the Supreme Court held that, there cannot be any
universal rule to determine whether there is reasonable
connection between the act done and the official duty, nor
is it possible to lay down any such rule. One safe and
sure test in this regard would be to consider if the
omission or neglect on the part of the public servant to
10 CRI APPLN NO.1117.2007.odt
commit the act complained of could have made him
answerable for a charge of dereliction of his official duty,
if the answer to this question is in the affirmative, it may
be said that such act was committed by the public
servant while acting in the discharge of his official duty
and there was every connection with the act complained
of and the official duty of the public servant.
11.
In the instant case, the original accused has
submitted an application before the applicants-original
accused and accordingly, the applicant-accused no.1 in
the capacity of Tahsildar directed an inquiry into the
contents of the application. Applicants-original accused
nos. 2 and 3 accordingly visited the lands which was
subject matter of the said application and, when found
that land is under cultivation, original accused no.4 had
cultivated the said land in the year 2003-2004,
submitted report accordingly before the applicant-
accused no.1. If the applicant-accused no.2 has failed
to carry out any inquiry into the contents of the
application submitted by the original accused no.4, then
he would have been answerable to the charge of
11 CRI APPLN NO.1117.2007.odt
dereliction of his official duty. Furthermore, the first
appellate Court has also confirmed the order passed by
the applicant-accused no.1 though matter subsequently
remanded by the second appellate court on some
technical aspects.
12. The applicants have submitted certain documents
alongwith this application before this Court, however, in
view of the observations made by the Supreme Court in
a case of Om Prakash and Others Vs. State of
Jharkhand Through the Secretary, Department of
Home, Ranchi 1 and Another (supra) and also reiterated
in a case of D.T. Virupakshappa Vs. C. Subash (supra),
the court can look into any documents submitted at the
time of inception of the case raising point of sanction.
The Supreme Court has made following observations:-
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.
12 CRI APPLN NO.1117.2007.odt
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. Further, the respondents/original complainant
has contended in the complaint itself that he has
already filed application before the authority seeking
sanction to prosecute the applicants but no sanction is
accorded.
14. In view of the above, and the ratio laid down by the
Supreme Court and having regard to the facts and
circumstances of the case, the applicants-accused need
to be protected by invoking the provisions of Section 197
of Cr.P.C. In absence of any sanction as contemplated
under section 197 of Cr.P.C., issuance of process by the
Magistrate is liable to be quashed and set aside. Hence,
following order.
O R D E R
I. Criminal Application is hereby allowed in
terms of prayer Clause "B".
II. Rule is made absolute in above terms.
13 CRI APPLN NO.1117.2007.odt
III. Criminal Application accordingly disposed
off.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
