Bombay High Court
Ramesh Babulal Chaudhari vs The State Of Maharashtra And Anr on 27 September, 2016
Bench: V.K. Jadhav
1 Cri. W.P. 475/2007 - Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 475 OF 2007
Ramesh S/o Babulal Chaudhari
Age : 55 years, Occu.: Additional
Superintendent of Police,
Detective Training School at
Nashik, Dist. Nashik,
R/o 27, Rushikeshi Magh Sector,
Sundarban Colony, CIDCO,
Nashik, Dist. Nashik .. Petitioner
(Orig. Accused)
Vs.
1] The State of Maharashtra
2] Anandrao S/o Sadashivrao Pawar,
Age : 60 years, Occu.: Advocate,
R/o Parola, Tq. Parola,
Dist. Jalgaon .. Respondents
(R.No.2-Ori. Complainant)
----
Mr. V.R. Dhorde, Advocate h/f Mr. P.S. Dighe, Advocate for
the petitioner
Mr. A.R. Kale, APP for the respondent/State
Mr. R.M. Deshmukh, Advocate for respondent no.2
----
CORAM : V.K. JADHAV, J.
DATE : 27/09/2016
ORAL JUDGMENT :
By way of this Petition, the petitioner seeks
quashing of the criminal complaint bearing Summons Case
No.386 of 1989 pending on the file of learned Judicial
Magistrate First Class, Parola.
2 Cri. W.P. 475/2007 - Judgment
2. Brief facts giving rise to the present Criminal
Writ Petition, are as follows :-
. The petitioner was appointed as Police Sub
Inspector in the year 1973 and in the year 2007, he was
promoted to the post of Additional Superintendent of
Police and was posted at Detective Training School,
Nasik, District - Nasik. In the year 1989, he was
posted as Police Sub Inspector, Parola. He was required
to prepare report and submit the necessary documents
alongwith the report, to the Sub Divisional Magistrate
of that Division. On the basis of the record available
in the Police Station and produced before him by the
staff, the petitioner has submitted his report to the
Sub Divisional Officer. Respondent no.2 - original
complainant is a practicing lawyer at Parola. He was
also the then Deputy Chief of Shivsena Unit of that
area. The petitioner has prepared a report as far as
respondent no.2 is concerned and submitted report to the
Sub Divisional Magistrate, Amalner Division, Amalner.
The respondent no.2 - original complainant has filed the
present complaint bearing Summons Case No.386 of 1989
against the present petitioner, alleging therein that
the petitioner has prepared the false documents, so as
3 Cri. W.P. 475/2007 - Judgment
to initiate the enquiry and for taking action under
section 59 of the Bombay Police Act, externing the
respondent no.2 for certain period from that area.
It is alleged in the compliant that the petitioner has
committed offences punishable under sections 166 and 167
of the Indian Penal Code.
. On 20/9/1989, the learned Judicial Magistrate
First Class, Parola has issued the process for offence
punishable under section 167 of the Indian Penal Code.
The petitioner after his appearance before the learned
Magistrate, filed application exhibit 9, stating therein
that no sanction is taken before filing of the said
complaint and, therefore, the Magistrate should not have
taken cognizance of the said complaint. Furthermore,
the petitioner had approached this Court by filing
Criminal Application No.632 of 1990 and this Court by
order dated 2/12/1991, allowed the said Criminal
Application partly and directed the Magistrate, Parola
to decide the application at exhibit 9 in the pending
Summons Case No. 386 of 1989 and decide the question, as
to whether sanction under section 197 of the Code of
Criminal Procedure is necessary and whether the
prosecution is bad on account of not having been
4 Cri. W.P. 475/2007 - Judgment
instituted after obtaining any such sanction. Further,
liberty is also granted to the petitioner to challenge
the order of issuance of process after the question of
sanction is decided by the learned Judge while disposing
the application at exhibit 9.
. On 25/10/1994, the petitioner filed application
exhibit 75, contending therein that he is already
suffering from heart problem and, therefore, he should
be exempted from appearing in the Court. The learned
Magistrate has allowed the said application and granted
exemption to the petitioner from his attendance before
the Court till the application exhibit 9 is disposed of.
However, in the year 2006, the respondent no.2 submitted
an application before the learned Magistrate contending
therein that the petitioner is not appearing in the
Court and is prolonging the matter. The learned
Magistrate passed the order on the said application on
23/3/2006 and cancelled the exemption and issued summons
to the petitioner. Thus, the petitioner has approached
to this Court by filing the present Criminal Writ
Petition.
5 Cri. W.P. 475/2007 - Judgment
3. Learned counsel for the petitioner submits that
being aggrieved by the order of issuance of process, the
petitioner chose to file application exhibit 9 before
the learned Magistrate, contending therein that though
the sanction is required, the complaint is filed before
the Court without obtaining the sanction from the
competent authority and further also approached this
Court by filing Criminal Application no.632 of 1990,
challenging thereby the order of issuance of process
passed against him by the learned Magistrate. The
learned counsel submits that the respondent no.2 -
original complainant, who is lawyer by profession,
submitted the application before the competent authority
for sanction to prosecute the petitioner and the
competent authority i.e. Deputy Inspector General of
Police, by communication dated 29th May, 1980 informed to
the respondent no.2 that sanction to prosecute the
petitioner has been refused vide order dated 18 th April,
1990.
4. Learned counsel for the petitioner submits that
even though the respondent no.2 was a party to Criminal
Application no.632 of 1990 before this Court, the
respondent no.2 - original complainant has suppressed
6 Cri. W.P. 475/2007 - Judgment
this material fact from this Court. Consequently, this
Court has passed the order on 02/12/1991, as referred in
the foregoing paragraphs. If the respondent no.2 -
original complainant would have pointed out the said
refusal of sanction to this Court, then this Court would
not have directed the learned Magistrate to decide the
application at Exhibit 9.
5. Learned counsel for the petitioner submits that
it is alleged in the complaint that the proposal for
initiation of the externment proceedings was sent by the
petitioner to the Sub Divisional Officer of Amalner
Division, Amalner, wherein false information is
furnished. It is alleged in the compliant that even
though the Criminal Case no. 77 of 1984 is shown
pending, no report was submitted by the petitioner,
however, the said case was disposed of by the Court in
the year 1985 itself. It is also alleged in the
compliant that the chapter case referred in the said
proposal of externment, the name of respondent no.2 is
not appearing. Learned counsel further submits that
though the case came to be disposed of by the Court, it
was shown pending in the record of the Police station
and on the basis of the information collected by the
7 Cri. W.P. 475/2007 - Judgment
staff, the petitioner had submitted the proposal to the
Sub Divisional Officer. Furthermore, on the basis of
his proposal, the Sub Divisional Officer has issued
notice to the respondent no.2. Learned counsel further
submits that the allegations made in the complaint are
in respect of the petitioner in discharge of his
official duty. There is a reasonable and rational nexus
between the act complained and his official duty. Even
though the said proposal may contain some factually
incorrect information, however, it cannot be forgotten
that the petitioner was discharging his official duties
in submitting the said proposal to the Sub Divisional
Officer and it is for the Sub Divisional Officer to
consider the said proposal either in positive manner or
in the negative manner. The petitioner has no authority
to pass externment order against the respondent no.2 or
any other person. Consequently, the sanction is
required for prosecution of the petitioner and
respondent no.2, being a lawyer, had also opted for the
same, by submitting an application before the competent
authority.
6. Learned counsel for the petitioner by pointing
out Roznama dated 13/4/1993, submits that the learned
8 Cri. W.P. 475/2007 - Judgment
Magistrate heard the application exhibit 9 however kept
the said application pending at the request of
respondent no.2 - original complainant for the reason
that the respondent no.2 - original complainant made
submission before the Magistrate that the Bar Council of
Maharashtra had taken initiative to challenge the
externment proceedings against him and he wanted to
produce copy of the said petition before the Court.
Thereafter, respondent no.2 - original complainant did
not bother to submit the said copy before the Court and
the learned Magistrate has also not decided the
application exhibit 9 since the proceedings of the said
case were stayed by this Court in this Criminal Writ
Petition. Learned counsel further submits that the
learned Magistrate for no reason, cancelled the
exemption granted earlier to the petitioner and further
issued summons against him without passing any order on
the application exhibit 9. It is pertinent that the
respondent no.2 - original complainant had submitted an
application before the learned Magistrate for
cancellation of the exemption granted to the petitioner
herein/original accused and on his application, the
learned Magistrate has passed such an order.
9 Cri. W.P. 475/2007 - Judgment
7. Learned counsel for the petitioner further
submits that in the given set of facts and
circumstances, the complaint is liable to be dismissed
for want of sanction. Further, the said case is pending
since the year 1989 and it is almost a stale case
without any progress. The learned Magistrate has not
bothered to decide the application exhibit 9 for many
years. There is no point in sending the matter back,
directing the learned Magistrate to decide the
application exhibit 9 now. Respondent no.2 - original
complainant had suppressed the material facts before
this Court and even before the learned Magistrate that
the sanction to prosecute the petitioner had been
refused by the competent authority. Even the respondent
no.2 - original complainant has not bothered to file his
reply to application exhibit 9.
8. Learned counsel for the petitioner submits that
the petitioner was 55 years of age when he filed the
present criminal writ petition. Till this time, he must
have been retired from the service. Even though, if he
is retired, he cannot be prosecuted or the Magistrate
cannot proceed with the trial of the case for the reason
that the sanction to prosecute the petitioner has been
10 Cri. W.P. 475/2007 - Judgment
earlier refused when the petitioner was in office.
9. Learned counsel for the petitioner, in order to
substantiate his contention, placed reliance on the
following cases :-
1) Abdul Wahab Ansari Vs. State of Bihar and
anr. reported in 2001 ALL MR (Cri) 183 (S.C.)
2) Gauri Shankar Prasad Vs. State of Bihar and
Anr. reported in 2000 ALL MR (Cri) 1691 (S.C.)
3) Chittaranjan Das Vs. State of Orissa
reported in AIR 2011 S.C. 2893
4) Louis Peter Surin Vs. State of Jharkhand
reported in AIR 2011 SC (Supp) 189
10. Learned counsel for respondent no.2 - original
complainant submits that the respondent no.2 - original
complainant was lawyer by profession and the petitioner
with certain false information, submitted the proposal
of externment against the practicing lawyer. The
petitioner deliberately submitted the said proposal to
Sub Divisional Officer, Amalner with some ulterior
motive. The petitioner has therefore committed the
11 Cri. W.P. 475/2007 - Judgment
offence for which the sanction under section 197 of the
Code of Criminal Procedure is not required. Learned
counsel further submits that application exhibit 9 is
still pending before the Magistrate and by directing the
Magistrate to decide the application exhibit 9, in a
time bound manner, this Writ Petition can be disposed
of.
11. Respondent no.2 - original complainant, though
received the communication in the year 1990 itself from
the competent authority that his application seeking
sanction to prosecute the petitioner has been turned
down, suppressed this material fact when this Court
heard Criminal Application No.632 of 1990 on merits.
Even the petitioner being a lawyer, understood the
importance of sanction when the act alleged against the
petitioner had nexus with his official duties and,
therefore, submitted the application before the
competent authority seeking sanction to prosecute the
petitioner. Even otherwise, it was part of the official
duty of the petitioner to submit such type of proposal
to the Sub Divisional Officer of that region and it was
for the Sub Divisional Officer to take appropriate
decision in the matter. The petitioner might have
12 Cri. W.P. 475/2007 - Judgment
submitted inaccurate information in the said proposal,
however, the said externment proceedings could have been
decided by the Sub Divisional Officer only after giving
notice to the respondent no.2 herein. Thus, in the
given set of facts, it is manifest that the sanction, in
all probability was required for prosecuting the
petitioner.
12. In the instant case, I am shocked by observing
the conduct of the learned Magistrate. I do not
understand, as to why the application exhibit 9 was kept
pending for many years even though this Court has
directed the learned Magistrate way back in the year
1991 to decide the application exhibit 9. In the
present Writ Petition, this Court in the year 2007, by
way of interim order, stayed the further proceedings of
the case. Inspite of such order being passed, it is
surprising that the learned Magistrate has not decided
the application exhibit 9 for the reason best known to
him. It appears from the certified copy of the roznama,
particularly dated 13th April, 1993 that in the year 1993
itself, the learned Magistrate heard the submissions of
both the parties and, thereafter, adjourned the matter
at the request of the present respondent no.2 for
13 Cri. W.P. 475/2007 - Judgment
submitting certain documents on record. In view of
this, it is futile exercise to send the matter back by
directing the learned Magistrate to decide the
application exhibit 9 in the backdrop of the fact that
respondent no.2 - original complainant has suppressed
the material facts before this Court in Criminal
Application No.632 of 1990 and even thereafter, did not
bring the said fact of refusal of sanction by the
competent authority, to the notice of the learned
Magistrate.
13. In view of the above discussion, and in view of
the ratio laid down by the Supreme Court in the cases of
Abdul Wahab Ansari Vs. State of Bihar and anr. reported
in 2001 ALL MR (Cri) 183 (S.C.) and Gauri Shankar Prasad
Vs. State of Bihar and Anr. reported in 2000 ALL MR
(Cri) 1691 (S.C.) (cited supra), the complaint bearing
Summons Case No. 386 of 1989 is liable to be quashed and
set aside.
14. Accordingly, I proceed to pass the following
order :-
14 Cri. W.P. 475/2007 - Judgment
ORDER
I) Criminal Writ Petition is allowed in terms of
prayer clause (B).
II) Rule is made absolute in the above terms.
15. Criminal Writ Petition is accordingly disposed
of.
[V.K. JADHAV]
JUDGE
arp/
